What was the outcome of Tenancy Tribunal case 4656297?

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

How much money was awarded in case 4656297?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4656297?

The primary dispute was Property damage. Related themes: Boarding House.

Where can I read the official tribunal order for case 4656297?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9624429-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4656297?

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

How much money was awarded in case 4656297?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4656297?

The primary dispute was Property damage. Related themes: Boarding House.

Where can I read the official tribunal order for case 4656297?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9624429-Tenancy_Tribunal_Order.pdf.

5 Ennismore Road, Mount Albert, Auckland 1025 Tenancy Tribunal Case 4656297 — Property damage

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ms Qiang’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The Landlord argues that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act and that she was a flatmate rather than a tenant and not covered by the provisions of the Residential tenancies Act 1986 as the premises are the landlord and her husband’s primary place of residence.
The applicant argues that she was not told by the landlord that she would be sharing the house with them, she was not given any flat/house sharing agreement to sign prior to commencing her tenancy and that the advertisement she answered led her to believe she would be sharing the house with other tenants. Further she claims that the landlord, her husband and their two dogs were at the house every day, prepared food there and conducted other activities there but did not sleep in the house at night. Therefore, this could not be considered their primary place of residence.
At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the tenant’s substantive claim.
For the reasons outlined below, I am satisfied s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies. The law and whether the landlord continue to use the premises principally as her place of residence
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 5 Ennismore Road, Mount Albert, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “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 ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...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 Landlord argued that that her and her husband’s primary or principal place of residence was at 5 Ennismore Road, Mount Albert and had been for since just after they took possession of it on 11 July 2023. They provided an eviction notice that showed that they took possession of the property on that day. They also provided proof that they owned a second house nearby that they had been renovating so they could put it on the market as they could no longer afford the rising cost of the mortgage.
The landlord confirmed that her husband and their two golden retrievers stayed at 5 Ennismore Road, Mount Albert most nights of the applicant’s 16-day tenancy and that the landlord began sleeping at the house the day before the applicant moved out. Prior to that the landlord was sleeping at the other house as a security measure. She stated that her husband and dogs would drop her off at the other house to sleep before returning to 5 Ennismore Road, Mount Albert and they returned early each morning to pick her up and take her back to their primary place of residence.
The landlord confirmed that she kept some of her belongings in the back part of the premises where her husband and the dogs resided and that when she slept at the premises she was in the sunroom off the lounge as it was warmer for her.
The parties confirmed that they shared kitchen, dining, lounge and laundry facilities and both had access to and use of the yard. They also confirmed that their separate rooms were not locked and were accessible each by the other.
The applicant confirmed she did not go into the rooms occupied by the landlord and the landlord’s husband, so she could not attest to what they kept on the premises, other than a camp type bed the landlord slept on in the sunroom from the day prior to her tenancy ending. Further, the applicant did not see the landlord’s husband’s car at the premises at night when she went to bed or when she arose in the morning. She also said the landlord and the landlord’s husband said goodbye to her each night when they and their dogs left the premises and drove away in the car.
The applicant also argued that for the first week of her alleged tenancy she shared the premises with another couple and that the landlord was only present at the house during the day, that she was not told that she was going to be sharing the house with the landlord and that she thought she was going to be one of a few flatmates that shared a residential tenancy. She says she would not have taken the room if she had known that she was going to be living with the landlord and the landlord’s husband.
The landlord provided evidence that she and her husband and two dogs lived in the large 6-bedroom and 6-bathroom house. She provided the following evidence that she and her husband’s primary or principal residence is at 5 Ennismore Road, Mount Albert: aA rates invoice addressed to the landlord; bA statement and signed flat sharing agreement from another flatmate that shares the house with the landlord and her husband, (and who was living in the house during for the period of 16-days the applicant and her son resided there) that confirms he entered into a flat sharing agreement with the landlord and lived in the house with her and other tenants from 27 July 2023 (3 days prior to the applicant moving in); cA K Mart invoice that shows the landlord and her husband had personal items delivered to the premises on 27 July 2023 (3 days prior to her alleged tenancy commencing); dAn invoice and delivery notice addressed to the landlord from Andoo for a washing machine and fridge freezer to be delivered to the premises on 9 August 2023; eUtilities bills from prior to and during the applicant’s alleged tenancy addressed to the landlord’s husband; fA receipt from the landlord’s husband’s doctor that shows he is registered at the medical practice as residing at 5 Ennismore Road, Mount Albert; and gEmail communication from a neighbour that proves the landlord’s husband and the dogs are living at the premises and there have been several issues between them and the neighbour in relation to the landlord’s dogs. The dogs have been on her property and have caused issues with the neighbour’s cat. The landlord and her husband showed proof that this has resulted in them incurring vet bills for the neighbour’s cat because of these issues.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The landlord and her husband granted the right to the applicant to occupy a room and a bathroom and to share the other household facilities with her, her husband and a few other flatmates.
Section 10 of the Act states: “Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.”
The Landlord has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that Mrs Xie and her husband have continued to use the premises as their principal place of residence during the applicant’s tenure. Even if the landlord and her husband spent nights away during the 16 nights the applicant lived at 5 Ennismore Road, Mount Albert it does not mean this house is not their principal or primary place of residence. They indicated that they were still moving out of the other house they had occupied prior to mid-July 2023, that not all their belongings were at the premises during the applicant’s short stay at the premises and at times the landlord stayed at the other house overnight as a security measure. The landlord’s husband stated he could not stay at the other house for security purposes in place of his wife as he looks after the dogs and the dogs may have caused damage to the newly renovated house.
The applicant has not been able to provide evidence that the landlord and her husband did not use the premises as a principal/primary place of residence. Therefore, Ms Qiang’s claim that she was a tenant that is covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
Ms Qiang has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Tenancy Tribunal case 4656297 — Property damage at 5 Ennismore Road, Mount Albert, Auckland 1025

At a glance

Tenancy Tribunal case 4656297 — Property damage at 5 Ennismore Road, Mount Albert, Auckland 1025

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