What was Tenancy Tribunal case 5473946 about?

The tribunal order states: The claim is struck out for want of jurisdiction.

How much money was awarded in case 5473946?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5473946?

The dispute type was not classified.

Where can I read the official tribunal order for case 5473946?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13745790-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5473946 about?

The tribunal order states: The claim is struck out for want of jurisdiction.

How much money was awarded in case 5473946?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5473946?

The dispute type was not classified.

Where can I read the official tribunal order for case 5473946?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13745790-Tenancy_Tribunal_Order.pdf.

9 Salas Place, Papakura, Papakura 2110 Tenancy Tribunal Case 5473946 — Tenancy dispute

Order

The claim is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The applicant, Oaks Property Management, seeks payment of water rates arrears from the respondent, Monte Cecilia Housing Trust.
The parties entered into a Deed of Lease dated 23 October 2018. Under that Deed, the lessor granted the lessee the right to occupy and use the premises for residential housing purposes and to enter into residential tenancy agreements with individuals who would personally reside at the property.
It is accepted that Monte Cecilia Housing Trust is a social housing provider. The Trust does not lease the premises for its own residential occupation. Rather, it leases the property for the purpose of providing accommodation to sub-tenants as part of its social housing operations.
Before considering the substantive claim, I must determine whether the Deed of Lease falls within the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 ("the Act"). 5473946 2
Section 5(1)(s) of the Act provides that the Act does not apply where a tenancy agreement is genuinely entered into to enable a tenant (the sub-landlord) to sublet the premises in order to provide accommodation for, among others, persons on low incomes, persons with special housing needs, or persons whose disabilities require support or supervision in their housing. The exclusion applies where the agreement is not entered into to provide accommodation for the sub- landlord personally or to evade the provisions of the Act, and where the agreement expressly provides that the sub-landlord will not personally occupy the premises.
The evidence before me establishes that Monte Cecilia Housing Trust leased the premises for the purpose of providing social housing to persons falling within the categories contemplated by section 5(1)(s). The Trust was not granted possession of the premises for its own occupation and does not personally reside at the property. The arrangement was genuinely entered into for the provision of social housing through sub-tenancies.
I therefore find, on its face, that the Deed of Lease is an excluded tenancy under section 5(1)(s) of the Act. Accordingly, the Residential Tenancies Act does not apply unless the parties have subsequently contracted back into the Act pursuant to section 8.
Section 8 of the Act permits parties to an excluded tenancy to agree that the Act will apply to their tenancy. Such an agreement must clearly demonstrate an intention that the Act govern the tenancy relationship and that the Tenancy Tribunal have jurisdiction to determine disputes arising under it.
I have considered the terms of the Deed of Lease to determine whether the parties contracted back into the Act. I find no provision expressly stating that the Residential Tenancies Act applies notwithstanding the exclusion created by section 5(1)(s), nor any provision expressly conferring jurisdiction upon the Tenancy Tribunal.
Oaks Property Management relies on clause 42 of the Deed, which provides: "Residential Tenancy Act 1986: Subject to the terms and covenants expressed in this lease, if a provision is not contained in this lease, then Residential Tenancies Act 1986 shall apply."
In my view, clause 42 is insufficient to contract the parties back into the Act for the purposes of section 8. The clause does not identify any specific provisions of the Act that are to apply. Nor does it expressly provide that the tenancy is to be governed by the Act despite the exclusion contained in section 5(1)(s). Most importantly, it does not confer jurisdiction upon the Tenancy Tribunal to hear and determine disputes arising under the Deed.
The clause appears instead to operate as a gap-filling provision intended to supplement the contractual terms of the lease where the parties have not 5473946 3 otherwise addressed a particular matter. Such wording falls short of the clear and unequivocal agreement required to bring an otherwise excluded tenancy within the scope of the Act.
I also note that the Deed of Lease contains provisions identifying the anticipated forum for dispute resolution between the parties. Those provisions contemplate that disputes arising under the Deed are to be determined through the Disputes Tribunal. This is consistent with the parties having understood that their arrangement fell outside the Residential Tenancies Act and outside the jurisdiction of the Tenancy Tribunal.
As the tenancy is excluded from the Residential Tenancies Act and the parties have not contracted back into the Act, the Tenancy Tribunal has no jurisdiction to hear or determine the applicant's claim.

Reasons

Both parties attended the hearing.

The applicant, Oaks Property Management, seeks payment of water rates arrears from the respondent, Monte Cecilia Housing Trust.

The parties entered into a Deed of Lease dated 23 October 2018. Under that Deed, the lessor granted the lessee the right to occupy and use the premises for residential housing purposes and to enter into residential tenancy agreements with individuals who would personally reside at the property.

It is accepted that Monte Cecilia Housing Trust is a social housing provider. The Trust does not lease the premises for its own residential occupation. Rather, it leases the property for the purpose of providing accommodation to sub-tenants as part of its social housing operations.

Before considering the substantive claim, I must determine whether the Deed of Lease falls within the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 ("the Act"). 5473946 2

Section 5(1)(s) of the Act provides that the Act does not apply where a tenancy agreement is genuinely entered into to enable a tenant (the sub-landlord) to sublet the premises in order to provide accommodation for, among others, persons on low incomes, persons with special housing needs, or persons whose disabilities require support or supervision in their housing. The exclusion applies where the agreement is not entered into to provide accommodation for the sub- landlord personally or to evade the provisions of the Act, and where the agreement expressly provides that the sub-landlord will not personally occupy the premises.

The evidence before me establishes that Monte Cecilia Housing Trust leased the premises for the purpose of providing social housing to persons falling within the categories contemplated by section 5(1)(s). The Trust was not granted possession of the premises for its own occupation and does not personally reside at the property. The arrangement was genuinely entered into for the provision of social housing through sub-tenancies.

I therefore find, on its face, that the Deed of Lease is an excluded tenancy under section 5(1)(s) of the Act. Accordingly, the Residential Tenancies Act does not apply unless the parties have subsequently contracted back into the Act pursuant to section 8.

Section 8 of the Act permits parties to an excluded tenancy to agree that the Act will apply to their tenancy. Such an agreement must clearly demonstrate an intention that the Act govern the tenancy relationship and that the Tenancy Tribunal have jurisdiction to determine disputes arising under it.

I have considered the terms of the Deed of Lease to determine whether the parties contracted back into the Act. I find no provision expressly stating that the Residential Tenancies Act applies notwithstanding the exclusion created by section 5(1)(s), nor any provision expressly conferring jurisdiction upon the Tenancy Tribunal.

Oaks Property Management relies on clause 42 of the Deed, which provides: "Residential Tenancy Act 1986: Subject to the terms and covenants expressed in this lease, if a provision is not contained in this lease, then Residential Tenancies Act 1986 shall apply."

In my view, clause 42 is insufficient to contract the parties back into the Act for the purposes of section 8. The clause does not identify any specific provisions of the Act that are to apply. Nor does it expressly provide that the tenancy is to be governed by the Act despite the exclusion contained in section 5(1)(s). Most importantly, it does not confer jurisdiction upon the Tenancy Tribunal to hear and determine disputes arising under the Deed.

The clause appears instead to operate as a gap-filling provision intended to supplement the contractual terms of the lease where the parties have not 5473946 3 otherwise addressed a particular matter. Such wording falls short of the clear and unequivocal agreement required to bring an otherwise excluded tenancy within the scope of the Act.

I also note that the Deed of Lease contains provisions identifying the anticipated forum for dispute resolution between the parties. Those provisions contemplate that disputes arising under the Deed are to be determined through the Disputes Tribunal. This is consistent with the parties having understood that their arrangement fell outside the Residential Tenancies Act and outside the jurisdiction of the Tenancy Tribunal.

As the tenancy is excluded from the Residential Tenancies Act and the parties have not contracted back into the Act, the Tenancy Tribunal has no jurisdiction to hear or determine the applicant's claim.

Tenancy Tribunal case 5473946 — Tenancy dispute at 9 Salas Place, Papakura, Papakura 2110

At a glance

Claims & awards

Tenancy Tribunal case 5473946 — Tenancy dispute at 9 Salas Place, Papakura, Papakura 2110

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions