What was the outcome of Tenancy Tribunal case 4644870?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4644870?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4644870?

The dispute type was not classified.

Where can I read the official tribunal order for case 4644870?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10036848-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4644870?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4644870?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4644870?

The dispute type was not classified.

Where can I read the official tribunal order for case 4644870?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10036848-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 120 Ngaumutawa Road, Masterton, Masterton 5810 Tenancy Tribunal Case 4644870 — Tenancy dispute

Order

The application is dismissed.

Reasons

Mr Thompson requests the Tribunal to overturn a decision his landlord has made which prevents his new wife coming to live with him in his tenancy. This decision is based on two factors: i. His tenancy agreement only allows one occupant in the property. ii. The criteria for residents of the housing complex he lives in is not met by his wife.
Mr Thompson resides in a one-bedroomed Masterton District Council property that is specifically allocated for seniors, Panama Village. The Village was purpose established when the property was gifted to the Council in the 1950s. It has always functioned as Council housing for vulnerable seniors in the community and is subsidised by the Council so the occupants have low rents. They are therefore highly desirable residences to the community.
Mr Smith, the Facilities and Open Spaces Team Leader for the Council attended both hearings held on this application representing the Council. He explains that the eligibility criteria for people wishing to live in the senior housing village is as follows: i. They be a New Zealand citizen or permanent resident. ii. They be aged 60 years or above. iii. The be receiving a benefit. iv. They have specifically limited assets. v. They have not owned a home in the preceding five years.
It is agreed that Mrs Thompson does not meet the majority of the above-noted criteria. She is under 60 years of age and currently in New Zealand on a visitor’s permit. Her application for a work permit based on her relationship with Mr Thompson is still currently under consideration by Immigration New Zealand.
Mr Smith also refers to the maximum occupancy stated in the tenancy agreement which he says is based on the nature of the unit Mr Thompson occupies and the functionality of the complex. He provided evidence that Mr Thompson was aware of the agreement conditions and policy before he got married.
The first hearing of this matter was adjourned to enable Mr Thompson to register with Trust House, a community housing provider in Masterton. He has done so, and Mr Smith gave evidence that a more appropriately sized home would likely be available to Mr and Mrs Thompson on similar rent as he has now been assessed as eligible for income related rent.
However, Mr Thompson does not want to move homes as he is well established in his, having lived there since 2015. He would like his wife to live with him there and says he would only consider relocating if her permit is approved because he does not want to move only to have her return to her country of origin. He would therefore lose two things he treasures, his wife and his home of many years.
Mr Thompson’s submission is that the Council policy to not allow his wife to live with him is discriminatory and breaches his enjoyment of his home. He says his home is big enough for the both of them and it would be no hardship to anybody should she come and live with him.
Mr Smith submits that the criteria are generic, i.e., they apply to all, and essential for the complex because of its nature and purpose as paid for by the local rate payer. He says they are getting complaints about Mrs Thompson ostensibly living at the complex as others say this is unfair because they are not allowed others to live with them who do not meet the criteria.
He says the Council have a number of people on their wait list who do meet the requirements and he is concerned at the precedent it would set should they relax the criteria on this occasion. He says they have been consistently strong on and clear about the criteria for a number of years.
As discussed at the hearing, the Tribunal has jurisdiction, pursuant to the Residential Tenancies Act 1986 (RTA) to determine disputes between tenants and landlords in accordance with the RTA. The specific sections Mr Thompson refers to, although not directly, are section 38 which relates to a tenant’s right to live peacefully in their home (quiet enjoyment) and section 12 of the RTA which allows them to live without discrimination.
Accordingly, I consider Mr Thompson’s application to overturn the Council’s decision to refuse occupation to Mrs Thompson on the basis of those two sections of the RTA. I note that the burden of proof lies with Mr Thompson as applicant. It is therefore up to him to establish, to the required evidentiary standard, that being the balance of probabilities, that the Council are breaching the RTA.
There was an earlier discussion which I address at the outset because it has complicated matters. It was between Mr Thompson and the Mayor, the latter whom ostensibly told Mr Thompson that a Councillor had told him that Mrs Thompson could move in. Whilst there is no documented evidence of this discussion, it is not binding on the Council. The Mayor and his Councillors hold governance positions which are quite different to the operational positions that run this tenancy. Whilst it was unfortunate that Mr Thompson was told this, it was not for the Mayor to say and could not be relied on. Tenancy Agreement
The starting point for any tenancy relationship is the tenancy agreement. Mr Thompson’s tenancy agreement states that he may only have one occupant in the unit. Such a specification is permitted by law 1 and was agreed to by both parties at the commencement of the tenancy.
Because this is a statutorily lawful clause, Mr Thompson cannot now argue that the enforceability of it is unlawful by another mechanism. Accordingly, because of the specific terms of the tenancy agreement limiting the occupation of the unit to one, I must dismiss the application.
However, even if I am wrong in that finding, I would have also dismissed the applications pursuant to sections 12 and 38 for the reasons discussed below. Discrimination
Mr Thompson submits that the Council policy is discriminatory and elder abuse. 1 section 40(3) RTA
Section 12(1) of the RTA states that a landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999 (HRA).
Section 21 of the HRA specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
I presume, because he did not specifically say so, Mr Thompson is alleging that the Council are discriminating against him on the basis of marital status and against his wife on the basis of age. I cannot consider the latter as Mrs Thompson is not currently a tenant which means that I cannot consider complaints about her status.
Clearly the Council cannot be discriminating against Mr Thompson on the basis of age as he is of sufficient age to reside in the complex.
Mr Smith submits that their policy is not discriminatory because it is the same for everyone. He says they have taken action in the past when residents of the complex have acted in contravention of the criteria and policy and says they are considering doing so in this circumstance depending upon my decision now.
There is no specific definition of “discrimination” in the RTA or HRA. It is accepted however that it has the same or a similar meaning to the term as used under section 19 of the Bill of Rights Act 1990, where it has been defined as - “differential treatment on a prohibited ground of a person or group in comparable circumstances ... [that] when viewed in context ... Imposes a material disadvantage on the person or group differentiated against.”
I do not find it established that the landlord has acted in a discriminatory way against Mr Thompson’s new marital status. I accept Mr Smith’s submission that the policy has been essentially the same since the 1950s and is to ensure they are meeting the intent and purpose of the complex. It applies to all and no one else is allowed to circumvent the criteria. Married eligible couples who apply to live in the Village go through the same process as eligible single people. I also accept that the policy applies to any partnership a resident may have whether that involves marriage or not.
Accordingly, I dismiss this application. Quiet enjoyment
Section 38 of the RTA states that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. Mr Thompson submits that he should be entitled to live in his property as he wishes and that includes with his wife.
Mr Smith’s submission is that the tenancy agreement only permits one tenant and that the criteria for residents is to ensure the quiet enjoyment of all residents.
A recent Tribunal case Mullavarapu v Wilkie [2023] NZTT 4421925 gives direction on s38 of the RTA: [26] The word “quiet” is used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”: Kenny v Preen [1963] 1 QB 499. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home. [27] The principle of quiet enjoyment means that the tenant is able to live in the premises how they wish to live, and unless what they are doing is unlawful in some way, it is not for the landlord to interfere with that right.
Where Mr Thompson’s argument fails here is the lawfulness of the situation. Mr Thompson, according to his tenancy agreement, is only allowed one occupant. Therefore, should he move his wife in, he is breaching that agreement and also section 40(3) of the RTA which states: Where the tenancy agreement specifies a maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy.
Accordingly, this application must also be dismissed.
I have considerable sympathy with Mr Thompson in coming to this decision as I understand that he merely wishes to continue residing in his home with his wife. This is an unfortunate situation, but I do note there are options available to Mr and Mrs Thompson for other homes which may well suit them better.

Tenancy Tribunal case 4644870 — Tenancy dispute at Unit/Flat 3, 120 Ngaumutawa Road, Masterton, Masterton 5810

At a glance

Claims & awards

Tenancy Tribunal case 4644870 — Tenancy dispute at Unit/Flat 3, 120 Ngaumutawa Road, Masterton, Masterton 5810

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions