What was the outcome of Tenancy Tribunal case 4907737?

The tribunal order states: The premises are declared to be accommodation for students to which the

How much money was awarded in case 4907737?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4907737?

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

Where can I read the official tribunal order for case 4907737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10557091-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4907737?

The tribunal order states: The premises are declared to be accommodation for students to which the

How much money was awarded in case 4907737?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4907737?

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

Where can I read the official tribunal order for case 4907737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10557091-Tribunal_Order.pdf.

Room 706A, Unit/Flat 834, 19-26 Nicholls Lane, Parnell, Tenancy Tribunal Case 4907737 — Healthy homes

Order

The premises are declared to be accommodation for students to which the Residential Tenancies Act does not apply and in respect of which the Tribunal does not have jurisdiction.
The application by Ruby Patricia Walsh is dismissed for want of jurisdiction.

Reasons

Both parties attended the hearing.
The respondent (the University of Auckland (“UOA”)) was represented by counsel (Ms Morrison). I permitted this request for representation given the nature and complexity of the matter given the jurisdictional issues involved (s 93 Residential Tenancies Act 1986 (RTA)).
Also in attendance were Ms Miller, who was attending with Ms Morrison, and Ms Baker of UOA.
Ms Walsh appeared for herself. Background
Ms Walsh entered into an agreement with the UOA to live in 706A in building 834, 19-26 Nicholls Lane, Parnell, Auckland 1010 known as the Carlaw Park Student Village beginning on Wednesday 5 July 2023 and ending on 2 July 2024.
During the hearing I heard from UOA that the reference to “834” relates to the building number and “7” refers to the unit number and the remainder of the reference refers to the room that Ms Walsh occupied. Ms Walsh had a room that she rented in a 4-bedroom unit. She shared the unit with other students who occupied the other rooms. They shared kitchen and bathroom facilities within the unit. There are a number of buildings that make up this student village.
I heard that there was also a large communal area offering a range of facilities for occupants of different units across the blocks to come together and cook or study or socialise. Ms Walsh also referred to gardens and a storage facility.
UOA say that the Tribunal does not have jurisdiction as this is a student tenancy agreement and is therefore excluded from the RTA and Tenancy Tribunal by virtue of section 5(1)(h)(ii) and 5B.
The onus of proof rests with UOA as it is for the party challenging the jurisdiction of the Tribunal to establish the facts on which they contend that the RTA does not apply (section 10 RTA). The civil standard of proof applies, on the balance of probabilities. Legal considerations
The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the RTA applies (see section 77(1) RTA).
Section 4 RTA provides that the RTA applies to every tenancy for residential purposes except as specifically excluded. Section 5 sets out the exclusions and particular circumstances where the RTA does not apply.
Section 5(1)(h)(ii) RTA provides that the RTA does not apply where the premises are used to provide accommodation to students in accordance with the requirements of section 5B.
Section 5B RTA sets out in some detail the requirements for exempt student accommodation: 5B(1) For the purposes of section 5(1)(h)(ii), this Act does not apply to premises if— (a) the premises are used to provide accommodation exclusively for students of 1 or more tertiary education providers; and (b) the premises are owned or operated by a person (an accommodation provider) who is— (i) a tertiary education provider; or (ii) a person who has entered into a written agreement of the kind described in subsection (5) with each tertiary education provider whose students are accommodated at the premises; and (c) the accommodation provider complies with subsections (2) to (4). (2) The accommodation provider must provide services to the students accommodated in the premises that are over and above the services that a landlord must provide under Part 2 or 2A. (3) The accommodation provider must have in place house rules that aim to create an environment that fosters personal development and encourages a sense of community and association with fellow students. (4) The accommodation provider must take all reasonable steps to ensure that prospective and current student tenants are made aware of, and have access to copies of, the house rules. (5) An agreement referred to in subsection (1)(b) is one that sets out— (a) the rights and obligations of the accommodation provider and the tertiary education provider; and (b) a dispute resolution process by which disputes between the accommodation provider and the tertiary education provider may be resolved. (6) In this section, tertiary education provider has the same meaning as in section 10(1) of the Education and Training Act 2020.
There was no dispute that the premises were operated by UOA as a tertiary education provider, and I accept that the UOA is such a provider. It was also not disputed that the UOA provides services over and above services that a landlord must provide under the RTA or that there were a set of house rules that aim to create an environment that fosters personal development and encourages a sense of community and association with fellow students. The evidence and submissions provided by UOA also satisfied me of this.
It was also not disputed, and it is clear from the evidence filed, that Ms Walsh was made aware of these rules and that there is a written agreement. I am also satisfied that the written agreement entered into also satisfies s 5B(5).
Ms Walsh’s argument focused on the premises not being exclusively for students as set out in section 5B(1)(a). Ms Walsh says that families lived in the student village and that during summer the UOA would rent out accommodation in the student village independently.
UOA says that the unit that Ms Walsh lived in only housed students. There was no dispute in relation to this.
UOA acknowledged that some postgraduate students might attend the university from overseas and need a place for them with their families. UOA acknowledged that there were a few self-contained units contained within the buildings in the student village for these families.
I consider that parliament did not intend to exclude families of students when drafting s 5B RTA. I find that in accommodating families of students, when they are accommodated with the students themselves, the UOA has not failed to provide accommodation which is exclusively for students.
Ms Walsh also referred to independent people coming in the summer and provided a printout from a website from the UOA referring to the facility being available for such groups. UOA says that during all material times when the student lived here only students lived at the accommodation. The UOA says Ms Walsh may however have experienced student’s guests at the student village and referred me to the guests policy in the agreement. I prefer the evidence of UOA as they are best placed to know who the accommodation was provided to.
I therefore find that the UOA has satisfied me that the exclusion in section 5(1)(h)(ii) as set out in s 5B applies.
However, in case I am wrong in relation to the above I have considered the position further.
Ms Walsh refers to provisions in the RTA relating to boarding houses. She refers to the definition of “premises” in s 66B RTA as being the boarding house and all the facilities of the boarding house. She says her accommodation therefore matches the definition of a boarding house. She says that facilities are included in the boarding house definition of premises so that this means that the “premises” here were not exclusively for students, because families and summer residents could use the facilities.
I do not consider that this is an arrangement that can be a boarding house tenancy.
Boarding house tenancies were introduced as a new category of tenancies included in the Act from 1 October 2010. The definition of a boarding house tenancy is set out in section 66B RTA and provides: boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time
I consider that in the context of a boarding house tenancy the “residential premises” that were occupied by Ms Walsh would be the unit she was living in. This was not occupied, by at least 6 tenants at any one time as the definition in the RTA requires. It was occupied by just 4 people.
If the wider interpretation of boarding house applied then any landlord who rented several apartments in the same apartment building, with some shared facilities, could seek to avoid the standard (and often more restrictive) tenancy provisions of the RTA by saying the boarding house tenancy provisions in the RTA apply simply on the basis that they have 6 people occupying 6 different apartments within the same building with shared facilities. Or, where sleeping quarters within those apartments were rented individually a landlord might argue, that one apartment that they own with three boarders together with a separate apartment that they own with a different three boarders together meet the definition of a boarding house. This cannot be correct.
Further, a boarding house situation does not arise simply because tenants may use facilities that are communal (and not part of the premises). That is made clear by section 2, RTA which defines facilities: facilities, in relation to a tenancy agreement (other than a boarding house tenancy agreement), includes all facilities provided by the landlord for the non-exclusive use and enjoyment of the tenant, otherwise than as part of the premises that are the subject of the agreement, such as the following: (a) any land or buildings intended for use for storage space or for the parking of motor vehicles: (b) laundry facilities: (c) cooking facilities: (d) lifts and stairways: (e) rubbish storage and rubbish disposal facilities: (f) toilet and washing facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) recreational areas: (j) lawns, gardens, and outhouses
I find that there is no boarding house tenancy.
I therefore consider that the definition of premises does not extend to the facilities as per the definition of premises at s 66B.
I find that the appropriate definition of premises is the unit that Ms Walsh lived in, which was not occupied by anyone other than students.
This interpretation is supported by a decision in 2015 of the Tenancy Tribunal in Deol v TMC (Theta Management Company) 14/03878/AK. In that case the adjudicator had to consider the application of s 5B RTA and found that the premises to be considered was the apartment the applicant occupied, within a larger complex, which was occupied by himself and two other students. The adjudicator held that the exclusion applied.
Even if this interpretation is wrong and the entire complex forms the premises, it is my view that parliament plainly intended for student complexes such as this one to be excluded from the RTA and also for student accommodation such as this not to fall into the definition of a boarding house.
Ms Walsh’s application is therefore dismissed for want of jurisdiction.
Neither party sought name suppression, so I have not awarded this.

Tenancy Tribunal case 4907737 — Healthy homes at Room 706A, Unit/Flat 834, 19-26 Nicholls Lane, Parnell,

At a glance

Tenancy Tribunal case 4907737 — Healthy homes at Room 706A, Unit/Flat 834, 19-26 Nicholls Lane, Parnell,

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