What was the outcome of Tenancy Tribunal case 4780157?

The tribunal order states: By declaration, the Residential Tenancies Act 1986 does not apply to the living

How much money was awarded in case 4780157?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4780157?

The primary dispute was Healthy homes. Related themes: Boarding House.

Where can I read the official tribunal order for case 4780157?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10068946-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4780157?

The tribunal order states: By declaration, the Residential Tenancies Act 1986 does not apply to the living

How much money was awarded in case 4780157?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4780157?

The primary dispute was Healthy homes. Related themes: Boarding House.

Where can I read the official tribunal order for case 4780157?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10068946-Tenancy_Tribunal_Order.pdf.

190 Wai-Iti Road, Highfield, Timaru 7910 Tenancy Tribunal Case 4780157 — Healthy homes

Order

By declaration, the Residential Tenancies Act 1986 does not apply to the living situation at 190 Wai-Iti Road, Highfield, Timaru.
The application is struck out for lack of jurisdiction.

Reasons

All parties attended a hearing which was held by telephone.
The applicants seek compensation and other orders for alleged breaches of the Residential Tenancies Act 1986. They have made claims against the property owner, Ms Watts and her friend, Ms McLean.
Ms Watts lived at the premises with the occupants until she left for a holiday early in the year. She has been unable to return to the premises as the occupants claim that the arrangement changed from a boarding situation to a tenancy in January 2024.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
Section 5(1)(n) RTA provides that the Act does 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
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
The occupants lived in the house with Ms Watts from July 2023. They acknowledge that this was flatmate/boarder situation until January 2024. A boarder is a person who lives with the owner or legal occupier of the premises. They have a licence from the owner to be there. A licence to occupy can be withdrawn at any time and the boarder is required to leave. If they refuse to do so, they become a trespasser.
From July 2023 the premises were principally used as a place of residence by Ms Watts. The exclusion in s5(1)(n) applied to the living arrangement at 190 Wai-Iti Rd. The issue I must determine, is whether the relationship changed to a “tenancy” from January 2024.
The occupants claim that the relationship changed by virtue of a “Tenancy Agreement” commencing on 4 January 2024 after Ms Watts signalled her intention to move to Australia. They say that Ms Watts told them on 2 January 2024 that she was moving and leaving the premises. The “Tenancy Agreement” document was prepared by Ms Cook and signed on 3 January 2024.
Ms Cook claims that Ms Watts appointed Ms McLean as her property manager and moved out of the house immediately. Ms Cook says that is consistent with the arrangement becoming a tenancy from 4 January 2024.
Ms Cook says the document she prepared recorded an agreement between the parties. It noted that each of the occupants would pay “rent” of $167.30 per week plus $20 for power ad $5 for WiFi. It said that the “rent” would start on 17 January 2024, notwithstanding her claim that the “tenancy” started on 4 January 2024. This application was lodged on 12 January 2024.
Ms Watts says that she did not move out of the house. She tidied her room before her trip, but she did not “move out”. She left personal items at the property and food in the cupboards. Ms Watts acknowledged that she was considering a move to Australia and the purpose of this trip was to see whether she wanted to commit to that move. She had a return flight booked and intended that she could return to her home after her trip.
The planned trip was approximately 4 weeks but ended up being less than that for a variety of reasons.
The power and other services remained in Ms Watts’ name while she was on holiday and are still in her name. Ms Watts did not understand that the nature of the relationship may change from a boarding situation to a tenancy simply because she was going on holiday for a few weeks. She thought the document Ms Cook prepared, recorded the increased outgoings payable by her boarders/flatmates to cover costs while she was away.
Ms Watts’ friend, Ms McLean, agreed to look in the property while she was way if necessary. Ms Cook recorded Ms McLean’s details as a “property manager” on the “tenancy” document. She is not, and was not, a property manager. Even if she was, she would have been Ms Watts’ agent. On the evidence I have heard, there is no legal or factual basis for a claim against Ms McLean, even if this Tribunal had jurisdiction to hear a claim against Ms Watts.
Ms McLean gave clear and comprehensive evidence at the hearing. She submitted that the occupants’ actions in claiming that the relationship changed and lodging an application with the Tribunal within 2 weeks of the alleged change seem contrived. There is merit to that submission.
Ms McLean described how the occupants had moved Ms Watts’ personal items and attempted to store them under the house. She gave evidence of her discussions with Ms Watts about the occupants being “flatmates” and that she (Ms McLean) offered to “pop in” or be a point of contact while Ms Watts was on holiday.
She also gave evidence that she called in to meet the occupants (at the occupants’ request) and was immediately presented with a bundle of documents by Ms Cook’s mother (Cheryl) and was asked to sign them. The forms were apparently Healthy Homes compliance documents and a more formal tenancy agreement. There was also a letter to Ms McLean welcoming her as the occupants’ “property manager”.
Ms McLean was concerned that the occupants had “set up” this scenario and immediately contacted Ms Watts, who reiterated that the occupants were her boarders/flatmates. Conclusion
Ms Watts’ travel plans had been subject to some changes, and she was considering a longer term move to Australia.
However, at the time Ms Cook claims this arrangement became a tenancy, Ms Watts was going on holiday to assess her options. She had a return flight and intended to return to her home. The premises were principally her place of residence. She did not anticipate that she would be, effectively, excluded by her boarders or that they would move her furniture and personal items while she was on holiday.
It is illogical to suggest that a boarding situation becomes a tenancy governed by the RTA when the owner goes on holiday. The document prepared by Ms Cook did not alter the nature of the relationship. There was no intention by Ms Watts to alter the arrangement, except that other occupants would contribute more to outgoings while she was not there.
The occupants remained as boarders even while Ms Watts was on holiday. She has not returned to the premises because of this dispute, but otherwise would have and was entitled to.
By declaration, the Residential Tenancies Act 1986 does not apply to the living situation at 190 Wai-Iti Road, Highfield, Timaru.
The application is struck out for lack of jurisdiction.

