What was the outcome of Tenancy Tribunal case 4848440?

The tribunal order states: The Tribunal does not have jurisdiction in this matter.

How much money was awarded in case 4848440?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4848440?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4848440?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10341938-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4848440?

The tribunal order states: The Tribunal does not have jurisdiction in this matter.

How much money was awarded in case 4848440?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4848440?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4848440?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10341938-Tenancy_Tribunal_Order.pdf.

15 Pulman Place, Clover Park, Auckland 2019 Tenancy Tribunal Case 4848440 — Healthy homes

Order

The Tribunal does not have jurisdiction in this matter.
The Application is struck out.

Reasons

Both parties attended the hearing held today.
The Applicant has made a number of claims against the Respondent for failures to maintain, failure to meet Healthy Homes Standards and failures for taking land included in the lease for part of a subdivision.

Does the Tribunal have jurisdiction to hear this claim?

In all claims before the Tribunal the Tribunal must first decide if it has jurisdiction to hear a claim.
The Respondent is the owner of the 5-bedroom property. The Applicant is a charitable trust that provides social housing.
In 2019 the Applicant and Respondent entered a deed of lease, that was prepared by the Applicant. The deed of lease was for a period of two years. The deed of lease provides that after the two years the lease becomes a month-to- month lease.
The deed of lease records that the Respondent will sublet the house to a tenant.
The Applicant tells me that it has sublet the house to the same tenant since 2019.
The subtenancy that the Applicant has with its tenant is a social housing tenancy. This means that the tenant pays a rent and the Applicant receives the difference between what the tenant pays and what it pays the Respondent owner from the Ministry of Housing and Urban Development (MHUD) The Applicant also receives a fee from the MHUD for its services.
The deed of lease between the Applicant and the Respondent is very similar to the Deed of Lease produced in the case of TT 4285714 between Monte Cecilia Housing Trust and Pro Edge Property Management Limited. In that case the Adjudicator determined that the Tribunal did not have jurisdiction because the dispute was not between a landlord and tenant 1 and because the deed of lease did not give Monte Cecilia a right of occupation. 2
Given the same provisions apply to this deed of lease between the parties the same conclusion can be reached and therefore the Tribunal would not have jurisdiction. Other reasons for excluding jurisdiction.
The starting point is section 4 of the RTA which provides that the RTA (and therefore the Tribunal has jurisdiction over) applies to every tenancy for residential purposes except as specifically provided.
However, section 5 of the RTA lists a number of exceptions. If an exception applies then the tenancy is outside the jurisdiction of the Tribunal, and the dispute/ claim must be heard in another jurisdiction.
The exception in section 5(1)(s) provides: where the tenancy agreement— (i)is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for— (A) other people for commercial gain; or (B) the sublandlord’s employees; or (C) persons on low incomes; or (D) persons with special housing needs; or 1 Pro Edge Property Management Limited v Monte Cecilia Housing Trust TT 4285714 at [10 and 11] 2 Pro Edge Property Management Limited v Monte Cecilia Housing Trust TT 4285714 at [13]- “The deed of lease does not give anyone the right to occupy the premises in consideration for rent; it gives the lessee the right to contract with someone else to occupy the premises in consideration for rent.” (E) persons whose disabilities mean that they need support or supervision in their housing; and (ii)is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions; and (iii)expressly provides that the sublandlord will not personally occupy the premises: Then the Act does not apply.
In TT 4285714 my learned colleague determined that the s5(1)(s) could not apply to a deed of lease between an owner and Monte Cecilia Housing Trust because the deed of lease did not expressly provide that the sublandlord would not 3 ‘personally occupy the premises’. Rather the Deed of Lease creates and perpetuates a legal fiction that the lessee will occupy the premises.
With the greatest of respect, I have a different interpretation, because Monte Cecilia Housing Trust is a registered charitable trust, it was incapable of ‘personally occupying’ the premises and therefore the provision that the landlord will not personally occupy the premises does not apply and did not need to be recorded in the deed of lease.
The purpose of s5(1)(s) to exclude tenancies between parties for the five factors set out in 5(1)(s)(i)(A-E), I regard the provisions of s5(1)(s)(ii) and (iii) as provisions to protect s5(1)(s) being used as a mechanism of contracting out of the RTA. The reference to personally occupy must be read as the tenant first being able to occupy the property, if the tenant is not able to ‘personally occupy’ the premises because of the nature of the tenant i.e. it is a company or incorporated society or a charitable trust, then this subsection does not apply.
Accordingly as the deed of lease is genuinely entered into by both parties to enable Monte Cecilia to sublet the premises, and because Monte Cecilia are doing so for a commercial gain (they receive a fee from MHUD), do so for people with special housing needs and low incomes, and because Monte Cecilia Housing Trust cannot occupy the premises themselves, then I am satisfied that exemption in 5 (1)(s) applies and the Tribunal does not have jurisdiction.
Even though I have already determined that s5(1)(s) applies, I note for the sake of completeness that it appears that the provisions of s5(1)(y) may also apply.
Section 5(1)(y) provides: if the premises are used to provide emergency or transitional accommodation and— 3 Pro Edge Property Management Limited v Monte Cecilia Housing Trust TT 4285718 at [19 and 20]. (i) the provision of the accommodation is funded wholly or partly by— (A)emergency housing assistance paid to or for the credit of a person under the Special Needs Grants Programme; or (B)any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing; or (ii)the provider of the accommodation is a person, or class of person, prescribed by regulations for the purposes of this paragraph.
Transitional housing is not defined in legislation. However, on MHUD’s website it describes it as: Transitional housing provides temporary accommodation for individuals and whānau who don't have anywhere to live and urgently need a place to stay. It also offers tailored support to help these individuals and whānau into longer- term housing.
Section 3 Social Security Regulations 2018 defines transitional housing contributions as transitional housing contribution means an amount that— (a) is a contribution to the cost of transitional housing funded partly or wholly by assistance paid by the Ministry of Housing and Urban Development; and (b) is under the terms and conditions of that assistance payable as an expense by, or recoverable as a debt from, a person provided that housing because of that assistance
A distinguishing feature of transitional housing assistance is that it is paid for by MHUD not by the Ministry of Social Development which pays for emergency accommodation.
No other types of accommodation payment appear to be made by MHUD meaning that the type of payment appears to be a transitional housing contribution as provided for in s 3 of the Social Security Act
The provision of payments by MHUD to Monte Cecilia Housing Trust infers that this is considered transitional housing premises and therefore the exemption in s5(1)(y) applies.

Have the parties contracted back into the RTA?

Section 8 of the RTA allows parties who are exempted pursuant to an exemption in clause 5 to contract back into the Act. The deed of lease has a clause that refers to the RTA.
This clause has not been completed, the parties have not included any sections in the ‘insert sections’ part, and therefore I do not consider that this provision shows an intention by the parties to contract back into the Act. To show intention, this clause should have been completed and the parties’ minds drawn to it.
I therefore find that the parties have not contracted back into the Act and the Tribunal does not have jurisdiction to hear this claim. The Application is therefore struck out.

Order

The Tribunal does not have jurisdiction in this matter.
The Application is struck out.

Reasons

Both parties attended the hearing held today.
The Applicant has made a number of claims against the Respondent for failures to maintain, failure to meet Healthy Homes Standards and failures for taking land included in the lease for part of a subdivision.

Does the Tribunal have jurisdiction to hear this claim?

In all claims before the Tribunal the Tribunal must first decide if it has jurisdiction to hear a claim.
The Respondent is the owner of the 5-bedroom property. The Applicant is a charitable trust that provides social housing.
In 2019 the Applicant and Respondent entered a deed of lease, that was prepared by the Applicant. The deed of lease was for a period of two years. The deed of lease provides that after the two years the lease becomes a month-to- month lease.
The deed of lease records that the Respondent will sublet the house to a tenant.
The Applicant tells me that it has sublet the house to the same tenant since 2019.
The subtenancy that the Applicant has with its tenant is a social housing tenancy. This means that the tenant pays a rent and the Applicant receives the difference between what the tenant pays and what it pays the Respondent owner from the Ministry of Housing and Urban Development (MHUD) The Applicant also receives a fee from the MHUD for its services.
The deed of lease between the Applicant and the Respondent is very similar to the Deed of Lease produced in the case of TT 4285714 between Monte Cecilia Housing Trust and Pro Edge Property Management Limited. In that case the Adjudicator determined that the Tribunal did not have jurisdiction because the dispute was not between a landlord and tenant 1 and because the deed of lease did not give Monte Cecilia a right of occupation. 2
Given the same provisions apply to this deed of lease between the parties the same conclusion can be reached and therefore the Tribunal would not have jurisdiction. Other reasons for excluding jurisdiction.
The starting point is section 4 of the RTA which provides that the RTA (and therefore the Tribunal has jurisdiction over) applies to every tenancy for residential purposes except as specifically provided.
However, section 5 of the RTA lists a number of exceptions. If an exception applies then the tenancy is outside the jurisdiction of the Tribunal, and the dispute/ claim must be heard in another jurisdiction.
The exception in section 5(1)(s) provides: where the tenancy agreement— (i)is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for— (A) other people for commercial gain; or (B) the sublandlord’s employees; or (C) persons on low incomes; or (D) persons with special housing needs; or 1 Pro Edge Property Management Limited v Monte Cecilia Housing Trust TT 4285714 at [10 and 11] 2 Pro Edge Property Management Limited v Monte Cecilia Housing Trust TT 4285714 at [13]- “The deed of lease does not give anyone the right to occupy the premises in consideration for rent; it gives the lessee the right to contract with someone else to occupy the premises in consideration for rent.” (E) persons whose disabilities mean that they need support or supervision in their housing; and (ii)is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions; and (iii)expressly provides that the sublandlord will not personally occupy the premises: Then the Act does not apply.
In TT 4285714 my learned colleague determined that the s5(1)(s) could not apply to a deed of lease between an owner and Monte Cecilia Housing Trust because the deed of lease did not expressly provide that the sublandlord would not 3 ‘personally occupy the premises’. Rather the Deed of Lease creates and perpetuates a legal fiction that the lessee will occupy the premises.
With the greatest of respect, I have a different interpretation, because Monte Cecilia Housing Trust is a registered charitable trust, it was incapable of ‘personally occupying’ the premises and therefore the provision that the landlord will not personally occupy the premises does not apply and did not need to be recorded in the deed of lease.
The purpose of s5(1)(s) to exclude tenancies between parties for the five factors set out in 5(1)(s)(i)(A-E), I regard the provisions of s5(1)(s)(ii) and (iii) as provisions to protect s5(1)(s) being used as a mechanism of contracting out of the RTA. The reference to personally occupy must be read as the tenant first being able to occupy the property, if the tenant is not able to ‘personally occupy’ the premises because of the nature of the tenant i.e. it is a company or incorporated society or a charitable trust, then this subsection does not apply.
Accordingly as the deed of lease is genuinely entered into by both parties to enable Monte Cecilia to sublet the premises, and because Monte Cecilia are doing so for a commercial gain (they receive a fee from MHUD), do so for people with special housing needs and low incomes, and because Monte Cecilia Housing Trust cannot occupy the premises themselves, then I am satisfied that exemption in 5 (1)(s) applies and the Tribunal does not have jurisdiction.
Even though I have already determined that s5(1)(s) applies, I note for the sake of completeness that it appears that the provisions of s5(1)(y) may also apply.
Section 5(1)(y) provides: if the premises are used to provide emergency or transitional accommodation and— 3 Pro Edge Property Management Limited v Monte Cecilia Housing Trust TT 4285718 at [19 and 20]. (i) the provision of the accommodation is funded wholly or partly by— (A)emergency housing assistance paid to or for the credit of a person under the Special Needs Grants Programme; or (B)any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing; or (ii)the provider of the accommodation is a person, or class of person, prescribed by regulations for the purposes of this paragraph.
Transitional housing is not defined in legislation. However, on MHUD’s website it describes it as: Transitional housing provides temporary accommodation for individuals and whānau who don't have anywhere to live and urgently need a place to stay. It also offers tailored support to help these individuals and whānau into longer- term housing.
Section 3 Social Security Regulations 2018 defines transitional housing contributions as transitional housing contribution means an amount that— (a) is a contribution to the cost of transitional housing funded partly or wholly by assistance paid by the Ministry of Housing and Urban Development; and (b) is under the terms and conditions of that assistance payable as an expense by, or recoverable as a debt from, a person provided that housing because of that assistance
A distinguishing feature of transitional housing assistance is that it is paid for by MHUD not by the Ministry of Social Development which pays for emergency accommodation.
No other types of accommodation payment appear to be made by MHUD meaning that the type of payment appears to be a transitional housing contribution as provided for in s 3 of the Social Security Act
The provision of payments by MHUD to Monte Cecilia Housing Trust infers that this is considered transitional housing premises and therefore the exemption in s5(1)(y) applies.

Have the parties contracted back into the RTA?

Section 8 of the RTA allows parties who are exempted pursuant to an exemption in clause 5 to contract back into the Act. The deed of lease has a clause that refers to the RTA.
This clause has not been completed, the parties have not included any sections in the ‘insert sections’ part, and therefore I do not consider that this provision shows an intention by the parties to contract back into the Act. To show intention, this clause should have been completed and the parties’ minds drawn to it.
I therefore find that the parties have not contracted back into the Act and the Tribunal does not have jurisdiction to hear this claim. The Application is therefore struck out.

Tenancy Tribunal case 4848440 — Healthy homes at 15 Pulman Place, Clover Park, Auckland 2019

At a glance

Tenancy Tribunal case 4848440 — Healthy homes at 15 Pulman Place, Clover Park, Auckland 2019

At a glance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear this claim?

Have the parties contracted back into the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear this claim?

Have the parties contracted back into the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions