What was the outcome of Tenancy Tribunal case 5061831?

The tribunal order states: The Tribunal orders suppression of the applicant and respondent’s name and

How much money was awarded in case 5061831?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5061831?

The primary dispute was Cleanliness. Related themes: Healthy homes, Unit Titles, Boarding House.

Where can I read the official tribunal order for case 5061831?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11736247-Tribunal_Order_Redacted.pdf.

What was the outcome of Tenancy Tribunal case 5061831?

The tribunal order states: The Tribunal orders suppression of the applicant and respondent’s name and

How much money was awarded in case 5061831?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5061831?

The primary dispute was Cleanliness. Related themes: Healthy homes, Unit Titles, Boarding House.

Where can I read the official tribunal order for case 5061831?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11736247-Tribunal_Order_Redacted.pdf.

NO ADDRESS, NO ADDRESS Tenancy Tribunal Case 5061831 — Cleanliness

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Reasons

Both parties attended the original hearing. Only the applicant attended the resumed hearing. The respondent was phoned three times but the calls were not answered by the respondent on each occasion.

The applicant (represented by Ms D. S) applied to the Tribunal for an order for possession of the property. The respondent has not accepted the validity of the applicant’s termination notice and has declined to leave the property.

The applicant is the owner of the property (‘the property’) that is the subject of this dispute. The respondent is the applicant’s niece. In 2008 the applicant purchased a property for the respondent and her children to occupy. The arrangement in 2008 was that the applicant would pay the insurance and rates and his niece would pay the fortnightly mortgage payments. The applicant told the respondent in an email dated 29 March 2008 that his will would state that the house would be left the respondent’s children on his death.

The arrangement has continued over seventeen years. At times the respondent defaulted on the mortgage payments and the applicant had to top up the account. The applicant was concerned about the respondent’s failure to keep up payments. In February 2018 the applicant emailed the respondent stating that he had paid $12,000.00 towards the mortgage and would have to sell the house. He would give her time to find another place to live. In December 2018 the applicant used a document from the web headed ‘Residential Tenancy Agreement with the Option to Purchase’ to record the parties arrangement. The applicant signed the Agreement on 17 December 2018. The respondent continued to default on mortgage contributions in 2019. The applicant issued an eviction notice which was later withdrawn. By 2024 the applicant decided that the tenancy should end. On 6 August 2024 he issued a 90 day notice informing the respondent that the tenancy would end on 4 November 2024. On 6 November the applicant applied to the Tribunal for possession of the property. The respondent disputes that the applicant can terminate the arrangement. She believes she has part ownership of the property through the mortgage payments. Jurisdiction

The first issue the Tribunal must consider is whether the application comes within its jurisdiction. That is because the parties in the residential tenancy agreement are uncle and niece. Section 2(n) of the Residential Tenancies Act 1986 (RTA) provides that the RTA shall not apply: (n) 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:

Section 2 of the RTA defines ‘family’. The definition includes ‘blood relatives’. The applicant and respondent are blood relatives.

However section 8 of the RTA provides that parties to a tenancy that is excluded by section 5, may agree in writing that all or any of the provisions of this Act shall apply in respect of the tenancy. (1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree. (2) Without limiting subsection (1), any such agreement may confer upon the Tribunal, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies.

The question for the Tribunal is whether the parties agreed to the RTA applying to their tenancy agreement.

In his submission the applicant claims that the RTA should apply to this tenancy because a residential tenancy agreement (‘the Agreement’) was signed by the parties. However the question is not whether a residential tenancy agreement was signed by the parties but whether the parties understood and agreed that the RTA would apply to their excluded tenancy. In making this determination it is important to consider both the context in which the Agreement was signed and the contents of the Agreement.

The evidence provided by the parties shows that: a. prior to signing the Agreement, they did not refer to their tenancy being excluded from the RTA by virtue of a blood relationship or family. b. prior to the Agreement being signed, the parties did not refer to the need to put in writing that the RTA would apply. c. the Residential Tenancies Act 1986 was not specifically mentioned in correspondence prior to the Agreement being signed. It would be difficult to conclude from this context, that the parties turned their minds to the RTA applying to their excluded tenancy.

Turning then to the content of the Agreement. The Agreement does not specifically refer to the Residential Tenancies Act 1986. The Agreement does make the following reference to the laws of New Zealand: Clause 10: Any notice to terminate this tenancy must comply with the applicable legislation of New Zealand (the "Act"). Clause 13: The landlord may review the rent from time to time and may increase the rent in accordance with the Act. Clause 19: This Lease will be construed in accordance with and exclusively c corporate rules affecting the Property are attached to this Lease. Clause 50. If there is a conflict between any provision of this Lease and the Act, the Act will prevail and such provisions of the Lease will be amended or deleted as necessary in order to comply with the Act. Further, any provisions that are required by the Act are incorporated into this Lease. The invalidity or unenforceability of any provisions of this Lease will not affect the validity or enforceability of any other provision of this Lease. Clause 52. Locks may not be added or changed without the prior written agreement of both Parties, unless the changes are made in compliance with the Act.

Therefore, while the Agreement does not refer specifically to the RTA, it does refer to NZ law regarding the tenancy. The primary law regarding tenancies is the RTA. It could therefore be concluded that the parties indirectly agreed that the RTA should apply to their excluded tenancy.

The version of the RTA that applied when the tenancy was signed was the 12 December 2018 version. Section 13A set out requirements regarding the contents of a tenancy agreement. The Agreement complies with the provisions listed in s.13A(1). This could suggest that the applicant did consider the RTA when completing the Agreement.

The applicant was required to provide an insulation statement with the Agreement (see S.13A(2). The failure to do so was an unlawful act. The applicant did not provide an insulation statement. The failure of the applicant to provide that information in the Agreement suggests that the parties used a generic agreement from the web that referred to NZ law but they did not specifically consider the RTA. This conclusion could also be reached by the following clauses being included which contradict the provisions of the RTA. Clause 3: No guests of the Tenants may occupy the Property for longer than one week without the prior written consent of the Landlord. The RTA does not give a landlord a right to control a tenant’s guests. Clause 4: A reasonable number of pets or animals are allowed to be kept in or about the Property. If, at the sole discretion of the Landlord, this privilege is abused, or if the pets damage the Property, or if the pets cause problems or interfere with the use and enjoyment of the Property for the other tenants, the Landlord may revoke this privilege upon thirty (30) days' notice. (my bold) The RTA does not give a landlord discretion to revoke a privilege granted in a tenancy agreement. A dispute about a breach of the Agreement would require the landlord to apply to the Tribunal. Clause 19: The Parties will complete, sign and date an inspection report at the beginning and at the end of this tenancy. There is no record of an inspection taking place to identify the condition of the property 10 years after the respondent commenced her occupation in 2008. No inspection report was provided at the time of the Agreement. This suggests that the parties did not thoroughly consider the content of the document being signed. Clause 22: The Tenant will, at its sole expense, keep and maintain the Property and appurtenances in good and sanitary condition and repair during the term of this Lease and any renewal of this Lease. Repair and maintenance of the property is a landlord expense under the RTA. Clause 25. Where the Property has its own garden or grass area which is for the exclusive use of the Tenant and its guests, the Tenant will water, fertilize, weed, cut and otherwise maintain the garden or grass area in a reasonable condition including any trees or shrubs therein. Maintaining and cutting trees and shrubs is not a tenant’s responsibility under the RTA. It is maintenance to be carried out by a landlord. Clause 26. The Tenant will clean, maintain and keep chimneys free from blockage and obstruction. Maintaining and cleaning chimneys is not a tenant’s responsibility under the RTA. It is maintenance to be carried out by a landlord. Clause 30: If the Tenant is absent from the Property and the Property is unoccupied for a period of 4 consecutive days or longer, the Tenant will arrange for regular inspection by a competent person. The Landlord will be notified in advance as to the name, address and phone number of the person doing the inspections. The obligation set out in clause 30 is substantially inconsistent with the provisions of the RTA. Clause 34: The Tenant will not perform any activity on the Property that the Landlord feels significantly increases the use of electricity, heat, water, sewer or other utilities on the Property. The obligation set out in clause 34 is inconsistent with the provisions of the RTA. A tenant is able to use a property for their own enjoyment and to pay for utilities used. Clause 35: The Tenant will obey all rules and regulations of the Landlord regarding the Property. The obligation set out in clause 35 is inconsistent with the provisions of the RTA. It suggests that the parties were unaware that the RTA provisions in section 40. The parties correspondence shows no reference to section 11 of the RTA which refers to the Tribunal permitting provisions of an agreement that are inconsistent with any of the provisions of this Act. Clause 36: The Property is held in a stratum estate under the Unit Titles Act 2010, and the body corporate rules affecting the Property are attached to this Lease. The inclusion of Clause 36 in the Agreement indicates that when deciding to use this document from the web, no thought was given to whether all clauses in the downloaded document applied to this tenancy. The property is not held in a stratum estate under the Unit Titles Act 2010. There were no body corporate rules affecting the Property that were attached to this Lease.

