What was the outcome of Tenancy Tribunal case 4840262?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4840262?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4840262?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4840262?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10399616-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4840262?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4840262?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4840262?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4840262?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10399616-Tenancy_Tribunal_Order.pdf.

The Cottage, 325 Curraghs Road, RD6, Rolleston 7676 Tenancy Tribunal Case 4840262 — Healthy homes

Order

The tenant’s application is dismissed.

Reasons

All parties attended the hearing.
The landlords owned a semi-rural property in Rolleston which they sold in February 2024.
They lived in the main house. There were other buildings on the property including one that the applicant calls “the cottage” and which the respondents call a “tearoom”. I will call it the cottage in this decision.
It was obviously more than a typical tearoom. For example, it had a bathroom. It may have been used as a tearoom by people working at the property, but it was capable of being used as a dwelling. Whether it was fit to be used as a rental property is a different question.
The applicant said that in 2009 he needed somewhere to live, and he put up a notice in the local supermarket. The respondents said that they were not aware of any notice, but the applicant came to them asking for use of some land for vegetable growing. The respondents had spare land and they said that they agreed with the applicant that he could have the use of some land and the use of the cottage and a shed on the property.
Initially, no money changed hands because the applicant agreed to do some work on the cottage. After he completed the work, he paid the respondents $100 per week. He said that the respondents were aware that he intended living in the cottage and the $100 per week included the use of it as his home. He said that he would not have paid $100 per week for a garden and use of the buildings during the day.
The respondents said that at the beginning the applicant had a partner and that he lived with her and would sleep occasionally in the cottage at weekends.
It then became apparent that the applicant was spending more time staying in the cottage and he moved more of his belongings in there. Although that is not what the respondents had agreed, they said that they felt sorry for the applicant, and they did not want to see him without somewhere to live. They therefore did nothing to prevent the applicant from living in the cottage.
In about 2014, one of the respondents’ sons needed somewhere to live to recover from an injury and the respondents asked the applicant to vacate the cottage to allow their son to use it. He duly left and went to live with his partner. The son moved in and occupied the cottage for approximately two years. During that time the applicant did not make use of the property at all and paid no money to the respondents.
After the respondents’ son left, the applicant asked if he could reoccupy the cottage. The respondents said that they were reluctant to agree, but they did so because they wanted to help the applicant. He resumed paying them $100 per week. The respondents accepted that this second time around, they were aware that the applicant would be living in the cottage.
That situation continued until October 2023 when the respondents informed the applicant that they were considering selling the property and that he should start to look for somewhere else to live.
The property went to auction on 11 December 2023, and it was sold at the auction. The respondents made the applicant aware that settlement was to be in March or sooner if the respondents found somewhere to move to.
The respondents found another property and they moved there on 23 February which was the date of settlement. The applicant was still living in the cottage then. He said that he had delivered 500 flyers in the local area seeking other accommodation, but nothing came of them. I note that if the applicant was seeking a similar arrangement on similar terms the lack of interest from other property owners is not surprising.
On 24 February, Mrs Hume came to the property and told the applicant that he had to leave because the new owner wanted vacant possession. He was also told that he needed to remove his belongings and any of his rubbish from the property. The applicant had obtained advice from Tenancy Services, and he told Mrs Hume that he was entitled to 90 days written notice and that he would not be leaving. She said that she would involve the Police and she went to the local Police station. It was closed, and when she returned to the property, her estate agent was there.
The estate agent told the applicant that if he did not vacate the property the new owner would come in with a bulldozer and demolish the cottage the next day. After some discussion, it was agreed that the applicant would vacate the property on 28 February.
The applicant said that he felt under considerable pressure from the respondents and their agent, and he was not able to think straight or deal with the situation he was in. He removed some of his belongings from the property but ultimately felt compelled to engage his brother to deliver a skip to the property and fill it with some of remaining belongings and some of the rubbish still at the property.
He said that he had to leave some of his belongings at the property and he claims the value of those amounting to $1000.
He also claims other compensation and exemplary damages for his unlawful eviction from the property. He says that the respondents’ action detrimentally affected him psychologically. By way of an amendment to his application, he claims $20,000 for the effect that it had on him.
He accepted that he was aware from October 2023 that the respondents intended selling the property and he was aware from 13 December that it had been sold and that he would have to leave when the respondents left and in any case by March. He said that if he had received a written notice that he had to leave, he would have taken it more seriously and he would not have found himself in the situation that he did find himself in. He was not aware that he was entitled to written notice until he contacted Tenancy Services.

Was the Applicant a Tenant?

The first question I must consider is whether the applicant’s occupation of the cottage was as a tenant.
Section 2 of the Residential Tenancies Act (the Act) defines a tenancy as the right to occupy premises for consideration for rent. Consideration usually means payment of money. Residential premises means premises used or intended to be used by any person for occupation as a place of residence.
The respondents say that the cottage was not, at least at first, intended to be used as the applicant’s place of residence. They say that they believed that he would be living elsewhere, and his use of the cottage was ancillary to his use of land at the property for growing vegetables.
I take the applicant’s point about paying $100 per week to grow vegetables but equally, $100 per week, even in 2009, seems far too little for the right to live in residential premises. I also note that for that the applicant (according to the respondents) was getting the use of the cottage as a place to rest and refreshment during the day and the use of a shed for storage. Considering that, $100 per week is, in my view, consistent with the respondents’ evidence.
After hearing from the parties and considering the evidence, I prefer the respondents’ evidence that the parties understood that the premises were not intended to be used as the applicant’s place of residence.
I am fortified in that view by the fact during the 12 or more years that the tenant used the premises, there is no evidence that the tenant complained about the condition of the premises, asked the respondents to carry out any work on the premises or required the respondents to comply with any of the obligations that would apply to them as landlords. It is common ground that the premises were far from compliant with requirements relating to the condition of residential rental premises such as insulation requirements.
I find that the parties intended that the respondent would use the cottage ancillary to his use of the land for vegetable growing, not as his residence. As time went on, it became obvious that the applicant was sleeping at the cottage and that increased until he was, for all intents and purposes, living there.
He was using the premises as his residence, but the respondents had not granted him that right. They tolerated it out of kindness to the applicant.
The situation after the respondents’ son moved out of the cottage and the applicant moved back into it in 2016 or thereabouts makes it more difficult for the respondents to argue that the premises were not intended for use by the applicant as his residence. They were aware that he would be living there from that time.
That said, the weekly payment stayed the same and even more so than in 2009, the payment was extremely low for such residential premises, even one in substandard condition. The respondents said that they allowed the applicant back to help him. He could not stay with his partner, and he needed somewhere to live. I accept that.
Nevertheless, the applicant was using the cottage as his residence and the respondents were aware of that. The respondents said that they turned a blind eye to it. In effect, they are saying that they were not accepting rent for the use of the cottage as a residence, but if the applicant chose to live there, whether out of necessity or from choice, they would permit it.
Consistent with finding that the respondents had not granted the applicant a tenancy of the premises, I find that the applicant was not paying rent for use of the cottage as his residence. In other words, there was no material change from the situation that existed earlier. For that reason, I find that the situation does not meet the definition of a residential tenancy. Section 85
If I am wrong about that, this is one of the rare cases where it is proper to invoke s85 of the Act. It states that the Tribunal shall determine each dispute according to the general principals of law relating to the matter and the substantial merits and justice of the case and shall not be bound to give effect to strict legal rights and obligations or to legal forms or technicalities.
This is a case where the parties have dealt with each other on an extremely informal basis. The tenant was asked to vacate the cottage to allow the respondents’ son to use it and he did so without demur and without any formal notice. He reoccupied the cottage paying the respondents the same extremely modest sum of $100 per week. That rate remained the same across a period of 15 years.
The respondents then gave the applicant plenty of notice that they were selling the premises and that he would have to vacate them. He says that he would have acted differently if he had been given a written notice. I don’t accept that. He was not aware that a written notice was required, and he had not received one previously. The reason that he didn’t find somewhere to move to, in my view, was that he expected to be able to find something on similar terms when no such place existed.
I also don’t accept that he lost anything of value because of the move. He admitted that some on the things he claimed for had belonged to the respondents. He then claimed that he believed that they had gifted them to him. He had plenty of time to move his belongings and I don’t accept that he was somehow rendered incapable of dealing with the situation.
I also don’t accept that he has been damaged psychologically by the events that happened. He presented as a man who was living as he chose to live and was very content to do so. He struck me as being intelligent, capable and robust.
I accept that the respondents were motivated, at least in part, by a desire to help the applicant. In my view, this application is an attempt to take advantage of that kindness for monetary gain.
For these reasons dismissing the application accords with the substantial merits and justice of the case.

Tenancy Tribunal case 4840262 — Healthy homes at The Cottage, 325 Curraghs Road, RD6, Rolleston 7676

At a glance

Tenancy Tribunal case 4840262 — Healthy homes at The Cottage, 325 Curraghs Road, RD6, Rolleston 7676

At a glance

Claims & awards

Order

Reasons

Was the Applicant a Tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the Applicant a Tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions