What was the outcome of Tenancy Tribunal case 4713269?

The tribunal order states: There is no jurisdiction for the Tribunal to determine this matter because the

How much money was awarded in case 4713269?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4713269?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 4713269?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9677148-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4713269?

The tribunal order states: There is no jurisdiction for the Tribunal to determine this matter because the

How much money was awarded in case 4713269?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4713269?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 4713269?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9677148-Tenancy_Tribunal_Order.pdf.

96 Gladstone Road, Dalmore, Dunedin 9010 Tenancy Tribunal Case 4713269 — Rent arrears

Order

There is no jurisdiction for the Tribunal to determine this matter because the tenancy is excluded under section 5(1)(n).
The application for termination and rent arrears fails.

Reasons

Both parties attended the hearing.
The landlord sought termination of the tenancy on the grounds of rent arrears, and other matters not relevant to my determination.
The tenancy began on 6/5/2023.
During the hearing the tenant suggested that the landlord’s son resided in the premises and the tenancy was therefore excluded.
While agreeing that their son had lived at the property the landlord submitted that he had moved out on 18/9/2023 due to the behaviour of the tenant.

Does the Tribunal have jurisdiction?

In Watson v Watson & Roo CIV 2010-009-2030 the Court emphasised when determining jurisdictional arguments that it was important to look at the full facts of the situation, decide the substance of the arrangement in place and avoid being diverted by labels that a party may attach to a particular arrangement.
The definition of landlord and tenant is set out in section 2.
Landlord in relation to any residential premises that are subject to a tenancy agreement means the grantor of the premises under the agreement, and a tenant the grantee.
Section 13A provides the contents of a tenancy agreement.
The tenancy agreement between the parties is for a periodic tenancy using the standard form available through Tenancy Services, which conforms with the requirements in section 13A.
Based on the evidence of the tenancy agreement there is a landlord tenant relationship between the parties.
The Tribunal only has jurisdiction between landlords and tenants.

Is the tenancy excluded?

However, because of the evidence about a member of the landlord’s family living at the premises I must consider whether the tenancy is excluded.
This is because the Act does not apply under section 5(1)(n) 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 owner of the premises or by any member of the landlord’s or owner’s family.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 His Honour Judge Broadmore when considering section 5(1)(n) noted that the issue was whether the premises were used principally as a place of residence by the landlord, owner, or family member and that the relevant question was not whether it was the landlord’s, owner’s, or family members principal place of residence.
For the exclusion under section 5(1)(n) to apply the premises must not be a boarding house and I am satisfied by the tenancy agreement and evidence that the dwelling with four tenants does not meet the definition of a boarding house set out in section 66B.
Rather based on the evidence of both parties that the landlord’s son occupied the property throughout the first four months that the tenant also lived there, and indeed had done so for the past ten years, I consider the son’s principal use of the premises was as his place of residence.
I do not consider the fact that the landlord’s son no longer lives at the premises alters my conclusion.
The evidence confirms that the landlord’s son has used the premises principally as his place of residence for around ten years.
The tenant was aware the landlord’s son lived at the premises when he moved in, and he paid his share of the electricity to the son.
Therefore, despite the tenancy agreement between the parties the Act does not apply because of the exclusion in section 5(1)(n).
This means I am unable to determine the issue of whether the tenancy should be terminated because of the rent arrears.
No filing fee is awarded because the landlord was unsuccessful with the application.

Order

There is no jurisdiction for the Tribunal to determine this matter because the tenancy is excluded under section 5(1)(n).
The application for termination and rent arrears fails.

Reasons

Both parties attended the hearing.
The landlord sought termination of the tenancy on the grounds of rent arrears, and other matters not relevant to my determination.
The tenancy began on 6/5/2023.
During the hearing the tenant suggested that the landlord’s son resided in the premises and the tenancy was therefore excluded.
While agreeing that their son had lived at the property the landlord submitted that he had moved out on 18/9/2023 due to the behaviour of the tenant.

Does the Tribunal have jurisdiction?

In Watson v Watson & Roo CIV 2010-009-2030 the Court emphasised when determining jurisdictional arguments that it was important to look at the full facts of the situation, decide the substance of the arrangement in place and avoid being diverted by labels that a party may attach to a particular arrangement.
The definition of landlord and tenant is set out in section 2.
Landlord in relation to any residential premises that are subject to a tenancy agreement means the grantor of the premises under the agreement, and a tenant the grantee.
Section 13A provides the contents of a tenancy agreement.
The tenancy agreement between the parties is for a periodic tenancy using the standard form available through Tenancy Services, which conforms with the requirements in section 13A.
Based on the evidence of the tenancy agreement there is a landlord tenant relationship between the parties.
The Tribunal only has jurisdiction between landlords and tenants.

Is the tenancy excluded?

However, because of the evidence about a member of the landlord’s family living at the premises I must consider whether the tenancy is excluded.
This is because the Act does not apply under section 5(1)(n) 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 owner of the premises or by any member of the landlord’s or owner’s family.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 His Honour Judge Broadmore when considering section 5(1)(n) noted that the issue was whether the premises were used principally as a place of residence by the landlord, owner, or family member and that the relevant question was not whether it was the landlord’s, owner’s, or family members principal place of residence.
For the exclusion under section 5(1)(n) to apply the premises must not be a boarding house and I am satisfied by the tenancy agreement and evidence that the dwelling with four tenants does not meet the definition of a boarding house set out in section 66B.
Rather based on the evidence of both parties that the landlord’s son occupied the property throughout the first four months that the tenant also lived there, and indeed had done so for the past ten years, I consider the son’s principal use of the premises was as his place of residence.
I do not consider the fact that the landlord’s son no longer lives at the premises alters my conclusion.
The evidence confirms that the landlord’s son has used the premises principally as his place of residence for around ten years.
The tenant was aware the landlord’s son lived at the premises when he moved in, and he paid his share of the electricity to the son.
Therefore, despite the tenancy agreement between the parties the Act does not apply because of the exclusion in section 5(1)(n).
This means I am unable to determine the issue of whether the tenancy should be terminated because of the rent arrears.
No filing fee is awarded because the landlord was unsuccessful with the application.

Tenancy Tribunal case 4713269 — Rent arrears at 96 Gladstone Road, Dalmore, Dunedin 9010

At a glance

Tenancy Tribunal case 4713269 — Rent arrears at 96 Gladstone Road, Dalmore, Dunedin 9010

At a glance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Is the tenancy excluded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Is the tenancy excluded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions