What was the outcome of Tenancy Tribunal case 4702169?

The tribunal order states: The Tribunal does not have jurisdiction to hear this claim because the

How much money was awarded in case 4702169?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4702169?

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

Where can I read the official tribunal order for case 4702169?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10143222-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4702169?

The tribunal order states: The Tribunal does not have jurisdiction to hear this claim because the

How much money was awarded in case 4702169?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4702169?

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

Where can I read the official tribunal order for case 4702169?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10143222-Tribunal_Order.pdf.

104 Beer Road, Tauwhare, RD 1, Hamilton 3493 Tenancy Tribunal Case 4702169 — Exemplary damages

Order

The Tribunal does not have jurisdiction to hear this claim because the exemption in s5(1)(n) RTA applies.
The application is therefore struck out.

Reasons

The parties attended today’s hearing.
The applicant has claimed that the respondents have breached the Residential Tenancies Act and seeks exemplary damages and compensation. Jurisdiction
The Tenancy Tribunal only has jurisdiction to determine disputes between tenants and landlords under the Residential Tenancies Act 1986 (RTA) including boarding house tenants.
Where there is a question of what the nature of the relationship is, only the Tenancy Tribunal has the jurisdiction to determine whether the Residential Tenancies Act 1986 (RTA) applies or not. 1 1 Section 78 and 82 Residential Tenancies Act 1986.
The respondent says that the Tribunal does not have jurisdiction because the tenancy is exempted under s5(1)(n) of the RTA.
The property is a large 6-bedroom lifestyle block. The respondents have owned the property for just over five years.
The applicant lived in the property for about 8 months. The respondents say he came to live with them after his relationship broke up. They parties did not know each other before he lived there but he was a friend of their son’s friend.
The house has a master suite at one end, kitchen and living in the middle and 4 bedrooms and a bathroom at the other end. The tenant occupied one of the end wing bedrooms. The respondents were the only ones to use the ensuite bathroom and everyone else, including the tenant and visitors to the property used the other bathroom. The parties did not cook together but they kept all their foods in the same pantry and refrigerator. Does the exemption in s5(1)(n apply?
Section 5(1)(n) says: 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.
It has been held by the District Court that to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.2
The party who claims that exemption applies has the burden of proving that the exemption applies – see s10 RTA.
It is not disputed by the Applicant that the respondents lived in the property during the tenancy.
The question then is was the property principally used as the landlord’s place of residence?
In the District Court case of Musson v Dobrisek 2 Judge Broadmore considered what is meant by the phrase “to be used, during the tenancy, principally as a place of residence by the landlord” [38] I consider that the word "principally" in s 5(n) refers to the main use of the premises, not to the relative duration of the landlord's occupation of the premises or, possibly, its degree of intensity. This emerges from what is in my opinion the plain reading of the text. It does not say used ... as the principal place of residence ... What is actually says is - 2 Musson v Dobresik DC Lower Hutt CIV-2006-032-36 5 May 2006 used ... principally as a place of residence ... [39] The word "principally" is an adverb qualifying the verb "used", not an adjective describing the noun "place". So the question to be asked is-

Is the principal use of these premises as a place of residence by the landlord?

I am satisfied that the principal use of these premises was as a place of residence by the landlords/respondent and therefore the exemption in s5(1)(n) applies because: a. The landlords lived there. b. The respondents had lived there for over five years. They hosted family events there, their adult children had lived there from time to time. Their visitors stayed there. c. The respondents allowed people to stay there for short periods of time to help them get back on their feet. In some instances, they were paid rent in others the person stayed or stored their goods there as a favour. This was not a situation where the landlords were renting out the rest of the house to multiple tenants, for commercial gain. d. The rent that was charged to this tenant included electricity, internet and water, the amount charged would have barely covered the landlord’s costs for the room and the outgoings. e. The respondents kept all their belongings at the property.
I consider that the tenant was the flatmate/ boarder of the landlords. I say this because: a. the tenant only had exclusive use of his bedroom; all the other parts of the premise were shared with the respondents. b. The respondents cleaned the property, the tenant did not clean the kitchen and the living areas. c. Whilst the applicant and the respondent did not cook for one another, the respondent other things for the tenant which may be expected in a flat sharing situation rather than a residential tenancy such as hanging out his washing.
As I am satisfied that the exemption in s5(1)(n) applies the tenancy is exempt and the Tribunal does not have jurisdiction over this dispute.
As the exemption applies the Residential Tenancies Act does not apply and the landlord was not required to meet their obligations in the RTA.

