What was the outcome of Tenancy Tribunal case 4862092?

The tribunal order states: The Tribunal lacks jurisdiction to determine this dispute

How much money was awarded in case 4862092?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4862092?

The primary dispute was Exemplary damages. Related themes: Boarding House, Compensation.

Where can I read the official tribunal order for case 4862092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10554767-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4862092?

The tribunal order states: The Tribunal lacks jurisdiction to determine this dispute

How much money was awarded in case 4862092?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4862092?

The primary dispute was Exemplary damages. Related themes: Boarding House, Compensation.

Where can I read the official tribunal order for case 4862092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10554767-Tenancy_Tribunal_Order.pdf.

3E Melia Place, Stanmore Bay, Whangaparaoa 0932 Tenancy Tribunal Case 4862092 — Exemplary damages

Order

The Tribunal lacks jurisdiction to determine this dispute
The application is dismissed.

Reasons

Both parties attended the hearing.
The tenant brings a claim for compensation and exemplary damages for breach of the landlord’s obligations under the Residential Tenancies Act 1986 (“RTA”).
The Tribunal must first determine whether the parties’ relationship is subject to the RTA. The Tribunal only has jurisdiction to determine the claims if it is.
The parties signed a written agreement on 22nd July 2023. The agreement is described as “Agreement to Board”.
The operative part of the agreement says that, “The owner agrees to allow the boarder to rent two-bedroom with bathroom on ground floor, share the use of the laundry areas and upstairs dining and the common kitchen on the following terms...”.
The agreement is a tenancy agreement as defined in s.2 RTA. It gives the tenant the right to occupy of part of residential premises.
The question is whether this tenancy agreement is of a type that is excluded from the RTA by s.5.
Section 5(1)(n) is the relevant exclusion. It 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”
The evidence establishes that the property is the home of the landlord Ms Wang. It is her only residence and she lived there throughout the tenancy. There is one other occupant renting an upstairs room.
I find it proved that during the tenancy the property as a whole continued to be used principally as Ms Wang’s place of residence.
Section 5(1)(n) would therefore apply unless, for the purposes that provision, the “premises” should be considered to be not the whole of the residence, which Ms Wang continued to occupy, but the part of the residence which was for the exclusive use of the tenant.
The rooms of which the tenant had sole use were the 2 downstairs bedrooms and bathroom. There was a ranch slider to one of the rooms that gave separate access. The tenant says he was able to live within that downstairs space and eat takeaways, so he did not have to use the kitchen facilities and living room upstairs. While that might be theoretically possible, the evidence is that the tenant and his family did use the kitchen and living areas upstairs as shared spaces and facilities, with Ms Wang.
A number of Tribunal cases have considered whether parts of larger properties should be considered separate “premises” for the purposes of s.5(1)(n).
The key question is whether, in substance, the parties are sharing a residence or are each exclusively occupying separate and self contained residences within the larger property.
Here, the evidence persuades me that in substance, while the parties each had exclusive bedrooms and bathrooms, there was a significant sharing of common spaces and facilities, as described in the operative part of their agreement.
I therefore find that for the purposes s.5(1)(n) the “premises” is properly considered as the whole of the residence, fundamental parts of which continued to be used and occupied by Ms Wang throughout the tenancy, along with the tenant.
Section 5(1)(n) operates to exclude this tenancy from the provision of the RTA.
For completeness I note s.8, under which the parties to an excluded agreement may agree in writing that all or any of the provisions of the RTA should nevertheless apply to the tenancy.
The parties’ written agreement does not provide for the RTA to apply and contains a number of provisions that would be inconsistent with it.
Having found that this tenancy is excluded from the provisions of te RTA, the Tribunal has no jurisdiction to determine the parties’ dispute and the application must be dismissed.
As discussed during the hearing, this is not a finding that the tenant does not have valid claims but only that the Tenancy Tribunal cannot hear them.

Order

The Tribunal lacks jurisdiction to determine this dispute
The application is dismissed.

Reasons

Both parties attended the hearing.
The tenant brings a claim for compensation and exemplary damages for breach of the landlord’s obligations under the Residential Tenancies Act 1986 (“RTA”).
The Tribunal must first determine whether the parties’ relationship is subject to the RTA. The Tribunal only has jurisdiction to determine the claims if it is.
The parties signed a written agreement on 22nd July 2023. The agreement is described as “Agreement to Board”.
The operative part of the agreement says that, “The owner agrees to allow the boarder to rent two-bedroom with bathroom on ground floor, share the use of the laundry areas and upstairs dining and the common kitchen on the following terms...”.
The agreement is a tenancy agreement as defined in s.2 RTA. It gives the tenant the right to occupy of part of residential premises.
The question is whether this tenancy agreement is of a type that is excluded from the RTA by s.5.
Section 5(1)(n) is the relevant exclusion. It 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”
The evidence establishes that the property is the home of the landlord Ms Wang. It is her only residence and she lived there throughout the tenancy. There is one other occupant renting an upstairs room.
I find it proved that during the tenancy the property as a whole continued to be used principally as Ms Wang’s place of residence.
Section 5(1)(n) would therefore apply unless, for the purposes that provision, the “premises” should be considered to be not the whole of the residence, which Ms Wang continued to occupy, but the part of the residence which was for the exclusive use of the tenant.
The rooms of which the tenant had sole use were the 2 downstairs bedrooms and bathroom. There was a ranch slider to one of the rooms that gave separate access. The tenant says he was able to live within that downstairs space and eat takeaways, so he did not have to use the kitchen facilities and living room upstairs. While that might be theoretically possible, the evidence is that the tenant and his family did use the kitchen and living areas upstairs as shared spaces and facilities, with Ms Wang.
A number of Tribunal cases have considered whether parts of larger properties should be considered separate “premises” for the purposes of s.5(1)(n).
The key question is whether, in substance, the parties are sharing a residence or are each exclusively occupying separate and self contained residences within the larger property.
Here, the evidence persuades me that in substance, while the parties each had exclusive bedrooms and bathrooms, there was a significant sharing of common spaces and facilities, as described in the operative part of their agreement.
I therefore find that for the purposes s.5(1)(n) the “premises” is properly considered as the whole of the residence, fundamental parts of which continued to be used and occupied by Ms Wang throughout the tenancy, along with the tenant.
Section 5(1)(n) operates to exclude this tenancy from the provision of the RTA.
For completeness I note s.8, under which the parties to an excluded agreement may agree in writing that all or any of the provisions of the RTA should nevertheless apply to the tenancy.
The parties’ written agreement does not provide for the RTA to apply and contains a number of provisions that would be inconsistent with it.
Having found that this tenancy is excluded from the provisions of te RTA, the Tribunal has no jurisdiction to determine the parties’ dispute and the application must be dismissed.
As discussed during the hearing, this is not a finding that the tenant does not have valid claims but only that the Tenancy Tribunal cannot hear them.

Tenancy Tribunal case 4862092 — Exemplary damages at 3E Melia Place, Stanmore Bay, Whangaparaoa 0932

At a glance

Tenancy Tribunal case 4862092 — Exemplary damages at 3E Melia Place, Stanmore Bay, Whangaparaoa 0932

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