What was the outcome of Tenancy Tribunal case 4642489?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4642489?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4642489?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 4642489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9352426-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4642489?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4642489?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4642489?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 4642489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9352426-Tenancy_Tribunal_Order.pdf.

Unit 202, 438 Queen Street, Auckland Central, Auckland Tenancy Tribunal Case 4642489 — Unit Titles

Order

The application is dismissed.

Reasons

Sandeep Mohandas attended the hearing for the applicant.
Waimaria Bidois attended the hearing for the respondent.
The parties’ tenancy agreement was entered into to enable Kāhui Tū Kaha Limited (“Kāhui”) to sublet the premises to provide social housing to people in the community in need.
The landlord seeks an order directing Kāhui to terminate the tenancy on grounds that Kāhui’s tenant is persistently breaching body corporate rules such as using the fire exit doors, is not permitting inspections, and exhibits anti-social behaviour in connection with the tenancy and disturbing the neighbourhood.
Ms Bidois says that Kāhui already has an application before the Tribunal seeking termination of the tenant’s tenancy. That is all that Kāhui can pragmatically do to end the tenancy because it is bound by the Residential Tenancies Act 1986.
I have decided to dismiss the application for several reasons as will now be discussed. Mootness
The order the applicant seeks appears moot in the circumstances: by bringing termination proceedings in the Tribunal, Kāhui is taking what steps it can to end the tenancy. It is not necessary or desirable for the Tribunal to make an order for something that the respondent is already doing voluntarily. Inappropriateness of order sought
Moreover, it would be inappropriate to make an order that Kāhui take steps to terminate the tenant’s tenancy under the application in its current form. If a landlord could peremptorily direct its sublandlord to evict its tenants, the tenant’s Residential Tenancies Act’s protections would be undermined.
There is no privity of contract between the applicant and the tenant. The applicant’s desired orders would interfere with the sublandlord and tenant’s contract
Natural justice requires that - even if an order that the sublandlord terminate the tenant’s tenancy could be an appropriate order - the tenant should be joined as a party or given the opportunity to be heard before any decision could be made. Exclusion from the RTA by s 5(1)(s)
Even beyond that, this claim appears to be excluded from the Act. The Tribunal has found in analogous cases that s 5(1)(s) of the Residential Tenancies Act 1986 (RTA) disapplies the intended claim from the RTA. Statements in the agreement that the RTA was nonetheless to apply did not cure such claims. 1
The Tribunal has used s 85(2) in s 5(1)(s) cases where appropriate to exclude marginal cases. Section 85(2) provides that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. 2 1 AI Homes Real Estate Limited as agent for Jin Wan v Kāhui Tū Kaha Limited [2023] NZTT Manukau 4322019. See also, Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116. 2 See for example, Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116 – s 85(2) applied to find that s 5(1)(s) was engaged and therefore, the Tribunal had no jurisdiction. Compare The applicants v Rodesa R Fernando [2023] NZTT 4584309 – the Tribunal refrained from applying s 85(2) with the result that the Tribunal’s jurisdiction was not excluded.
The Tribunal could take a similar path here. However, I find it useful to start at first principles by examining whether the Tribunal has jurisdiction in the first place. Section 5(1)(s) does not need to come into play if the matter is not within jurisdiction beforehand. Lack of jurisdiction
This contract was for Kāhui to sublet to people in the community in need of social housing. Although the agreement refers to the applicant as being the “landlord” and to the respondent as being the “tenant”, they were in fact landlord and sublandlord. The labels the parties bestow on themselves does not change the substance of their true status.
The long title of the Residential Tenancies Act 1986 (RTA) states, among other things, it is a establish a Tribunal to determine disputes between landlords and tenants of residential properties: An Act to reform and restate the law relating to residential tenancies, to define the rights and obligations of landlords and tenants of residential properties, to establish a tribunal to determine expeditiously disputes arising between such landlords and tenants, to establish a fund in which bonds payable by such tenants are to be held, and to repeal the Tenancy Act 1955 and the Rent Appeal Act 1973 and their amendments
The RTA sets out the Tribunal’s jurisdiction under the heading “Jurisdiction” at ss 77-85. Section 77(1) is the foundational subsection: 77 Jurisdiction of Tribunal (1) The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time. (Emphasis added)
It follows, for the Tribunal to have jurisdiction to determine a dispute under s 77(1), there must be: a. a dispute must be between a landlord and a tenant (s 77(1)(a)); and b. the RTA must apply to the tenancy (s 77(1)(b)).
In s 2 of RTA “unless the context otherwise requires” the RTA applies the following meanings to tenant and tenancy: 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 agreement... tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent ... (Emphasis added) Section 77(1)(a): is this a dispute between a landlord and a tenant?
Under the agreement, Kāhui, the purported tenant, is not the grantee of a right to occupy. Rather Kāhui is the grantee of a right to sublet i.e. a right to grant others the right to occupy.
Therefore, Kāhui is not a tenant for the purposes of s 77(1)(a). Kāhui is accurately described as being a “sublandlord”.
It follows, this application does not raise a dispute between a landlord and tenant as those terms are used in s 77(1)(a). Section 77(1)(b): does the RTA apply to the tenancy?
“Tenancy” in s 77(1)(b) means the right to occupy the premises in consideration for rent.
In this case, the agreement’s purpose is not to give Kāhui the right to occupy the premises in consideration for rent, it is to give Kāhui the right to contract with someone else to occupy the premises in consideration for rent.
Therefore, the RTA does not apply to the tenancy. Parties’ intention that the RTA apply
In this case the parties agreed, “Jurisdiction: The parties hereby agree that the Residential Tenancies Act 1986 shall apply to and affect this agreement”.
That does not change anything. The parties cannot bestow jurisdiction or make the Act apply by agreement between themselves. Otherwise, the Tribunal would be hearing all manner of cases that belong elsewhere simply because the parties decided that the Tribunal was a convenient venue for them. Conclusion
The Tribunal therefore does not have jurisdiction under s 77 to hear the application. Outcome
The application is dismissed. Addendum
To assist the parties, I add by addendum Adjudicator J Hogan’s helpful advice to the parties in the Petrus case. 3 That advice applies equally here. At paragraph 17 ffg, Mr Hogan wrote:

Is the application of the Act to this type of contract helpful anyway?

The Act is designed to apply to residential landlords (or sublandlords) and tenants who live in the property and are responsible for it.
It applies for example to the tenancy contracts between the community trust and their social housing tenants.
The applicant in this application, is not a residential landlord in the sense that the Act regards that term. ...
The contract between the parties is really a lease (even a commercial lease), subject to the Property law Act 2007, whereby the property owner (not acting as a residential landlord as envisaged by the Act), in return for rent leases the property to the community trust, not to enable the community trust to live in it as a residential tenant, but to be a social housing provider.
Kāinga Ora (previously Housing NZ) for example, lease apartment blocks from developers/owners for that purpose. The contract between Kāinga ora and the developer/owner is not a residential tenancy agreement over which the tribunal has jurisdiction. That arrangement will likely be subject to a separately constructed lease agreement. 3 See n 2. Conclusion
To conclude, the tribunal does not have jurisdiction over the agreement between these parties and as discussed with them they need to have constructed for them an appropriate lease agreement that is fit for purpose. As the goal is the provision of social housing, Kāinga Ora may be able to assist them with a possible template.
In the meantime, while it is open to the parties to take their current disputes to the Disputes Tribunal or the District Court, they may consider making every effort to compromise and settle their difficulties, perhaps with the assistance of a mediator.

Tenancy Tribunal case 4642489 — Unit Titles at Unit 202, 438 Queen Street, Auckland Central, Auckland

At a glance

Tenancy Tribunal case 4642489 — Unit Titles at Unit 202, 438 Queen Street, Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Is the application of the Act to this type of contract helpful anyway?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Is the application of the Act to this type of contract helpful anyway?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions