What was Tenancy Tribunal case 5454469 about?

The tribunal order states: The Tenancy Tribunal does not have jurisdiction to determine the application.

How much money was awarded in case 5454469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5454469?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5454469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13239455-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5454469 about?

The tribunal order states: The Tenancy Tribunal does not have jurisdiction to determine the application.

How much money was awarded in case 5454469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5454469?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5454469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13239455-Tenancy_Tribunal_Order.pdf.

Room 3, 2B Terrace Avenue, Mount Maunganui, Mount Tenancy Tribunal Case 5454469 — Boarding House

Order

The Tenancy Tribunal does not have jurisdiction to determine the application.
The application is dismissed for want of jurisdiction.

Reasons

The hearing was conducted by video conference.
Ms Honore appeared by video.
Mr Kusabs was not familiar with the technology for joining the video conference, so I contacted him by telephone, and he attended the hearing by teleconference. Introduction
This is an application by the landlord, Ms Honore, seeking termination of the tenancy and compensation from the tenant, Mr Kusabs.
The notice of hearing directs that the Tribunal must first determine a jurisdictional issue before any substantive matters can be considered.
If the Residential Tenancies Act 1986 (the Act) does not apply to the arrangement between the parties, the Tribunal has no jurisdiction to determine the dispute.
The issue in this proceeding is whether the tenancy arrangement between Ms Honore and Mr Kusabs falls under one of the statutory exclusions. Specifically, the Tribunal must determine whether the exclusion in s 5(1)(n) of the Act applies.
Section 5(1)(n) 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 owner of the premises.
Where that exclusion applies the Tenancy Tribunal has no jurisdiction and disputes must instead be determined by the Disputes Tribunal.
The jurisdictional issue has previously arisen in relation to this same property.
On 26 March 2025, the learned Adjudicator Ms Harvey-Lane issued a decision involving another tenant at the same address. a. In that decision 1 the adjudicator determined that the Tenancy Tribunal had jurisdiction because the premises were not being used principally as the landlord’s residence but rather as a rental business. b. Ms Honore relies on that decision and submits that the same conclusion should be reached here.
However, I am not bound by another adjudicator's decisions. Each case must be determined on the evidence presented.
I must therefore determine the jurisdictional issue independently based on the facts of this case. Background
The property is owned by Ms Honore. The dwelling is a two-storey house containing five bedrooms. Three bedrooms are located on the upper level and two bedrooms are located on the lower level.
During the relevant period the premises were occupied by Ms Honore and several individuals who rented bedrooms within the house.
Mr Kusabs’ tenancy commenced on 25 October 2024 and ended on 27 February 2026. He occupied one of the upstairs bedrooms. 1 Honore v Jeffrey [2025] NZTT 5182812
Ms Honore also resided at the premises during the tenancy. She occupied the master bedroom located on the upper level. Other bedrooms were occupied by additional tenants.
The kitchen, bathroom and laundry facilities were shared by the occupants, including Ms Honore.
At the hearing Ms Honore confirmed that Mr Kusabs vacated the premises on 27 February 2026. Although the tenancy has now ended, the Tribunal must determine whether the Act applied during the tenancy period.
If the Act did not apply, the Tribunal did not have jurisdiction over the tenancy relationship. Evidence concerning the premises
Ms Honore gave evidence about the layout and use of the property. She confirmed that she resided in the master bedroom throughout the tenancy, with Mr Kusabs residing in a bedroom next to her. The master bedroom was significantly larger than the other bedrooms. Further details are: a. She estimated the master bedroom to be approximately 8 metres by 6 metres. b. The other bedrooms were approximately 3 metres by 3 to 3.5 metres. One of the downstairs bedrooms was approximately 7 metres by 5 metres. c. The master bedroom also had direct access to an outdoor porch. d. The porch overlooks Mount Maunganui and provides views toward the sea. e. The only direct access to that porch from inside the house is through the master bedroom. f. Other occupants could only access the porch by passing through Ms Honore’s bedroom. Ms Honore confirmed that such access occurred only with her consent. Without her consent, other occupants could not access the porch.
Ms Honore also controlled the garage. The garage door was operated by a remote control device held by Ms Honore.
While tenants occasionally stored items in the garage, access to the garage remained under Ms Honore’s control.
The shared areas of the house included the kitchen, bathroom, toilet and laundry. The shared facilities, like lounge furniture and a washing machine, were available to all occupants.
Utilities such as electricity and internet were in Ms Honore’s name.
Ms Honore explained that she previously supplied furniture for the shared areas and some bedrooms. Over time, some tenants brought their own furniture, and she sold or removed some items.
During the final months of the tenancy Mr Kusabs and another occupant occasionally cooked in their bedrooms rather than using the shared kitchen. However the shared kitchen remained available to all occupants.
Ms Honore also advised that approximately two weeks before the hearing she moved out of the master bedroom. She now resides in a camper van parked on the driveway of the property.
Ms Honore stated that she intends to rent the entire house in the future rather than continuing to occupy a room in the dwelling.
For the purposes of the jurisdictional issue the relevant period is the period during which Mr Kusabs occupied the premises. That is, between 25 October 2024 and 27 February 2026. The law
Section 4 of the Act provides that the Act applies to every tenancy for residential purposes except as specifically provided.
Section 5 sets out the circumstances in which the Act does not apply. Section 5(1)(n) excludes situations where the premises continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises. Where that exclusion applies, the Tribunal has no jurisdiction.
The interpretation of s 5(1)(n) has been considered in several cases. Musson v Dobrisek 2 a. In Musson, the District Court considered whether the Act applied to a large residential property where the owner occupied one room and permitted several other occupants to live in the house. The property was a substantial dwelling containing approximately nine bedrooms. The owner occupied one of those bedrooms while the remaining bedrooms were occupied by other residents who paid rent. b. The occupants each had exclusive use of their own bedrooms but shared the common areas of the house, including the kitchen and other living facilities. The owner argued that the occupants were merely “flatmates” and that the Act did not apply. The Court observed that the label “flatmate” does not determine the legal relationship between the parties and that the 2 Musson v Dobrisek (CIV-2006-032-36 16 February 2006, Judge Broadmore). true nature of the arrangement must be determined from the circumstances of the occupation. c. The Court then considered whether the exclusion in s 5(1)(n) applied. The Judge emphasised that the word “principally” in that provision refers to the main use of the premises rather than simply whether the landlord happens to live there. The relevant question was whether the principal use of the premises was as the landlord’s residence. d. On the evidence, the owner occupied only one bedroom while the other occupants used the remainder of the house in substantially the same way. The Court found that the owner’s occupation of the premises was functionally commensurate with that of the other occupants and that the property was not being used principally as the owner’s residence. e. In those circumstances, the Court concluded that the exclusion in s 5(1)(n) did not apply and that the Act governed the relationship between the parties. Harding v Caroto 3 f. In Harding, the High Court considered the interpretation of s 5(1)(n) of the Act in circumstances where tenants occupied a distinct area within a larger residential dwelling. The property was a two-level house containing six bedrooms. The landlord and her family generally occupied the upper level, which included four bedrooms, a kitchen, bathrooms and a living area. g. On the lower level of the house there was a separate area described as a “granny flat”. That area consisted of two bedrooms, a kitchenette, a bathroom, a laundry and a living room. The occupants who entered into occupation agreements with the landlord resided in this lower-level area. The living spaces used by the occupants were therefore functionally separate from those used by the landlord and her family. h. Although the entire structure formed part of a single building, the High Court emphasised that the occupiers of the granny flat had exclusive use of that part of the dwelling and that there were no communal living or shared spaces between them and the landlord’s family. The Court therefore regarded the granny flat as a separate residential unit within the building. i. In those circumstances the Court concluded that the relevant “premises” for the purposes of the Act was the self-contained granny flat rather than the entire house. Because that area was not used as the landlord’s 3 Harding v Caroto and Ors [2021] NZHC 1265. residence, the exclusion in s 5(1)(n) did not apply and the Residential Tenancies Act applied to the tenancy. Cavanagh v Jackson 4 j. In contrast, the High Court in Cavanagh considered a situation where the landlord and the occupants lived together within the same household. The property was a three-bedroom residential dwelling in Woolston. The landlord occupied one bedroom, another bedroom was occupied by a separate boarder, and the remaining bedroom was rented to the appellant. k. The occupants shared the common facilities of the house, including the kitchen, bathroom, living room and laundry. While each occupant had exclusive use of their individual bedroom, the shared areas of the house were available to all of them. The Court accepted that the occupants were living together in what was effectively a shared household arrangement. l. The tenant argued that the relevant “premises” was the bedroom that she occupied and that the landlord did not reside in that room. However, the High Court rejected that submission. The Court held that the tenancy extended to the shared use of the household facilities and therefore the relevant premises included the broader dwelling rather than only the bedroom. m. The Court concluded that the arrangement resembled a flatting situation where occupants lived together within the same residential household. Because the dwelling continued to be used principally as the landlord’s place of residence, the exclusion in s 5(1)(n) applied and the Residential Tenancies Act did not apply.
These authorities demonstrate that the application of s 5(1)(n) depends on the functional use of the premises, the nature of the living arrangements and the degree of control of the premises. Analysis
I begin by considering the earlier Tenancy Tribunal decision issued by the learned Adjudicator Ms Harvey-Lane. In that decision, the adjudicator concluded that the landlord occupied one of five bedrooms and shared the common areas equally with the other occupants. 4 Cavanagh v Jackson [2025] NZHC 1491.
On that basis the adjudicator found that the landlord’s use of the property was commensurate with that of the other occupants and that the premises were potentially principally used as a rental business.
I accept that the earlier decision by Adjudicator Ms Harvey-Lane involved the same property and a broadly similar arrangement. However, the evidence before me provides further detail about the nature of Ms Honore’s occupation.
In particular, the evidence concerning the master bedroom, the porch and the garage indicates that Ms Honore’s use of the premises differed from that of the other occupants. For instance: a. Ms Honore occupied the master bedroom which was substantially larger than the other bedrooms. b. The room had direct access to an outdoor porch overlooking Mount Maunganui. c. Access to the porch from inside the house was through Ms Honore’s bedroom. d. Other occupants could only access the porch with Ms Honore’s consent. e. Ms Honore also retained control of the garage and the remote access device.
These features indicate that Ms Honore’s occupation was not simply equivalent to that of the other occupants. In my view, she occupied the master bedroom and exercised control over parts of the premises.
When the occupation is considered as a whole, the arrangement resembles a situation where a homeowner lives in the property and rents spare rooms to others. This type of arrangement is consistent with the situation described in Cavanagh where the landlord remained the primary resident of the household.
The fact that rooms were rented to other occupants does not necessarily mean that the premises were being used principally as a rental business.
The key question is the principal use of the premises.
During the tenancy with Mr Kusabs, the premises functioned as Ms Honore’s home, within which she permitted others to occupy bedrooms. I acknowledge that she has recently moved into a camper van and intends to rent the entire house in the future. However, the relevant period for the purposes of s 5(1)(n) is the period during the tenancy, and during that time, she resided in the master bedroom inside the dwelling, had exclusive access to the porch overlooking Mount Wanganui, and had sole access to the garage. Additionally, Ms Honore put a camper van on the driveway about 2 weeks before the hearing, which was in the last week of Mr Kusabs’ tenancy, as she pleased.
With these factors, the premises in my view were used principally as her place of residence during Mr Kusabs’ tenancy since Ms Honore’s use of the property in functional terms is not commensurate with that of other occupants. Distinguishing the authorities
I have considered the High Court decisions in Harding and Cavanagh.
Harding involved a self-contained living area occupied exclusively by tenants and separated from the rest of the house. In Harding, the Court concluded that the relevant premises were the self-contained unit rather than the entire dwelling.
The circumstances in the present case are different.
The tenants in this case did not occupy a self-contained part of the property. Instead, they occupied bedrooms within a shared household where facilities such as the kitchen, bathroom and lounge were shared.
The situation is therefore more consistent with the type of arrangement described in Cavanagh.
The reasoning in Musson is also instructive. In Musson, the Court concluded that the relevant premises were the self-contained unit rather than the entire dwelling. Musson emphasises that the key question is whether the landlord’s use of the premises is commensurate with that of the other occupants.
In the present case, Ms Honore’s occupation differed materially from that of the other occupants because she occupied the master bedroom and controlled access to parts of the property. She could decide how she utilises the property as she pleases.
For that reason, Musson does not lead to a different conclusion. Conclusion
I find that during the tenancy, the premises were used principally as a place of residence by Ms Honore.
The arrangement therefore falls within the exclusion contained in s 5(1)(n) of the Act. As a result, the Act does not apply to the arrangement between the parties.
The Tenancy Tribunal, therefore, does not have jurisdiction to determine the dispute.
The application is dismissed for want of jurisdiction.

Tenancy Tribunal case 5454469 — Boarding House at Room 3, 2B Terrace Avenue, Mount Maunganui, Mount

At a glance

Claims & awards

Tenancy Tribunal case 5454469 — Boarding House at Room 3, 2B Terrace Avenue, Mount Maunganui, Mount

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions