How much money was awarded in case 5438119?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5438119?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 5438119?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13291554-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 5438119?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5438119?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 5438119?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13291554-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5438119 — Exemplary damages

Q: What was Tenancy Tribunal case 5438119 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants and the Landlord’s name and identifying details.
The Tribunal declares that it has jurisdiction to determine the landlord’s application.
The application for termination and possession is dismissed.
The application for exemplary damages for failure to quit is dismissed.
The carport is for the exclusive use of the occupant(s) of the main house. All the respondents’ belongings must be removed from the carport by 11:59pm on Tuesday 17 March 2026.
The respondents’ must park their vehicles next to the main house or beside the carport and must not store any of their belongings in the carport or use it for any purpose.
The gates to the premise must only be locked at night, after 8:00pm.
The parties have agreed that the landlord will issue a 90-day termination notice today and the tenants have accepted that this notice will be given to them today and have agreed to move out of the premise on Sunday 14 June 2026.

Reasons

Both parties attended the hearing on 16 March 2026.
The landlord applied for a declaration as to jurisdiction, a declaration about whether the carport is included in the tenants’ tenancy, termination of the tenancy, possession, compensation, exemplary damages, and reimbursement of the filing fee.
The tenants have raised counterclaims in their submissions for, compensation and exemplary damages for retaliatory notice, failure to lodge the bond, failure to ensure the tenancy agreement contained the statutorily required information. I have confirmed the tenants need to make a separate application with Tenancy Service to have these claims heard by the Tenancy Tribunal. Jurisdiction
The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 (“RTA”) applies.
The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on [the landlord].
Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.
Section 2 RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises;
Section 4 RTA provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the RTA are contained in section 5. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. Separate household units
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”. A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”.
The Tenancy Tribunal deals predominantly with household units (except for boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis, Tan and Caroto [2021] NZHC 1265.
In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
Analysing the actual situation, the Tribunal determined that the RTA did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision. Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
The self-contained nature of the granny flat was decisive in Harding v Shellevis. However, even where there is some shared use of facilities, such as a toilet or shower, the Act may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non- exclusive use of the tenant. A couple of older Tribunal authorities illustrate this principle.
In Whitelock v McConway (Tenancy Tribunal Blenheim, 13 July 1995) the tenant occupied a sleepout a couple of meters from the main home occupied by the landlord. This comprised a bedroom, shower, toilet, and wash house attached to the garage. The tenant used a shared kitchen to prepare his breakfast and lunch.
Evening meals were mainly provided by the landlord. The landlord regarded the tenant as a boarder with free access to the facilities in the home.
The tenant was sharing kitchen, bathroom and laundry facilities with the landlord.
The Tribunal held that the area occupied by the tenant was part of the family home, because it did not have separate cooking facilities and contained the only shower and laundry. The tenant’s room was part of the landlord’s home and was excluded from jurisdiction pursuant to section 5(1)(n) RTA.
In Barnett v Dempsey (Tenancy Tribunal Auckland, 13 June 2003, TT 790/03) the tenant lived in a room in a converted garage a few meters from house occupied by the landlord and her daughter. The tenant had a fridge and a cooktop. The tenant had to wash his dishes in the kitchen of the house. He had a key to gain access to the house to use the shower and toilet. The tenant only used the lounge in the house when invited to do so by the landlord.
The Tribunal held that, despite the sharing of facilities, the RTA was not excluded.
The tenant’s room comprised “premises” for the purpose of the RTA: “That the premises did not have their own toilet and washing facilities is not...fatal to their [sic] being “premises” because the definition of “facilities” in the Act appears to envisage a situation where other facilities are to be provided to the tenant by the landlord “for the use and enjoyment of the tenant, otherwise than as a part of the premises that are the subject of the agreement”, such as toilet and washing facilities...”.
These decisions were decided on their own facts. But they show that the Tribunal is sometimes required to assess whether the extent of shared facilities or spaces means the living arrangements are to be properly characterised as a tenancy, or as a flat share (or boarding) arrangement. Analysis
The parties described the sleep out as: a. Fully self-contained, with its own kitchenette and bathroom facilities; b. The tenants have their own washing machine, and sometimes use the laundromat; c. The tenants have no right to access the main house and do not have a key to the main house; d. The tenants do not share any facilities with the occupants of the main house; e. The tenants do not share meals with the occupants of the main house; f. The tenants have their own separate entry and exit to the sleepout. They do not share a common entry and exit with the landlord; and g. The landlord includes power, water and internet in the rent as there is only one water and power meter.
The occupants of the main house rent the entire premise from the owner and have sub-let the sleep out to the tenants, pursuant to a sleep out agreement, that does not accurately record the real nature of the relationship. This agreement reflects more of a flat sharing arrangement, but the real nature of the relationship is a residential tenancy, for the reasons set out below.
In the circumstances of this case and the living arrangements as outlined by both parties at the hearing, I find that the [respondent] meets the definition of a landlord, in that he has leased residential premises to the [tenants] in consideration of rent.
[The tenants] fall within the definition of being tenants, given that they are the grantee of residential premises. [The tenants] have the exclusive right to occupy the sleepout based on the payment of rent. No other person(s) occupies the sleepout or is entitled to occupy that area.
The landlord says the parties intended it to be a flat sharing arrangement as is evidenced by the signed sleep out agreement (Agreement). The parties’ intent is not determinative of the nature of the relationship, although it is one of the factors I can take into account when determining the true nature of the relationship.
The evidence establishing a flatmate arrangement falls well short. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case, exclusive occupation of the sleep out) rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord. This is not a case where the tenants were only residing in the sleepout by way of licence. They have exclusive rights to occupy the sleepout.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. The court held that: “...the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord. “By ‘flatmate’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
There was no evidence [the tenants] had access to shared or common areas (including cooking) in the main house or that the tenants had a right to occupy areas used by the landlord, other than access to and use of the entire yard. There was no evidence of a co-operative arrangement between the parties’ sharing facilities in this case, such that a flatting arrangement might exist. The landlord confirmed he and the tenants hardly spoke to one another, let alone share facilities, and that they have always lived independently of each other.
The evidence supports a finding that the tenants are renting a separate self- contained unit with cooking, laundry and bathroom facilities.
As noted above, even if there was some shared use of facilities, such as the main house’s kitchen, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the nonexclusive use of the tenant.
In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the RTA is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
The Court has previously determined in Kahi v Lucus HC Auckland, 81/96, 23 September 1996 and Harding v Schellevis & Ors that there can be a separate premises within a larger premises. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
This is one property, and there are two separate and distinct households within that property. The tenants have their own separate premise (with its own separate entrance and exit) that was not shared with the landlord.
There are two separate premises, each with exclusive possession, rather than a sharing of the main house and its facilities.
I find that there was a residential tenancy of the granny flat to which the RTA applies. This was not a flatmate sharing arrangement. The jurisdiction of the Tribunal is not excluded by section 5 RTA.
That said, I am mindful that this arrangement is not what [the landlord] anticipated at the time of renting the premise to [the tenants] and this will mean that [the landlord] must manage the tenancy somewhat differently to what he would have had I found this to be a flatmate situation. LANDLORD’S CLAIMS

