What was the outcome of Tenancy Tribunal case 4774017?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4774017?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4774017?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4774017?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9972024-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4774017?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4774017?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4774017?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4774017?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9972024-Tenancy_Tribunal_Order.pdf.

31 Sunset Road, Totara Vale, Auckland 0632 Tenancy Tribunal Case 4774017 — Boarding House

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The tenant, Mr Ting Liu, attended the hearing.
The landlord, Ms Mary Devlin, attended the hearing with a support person. The support person did not address me in the hearing.
Before I consider Mr Liu’s case, he needs to satisfy me on the facts that Ms Devlin operates a boarding house. I have no jurisdiction to consider Mr Liu’s complaint if he fails to persuade me that Ms Devlin operates a boarding house.
Throughout the hearing, Ms Devlin denied she was operating a boarding house. Ms Devlin submitted that her house has two levels. The downstairs has a self- contained flat. The upstairs is where Ms Devlin and her other tenants stay.
Ms Devlin said in the hearing that the downstairs flat is self-contained.
Mr Liu was a tenant occupying one of the rooms upstairs during the tenancy. The Law
Section 4 of the Residential Tenancies Act 1986 (“RTA”) provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
Section 5 of the RTA details exclusions to the RTA. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The exception to this exception is if the premise is a boarding house. A boarding house is defined in section 66B of the RTA as residential premises containing one or more boarding rooms along with facilities for communal use by the tenants of the boarding house that is occupied, or intended by the landlord to be occupied, by at least six tenants at any one time.
A ‘flatmate’ resides in the premises by way of a licence from the owner of the premises In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. He states (at para [22]: “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 rooms and shared use and occupation of common areas such as kitchens.”. Mr Liu’s case in summary
Mr Liu submits that during his stay in the house, the total number of tenants changed from seven to eight.
The house has two levels, with five bedrooms on the upper and two on the lower levels. Each level has a kitchen, living room, bathroom, and toilet shared among the tenants on that particular level.
Mr Liu said in the hearing that sometimes, tenants move between rooms on different levels if they become available. Mr Liu submits that the upstairs and downstairs are one house, with tenants having the option to move between rooms. For this reason, Mr Liu submits that Ms Devlin operates a boarding house.
Mr Liu said that five tenants were living upstairs when he moved in, and the maximum number of tenants he had seen while staying there was five. Ms Devlin’s case in summary
Ms Devlin says there are only five bedrooms upstairs, of which three are rented out, one belongs to her, and the other is a bedsit room. In addition, there are two bedrooms downstairs in a self-contained flat.
She has never rented to more than four tenants upstairs.
The downstairs flat is separate from the upstairs area, with its facilities (kitchen, bathroom, toilet, and living room) and entry. The downstairs tenants do not have access to the upstairs area and vice versa.
Ms Devlin says she advertises and rents out the downstairs flat separately. Currently, a married couple and the wife's sister are renting the downstairs flat.
Ms Devlin has denied Mr Liu's allegation that she operates a boarding house. Application of law to the facts
During the hearing, Mr Liu accepted that downstairs is a self-contained flat.
Mr. Liu has acknowledged that he does not possess the keys to go downstairs as and when he pleases. He has also accepted that the downstairs tenants do not have the keys to access the upstairs area. Each level has shared facilities for its tenants.
Mr. Liu tried to persuade me that Ms. Devlin’s two-level house should be considered a boarding house. However, he has not been able to provide any evidence to support his claim that the downstairs area is part of the upstairs where tenants can share facilities and come and go as they please.
In my view, Ms Devlin shares her upstairs with other tenants as a flatmate arrangement.
If my conclusion is incorrect that Ms. Devlin lives with her tenants as flatmates, Mr. Liu stated that he has only seen a maximum of five tenants residing upstairs. To meet the requirements for a residential arrangement under section 66B of the RTA, Mr. Liu must prove on the balance of probabilities that at least six or more tenants were living upstairs.
Mr Liu conceded in the hearing he could not prove so.
Mr Liu is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
Mr Liu has not satisfied me that it is more likely than not that Ms Devlin is operating a boarding house under section 66B of the RTA.
Accordingly, I do not have the jurisdiction to consider Mr Liu’s application.
Mr Liu’s application is dismissed. Filing fee and name suppression
As Mr Liu's application was unsuccessful, I am unable to refund his filing fee or grant name suppression.

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The tenant, Mr Ting Liu, attended the hearing.
The landlord, Ms Mary Devlin, attended the hearing with a support person. The support person did not address me in the hearing.
Before I consider Mr Liu’s case, he needs to satisfy me on the facts that Ms Devlin operates a boarding house. I have no jurisdiction to consider Mr Liu’s complaint if he fails to persuade me that Ms Devlin operates a boarding house.
Throughout the hearing, Ms Devlin denied she was operating a boarding house. Ms Devlin submitted that her house has two levels. The downstairs has a self- contained flat. The upstairs is where Ms Devlin and her other tenants stay.
Ms Devlin said in the hearing that the downstairs flat is self-contained.
Mr Liu was a tenant occupying one of the rooms upstairs during the tenancy. The Law
Section 4 of the Residential Tenancies Act 1986 (“RTA”) provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
Section 5 of the RTA details exclusions to the RTA. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The exception to this exception is if the premise is a boarding house. A boarding house is defined in section 66B of the RTA as residential premises containing one or more boarding rooms along with facilities for communal use by the tenants of the boarding house that is occupied, or intended by the landlord to be occupied, by at least six tenants at any one time.
A ‘flatmate’ resides in the premises by way of a licence from the owner of the premises In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. He states (at para [22]: “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 rooms and shared use and occupation of common areas such as kitchens.”. Mr Liu’s case in summary
Mr Liu submits that during his stay in the house, the total number of tenants changed from seven to eight.
The house has two levels, with five bedrooms on the upper and two on the lower levels. Each level has a kitchen, living room, bathroom, and toilet shared among the tenants on that particular level.
Mr Liu said in the hearing that sometimes, tenants move between rooms on different levels if they become available. Mr Liu submits that the upstairs and downstairs are one house, with tenants having the option to move between rooms. For this reason, Mr Liu submits that Ms Devlin operates a boarding house.
Mr Liu said that five tenants were living upstairs when he moved in, and the maximum number of tenants he had seen while staying there was five. Ms Devlin’s case in summary
Ms Devlin says there are only five bedrooms upstairs, of which three are rented out, one belongs to her, and the other is a bedsit room. In addition, there are two bedrooms downstairs in a self-contained flat.
She has never rented to more than four tenants upstairs.
The downstairs flat is separate from the upstairs area, with its facilities (kitchen, bathroom, toilet, and living room) and entry. The downstairs tenants do not have access to the upstairs area and vice versa.
Ms Devlin says she advertises and rents out the downstairs flat separately. Currently, a married couple and the wife's sister are renting the downstairs flat.
Ms Devlin has denied Mr Liu's allegation that she operates a boarding house. Application of law to the facts
During the hearing, Mr Liu accepted that downstairs is a self-contained flat.
Mr. Liu has acknowledged that he does not possess the keys to go downstairs as and when he pleases. He has also accepted that the downstairs tenants do not have the keys to access the upstairs area. Each level has shared facilities for its tenants.
Mr. Liu tried to persuade me that Ms. Devlin’s two-level house should be considered a boarding house. However, he has not been able to provide any evidence to support his claim that the downstairs area is part of the upstairs where tenants can share facilities and come and go as they please.
In my view, Ms Devlin shares her upstairs with other tenants as a flatmate arrangement.
If my conclusion is incorrect that Ms. Devlin lives with her tenants as flatmates, Mr. Liu stated that he has only seen a maximum of five tenants residing upstairs. To meet the requirements for a residential arrangement under section 66B of the RTA, Mr. Liu must prove on the balance of probabilities that at least six or more tenants were living upstairs.
Mr Liu conceded in the hearing he could not prove so.
Mr Liu is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
Mr Liu has not satisfied me that it is more likely than not that Ms Devlin is operating a boarding house under section 66B of the RTA.
Accordingly, I do not have the jurisdiction to consider Mr Liu’s application.
Mr Liu’s application is dismissed. Filing fee and name suppression
As Mr Liu's application was unsuccessful, I am unable to refund his filing fee or grant name suppression.

Tenancy Tribunal case 4774017 — Boarding House at 31 Sunset Road, Totara Vale, Auckland 0632

At a glance

Tenancy Tribunal case 4774017 — Boarding House at 31 Sunset Road, Totara Vale, Auckland 0632

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