What was the outcome of Tenancy Tribunal case 4649192?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4649192?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4649192?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4649192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9437259-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4649192?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4649192?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4649192?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4649192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9437259-Tribunal_Order.pdf.

Unit/Flat 2, 174 Clarence Street, Riccarton, Christchurch 8- Tenancy Tribunal Case 4649192 — Exemplary damages

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Reasons

Both parties attended the hearing.

The applicant sought clarification around the status of the agreement between the parties, including whether a termination notice was valid and claimed exemplary damages for the landlord/owner failure to lodge a bond.

There is a preliminary issue whether the Tribunal can hear the claim. The Law

Section 77(1) Residential Tenancies Act 1986 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. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement

Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.

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 Agreement

The parties entered into a written tenancy agreement. The agreement is said to be tween “the landlord and tenant”. Mr Gibbs and Ms McRae are described throughout the agreement as the landlord. Mr Feringa is described as “the flatmate”

The address of the rental property is recorded as 2/174 Clarence St and the agreement records that the “landlord gives permission to lease one bedroom....” The other two bedrooms were occupied by another “flatmate” and Mr Gibbs’ stepson.

Mr Gibbs stepson posted the advertisement for the room and dealt with prospective tenants. The stepson has lived in the property throughout and deals with day-to-day property issues.

The bedrooms are not self-contained studio arrangements 1 . Rather, each occupant had a bedroom and access to common areas such as the kitchen and living room. Analysis

Mr Feringa says that the RTA applies because he has a direct agreement with Mr Gibbs and Ms McRae, not their stepson/son.

Mr Gibbs says that the RTA does not apply because the agreement refers to Mr Feringa as a flatmate, not a tenant.

When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

The issue in this case is whether the premises, continue to be used, during the tenancy, principally as a place of residence any member of the landlord’s or owner’s family. member of the landlord’s or owner’s family, in relation to a landlord or an owner, means— (a)any person who is or has been related to the landlord or owner— (i)by blood; or (ii)by or through marriage, a civil union, or a de facto relationship; or (iii)by adoption: (b)any other person who is a member of the landlord’s or owner’s whānau or other culturally recognised family group: (c)any child who is being, or is to be, cared for on a continuous basis by— (i)the landlord or owner; or (ii)the landlord’s or owner’s spouse, civil union partner, or de facto partner

While Mr Gibbs’ stepson is not referred to in the agreement, the substance of the arrangement was that Mr Feringa would share the property with the stepson (and the other “flatmate”).

The premises are used principally as the stepson’s place of residence and he falls within the definition of member of the landlord’s family by being Ms McRae’s son and related to Mr Gibbs through his relationship with Ms McRae. 2

I find that this is a tenancy as defined by the RTA but is excluded by virtue of s5(1)(n) RTA. As such, this Tribunal has no jurisdiction to hear the application. 1 Harding v Caroto and Ors [2021] NZHC 1265 2 Mexted v Mexted, Gray and Rusmussen [2021] NZTT Hamilton 4300218, 4297500

The application is dismissed.

Reasons

Both parties attended the hearing.

There is a preliminary issue whether the Tribunal can hear the claim. The Law

Mr Gibbs stepson posted the advertisement for the room and dealt with prospective tenants. The stepson has lived in the property throughout and deals with day-to-day property issues.

The bedrooms are not self-contained studio arrangements 1 . Rather, each occupant had a bedroom and access to common areas such as the kitchen and living room. Analysis

Mr Feringa says that the RTA applies because he has a direct agreement with Mr Gibbs and Ms McRae, not their stepson/son.

Mr Gibbs says that the RTA does not apply because the agreement refers to Mr Feringa as a flatmate, not a tenant.

When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

While Mr Gibbs’ stepson is not referred to in the agreement, the substance of the arrangement was that Mr Feringa would share the property with the stepson (and the other “flatmate”).

The application is dismissed.

Tenancy Tribunal case 4649192 — Exemplary damages at Unit/Flat 2, 174 Clarence Street, Riccarton, Christchurch 8-

At a glance

Tenancy Tribunal case 4649192 — Exemplary damages at Unit/Flat 2, 174 Clarence Street, Riccarton, Christchurch 8-

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions