What was the outcome of Tenancy Tribunal case 4663190?

The tribunal order states: The tenancy is an excluded tenancy under section 5(n) of the Residential

How much money was awarded in case 4663190?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4663190?

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

Where can I read the official tribunal order for case 4663190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9652505-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4663190?

The tribunal order states: The tenancy is an excluded tenancy under section 5(n) of the Residential

How much money was awarded in case 4663190?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4663190?

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

Where can I read the official tribunal order for case 4663190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9652505-Tribunal_Order.pdf.

18 Berketts Road, Rolleston, RD 8, Rolleston 7678 Tenancy Tribunal Case 4663190 — Exemplary damages

Order

The tenancy is an excluded tenancy under section 5(n) of the Residential Tenancies Act 1986.
The application is dismissed.

Reasons

Both parties attended the hearing which I first convened on 12 October 2023, and then on 16 November after receipt of further evidence and submissions from the parties.
The tenant has applied for her bond and compensation and/or exemplary damages from the landlord for alleged breaches that occurred during the tenancy. The bond was not lodged with the Bond Centre because the landlord did not consider she had to do that.
The tenant says she rented rooms at the premises as a separate and distinct residential tenancy and other than when invited to share a meal with the landlord, did her own cooking and washing away from the landlord’s kitchen and laundry facilities.
The landlord claims that the tenancy is an excluded tenancy because the premises are her principal place of residence. She says the arrangement was a casual boarding arrangement. Background
The landlord became agency approved to be the tenant’s permanent support carer, working on average 35 hours a week.
The tenant applied to ACC for housing modifications which the landlord approved. ACC funded the modifications.
The landlord ceased being the tenant’s care worker for personal reasons and the tenant moved out. There then arose a dispute about the repair of damage caused by the tenant.
So, the relationship between the parties, once cordial, has become strained. Issue
Is the tenancy an excluded tenancy under section 5(n) of the Residential tenancies Act 1986 (RTA), or does it fall withing the provisions of the RTA? The evidence
There is no written tenancy agreement. The parties entered the arrangement by a series of messages around mid-September 2022.
In one message, the tenant states: I’m definitely interested in renting a room if you’re ok with my carers and having me living with you and your family... And then If I’m living there it would work quite well as I like not feeling like I have someone with me all the time if that makes sense?
And the landlord replied: I currently do Airbnb in the space. But I am open to a boarder who is happy and a sense of humour is a must. The only catch is I would want to use the spa bath for Winnie when she comes once a fortnight...
After viewing photos, the tenant responded: This looks absolutely perfect! ...Kitchen wise, am I able to use yours?
The parties then reached an agreement as to price.
Both parties have provided documentary evidence for the Tribunal to consider, including a floor plan.
The tenant has emphasised that she kept to her part of the premises and cooked there and had a separate entry to her area, doors opening to the outside.
The landlord said that she considered putting in a kitchen for the tenant to use in her space, but the Council requirements were such that she could not proceed. She said she expressed concern about the tenant cooking inside the rooms she rented because of the insurance implications. Analysis
My assessment of the evidence is that the premises were never rented as a separate tenancy that became a distinct tenancy withing the landlord’s home.
If the premises were rented on that basis (and I find that they were not) they would have been unlawful residential premises, because there was no Council consent for their use as separate residential premises. There was no separate kitchen for example.
That the tenant purchased cooking equipment and decided to use the space to cook (despite the landlord’s expressed concerns about insurance liability) does not mean that the premises became separate residential premises.
The intention of the parties formed the contract. The intention was clear. The tenant could not then unilaterally decide that she had rented separate residential premises.
That the tenant paid a bond to the landlord does not establish a separate tenancy. Often bonds (or deposits) are required in boarding and flatmate situations.
Had a bond been lodged with the Bond Centre, the Tribunal could have ordered its return (since no other Tribunal has jurisdiction to do that). But the bond was never lodged for the reasons noted.
Section 5(n) RTA excludes a tenancy 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 evidence, both documentary and oral, establishes that this was an excluded tenancy because the premises continued to be used during the tenancy principally as a place of residence by the landlord/owner and members of her family.
The tenancy was not intended to comprise, and did not comprise, separate residential premises within the landlord’s premises used principally as her place of residence. Result
The tenancy is an excluded tenancy under section 5(n) RTA. The Tribunal has no jurisdiction. The application is dismissed.
The dispute, if it is pursued, falls within the jurisdiction of the Disputes Tribunal.

Order

The tenancy is an excluded tenancy under section 5(n) of the Residential Tenancies Act 1986.
The application is dismissed.

Reasons

Both parties attended the hearing which I first convened on 12 October 2023, and then on 16 November after receipt of further evidence and submissions from the parties.
The tenant has applied for her bond and compensation and/or exemplary damages from the landlord for alleged breaches that occurred during the tenancy. The bond was not lodged with the Bond Centre because the landlord did not consider she had to do that.
The tenant says she rented rooms at the premises as a separate and distinct residential tenancy and other than when invited to share a meal with the landlord, did her own cooking and washing away from the landlord’s kitchen and laundry facilities.
The landlord claims that the tenancy is an excluded tenancy because the premises are her principal place of residence. She says the arrangement was a casual boarding arrangement. Background
The landlord became agency approved to be the tenant’s permanent support carer, working on average 35 hours a week.
The tenant applied to ACC for housing modifications which the landlord approved. ACC funded the modifications.
The landlord ceased being the tenant’s care worker for personal reasons and the tenant moved out. There then arose a dispute about the repair of damage caused by the tenant.
So, the relationship between the parties, once cordial, has become strained. Issue
Is the tenancy an excluded tenancy under section 5(n) of the Residential tenancies Act 1986 (RTA), or does it fall withing the provisions of the RTA? The evidence
There is no written tenancy agreement. The parties entered the arrangement by a series of messages around mid-September 2022.
In one message, the tenant states: I’m definitely interested in renting a room if you’re ok with my carers and having me living with you and your family... And then If I’m living there it would work quite well as I like not feeling like I have someone with me all the time if that makes sense?
And the landlord replied: I currently do Airbnb in the space. But I am open to a boarder who is happy and a sense of humour is a must. The only catch is I would want to use the spa bath for Winnie when she comes once a fortnight...
After viewing photos, the tenant responded: This looks absolutely perfect! ...Kitchen wise, am I able to use yours?
The parties then reached an agreement as to price.
Both parties have provided documentary evidence for the Tribunal to consider, including a floor plan.
The tenant has emphasised that she kept to her part of the premises and cooked there and had a separate entry to her area, doors opening to the outside.
The landlord said that she considered putting in a kitchen for the tenant to use in her space, but the Council requirements were such that she could not proceed. She said she expressed concern about the tenant cooking inside the rooms she rented because of the insurance implications. Analysis
My assessment of the evidence is that the premises were never rented as a separate tenancy that became a distinct tenancy withing the landlord’s home.
If the premises were rented on that basis (and I find that they were not) they would have been unlawful residential premises, because there was no Council consent for their use as separate residential premises. There was no separate kitchen for example.
That the tenant purchased cooking equipment and decided to use the space to cook (despite the landlord’s expressed concerns about insurance liability) does not mean that the premises became separate residential premises.
The intention of the parties formed the contract. The intention was clear. The tenant could not then unilaterally decide that she had rented separate residential premises.
That the tenant paid a bond to the landlord does not establish a separate tenancy. Often bonds (or deposits) are required in boarding and flatmate situations.
Had a bond been lodged with the Bond Centre, the Tribunal could have ordered its return (since no other Tribunal has jurisdiction to do that). But the bond was never lodged for the reasons noted.
Section 5(n) RTA excludes a tenancy 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 evidence, both documentary and oral, establishes that this was an excluded tenancy because the premises continued to be used during the tenancy principally as a place of residence by the landlord/owner and members of her family.
The tenancy was not intended to comprise, and did not comprise, separate residential premises within the landlord’s premises used principally as her place of residence. Result
The tenancy is an excluded tenancy under section 5(n) RTA. The Tribunal has no jurisdiction. The application is dismissed.
The dispute, if it is pursued, falls within the jurisdiction of the Disputes Tribunal.

Tenancy Tribunal case 4663190 — Exemplary damages at 18 Berketts Road, Rolleston, RD 8, Rolleston 7678

At a glance

Tenancy Tribunal case 4663190 — Exemplary damages at 18 Berketts Road, Rolleston, RD 8, Rolleston 7678

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