Who has exclusive use of the carport?

The tenants claim they have exclusive use of the carport as part of their tenancy. The landlord refutes this claim.
The parties confirmed that the disagreement between the parties about the carport has led to the breakdown in the relationship and led to what the tenants claim is a retaliatory termination notice.
The tenants confirm they have taken the wording in the Agreement “parking inside the compound” to mean that they have exclusive rights to the carport as it is attached to the sleepout.
The landlord states that he was clear with the tenants, when they viewed the sleepout, that they could park inside the grounds of the property but not in the carport. The tenants deny this and say they would not have rented the sleepout if they were not able to use the carport.
The tenants also confirm they took advice from the local council that the sleepout and carport structures are one structure, separate from the main house, and the tenants have taken that to mean they rent the entire structure and not just the sleepout.
If the landlord intended to grant the tenants exclusive rights to the carport, it would have appeared in the Agreement the parties signed, and it does not.
Parking inside “the compound” does not give the tenants exclusive rights to the carport as the landlord states there is no separate “compound”. The premise is set on one piece of land, to which both parties have shared access. The landlord had retained exclusive rights to occupy the carport and the main house.
The landlord says the tenants began using the carport when he was away and have refused to cease using it. He states that he is happy for the tenants to park anywhere else on the property so long as they are not blocking the driveway or access to the carport.
I find that, on the balance of probabilities, the carport is for the exclusive use of the occupant(s) of the main house and therefore: a. All the respondents’ belongings must be removed from the carport by 11:59pm on Tuesday 17 March 2026; b. The tenants must park their vehicles next to the main house or beside the carport or elsewhere on the property (except for in the carport); and c. The gates to the premise must only be locked at night, after 8:00pm.

Should the tenancy be terminated?

[The landlord] claims the tenant did not vacate the at the end of the 14-day notice period in the 14 January 2026 termination notice.
A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.
I find that the tenants were issued with an unlawful 14-day termination notice.
The landlord was required to issue a 90-day termination notice, without cause (refer to s51(1) of the RTA), or a termination notice of 42 days if one off the s51(2) of the RTA reasons apply to this tenancy.
The landlord says he tried to renegotiate an extension of the unlawful notice, to 90 days from the date of issuance. However, an unlawful notice cannot be relied on, and a new lawful notice must be issued, unless the tenants have agreed to move out by consent, 90 days after the unlawful notice.
The tenants say they did not agree to move out by 14 or 23 Aril 2025 and will await a new lawful termination notice to be issued. They acknowledge that if the new 90-day termination notice is issued today they will have to vacate the premise on Sunday 14 June 2026 by 11:59pm.
The landlord has not provided the Tribunal with any evidence to justify the tenancy being terminated by it today and has not proved the tenants failed to quit the premise after receipt of the 14 January 2026 termination notice
The landlord’s claims for termination, possession, and exemplary damages for failure to quit after receiving lawful notice ae dismissed for lack of sufficient evidence to prove these claims on the balance of probabilities. Reimbursement of application fee
Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because [the applicant] has not wholly or substantially succeeded with their claims, I dismiss his application for reimbursement of the filing fee. Name suppression
The landlord applies for non-publication of his name and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The landlord has not substantially or wholly succeeded in his proceedings. However, I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
I am also using the Tribunal’s discretion to grant the tenants name suppression, as their tenancy will end in 90 days and publication of their names and identifying details may make it difficult for them to obtain a new tenancy.
Non-publication of the landlord and the tenants names and identifying details is ordered.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants and the Landlord’s name and identifying details.

The Tribunal declares that it has jurisdiction to determine the landlord’s application.

The application for termination and possession is dismissed.

The application for exemplary damages for failure to quit is dismissed.

The carport is for the exclusive use of the occupant(s) of the main house. All the respondents’ belongings must be removed from the carport by 11:59pm on Tuesday 17 March 2026.

The respondents’ must park their vehicles next to the main house or beside the carport and must not store any of their belongings in the carport or use it for any purpose.

The gates to the premise must only be locked at night, after 8:00pm.

The parties have agreed that the landlord will issue a 90-day termination notice today and the tenants have accepted that this notice will be given to them today and have agreed to move out of the premise on Sunday 14 June 2026.

Reasons

Both parties attended the hearing on 16 March 2026.

The landlord applied for a declaration as to jurisdiction, a declaration about whether the carport is included in the tenants’ tenancy, termination of the tenancy, possession, compensation, exemplary damages, and reimbursement of the filing fee.

The tenants have raised counterclaims in their submissions for, compensation and exemplary damages for retaliatory notice, failure to lodge the bond, failure to ensure the tenancy agreement contained the statutorily required information. I have confirmed the tenants need to make a separate application with Tenancy Service to have these claims heard by the Tenancy Tribunal. Jurisdiction

The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 (“RTA”) applies.

The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on [the landlord].

Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.

Section 2 RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises;

Section 4 RTA provides that the RTA applies to every tenancy for residential purposes except as specifically provided.

The exceptions to the RTA are contained in section 5. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.

The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. Separate household units

As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.

One of the types of buildings categorised in the Building Act is called a “household unit”. A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”.

The Tenancy Tribunal deals predominantly with household units (except for boarding houses).

The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis, Tan and Caroto [2021] NZHC 1265.

In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).

However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).

Analysing the actual situation, the Tribunal determined that the RTA did apply and that the building consisted of two separate and distinct household units.

The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.

The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision. Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.

Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”

The self-contained nature of the granny flat was decisive in Harding v Shellevis. However, even where there is some shared use of facilities, such as a toilet or shower, the Act may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non- exclusive use of the tenant. A couple of older Tribunal authorities illustrate this principle.

In Whitelock v McConway (Tenancy Tribunal Blenheim, 13 July 1995) the tenant occupied a sleepout a couple of meters from the main home occupied by the landlord. This comprised a bedroom, shower, toilet, and wash house attached to the garage. The tenant used a shared kitchen to prepare his breakfast and lunch.

Evening meals were mainly provided by the landlord. The landlord regarded the tenant as a boarder with free access to the facilities in the home.

The tenant was sharing kitchen, bathroom and laundry facilities with the landlord.

The Tribunal held that the area occupied by the tenant was part of the family home, because it did not have separate cooking facilities and contained the only shower and laundry. The tenant’s room was part of the landlord’s home and was excluded from jurisdiction pursuant to section 5(1)(n) RTA.

In Barnett v Dempsey (Tenancy Tribunal Auckland, 13 June 2003, TT 790/03) the tenant lived in a room in a converted garage a few meters from house occupied by the landlord and her daughter. The tenant had a fridge and a cooktop. The tenant had to wash his dishes in the kitchen of the house. He had a key to gain access to the house to use the shower and toilet. The tenant only used the lounge in the house when invited to do so by the landlord.

The Tribunal held that, despite the sharing of facilities, the RTA was not excluded.

The tenant’s room comprised “premises” for the purpose of the RTA: “That the premises did not have their own toilet and washing facilities is not...fatal to their [sic] being “premises” because the definition of “facilities” in the Act appears to envisage a situation where other facilities are to be provided to the tenant by the landlord “for the use and enjoyment of the tenant, otherwise than as a part of the premises that are the subject of the agreement”, such as toilet and washing facilities...”.

These decisions were decided on their own facts. But they show that the Tribunal is sometimes required to assess whether the extent of shared facilities or spaces means the living arrangements are to be properly characterised as a tenancy, or as a flat share (or boarding) arrangement. Analysis

The parties described the sleep out as: a. Fully self-contained, with its own kitchenette and bathroom facilities; b. The tenants have their own washing machine, and sometimes use the laundromat; c. The tenants have no right to access the main house and do not have a key to the main house; d. The tenants do not share any facilities with the occupants of the main house; e. The tenants do not share meals with the occupants of the main house; f. The tenants have their own separate entry and exit to the sleepout. They do not share a common entry and exit with the landlord; and g. The landlord includes power, water and internet in the rent as there is only one water and power meter.

The occupants of the main house rent the entire premise from the owner and have sub-let the sleep out to the tenants, pursuant to a sleep out agreement, that does not accurately record the real nature of the relationship. This agreement reflects more of a flat sharing arrangement, but the real nature of the relationship is a residential tenancy, for the reasons set out below.

In the circumstances of this case and the living arrangements as outlined by both parties at the hearing, I find that the [respondent] meets the definition of a landlord, in that he has leased residential premises to the [tenants] in consideration of rent.

[The tenants] fall within the definition of being tenants, given that they are the grantee of residential premises. [The tenants] have the exclusive right to occupy the sleepout based on the payment of rent. No other person(s) occupies the sleepout or is entitled to occupy that area.

The landlord says the parties intended it to be a flat sharing arrangement as is evidenced by the signed sleep out agreement (Agreement). The parties’ intent is not determinative of the nature of the relationship, although it is one of the factors I can take into account when determining the true nature of the relationship.

The evidence establishing a flatmate arrangement falls well short. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case, exclusive occupation of the sleep out) rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord. This is not a case where the tenants were only residing in the sleepout by way of licence. They have exclusive rights to occupy the sleepout.

In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. The court held that: “...the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord. “By ‘flatmate’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”

There was no evidence [the tenants] had access to shared or common areas (including cooking) in the main house or that the tenants had a right to occupy areas used by the landlord, other than access to and use of the entire yard. There was no evidence of a co-operative arrangement between the parties’ sharing facilities in this case, such that a flatting arrangement might exist. The landlord confirmed he and the tenants hardly spoke to one another, let alone share facilities, and that they have always lived independently of each other.

The evidence supports a finding that the tenants are renting a separate self- contained unit with cooking, laundry and bathroom facilities.

As noted above, even if there was some shared use of facilities, such as the main house’s kitchen, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the nonexclusive use of the tenant.

In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the RTA is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.

The Court has previously determined in Kahi v Lucus HC Auckland, 81/96, 23 September 1996 and Harding v Schellevis & Ors that there can be a separate premises within a larger premises. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”

This is one property, and there are two separate and distinct households within that property. The tenants have their own separate premise (with its own separate entrance and exit) that was not shared with the landlord.

There are two separate premises, each with exclusive possession, rather than a sharing of the main house and its facilities.

I find that there was a residential tenancy of the granny flat to which the RTA applies. This was not a flatmate sharing arrangement. The jurisdiction of the Tribunal is not excluded by section 5 RTA.

That said, I am mindful that this arrangement is not what [the landlord] anticipated at the time of renting the premise to [the tenants] and this will mean that [the landlord] must manage the tenancy somewhat differently to what he would have had I found this to be a flatmate situation. LANDLORD’S CLAIMS

Who has exclusive use of the carport?

The tenants claim they have exclusive use of the carport as part of their tenancy. The landlord refutes this claim.

The parties confirmed that the disagreement between the parties about the carport has led to the breakdown in the relationship and led to what the tenants claim is a retaliatory termination notice.

The tenants confirm they have taken the wording in the Agreement “parking inside the compound” to mean that they have exclusive rights to the carport as it is attached to the sleepout.

The landlord states that he was clear with the tenants, when they viewed the sleepout, that they could park inside the grounds of the property but not in the carport. The tenants deny this and say they would not have rented the sleepout if they were not able to use the carport.

The tenants also confirm they took advice from the local council that the sleepout and carport structures are one structure, separate from the main house, and the tenants have taken that to mean they rent the entire structure and not just the sleepout.

If the landlord intended to grant the tenants exclusive rights to the carport, it would have appeared in the Agreement the parties signed, and it does not.

Parking inside “the compound” does not give the tenants exclusive rights to the carport as the landlord states there is no separate “compound”. The premise is set on one piece of land, to which both parties have shared access. The landlord had retained exclusive rights to occupy the carport and the main house.

The landlord says the tenants began using the carport when he was away and have refused to cease using it. He states that he is happy for the tenants to park anywhere else on the property so long as they are not blocking the driveway or access to the carport.

I find that, on the balance of probabilities, the carport is for the exclusive use of the occupant(s) of the main house and therefore: a. All the respondents’ belongings must be removed from the carport by 11:59pm on Tuesday 17 March 2026; b. The tenants must park their vehicles next to the main house or beside the carport or elsewhere on the property (except for in the carport); and c. The gates to the premise must only be locked at night, after 8:00pm.

Should the tenancy be terminated?

[The landlord] claims the tenant did not vacate the at the end of the 14-day notice period in the 14 January 2026 termination notice.

A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.

Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.

I find that the tenants were issued with an unlawful 14-day termination notice.

The landlord was required to issue a 90-day termination notice, without cause (refer to s51(1) of the RTA), or a termination notice of 42 days if one off the s51(2) of the RTA reasons apply to this tenancy.

The landlord says he tried to renegotiate an extension of the unlawful notice, to 90 days from the date of issuance. However, an unlawful notice cannot be relied on, and a new lawful notice must be issued, unless the tenants have agreed to move out by consent, 90 days after the unlawful notice.

The tenants say they did not agree to move out by 14 or 23 Aril 2025 and will await a new lawful termination notice to be issued. They acknowledge that if the new 90-day termination notice is issued today they will have to vacate the premise on Sunday 14 June 2026 by 11:59pm.

The landlord has not provided the Tribunal with any evidence to justify the tenancy being terminated by it today and has not proved the tenants failed to quit the premise after receipt of the 14 January 2026 termination notice

The landlord’s claims for termination, possession, and exemplary damages for failure to quit after receiving lawful notice ae dismissed for lack of sufficient evidence to prove these claims on the balance of probabilities. Reimbursement of application fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.

Because [the applicant] has not wholly or substantially succeeded with their claims, I dismiss his application for reimbursement of the filing fee. Name suppression

The landlord applies for non-publication of his name and identifying details.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

The landlord has not substantially or wholly succeeded in his proceedings. However, I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.

I am also using the Tribunal’s discretion to grant the tenants name suppression, as their tenancy will end in 90 days and publication of their names and identifying details may make it difficult for them to obtain a new tenancy.

Non-publication of the landlord and the tenants names and identifying details is ordered.

Tenancy Tribunal case 5438119 — Exemplary damages

At a glance

Claims & awards

Tenancy Tribunal case 5438119 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Who has exclusive use of the carport?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Who has exclusive use of the carport?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions