What was the outcome of Tenancy Tribunal case 5017628?

The tribunal order states: By declaration I find this is a residential tenancy to which the RTA applies,

How much money was awarded in case 5017628?

Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5017628?

The dispute type was not classified.

Where can I read the official tribunal order for case 5017628?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11536192-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5017628?

The tribunal order states: By declaration I find this is a residential tenancy to which the RTA applies,

How much money was awarded in case 5017628?

Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5017628?

The dispute type was not classified.

Where can I read the official tribunal order for case 5017628?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11536192-Tenancy_Tribunal_Order.pdf.

6 Entelea Close, Papamoa Beach, Papamoa 3118 Tenancy Tribunal Case 5017628 — Tenancy dispute

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6 Entelea Close, Papamoa Beach, Papamoa 3118 Tenancy Tribunal Case 5017628 — Tenancy dispute | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5017628 — net $1,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Bond held by landlord	$1,000.00	Bond held by landlord
Net award	$1,027.00
Total payable by Landlord to Tenant	$1,027.00

Claims and awards for application 5017628 — net $1,027.00 NZD. Verify on MoJ.

Filing fee reimbursement

Amount: $27.00
Awarded to: Tenant
Reason: Filing fee reimbursement

Bond held by landlord

Amount: $1,000.00
Awarded to: Tenant
Reason: Bond held by landlord

Net award

Tenant $1,027.00

Total payable by Landlord to Tenant

Tenant $1,027.00

Dismissed claims

Other Claims — All other claims dismissed
Property Damage — Carpet Damage
Property Damage — Shower door handle

Claim types — money lines allowed on this order

Filing Fee Property damage

Order

By declaration I find this is a residential tenancy to which the RTA applies, and the Tenancy Tribunal has jurisdiction.
Gurnek Brar must pay Titihuia Moeke Parker and Maria Helen Meretini Stone $1,027.00 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The landlord attended the hearing in person with a support person.
The tenants both attended the hearing by phone.
I note that two of the four tenants filed this application. Therefore, the other two tenants were not a party to these proceedings.
For ease of reference, in this decision, the applicants are referred to as the tenants and the respondent is referred to as the landlord.
The tenants have applied for various orders under the Residential Tenancies Act 1986 (RTA). Relevant legal considerations
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy 1 , in practical terms this means that:... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the tenant to provide the evidence necessary to prove the case. If the tenant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the tenant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Jurisdiction
The tenants each entered into a separate written agreement with the landlord which records: Flat/house - sharing agreement This agreement is between the Head Tenant and Flatmate ...The flatmate and the head tenant agree to share premises on the following terms:
This agreement starts on the 3 / 02 / 24 and will continue on a weekly basis.
The rent is $250 per week and is to be paid weekly by the flatmate to the head tenant. 1 Kaipo v Clarke & McCarthy (DC) TT233/02
A bond of $500 and one week in advance is payable to the head tenant. A written receipt will be given to the flatmate.
The flatmate cannot assign the right to live in the flat.
If the head tenant receives notice from the landlord, the head tenant will give a copy of the notice to the flatmate immediately.
This agreement can be terminated by 14 days’ notice given by either party in writing.
The flatmate shall not keep any pets on the premises without the head tenant’s permission.
The flatmate must not remove any chattels or fixtures from the premises that do not belong to the flatmate.
At the end of this agreement, the head tenant will return the bond to the flatmate immediately. The head tenant can deduct from the bond any cost which is outstanding and is the responsibility of the flatmate.
The flatmate or any guest of the flatmate shall not participate in any criminal activity, including illegal drug use, sale, manufacture, distribution or another criminal activity, on or near the premises. Evidence of criminal activity such as illegal drug use, sale, manufacture, distribution or acts of violence or threats of violence, will result in the immediate termination of this agreement.
The flatmate agrees to keep the house in a tidy condition and will do their fair share of cleaning.
Smoking is not permitted at the property
The flatmate must let the head tenant aware if there are any guests coming for more than 2 days within one week.
In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.
The address of the rental property is recorded as 6 Entelea Close. Papamoa Beach.
On 3 September 2024 the Disputes Tribunal determined it did not have jurisdiction as this appeared to be a residential tenancy for which the Residential Tenancies Act 1985 applies, and the Tenancy Tribunal has jurisdiction. Tenants position
The tenants were uncertain about jurisdiction and simply seek resolution of the matter.
The tenants say, despite the agreement being referred to as a flat / house sharing agreement, the landlord has not been living in the premises for the duration of the tenancy.
The tenants say the initial communication about the premises was with the landlord’s girlfriend.
The subsequent communication was with the landlord who advised them before the tenancy commenced that at that time there was only the landlord’s girlfriend and her friend living in the premises and that two girls are moving out which is why they had 2 rooms available.
The tenants say the landlord would stay only to visit is partner, but that he lived with his mother. The tenants say there was ongoing issues between the landlord and his girlfriend and near their end of the tenancy the landlord’s girlfriend moved out. The two tenants say only they remained living in the premises for a short period thereafter. Landlords position.
The landlord says the premises is his home and he lived there with his partner while the tenants lived there as flatmates.
The landlord explained the premises has five bedrooms, one was for him and his partner, one was his office, and the other three were occupied by flatmates.
The landlord said he would stay in the premises 3-4 nights a week and would stay the other nights at his mother’s home. The landlord said his partner would cook him dinners in the home and wash his clothes for him. The landlord said he had text messages which show that his partner referred to the premises as his home.
The landlord said he paid the outgoings and reiterated that the tenants had signed a flat mate agreement. Jurisdiction
Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then the Tribunal cannot proceed to hear the case.
The Tribunal can only consider disputes in relation to residential tenancies which fall within the RTA between a landlord and a tenant or between a landlord and the guarantor of a tenant. 2
The RTA sets out the following relevant definitions. 3
A landlord in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement. A tenant, in relation to any residential premises that are the 2 See section 77 (1) (a) - (b) of the RTA. 3 Section 2 of the RTA. subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement.
A residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
A tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.
A tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises.
There is a statutory presumption that the RTA will apply to all residential tenancies, unless specifically excluded by the RTA. 4 Parties cannot contract out of the RTA. 5
The Act sets out several cases which are excluded from the RTA. 6
In this case the landlord says he and the tenants are flatmates and therefore claims the exclusion in section 5 (1)(n) applies. This exclusion provides that the RTA will 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:”
A boarding house is defined as a residential premises containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time. 7 I do not consider this premises is a boarding house due to the number of tenants being less than six.
The RTA defines a member of the landlord’s or owner’s family as— (a) any person who is or has been related to the landlord or owner by blood; or by or through marriage, a civil union, or a de facto relationship; or by adoption: (b) any other person who is a member of the landlord’s or owner’s whānau or other culturally recognised family group: 4 See section 4 of the RTA. 5 See s 11 of the RTA. 6 See section 5 of the RTA. 7 Section 66 B of the RTA. (c) any child who is being, or is to be, cared for on a continuous basis by the landlord or owner, or the landlord’s or owner’s spouse, civil union partner, or de facto partner.
Where a party says that the RTA does not apply, that party must establish the facts upon which it is claimed that the RTA does not apply. 8 So, in the present case the landlord must prove, on the balance of probabilities that section 5(1)(n) applies.
The issue I must consider then is whether the premises were principally used as a place of residence during the tenancy by the landlord or his de facto partner.
The District Court in Adams v Massey University Palmerston North 9 , stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.
The Court in Musson v Dobrisek 10 said: ...[38] I consider that the word "principally" in s 5(n) refers to the main use of the premises, not to the relative duration of the landlord's occupation of the premises or, possibly, its degree of intensity. This emerges from what is in my opinion the plain reading of the text. It does not say – used ... as the principal place of residence ... What is actually says is – used ... principally as a place of residence ... [39]The word "principally" is an adverb qualifying the verb "used", not an adjective describing the noun "place". So the question to be asked is –

Is the principal use of these premises as a place of residence by the landlord?

[40]Put in this way, the clear answer, on the cases of both sides, is "no". Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson's use of the property being "principal", it was commensurate with that of the other occupants. [41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described. [42] I accept that consideration of the duration of occupancy may, in some cases, assist in deciding whether the principal use is as a residence for the landlord. This is not such a case because, on any view, Mr Musson's use of the 8 See section 10 of the RTA. 9 Adams v Massey University Palmerston North TT 43/94, 10 October 1994 10 Musson v Dobrisek CIV-2006-032-36, 5 May 2006

property was, in functional terms, commensurate with that of other the other occupants and cannot for that reason be regarded as the principal use.

In Main v Hooker 11 it was said that a “place of residence” meant the place to which a person would normally go to live, their home. In that case the Court found the premises to be the primary residence of the landlord’s daughter who had vacated the premises for a matter of weeks and intended to return to live.
I also note the broad description of a flatmate agreement in Musson v Dobrisek 12 , as follows: “By 'flatmates' I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
Ultimately, each case will turn on its facts. It can be helpful but not determinative to look at other cases even where the facts seem similar. That is because no households are the same, the way that the parties interact with each other and the different ways they use the premises will make each case unique. Outcome as to jurisdiction
I informed the parties of my decision as to jurisdiction at the hearing and confirmed I would provide reasons in this order.
I consider the premises were not principally used as a place of residence for the landlord or a member of the landlord’s family for the duration of the tenancy.
I consider the s 5 (1)(n) exception may have applied while the landlord’s girlfriend lived in the premises. I consider during this time the landlord stayed at the premises 2-3 times a week to visit his girlfriend who lived at the premises. However, the tenants have provided evidence that the landlord and his girlfriend had ongoing relationship issues and I consider the landlord has not provided sufficient evidence that for the duration of the tenancy he and his girlfriend were in a de facto relationship. It appears that during the tenancy the relationship may have ended.
I also consider that if the exception at s 5 (1)(n) of the RTA applied at the start of the tenancy, on the basis the landlord’s de facto partner/girlfriend was living in the premises, it ceased to apply when the landlord’s girlfriend vacated the premises, which I understand to be prior to the tenant’s vacating. 11 Main v Hooker (CIV-2180/03), 2 February 2004, Judge Green) 12 Musson v Dobrisek CIV-2006-032-36, 5 May 2006 Judge Broadmore at paragraph [22] It appears that there was at least one month between the landlord’s girlfriend vacating (on approximately 2 June 2024) and these tenants vacating on approximately 14 July 2024.
I consider the landlord has provided insufficient evidence that he and these tenants were functioning in a cooperative flatting arrangement, whereby they shared part of the premises. As noted above, I consider the landlord visited the premises, but I consider it was not used principally as his place of residence.
I consider, given there were three tenants and the landlord’s girlfriend living at the premises, it is likely that the main purpose of this premises, during this tenancy, was commercial, rather than to mainly provide a place of residence for the landlord.
As noted above, the landlord had the onus of proving that the tenancy is excluded from the Act by establishing that the premises was mainly being used as a place of residence by him or his defacto partner. I am not satisfied that the landlord has done so. By declaration I find this is a residential tenancy to which the RTA applies.

TENANTS CLAIM FOR THE BOND

The tenancy ended on 14 July 2024. The tenant has applied for refund of the bond.
The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.
At the hearing the landlord raised a counter claim and the tenant’s agreed that the counter claim be heard and determined by me at the hearing.
Accordingly, I heard the landlord’s counter claim and deal with the claims below.
The tenants confirmed at the hearing that they were only seeking a refund of the bond. The application form referred to a claim for compensation however that was not sought by the tenants at the hearing. LANDLORD’S CLAIMS Cleaning and rubbish removal
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish. 13
If the landlord is seeking to recover costs for cleaning and rubbish removal, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed.

Did the tenant comply with their obligations at the end of the tenancy?

The landlord claims the tenants did not leave the premises reasonably clean and tidy and did not remove all rubbish. The landlord provided an invoice in support of the claim for $333.50 : $200 plus GST for cleaning and $90 plus GST for rubbish removal.
The landlord provided oral evidence in support of the claim but did not provide any post tenancy photographs of the premises or the rubbish that required removing.
The tenants dispute the claim. The tenants say they largely cleaned the premises, and the remaining rubbish was some black bags left in the garage. The tenants accept that there were rubbish bags left in the garage at the end of the tenancy, however they understood the rubbish removal cost was deducted from the other tenants’ bond.
I consider the landlord has provided insufficient evidence that the premises was not left reasonably clean and tidy.
The landlord has a duty to mitigate his loss 14 and in the absence of any photographs to show the size and extent of the rubbish remaining in the garage I consider the rubbish could likely have been placed in the roadside collection. The claims for cleaning costs and rubbish removal are dismissed.

DAMAGE CLAIMS

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the 13 See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. 14 See section 49 of the RTA. damage. Tenants are liable for the actions of people at the premises with their permission. 15
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). 16
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). 17 Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. 18
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. 19
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. 20

Is the tenant responsible for the damage to the premises?

The landlord claims the following damage was caused during the tenancy. a. The walls were damaged. b. The carpet was stained, and the stains could not be removed. c. The shower door handle was damaged.
The landlord said the premises was built in 2023. The landlord provided a quote in support of the claims; however the quote did not itemise the services. Damage to walls
The landlord claims the walls were damaged during the tenancy. 15 See sections 40(2)(a), 41 and 49B RTA. 16 See section 49B(3)(a) RTA. 17 See section 49B(3)(b) RTA. 18 See section 49B(3A)(a) RTA. 19 See section 49B(1) RTA. 20 See Guo v Korck [2019] NZHC 1541.
The landlord did not provide a pre-inspection report or pre tenancy photographs in support of the claim. The landlord said he has had the damage repaired however he has not provided an invoice in support of the claim.
The tenants accept the walls were damaged but say this was caused by another tenant who has accepted liability for the damage. In the absence of an invoice in support of the claim I consider the landlord has provided insufficient evidence of loss to support an order for compensation.
I also consider, in reviewing the photographs provided by the landlord that the damage amounts to minor scuff marks and the damage is not more than fair wear and tear. The claim for compensation for wall damage is dismissed. Carpet Damage
The landlord claims the carpet was stained during the tenancy.
The landlord provided undated photographs of small red stains on the carpet and two larger round stains. The landlord claims $500, being the insurance excess amount for the carpet damage.
The tenants say the landlord and his partner caused the red stains on the carpet when dying hair and they were not aware of the two larger stains on the carpet. They said these may have been under a mat at the start of the tenancy.
The landlord has not replaced the carpet (some 8 months after the tenancy ended) but he says he intends to.
In the absence of a pre-inspection report or dated photographs from the commencement of the tenancy I am not satisfied the large round stains were caused by the tenants during the tenancy. I also do not consider the tenants should be liable for the damage caused by the landlord, (being the hair dye stains).
The claim for compensation for the carpet damage is dismissed. Shower door handle
The landlord says the shower door handle was carelessly damaged by the tenants during the tenancy. The landlord provided a video of the shower door handle being loose. The landlord provided a quote in support of the claim but did not provide pre-inspection photographs or the invoice for the repair.
The tenant says the shower handle was loose at the start of the tenancy and they dispute damaging it.
I consider the shower door handle has most likely come loose through normal use of the shower door and is therefore fair wear and tear.
The claim in respect of the shower door handle is dismissed. Outcome
As the landlord has been unsuccessful with his counter claim I have made an order that he refund the tenants their bond immediately, which he holds. Filing fee
Because the tenants have wholly succeeded with the claim, I have reimbursed the filing fee. Suppression
The tenants did not seek name suppression. 21
The Tribunal may, on the application of any party to proceedings, having regard to the interests of the parties and to the public interest, order that the name or any identifying particulars of any party not be published. 22
The landlord did seek name suppression; however, I consider there is a public interest in the landlord’s name being published.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5017628 — net $1,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Bond held by landlord	$1,000.00	Bond held by landlord
Net award	$1,027.00
Total payable by Landlord to Tenant	$1,027.00

Claims and awards for application 5017628 — net $1,027.00 NZD. Verify on MoJ.

Filing fee reimbursement

Amount: $27.00
Awarded to: Tenant
Reason: Filing fee reimbursement

Bond held by landlord

Amount: $1,000.00
Awarded to: Tenant
Reason: Bond held by landlord

Net award

Tenant $1,027.00

Total payable by Landlord to Tenant

Tenant $1,027.00

Dismissed claims

Other Claims — All other claims dismissed
Property Damage — Carpet Damage
Property Damage — Shower door handle

Claim types — money lines allowed on this order

Filing Fee Property damage

Order

By declaration I find this is a residential tenancy to which the RTA applies, and the Tenancy Tribunal has jurisdiction.
Gurnek Brar must pay Titihuia Moeke Parker and Maria Helen Meretini Stone $1,027.00 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The landlord attended the hearing in person with a support person.
The tenants both attended the hearing by phone.
I note that two of the four tenants filed this application. Therefore, the other two tenants were not a party to these proceedings.
For ease of reference, in this decision, the applicants are referred to as the tenants and the respondent is referred to as the landlord.
The tenants have applied for various orders under the Residential Tenancies Act 1986 (RTA). Relevant legal considerations
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy 1 , in practical terms this means that:... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the tenant to provide the evidence necessary to prove the case. If the tenant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the tenant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Jurisdiction
The tenants each entered into a separate written agreement with the landlord which records: Flat/house - sharing agreement This agreement is between the Head Tenant and Flatmate ...The flatmate and the head tenant agree to share premises on the following terms:
This agreement starts on the 3 / 02 / 24 and will continue on a weekly basis.
The rent is $250 per week and is to be paid weekly by the flatmate to the head tenant. 1 Kaipo v Clarke & McCarthy (DC) TT233/02
A bond of $500 and one week in advance is payable to the head tenant. A written receipt will be given to the flatmate.
The flatmate cannot assign the right to live in the flat.
If the head tenant receives notice from the landlord, the head tenant will give a copy of the notice to the flatmate immediately.
This agreement can be terminated by 14 days’ notice given by either party in writing.
The flatmate shall not keep any pets on the premises without the head tenant’s permission.
The flatmate must not remove any chattels or fixtures from the premises that do not belong to the flatmate.
At the end of this agreement, the head tenant will return the bond to the flatmate immediately. The head tenant can deduct from the bond any cost which is outstanding and is the responsibility of the flatmate.
The flatmate or any guest of the flatmate shall not participate in any criminal activity, including illegal drug use, sale, manufacture, distribution or another criminal activity, on or near the premises. Evidence of criminal activity such as illegal drug use, sale, manufacture, distribution or acts of violence or threats of violence, will result in the immediate termination of this agreement.
The flatmate agrees to keep the house in a tidy condition and will do their fair share of cleaning.
Smoking is not permitted at the property
The flatmate must let the head tenant aware if there are any guests coming for more than 2 days within one week.
In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.
The address of the rental property is recorded as 6 Entelea Close. Papamoa Beach.
On 3 September 2024 the Disputes Tribunal determined it did not have jurisdiction as this appeared to be a residential tenancy for which the Residential Tenancies Act 1985 applies, and the Tenancy Tribunal has jurisdiction. Tenants position
The tenants were uncertain about jurisdiction and simply seek resolution of the matter.
The tenants say, despite the agreement being referred to as a flat / house sharing agreement, the landlord has not been living in the premises for the duration of the tenancy.
The tenants say the initial communication about the premises was with the landlord’s girlfriend.
The subsequent communication was with the landlord who advised them before the tenancy commenced that at that time there was only the landlord’s girlfriend and her friend living in the premises and that two girls are moving out which is why they had 2 rooms available.
The tenants say the landlord would stay only to visit is partner, but that he lived with his mother. The tenants say there was ongoing issues between the landlord and his girlfriend and near their end of the tenancy the landlord’s girlfriend moved out. The two tenants say only they remained living in the premises for a short period thereafter. Landlords position.
The landlord says the premises is his home and he lived there with his partner while the tenants lived there as flatmates.
The landlord explained the premises has five bedrooms, one was for him and his partner, one was his office, and the other three were occupied by flatmates.
The landlord said he would stay in the premises 3-4 nights a week and would stay the other nights at his mother’s home. The landlord said his partner would cook him dinners in the home and wash his clothes for him. The landlord said he had text messages which show that his partner referred to the premises as his home.
The landlord said he paid the outgoings and reiterated that the tenants had signed a flat mate agreement. Jurisdiction
Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then the Tribunal cannot proceed to hear the case.
The Tribunal can only consider disputes in relation to residential tenancies which fall within the RTA between a landlord and a tenant or between a landlord and the guarantor of a tenant. 2
The RTA sets out the following relevant definitions. 3
A landlord in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement. A tenant, in relation to any residential premises that are the 2 See section 77 (1) (a) - (b) of the RTA. 3 Section 2 of the RTA. subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement.
A residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
A tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.
A tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises.
There is a statutory presumption that the RTA will apply to all residential tenancies, unless specifically excluded by the RTA. 4 Parties cannot contract out of the RTA. 5
The Act sets out several cases which are excluded from the RTA. 6
In this case the landlord says he and the tenants are flatmates and therefore claims the exclusion in section 5 (1)(n) applies. This exclusion provides that the RTA will 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:”
A boarding house is defined as a residential premises containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time. 7 I do not consider this premises is a boarding house due to the number of tenants being less than six.
The RTA defines a member of the landlord’s or owner’s family as— (a) any person who is or has been related to the landlord or owner by blood; or by or through marriage, a civil union, or a de facto relationship; or by adoption: (b) any other person who is a member of the landlord’s or owner’s whānau or other culturally recognised family group: 4 See section 4 of the RTA. 5 See s 11 of the RTA. 6 See section 5 of the RTA. 7 Section 66 B of the RTA. (c) any child who is being, or is to be, cared for on a continuous basis by the landlord or owner, or the landlord’s or owner’s spouse, civil union partner, or de facto partner.
Where a party says that the RTA does not apply, that party must establish the facts upon which it is claimed that the RTA does not apply. 8 So, in the present case the landlord must prove, on the balance of probabilities that section 5(1)(n) applies.
The issue I must consider then is whether the premises were principally used as a place of residence during the tenancy by the landlord or his de facto partner.
The District Court in Adams v Massey University Palmerston North 9 , stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.
The Court in Musson v Dobrisek 10 said: ...[38] I consider that the word "principally" in s 5(n) refers to the main use of the premises, not to the relative duration of the landlord's occupation of the premises or, possibly, its degree of intensity. This emerges from what is in my opinion the plain reading of the text. It does not say – used ... as the principal place of residence ... What is actually says is – used ... principally as a place of residence ... [39]The word "principally" is an adverb qualifying the verb "used", not an adjective describing the noun "place". So the question to be asked is –

Is the principal use of these premises as a place of residence by the landlord?

property was, in functional terms, commensurate with that of other the other occupants and cannot for that reason be regarded as the principal use.

In Main v Hooker 11 it was said that a “place of residence” meant the place to which a person would normally go to live, their home. In that case the Court found the premises to be the primary residence of the landlord’s daughter who had vacated the premises for a matter of weeks and intended to return to live.
I also note the broad description of a flatmate agreement in Musson v Dobrisek 12 , as follows: “By 'flatmates' I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
Ultimately, each case will turn on its facts. It can be helpful but not determinative to look at other cases even where the facts seem similar. That is because no households are the same, the way that the parties interact with each other and the different ways they use the premises will make each case unique. Outcome as to jurisdiction
I informed the parties of my decision as to jurisdiction at the hearing and confirmed I would provide reasons in this order.
I consider the premises were not principally used as a place of residence for the landlord or a member of the landlord’s family for the duration of the tenancy.
I consider the s 5 (1)(n) exception may have applied while the landlord’s girlfriend lived in the premises. I consider during this time the landlord stayed at the premises 2-3 times a week to visit his girlfriend who lived at the premises. However, the tenants have provided evidence that the landlord and his girlfriend had ongoing relationship issues and I consider the landlord has not provided sufficient evidence that for the duration of the tenancy he and his girlfriend were in a de facto relationship. It appears that during the tenancy the relationship may have ended.
I also consider that if the exception at s 5 (1)(n) of the RTA applied at the start of the tenancy, on the basis the landlord’s de facto partner/girlfriend was living in the premises, it ceased to apply when the landlord’s girlfriend vacated the premises, which I understand to be prior to the tenant’s vacating. 11 Main v Hooker (CIV-2180/03), 2 February 2004, Judge Green) 12 Musson v Dobrisek CIV-2006-032-36, 5 May 2006 Judge Broadmore at paragraph [22] It appears that there was at least one month between the landlord’s girlfriend vacating (on approximately 2 June 2024) and these tenants vacating on approximately 14 July 2024.
I consider the landlord has provided insufficient evidence that he and these tenants were functioning in a cooperative flatting arrangement, whereby they shared part of the premises. As noted above, I consider the landlord visited the premises, but I consider it was not used principally as his place of residence.
I consider, given there were three tenants and the landlord’s girlfriend living at the premises, it is likely that the main purpose of this premises, during this tenancy, was commercial, rather than to mainly provide a place of residence for the landlord.
As noted above, the landlord had the onus of proving that the tenancy is excluded from the Act by establishing that the premises was mainly being used as a place of residence by him or his defacto partner. I am not satisfied that the landlord has done so. By declaration I find this is a residential tenancy to which the RTA applies.

TENANTS CLAIM FOR THE BOND

The tenancy ended on 14 July 2024. The tenant has applied for refund of the bond.
The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.
At the hearing the landlord raised a counter claim and the tenant’s agreed that the counter claim be heard and determined by me at the hearing.
Accordingly, I heard the landlord’s counter claim and deal with the claims below.
The tenants confirmed at the hearing that they were only seeking a refund of the bond. The application form referred to a claim for compensation however that was not sought by the tenants at the hearing. LANDLORD’S CLAIMS Cleaning and rubbish removal
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish. 13
If the landlord is seeking to recover costs for cleaning and rubbish removal, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed.

Did the tenant comply with their obligations at the end of the tenancy?

The landlord claims the tenants did not leave the premises reasonably clean and tidy and did not remove all rubbish. The landlord provided an invoice in support of the claim for $333.50 : $200 plus GST for cleaning and $90 plus GST for rubbish removal.
The landlord provided oral evidence in support of the claim but did not provide any post tenancy photographs of the premises or the rubbish that required removing.
The tenants dispute the claim. The tenants say they largely cleaned the premises, and the remaining rubbish was some black bags left in the garage. The tenants accept that there were rubbish bags left in the garage at the end of the tenancy, however they understood the rubbish removal cost was deducted from the other tenants’ bond.
I consider the landlord has provided insufficient evidence that the premises was not left reasonably clean and tidy.
The landlord has a duty to mitigate his loss 14 and in the absence of any photographs to show the size and extent of the rubbish remaining in the garage I consider the rubbish could likely have been placed in the roadside collection. The claims for cleaning costs and rubbish removal are dismissed.

DAMAGE CLAIMS

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the 13 See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. 14 See section 49 of the RTA. damage. Tenants are liable for the actions of people at the premises with their permission. 15
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). 16
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). 17 Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. 18
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. 19
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. 20

Is the tenant responsible for the damage to the premises?

The landlord claims the following damage was caused during the tenancy. a. The walls were damaged. b. The carpet was stained, and the stains could not be removed. c. The shower door handle was damaged.
The landlord said the premises was built in 2023. The landlord provided a quote in support of the claims; however the quote did not itemise the services. Damage to walls
The landlord claims the walls were damaged during the tenancy. 15 See sections 40(2)(a), 41 and 49B RTA. 16 See section 49B(3)(a) RTA. 17 See section 49B(3)(b) RTA. 18 See section 49B(3A)(a) RTA. 19 See section 49B(1) RTA. 20 See Guo v Korck [2019] NZHC 1541.
The landlord did not provide a pre-inspection report or pre tenancy photographs in support of the claim. The landlord said he has had the damage repaired however he has not provided an invoice in support of the claim.
The tenants accept the walls were damaged but say this was caused by another tenant who has accepted liability for the damage. In the absence of an invoice in support of the claim I consider the landlord has provided insufficient evidence of loss to support an order for compensation.
I also consider, in reviewing the photographs provided by the landlord that the damage amounts to minor scuff marks and the damage is not more than fair wear and tear. The claim for compensation for wall damage is dismissed. Carpet Damage
The landlord claims the carpet was stained during the tenancy.
The landlord provided undated photographs of small red stains on the carpet and two larger round stains. The landlord claims $500, being the insurance excess amount for the carpet damage.
The tenants say the landlord and his partner caused the red stains on the carpet when dying hair and they were not aware of the two larger stains on the carpet. They said these may have been under a mat at the start of the tenancy.
The landlord has not replaced the carpet (some 8 months after the tenancy ended) but he says he intends to.
In the absence of a pre-inspection report or dated photographs from the commencement of the tenancy I am not satisfied the large round stains were caused by the tenants during the tenancy. I also do not consider the tenants should be liable for the damage caused by the landlord, (being the hair dye stains).
The claim for compensation for the carpet damage is dismissed. Shower door handle
The landlord says the shower door handle was carelessly damaged by the tenants during the tenancy. The landlord provided a video of the shower door handle being loose. The landlord provided a quote in support of the claim but did not provide pre-inspection photographs or the invoice for the repair.
The tenant says the shower handle was loose at the start of the tenancy and they dispute damaging it.
I consider the shower door handle has most likely come loose through normal use of the shower door and is therefore fair wear and tear.
The claim in respect of the shower door handle is dismissed. Outcome
As the landlord has been unsuccessful with his counter claim I have made an order that he refund the tenants their bond immediately, which he holds. Filing fee
Because the tenants have wholly succeeded with the claim, I have reimbursed the filing fee. Suppression
The tenants did not seek name suppression. 21
The Tribunal may, on the application of any party to proceedings, having regard to the interests of the parties and to the public interest, order that the name or any identifying particulars of any party not be published. 22
The landlord did seek name suppression; however, I consider there is a public interest in the landlord’s name being published.

Tenancy Tribunal case 5017628 — Tenancy dispute at 6 Entelea Close, Papamoa Beach, Papamoa 3118

At a glance

Tenancy Tribunal case 5017628 — Tenancy dispute at 6 Entelea Close, Papamoa Beach, Papamoa 3118

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the principal use of these premises as a place of residence by the landlord?

TENANTS CLAIM FOR THE BOND

Did the tenant comply with their obligations at the end of the tenancy?

DAMAGE CLAIMS

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the principal use of these premises as a place of residence by the landlord?

TENANTS CLAIM FOR THE BOND

Did the tenant comply with their obligations at the end of the tenancy?

DAMAGE CLAIMS

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions