Tenantcheck Insights · Case study
Tenancy Tribunal case 5440550 — Boarding House
Decided 9 Jun 2026 · Published 9 Jun 2026 · Application 5440550
- Boarding House
Party names are redacted in the official published order. This page summarises the dispute only — not individual identities.
At a glance
Key facts from the published tribunal order.
Adjudicator
K Koller
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the names and identifying details.
- The Tenancy Tribunal does not have the jurisdiction to decide this application.
Reasons
- The owner of the premises attended the hearing.
- The owner has applied for orders relating to a person, [Ms X] who he agreed could stay in his house. She stayed there for 33 days. The house was undergoing a significant renovation, so the owner was not living there at the time. They signed a flatmate agreement. The matter has come to the Tenancy Tribunal for a decision on jurisdiction.
- The first issue I have to decide is whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
- Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent.
- In this case the owner allowed Ms X to live in a residential dwelling and she paid some rent. She had the exclusive use of a bedroom and an ensuite, and the shared use of the lounge, kitchen, other bathroom, and laundry. That sounds like a tenancy.
- Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family
- The exclusion in section 5(1)(n) RTA was considered by the District Court in Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36. The Judge in that decision considered tenancy premises where the owner lived in one bedroom and the other eight bedrooms were rented out to other people. Everyone shared the use of the kitchen, lounge, bathroom etc – the common areas. The focus in Musson was on the principal residence point. The issue was not whether this was the landlord’s main residence, but whether this house was being used mainly as a home or a business. The Court held that the exclusion at section 5(1)(n) of the RTA did not apply because the premises were not used principally as the landlord’s residence.
- The Court in Musson found the relevant question in cases like this is whether the principal use of these premises is as a place of residence by the landlord? The Judge said – [39] ... So the question to be asked is - Is the principal use of these premises as a place of residence by the landlord? [ 40] Put in this way, the clear answer, on the cases of both sides, is "no". Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson's use of the property being "principal", it was commensurate with that of the other occupants.
- [ 41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
- Applying the Musson decision to this living arrangement, Ms X had the exclusive use of a bedroom and ensuite and shared use of the house. The house was undergoing a renovation and the landlord was not living in the house when Ms X stayed there. Even so the owner retained control over two bedrooms and an ensuite, and had shared access to the rest of the house. It seems most likely to me the house was being used principally as a residence for the owner. I find the exclusion at 5(1)(n) RTA covers this living arrangement, which means I do not have the jurisdiction to decide this application.
- The owner has made an application for suppression. Section 95A RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, order that the name of a party not be published, having regard to the interests of the parties and to the public interest. I have used my discretion to suppress all names because the public interest is in the law and not the names.