Order

By declaration, the Residential Tenancies Act 1986 does not apply to the living situation at 190 Wai-Iti Road, Highfield, Timaru.
The application is struck out for lack of jurisdiction.

Reasons

All parties attended a hearing which was held by telephone.
The applicants seek compensation and other orders for alleged breaches of the Residential Tenancies Act 1986. They have made claims against the property owner, Ms Watts and her friend, Ms McLean.
Ms Watts lived at the premises with the occupants until she left for a holiday early in the year. She has been unable to return to the premises as the occupants claim that the arrangement changed from a boarding situation to a tenancy in January 2024.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
Section 5(1)(n) RTA provides that the Act does 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
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
The occupants lived in the house with Ms Watts from July 2023. They acknowledge that this was flatmate/boarder situation until January 2024. A boarder is a person who lives with the owner or legal occupier of the premises. They have a licence from the owner to be there. A licence to occupy can be withdrawn at any time and the boarder is required to leave. If they refuse to do so, they become a trespasser.
From July 2023 the premises were principally used as a place of residence by Ms Watts. The exclusion in s5(1)(n) applied to the living arrangement at 190 Wai-Iti Rd. The issue I must determine, is whether the relationship changed to a “tenancy” from January 2024.
The occupants claim that the relationship changed by virtue of a “Tenancy Agreement” commencing on 4 January 2024 after Ms Watts signalled her intention to move to Australia. They say that Ms Watts told them on 2 January 2024 that she was moving and leaving the premises. The “Tenancy Agreement” document was prepared by Ms Cook and signed on 3 January 2024.
Ms Cook claims that Ms Watts appointed Ms McLean as her property manager and moved out of the house immediately. Ms Cook says that is consistent with the arrangement becoming a tenancy from 4 January 2024.
Ms Cook says the document she prepared recorded an agreement between the parties. It noted that each of the occupants would pay “rent” of $167.30 per week plus $20 for power ad $5 for WiFi. It said that the “rent” would start on 17 January 2024, notwithstanding her claim that the “tenancy” started on 4 January 2024. This application was lodged on 12 January 2024.
Ms Watts says that she did not move out of the house. She tidied her room before her trip, but she did not “move out”. She left personal items at the property and food in the cupboards. Ms Watts acknowledged that she was considering a move to Australia and the purpose of this trip was to see whether she wanted to commit to that move. She had a return flight booked and intended that she could return to her home after her trip.
The planned trip was approximately 4 weeks but ended up being less than that for a variety of reasons.
The power and other services remained in Ms Watts’ name while she was on holiday and are still in her name. Ms Watts did not understand that the nature of the relationship may change from a boarding situation to a tenancy simply because she was going on holiday for a few weeks. She thought the document Ms Cook prepared, recorded the increased outgoings payable by her boarders/flatmates to cover costs while she was away.
Ms Watts’ friend, Ms McLean, agreed to look in the property while she was way if necessary. Ms Cook recorded Ms McLean’s details as a “property manager” on the “tenancy” document. She is not, and was not, a property manager. Even if she was, she would have been Ms Watts’ agent. On the evidence I have heard, there is no legal or factual basis for a claim against Ms McLean, even if this Tribunal had jurisdiction to hear a claim against Ms Watts.
Ms McLean gave clear and comprehensive evidence at the hearing. She submitted that the occupants’ actions in claiming that the relationship changed and lodging an application with the Tribunal within 2 weeks of the alleged change seem contrived. There is merit to that submission.
Ms McLean described how the occupants had moved Ms Watts’ personal items and attempted to store them under the house. She gave evidence of her discussions with Ms Watts about the occupants being “flatmates” and that she (Ms McLean) offered to “pop in” or be a point of contact while Ms Watts was on holiday.
She also gave evidence that she called in to meet the occupants (at the occupants’ request) and was immediately presented with a bundle of documents by Ms Cook’s mother (Cheryl) and was asked to sign them. The forms were apparently Healthy Homes compliance documents and a more formal tenancy agreement. There was also a letter to Ms McLean welcoming her as the occupants’ “property manager”.
Ms McLean was concerned that the occupants had “set up” this scenario and immediately contacted Ms Watts, who reiterated that the occupants were her boarders/flatmates. Conclusion
Ms Watts’ travel plans had been subject to some changes, and she was considering a longer term move to Australia.
However, at the time Ms Cook claims this arrangement became a tenancy, Ms Watts was going on holiday to assess her options. She had a return flight and intended to return to her home. The premises were principally her place of residence. She did not anticipate that she would be, effectively, excluded by her boarders or that they would move her furniture and personal items while she was on holiday.
It is illogical to suggest that a boarding situation becomes a tenancy governed by the RTA when the owner goes on holiday. The document prepared by Ms Cook did not alter the nature of the relationship. There was no intention by Ms Watts to alter the arrangement, except that other occupants would contribute more to outgoings while she was not there.
The occupants remained as boarders even while Ms Watts was on holiday. She has not returned to the premises because of this dispute, but otherwise would have and was entitled to.
By declaration, the Residential Tenancies Act 1986 does not apply to the living situation at 190 Wai-Iti Road, Highfield, Timaru.
The application is struck out for lack of jurisdiction.

Tenancy Tribunal case 4780157 — Healthy homes at 190 Wai-Iti Road, Highfield, Timaru 7910

At a glance

Tenancy Tribunal case 4780157 — Healthy homes at 190 Wai-Iti Road, Highfield, Timaru 7910

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