What was the outcome of Tenancy Tribunal case 4701869?

The tribunal order states: The Tribunal has no jurisdiction to hear the application.

How much money was awarded in case 4701869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4701869?

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

Where can I read the official tribunal order for case 4701869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10002651-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4701869?

The tribunal order states: The Tribunal has no jurisdiction to hear the application.

How much money was awarded in case 4701869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4701869?

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

Where can I read the official tribunal order for case 4701869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10002651-Tribunal_Order.pdf.

Room 3, 38 Alport Place, Woolston, Christchurch 8023 Tenancy Tribunal Case 4701869 — Exemplary damages

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Reasons

Both parties attended the hearing. Mr Jackson represented the respondent party, with approval. Background

Mrs Jackson rents the property at 38 Alport Place in Christchurch. She and her husband formerly owned it. Following a transfer of the property to her son, and then a sale to another person, Mrs Jackson remained in possession but as a tenant.

Mrs Jackson advertised one bedroom at the property for rent. There are 3 bedrooms in total. Mrs Jackson uses one. Her bedroom has an ensuite bathroom. Another room was rented to a male tenant. Ms Cavanagh, responding to a TradeMe advertisement, rented the other bedroom, which she referred to as room 3.

Ms Cavanagh and the other tenant shared a bathroom. They and Mrs Jackson shared the kitchen and laundry facilities. Ms Cavanagh and the other tenant could use the living room as well. Ms Cavanagh said she sometimes ate her dinner there to keep Mrs Jackson company.

The tenancy started on 29 December 2019 and ended on 29 April 2020. Ms Cavanagh was served with a trespass notice when she returned from a month’s covid lockdown which she spent in Timaru. She went there because she was health compromised and was concerned that Mrs Jackson and her daughter and grandson had breached the covid bubble with the occupants of the premises.

Things took a nasty turn when she arrived back. The police became involved, and Ms Cavanagh was arrested and charged with trespass. She said that the charge was later dismissed.

Ms Cavanagh lodged her application on 3 October 2023. She said the delay was due to her attempting to get compensation from the police (an issue she said went to the Supreme Court). When she found out she could not receive compensation from the police she turned to her landlord to claim compensation and exemplary damages. The first hearing

Ms Cavanagh’s application was set for a remote telephone hearing on 12 January 2024. Mrs Jackson did not attend because of her poor health.

The adjudicator made no order regarding jurisdiction but said he believed the fact situation fell within the provisions of the Residential Tenancies Act 1986 (RTA). However, he left open that issue pending the hearing today.

I explained to the parties that there needed to be a Tribunal order on jurisdiction, for two reasons. First, both parties have a right of appeal against any orders made. Second, if Ms Cavanagh wishes to pursue her claim in the Disputes Tribunal, that Tribunal would require an order from the Tenancy Tribunal before it would accept jurisdiction.

I limited the hearing to the issue of jurisdiction and did not hear the substance of the application. Issue

The issue for the Tribunal to determine is whether the arrangement between the parties falls within the provisions of the RTA, or whether it is an excluded tenancy. Analysis

The RTA does not apply to all tenancies; some are excluded. For example, section 5(n) 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 owner or landlord of the premises or by any member of the owner’s or landlord’s family.

Mr Jackson, for his mother, contends that there was no tenancy between the parties – Ms Cavanagh was a boarder or flatmate in premises that his mother as sub landlord used principally as her place of residence.

Because he contends that the RTA does not apply, he must establish that.

In Musson v Dobreski and others CIV-2006-032-36, the District Court noted a broad description of a flatmate arrangement as follows: By flatmates I understand a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they have exclusive occupation of their own room and shared use and occupation of common areas such as kitchen.

The arrangement between Mrs Jackson and Ms Cavanagh meets that description.

But that is a broad description and not a definition as such. The reality is often more nuanced.

I have considered other recent Tribunal decisions relevant to this situation – Nie v Zhao [2020] NZTT North Shore 4277894, Bailes v Nalini [2020] NZTT North Shore 4261603, 4268721, and Zhang v Gao [2021] NZTT North Shore 4298016, 4297467.

The consistent themes that emerge from these decisions are: •The extent of any sharing of living facilities (such as cooking, bathroom, living room, laundry) •The extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord •The nature of the tenant’s area and whether it is fully or partly self- contained and whether it is exclusive.

Ms Cavanagh emphasised that Mrs Jackson required a bond equivalent to 1 week’s rent and provided her with a letter so she could get a student allowance payment for it. However, the funding provider required Mrs Jackson to become a service provider, something she was not prepared to do, so the bond was not paid.

Whether a bond is or is not paid is not determinative. Flatmates often require other flatmates to pay a bond. So do landlords when taking in boarders.

None of the correspondence produced by the tenant persuades the Tribunal that Mrs Jackson intended to create a separate tenancy. Nor did one arise.

Mr Jackson produced a text message from his mother dated 12 December (when the parties were negotiating as to which room Ms Cavanagh would rent) that makes it clear the arrangement was intended to be a temporary one Do know if u get in a pickle re finding accommodation you are welcome to stay as U get sorted! It was lovely meeting you. Care. Maggie. Result

I find that Mrs Jackson has established on the balance of probabilities that the tenancy between her and Ms Cavanagh was an excluded residential tenancy. The premises were used by her during the tenancy principally as her place of residence. She took in two boarders or flatmates to help with her costs. They all shared facilities (other than for Mrs Jackson’s separate ensuite bathroom). They each had exclusive use of their bedrooms. Their bedrooms were not separate self-contained areas.

The Tribunal has no jurisdiction to hear Ms Cavanagh’s substantive claims. The application is dismissed. Name suppression

Upon my enquiry, neither party sought a name suppression order. Cross application

Mrs Jackson has filed a cross application against the tenant. She advised the Tribunal on Friday (and her son confirmed today) that the application will not be pursued and will be withdrawn.

Reasons