In summary, in 2018, the failure of the respondent to make mortgage payments resulted in the landlord losing trust in the respondent. At that time the parties did not know that the RTA did not apply to the tenancy. Because of the arrears the applicant decided to formalize the arrangement with a written agreement signed by uncle and niece. The Agreement the parties signed was one that the landlord had downloaded from the web. It did not directly refer to the RTA. The Agreement did refer to the relevant laws of NZ. Prior to the Agreement being signed there was no discussion or correspondence where the RTA was referenced. The clauses in the Agreement show that the parties did not assess their agreement in light of RTA provisions. I must therefore decide whether the indirect link with the RTA through the reference to NZ law in the document signed is sufficient to conclude that they agreed in writing that all or any of the provisions of this Act shall apply in respect of the tenancy.

In reaching my decision I have considered the decision of Judge GM Harrison in Fetherston v Barfoot and Thompson Limited [2015] NZDC 12810. In that case the issue was also similarly whether parties to an excluded tenancy had contracted into the RTA. The Judge noted the agreement was a two page document and the second page contained general conditions and made provision for signature of the tenant and landlord. Under the heading General Conditions was written:- “THE PROVISIONS OF THE RESIDENTIAL TENANCIES ACT 1986 SHALL APPLY TO THIS TENANCY". There was also reference to a bond being paid to the Bond Centre. The judge concluded that the parties had clearly agreed to the RTA applying to their tenancy. In the present case there is no explicit statement in the Agreement the clearly shows that the parties turned their minds to the RTA applying to their tenancy. Conclusion

Having considered the evidence I am not persuaded that there was an agreement between the parties that the RTA would apply to their tenancy. Therefore the Tribunal does not have jurisdiction to make a possession order. The application is struck out.

The Tribunal does have jurisdiction to evict squatters, even where there is no tenancy agreement. Section 65 provides: Eviction of squatters (1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises. (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.

The applicant may choose to make an application to the Tribunal for possession of the property under section 65. Suppression

The Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (s.95A(4). It is appropriate in this case to order suppression. There is no public interest that requires the parties’ names to be published.

Reasons

Both parties attended the original hearing. Only the applicant attended the resumed hearing. The respondent was phoned three times but the calls were not answered by the respondent on each occasion.

Section 2 of the RTA defines ‘family’. The definition includes ‘blood relatives’. The applicant and respondent are blood relatives.

The question for the Tribunal is whether the parties agreed to the RTA applying to their tenancy agreement.

The applicant may choose to make an application to the Tribunal for possession of the property under section 65. Suppression

Tenancy Tribunal case 5061831 — Cleanliness in NO ADDRESS, NO ADDRESS

At a glance

Tenancy Tribunal case 5061831 — Cleanliness in NO ADDRESS, NO ADDRESS

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