What was the outcome of Tenancy Tribunal case 4693454?

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

How much money was awarded in case 4693454?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4693454?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4693454?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9544875-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4693454?

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

How much money was awarded in case 4693454?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4693454?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4693454?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9544875-Tenancy_Tribunal_Order.pdf.

26A Walsall Street, Avondale, Auckland 1026 Tenancy Tribunal Case 4693454 — Boarding House

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ms Fu’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 the flatmate was made aware when she signed the flat/house sharing agreement on 29 August 2023, that she was a flatmate rather than a tenant and not covered by the provisions of the Residential tenancies Act 1986. This was expressly told to her by the landlord and is written at the top of the signed flat/house sharing agreement.
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 26A Walsall Street, Avondale, 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 primary or principal place of residence was at the premises and had been for at least 2 years prior to the flatmate renting out a room and bathroom on level 1 of the house. The landlord confirmed that her room and bathroom was on level 2 of the house and that she kept some of her belongings there.
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 landlord also confirmed that she had been living at the premises for 2 years while she was doing the house up to sell as she could not afford the mortgage without having flatmates. From time to time, her and her husband spent some nights away from the premises and were doing so the week Ms Fu arrived.
The flatmate argued that for the first week of her alleged tenancy she shared the premises with two boys and that the landlord was not present at the house, that she was not told that she was going to be sharing the house with the landlord and that she had not seen evidence of the landlord having a pillow or other belongings at the premises. She thought she was going to be one of 3 flatmates that shared a residential tenancy.
The parties confirmed that the flatmate viewed the premises while she was still in China, from photos sent to her by a friend, and that the landlord had no opportunity to discuss that the other flatmates that were moving out in 7 days or that the landlord and her husband resided at the premises permanently but spent nights away from time to time.
The landlord provided evidence that she lived in the large 5-bedroom house and showed pictures of her personal possessions being at the premises. Her husband, who does not permanently reside with her at the premises, confirmed that Mrs Xie does live at the premises, that the premises are her principal place of residence and that she resides there while she makes improvements to the property so that eventually it can be put up for sale. This evidence supported Mrs Xie’s claim that she resided in level 2 of the premises permanently and that she was the landlord, owner of the premises and the head tenant that let out rooms to flatmates to help cover the mortgage.
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 head tenant granted the right to the flatmate to occupy a room and a bathroom and to share the other household facilities with her, her husband and up to 2 other flatmates at any one time. She made the relationship clear in the flat/house sharing agreement she asked all flatmates to sign.
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 continued to use the premsies as her principal place of residence during the flatmate’s tenure.
Therefore, Ms Fu’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 Fu has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ms Fu’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 the flatmate was made aware when she signed the flat/house sharing agreement on 29 August 2023, that she was a flatmate rather than a tenant and not covered by the provisions of the Residential tenancies Act 1986. This was expressly told to her by the landlord and is written at the top of the signed flat/house sharing agreement.
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 26A Walsall Street, Avondale, 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 primary or principal place of residence was at the premises and had been for at least 2 years prior to the flatmate renting out a room and bathroom on level 1 of the house. The landlord confirmed that her room and bathroom was on level 2 of the house and that she kept some of her belongings there.
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 landlord also confirmed that she had been living at the premises for 2 years while she was doing the house up to sell as she could not afford the mortgage without having flatmates. From time to time, her and her husband spent some nights away from the premises and were doing so the week Ms Fu arrived.
The flatmate argued that for the first week of her alleged tenancy she shared the premises with two boys and that the landlord was not present at the house, that she was not told that she was going to be sharing the house with the landlord and that she had not seen evidence of the landlord having a pillow or other belongings at the premises. She thought she was going to be one of 3 flatmates that shared a residential tenancy.
The parties confirmed that the flatmate viewed the premises while she was still in China, from photos sent to her by a friend, and that the landlord had no opportunity to discuss that the other flatmates that were moving out in 7 days or that the landlord and her husband resided at the premises permanently but spent nights away from time to time.
The landlord provided evidence that she lived in the large 5-bedroom house and showed pictures of her personal possessions being at the premises. Her husband, who does not permanently reside with her at the premises, confirmed that Mrs Xie does live at the premises, that the premises are her principal place of residence and that she resides there while she makes improvements to the property so that eventually it can be put up for sale. This evidence supported Mrs Xie’s claim that she resided in level 2 of the premises permanently and that she was the landlord, owner of the premises and the head tenant that let out rooms to flatmates to help cover the mortgage.
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 head tenant granted the right to the flatmate to occupy a room and a bathroom and to share the other household facilities with her, her husband and up to 2 other flatmates at any one time. She made the relationship clear in the flat/house sharing agreement she asked all flatmates to sign.
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 continued to use the premsies as her principal place of residence during the flatmate’s tenure.
Therefore, Ms Fu’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 Fu has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Tenancy Tribunal case 4693454 — Boarding House at 26A Walsall Street, Avondale, Auckland 1026

At a glance

Tenancy Tribunal case 4693454 — Boarding House at 26A Walsall Street, Avondale, Auckland 1026

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