What was the outcome of Tenancy Tribunal case 4964583?

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

How much money was awarded in case 4964583?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4964583?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4964583?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10903258-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4964583?

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

How much money was awarded in case 4964583?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4964583?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4964583?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10903258-Tenancy_Tribunal_Order.pdf.

74 Young Access, Dairy Flat, Dairy Flat 0992 Tenancy Tribunal Case 4964583 — Boarding House

Order

The Tenancy Tribunal does not have jurisdiction in this matter.
This application is struck out.

Reasons

Both parties attended the hearing. The applicant was represented by Jane Zhou and John Yang.
The applicant sought a declaration as to whether they could terminate this tenancy on grounds other than as set out in the Residential Tenancies Act 1986 (RTA). They say that Auckland Council has issued a notice to fix as they regard the premises as a boarding house. The applicant does not agree that this is a boarding house, but they say they are concerned they may be fined by Council.
However, there is a preliminary issue as to whether or not this tenancy is excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA).
The parties entered into a standard tenancy agreement with the maximum number of ‘residents’ and tenants not to exceed five. The respondent is a charitable trust and Matilda Kahotea is one of the trustees.
The applicants say they rented the premises out to Matilda and the Trust and left it to them as to how they use it. The applicant was aware that the Trust intended to use the premises to house people on bail.
Matilda says the purpose of the agreement was to provide transitional housing for women in recovery from addictions and issues with mental health, and who are often on bail conditions. The women that reside at the premises sign up for a 3-month holistic recovery programme, and the Trust works closely with Corrections, Police, Probation, Courts, and the Ministry for Social Development. Matilda confirmed that this is a 4- bedroom house and they never have more than 4 occupants at a time. All rent is covered by MSD. Matilda also says that recent correspondence from Auckland Council indicates they have rescinded the notice to fix and there is no longer any issue.
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. 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 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 (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.
The respondent is a registered charitable trust and therefore not capable of personally occupying the premises. Matilda confirmed that she does not live at the premises.
I find that the tenancy agreement was entered into to enable Te Aka Matua Herenga Charitable Trust to sublet to persons with special housing needs, in other words, to provide accommodation for women in recovery from addiction, and with specific mental health issues. I am satisfied it was not entered into to provide accommodation for the sublandlord or to evade the Act.
I am therefore satisfied that exemption in section 5(1)(s) applies, and the Tribunal does not have jurisdiction.
I also find that the section 5(1)(Y) exemption is also relevant. That section provides: if the premises are used to provide emergency or transitional accommodation and— (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.
Matilda confirmed that the Trust is registered by MSD for each person who lives at the premises and all rent is paid by them.
Transitional housing is not defined in legislation. However, the Ministry for Housing and Urban Development describes on their website 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.
I therefore find it likely that this is transitional housing paid for by a government department and the section.5(1)(y) exemption also applies.
I find no evidence that the parties intended to contract back into the RTA despite a standard agreement being used. The intention was always for the Trust to sublet and become a sublandlord.
This agreement is therefore excluded from the RTA and the jurisdiction of the Tribunal and must be struck out.

Order

The Tenancy Tribunal does not have jurisdiction in this matter.
This application is struck out.

Reasons

Both parties attended the hearing. The applicant was represented by Jane Zhou and John Yang.
The applicant sought a declaration as to whether they could terminate this tenancy on grounds other than as set out in the Residential Tenancies Act 1986 (RTA). They say that Auckland Council has issued a notice to fix as they regard the premises as a boarding house. The applicant does not agree that this is a boarding house, but they say they are concerned they may be fined by Council.
However, there is a preliminary issue as to whether or not this tenancy is excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA).
The parties entered into a standard tenancy agreement with the maximum number of ‘residents’ and tenants not to exceed five. The respondent is a charitable trust and Matilda Kahotea is one of the trustees.
The applicants say they rented the premises out to Matilda and the Trust and left it to them as to how they use it. The applicant was aware that the Trust intended to use the premises to house people on bail.
Matilda says the purpose of the agreement was to provide transitional housing for women in recovery from addictions and issues with mental health, and who are often on bail conditions. The women that reside at the premises sign up for a 3-month holistic recovery programme, and the Trust works closely with Corrections, Police, Probation, Courts, and the Ministry for Social Development. Matilda confirmed that this is a 4- bedroom house and they never have more than 4 occupants at a time. All rent is covered by MSD. Matilda also says that recent correspondence from Auckland Council indicates they have rescinded the notice to fix and there is no longer any issue.
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. 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 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 (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.
The respondent is a registered charitable trust and therefore not capable of personally occupying the premises. Matilda confirmed that she does not live at the premises.
I find that the tenancy agreement was entered into to enable Te Aka Matua Herenga Charitable Trust to sublet to persons with special housing needs, in other words, to provide accommodation for women in recovery from addiction, and with specific mental health issues. I am satisfied it was not entered into to provide accommodation for the sublandlord or to evade the Act.
I am therefore satisfied that exemption in section 5(1)(s) applies, and the Tribunal does not have jurisdiction.
I also find that the section 5(1)(Y) exemption is also relevant. That section provides: if the premises are used to provide emergency or transitional accommodation and— (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.
Matilda confirmed that the Trust is registered by MSD for each person who lives at the premises and all rent is paid by them.
Transitional housing is not defined in legislation. However, the Ministry for Housing and Urban Development describes on their website 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.
I therefore find it likely that this is transitional housing paid for by a government department and the section.5(1)(y) exemption also applies.
I find no evidence that the parties intended to contract back into the RTA despite a standard agreement being used. The intention was always for the Trust to sublet and become a sublandlord.
This agreement is therefore excluded from the RTA and the jurisdiction of the Tribunal and must be struck out.

Tenancy Tribunal case 4964583 — Boarding House at 74 Young Access, Dairy Flat, Dairy Flat 0992

At a glance

Tenancy Tribunal case 4964583 — Boarding House at 74 Young Access, Dairy Flat, Dairy Flat 0992

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions