Published tribunal order
Tenancy Tribunal case 4775198 — Tenancy dispute at 57 Asquith Avenue, Mount Albert, Auckland 1025
Decided 23 Apr 2024 · Published 23 Apr 2024 · Application 4775198
Tenant favoured
- Boarding House
- Cleanliness
Order
- The Tribunal declares it has jurisdiction to hear the claim.
- G Simon/Jacques Liu are to pay Jasleen Ghuliani $200.44, immediately, calculated as shown in the table below:
- All other claims are dismissed.
Reasons
- Ms Ghuliani and Mr Liu both attended the teleconference hearing, along with the Mandarin interpreter, Ms Li.
- Ms Ghuliani has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The Tribunal initially must consider whether it has jurisdiction to hear the claim.
Does the Tenancy Tribunal have jurisdiction to hear the claim?
- Section 5(1)(n) Residential Tenancies Act 1986 (“RTA”) provides that the RTA shall not apply 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.
- Section 10 RTA provides that, where, in any proceedings before the Tribunal, any party contends that the RTA 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 the RTA does not apply. Thus, Mr Liu, who contended that the living situation was one of flatting and was under the jurisdiction of the Disputes Tribunal, rather than the Tenancy Tribunal, bears the burden of proof in proving this.
- Ms Ghuliani and Mr Liu entered into a Flatmate/House Sharing Agreement. Pursuant to this agreement, Ms Ghuliani had her own bedroom at the flat, shared bills with other flatmates, shared cleaning and other chores around the flat and agreed to have any disputes determined by the Disputes Tribunal. Ms Ghuliani moved into the flat on 10 September 2023. The agreement was that Ms Ghuliani would live there until 10 March 2024. However, when Mr Liu notified Ms Ghuliani of his intention not to renew their agreement after 10 March 2024, but asked her to provide him with 4-weeks’ notice if she moved out sooner, he said Ms Ghuliani gave him notice on 2 December 2023. Mr Liu said he clarified with Ms Ghuliani, and provided messages confirming this, that she had to provide him with 4-weeks’ notice and so her leaving date was agreed to be 29 December 2024.
- Ms Ghuliani said she moved out on 7 December 2023, whereas Mr Liu said she moved out on 16 December 2023, and provided copy of messages between them on 15 December 2023 when Ms Ghuliani said she would take the rest of her stuff that night and leave the key for Mr Liu. From this, I find it likely that Ms Ghuliani moved out of the flat on 16 December 2023.
- Ms Ghuliani maintained the living situation fell under the jurisdiction of the Tenancy Tribunal, as neither Mr Liu, his wife, nor any of his family members lived at the flat during the period of her tenancy, only three other flatmates, all of whom were unrelated to Mr Liu. She confirmed there were 4 bedrooms. Thus, Ms Ghuliani believed that the living situation did not fall under the exception set out in section 5(1)(n) RTA.
- Mr Liu confirmed he owned the property, that he and his wife lived at the flat for the month of July 2023, before Ms Ghuliani moved in, and that they have not lived at the property since July 2023. Mr Liu plans to move back into the property in May 2024, and said he will have other flatmates living with him at the flat then. Mr Liu confirmed he did not have family members living at the flat during the time Ms Ghuliani lived there and that there were 4 bedrooms. He said he moved his personal belongings out of the flat when flatmates moved in but left some furniture there. Ms Ghuliani believed the furniture left at the flat was for general use by the flatmates.
- The tenancy was not alleged to be a boarding house one. However, for the avoidance of any doubt, I note that this situation does not meet the definition of ‘boarding house’ pursuant to section 66B RTA as being occupied, or intended by the landlord to be occupied, by at least 6 tenants at one time, despite having facilities for communal use by the tenants, as there were only 4 bedrooms and 4 flatmates living at the premises.
- Mr Liu’s evidence was that neither he, nor his wife or any family lived at the flat during Ms Ghuliani’s tenancy. In other words, Mr Liu and his family did not continue to use the premises principally as their place of residence during the tenancy. As such, Mr Liu has not proved this situation meets the definition of a tenancy excluded pursuant to section 5(1)(n) RTA. As the tenancy is not excluded pursuant to the RTA, I find Tribunal has jurisdiction to hear and determine the claim.
Should the tenant receive the balance of the bond?
- The tenant has applied for refund of the balance of the bond. The tenant said the landlord refused to pay her the remaining $180.00 of the bond, saying she owed him money for rent and utilities. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) RTA provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim, the balance of the bond remaining at $180.00, is to be refunded by the landlord to the tenant. Compensation
- Ms Ghuliani claimed compensation of $500.00 from Mr Liu for stress and anxiety she said she suffered in having to leave the tenancy early and look for another place to live during her exam period and the time over which she was supposed to look for a summer job.
- Ms Ghuliani discussed a situation which arose at the flat just prior to her departure, where another flatmate was alleged to have been involved in the theft of another flatmate’s computer and the police were involved. She said she had to try to listen to a lecture in her room during this time, despite this interruption. She maintained Mr Liu was in the main communal area with the police. Ms Ghuliani said she ended up leaving the tenancy before she had planned to do so in March 2024, because of the stress of the incident, and due to feeling uncomfortable, as Mr Liu would show up at the flat unannounced. She maintained this meant she had to look for another place to live during her exam period and when she would have been seeking a summer job, had she remained until March 2024. Mr Liu said Ms Ghuliani never brought up the issue of him coming to the property, and he believed she left because of the situation where the police were involved about the theft of a computer of another flatmate, as the suspected flatmate had left some of his belongings in her bedroom.
- There was also evidence by way of copies of messages between the parties that Mr Liu notified Ms Ghuliani on 18 November 2023 of his intention to move back into the property and not renew their agreement after it expired in March 2024, and that Ms Ghuliani gave him notice on 2 December 2023, not long after he notified her of this, that she intended to move out.
- I find there is insufficient evidence to prove it likely that Ms Ghuliani suffered the stress and anxiety she claimed directly because of Mr Liu’s actions.
- Further, Ms Ghuliani did not provide any medical evidence, or other evidence from her study institution or a counsellor, for example, or any other additional supporting evidence, about the effects on her of having to leave the tenancy early. As such, I find she has not provided sufficient evidence of her claim and I dismiss this claim. Filing fee
- Because Jasleen Ghuliani has been successful with the claim I must reimburse the filing fee. Suppression
- Ms Ghuliani did not request suppression. Mr Liu requested suppression.
- Section 95A(4) RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interest of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
- As Mr Liu has not been successful with the claim, nor has he provided any other reasons as to why his interests outweigh the public interest in publishing his name, I do not grant Mr Liu suppression.