Order

The Tribunal does not have jurisdiction to hear this claim because the exemption in s5(1)(n) RTA applies.
The application is therefore struck out.

Reasons

The parties attended today’s hearing.
The applicant has claimed that the respondents have breached the Residential Tenancies Act and seeks exemplary damages and compensation. Jurisdiction
The Tenancy Tribunal only has jurisdiction to determine disputes between tenants and landlords under the Residential Tenancies Act 1986 (RTA) including boarding house tenants.
Where there is a question of what the nature of the relationship is, only the Tenancy Tribunal has the jurisdiction to determine whether the Residential Tenancies Act 1986 (RTA) applies or not. 1 1 Section 78 and 82 Residential Tenancies Act 1986.
The respondent says that the Tribunal does not have jurisdiction because the tenancy is exempted under s5(1)(n) of the RTA.
The property is a large 6-bedroom lifestyle block. The respondents have owned the property for just over five years.
The applicant lived in the property for about 8 months. The respondents say he came to live with them after his relationship broke up. They parties did not know each other before he lived there but he was a friend of their son’s friend.
The house has a master suite at one end, kitchen and living in the middle and 4 bedrooms and a bathroom at the other end. The tenant occupied one of the end wing bedrooms. The respondents were the only ones to use the ensuite bathroom and everyone else, including the tenant and visitors to the property used the other bathroom. The parties did not cook together but they kept all their foods in the same pantry and refrigerator. Does the exemption in s5(1)(n apply?
Section 5(1)(n) says: 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.
It has been held by the District Court that to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.2
The party who claims that exemption applies has the burden of proving that the exemption applies – see s10 RTA.
It is not disputed by the Applicant that the respondents lived in the property during the tenancy.
The question then is was the property principally used as the landlord’s place of residence?
In the District Court case of Musson v Dobrisek 2 Judge Broadmore considered what is meant by the phrase “to be used, during the tenancy, principally as a place of residence by the landlord” [38] I consider that the word "principally" in s 5(n) refers to the main use of the premises, not to the relative duration of the landlord's occupation of the premises or, possibly, its degree of intensity. This emerges from what is in my opinion the plain reading of the text. It does not say used ... as the principal place of residence ... What is actually says is - 2 Musson v Dobresik DC Lower Hutt CIV-2006-032-36 5 May 2006 used ... principally as a place of residence ... [39] The word "principally" is an adverb qualifying the verb "used", not an adjective describing the noun "place". So the question to be asked is-

Is the principal use of these premises as a place of residence by the landlord?

I am satisfied that the principal use of these premises was as a place of residence by the landlords/respondent and therefore the exemption in s5(1)(n) applies because: a. The landlords lived there. b. The respondents had lived there for over five years. They hosted family events there, their adult children had lived there from time to time. Their visitors stayed there. c. The respondents allowed people to stay there for short periods of time to help them get back on their feet. In some instances, they were paid rent in others the person stayed or stored their goods there as a favour. This was not a situation where the landlords were renting out the rest of the house to multiple tenants, for commercial gain. d. The rent that was charged to this tenant included electricity, internet and water, the amount charged would have barely covered the landlord’s costs for the room and the outgoings. e. The respondents kept all their belongings at the property.
I consider that the tenant was the flatmate/ boarder of the landlords. I say this because: a. the tenant only had exclusive use of his bedroom; all the other parts of the premise were shared with the respondents. b. The respondents cleaned the property, the tenant did not clean the kitchen and the living areas. c. Whilst the applicant and the respondent did not cook for one another, the respondent other things for the tenant which may be expected in a flat sharing situation rather than a residential tenancy such as hanging out his washing.
As I am satisfied that the exemption in s5(1)(n) applies the tenancy is exempt and the Tribunal does not have jurisdiction over this dispute.
As the exemption applies the Residential Tenancies Act does not apply and the landlord was not required to meet their obligations in the RTA.

Tenancy Tribunal case 4702169 — Exemplary damages at 104 Beer Road, Tauwhare, RD 1, Hamilton 3493

At a glance

Tenancy Tribunal case 4702169 — Exemplary damages at 104 Beer Road, Tauwhare, RD 1, Hamilton 3493

At a glance

Claims & awards

Order

Reasons

Is the principal use of these premises as a place of residence by the landlord?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the principal use of these premises as a place of residence by the landlord?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions