What was the outcome of Tenancy Tribunal case 5087593?

The tribunal order states: The applications are dismissed for want of jurisdiction.

How much money was awarded in case 5087593?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5087593?

The primary dispute was Rent arrears. Related themes: Cleanliness, Boarding House.

Where can I read the official tribunal order for case 5087593?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11243905-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5087593?

The tribunal order states: The applications are dismissed for want of jurisdiction.

How much money was awarded in case 5087593?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5087593?

The primary dispute was Rent arrears. Related themes: Cleanliness, Boarding House.

Where can I read the official tribunal order for case 5087593?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11243905-Tenancy_Tribunal_Order.pdf.

9 Picton Street, Freemans Bay, Auckland 1011 Tenancy Tribunal Case 5087593 — Rent arrears

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Reasons

Both parties attended the hearing.

The applicant filed a claim seeking a refund of the bond. The respondent filed a cross-application for rent arrears, outgoings, and compensation for damages and cleaning.

The matter was set down to determine whether the Tribunal has jurisdiction. Background

The respondent is the head tenant. They signed a tenancy agreement with the owner. The rent is $2,000.00 per week.

The house has three bedrooms and an office. From 8 August 2024 – 29 October 2024, the applicant rented a bedroom from the respondent for $400.00 per week. No other bedrooms were rented out to anyone else.

The applicant had their own bathroom, but the parties shared the rest of the house. The applicant accepts that they had access to the kitchen, dining and living area, but states that due to the strained relationship with the respondent, they did not feel comfortable using these areas.

The applicant gave evidence that they initially believed the arrangement was for a flatmate, but later felt the dynamic shifted to a point where they were the tenant of the respondent. The responded disputed that this was ever the case.

The respondent claims that they rented out the bedroom to the applicant to help pay the rent. The respondent only ever viewed the relationship with the applicant as one of flatmates.

There was no written agreement between the parties.

Was this a flatmate or landlord and tenant relationship?

Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to every tenancy for residential purposes except as specifically provided.

Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy in relation to any residential premises means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. The applicant lived in a residential house and paid the respondent $400.00 per week. This sounds like a residential tenancy.

Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.

Section 10 RTA provides that, where a party to proceedings contends the RTA does not apply, they must establish the facts supporting their contention. In other words, the landlord has the burden of proving the RTA does not apply to the living arrangement involving the tenant.

Section 5(1)(n) states the RTA does 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.”

When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, the District Court considered tenancy premises where the owner lived in one bedroom and rented the other eight bedrooms out to people. Everyone shared the use of the kitchen, lounge and bathroom, known as the “common areas.” The District Court held that the relevant question in cases where the landlord lives at the property they also rent out, is whether the principal use of the premises is as a place of residence by the landlord. “[39]... 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 bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord’s family. On this reading, the exception could only apply 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.”

Applying Musson, I find that the respondent’s principal use of the premises was as a place of residence for the following reasons: a. The respondent only rented out one bedroom in the property to the applicant. None of the other bedrooms were rented out. The situation in this case is quite different to Musson where the head tenant only occupied one bedroom and rented out the remaining eight. I consider this case falls within the exception described in Musson of “small scale and limited letting”, while the principal use of the property remained as a residence for the respondent. b. The property was predominantly furnished by the respondent and the applicant only had to provide furniture for their bedroom. This further indicates that the main purpose of the premises was to provide a principal place of residence for the respondent. c. The respondent was living in the property when the applicant moved in and continued living at the property while the applicant was there.

I do not consider that the bedroom and bathroom occupied by the applicant in this case constituted its own “premise” for the purpose of section 5(1)(n). The only areas over which the applicant had exclusive use were his bedroom and a bathroom. The parties shared the use of the kitchen, dining and living area of the house, although the applicant claims that they felt uncomfortable doing so at times. The applicant’s bedroom and bathroom was not “self-contained”, “fully functioning” or “independent” like the granny flat in Harding v Shellevis & Ors [2021] NZHC 1265. This is not a case where there were two separate and distinct household units. I am satisfied that the relevant premises in the present case is the whole property, which was used principally as a place of residence by the respondent. Name suppression and filing fee

The applicant did not apply for name suppression and therefore, I have not granted it.

In their written application, the respondent applied for name suppression however, they have not been wholly or substantially successful in their claim. The respondent did not advance a claim for name suppression at the hearing and I cannot think of a compelling reason why it should be granted. I have considered the interests of the respondent and the public. In this case, I consider the interests of open justice outweigh the interests of the respondent. I decline to grant them name suppression.

Neither party has been wholly or substantially successful in their claim and therefore, I do not order that either party reimburse the other the filing fee.

Reasons

Both parties attended the hearing.

The applicant filed a claim seeking a refund of the bond. The respondent filed a cross-application for rent arrears, outgoings, and compensation for damages and cleaning.

The matter was set down to determine whether the Tribunal has jurisdiction. Background

The respondent is the head tenant. They signed a tenancy agreement with the owner. The rent is $2,000.00 per week.

The respondent claims that they rented out the bedroom to the applicant to help pay the rent. The respondent only ever viewed the relationship with the applicant as one of flatmates.

There was no written agreement between the parties.

Was this a flatmate or landlord and tenant relationship?

Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.

When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

The applicant did not apply for name suppression and therefore, I have not granted it.

Neither party has been wholly or substantially successful in their claim and therefore, I do not order that either party reimburse the other the filing fee.

Tenancy Tribunal case 5087593 — Rent arrears at 9 Picton Street, Freemans Bay, Auckland 1011

At a glance

Tenancy Tribunal case 5087593 — Rent arrears at 9 Picton Street, Freemans Bay, Auckland 1011

At a glance

Claims & awards

Order

Reasons

Was this a flatmate or landlord and tenant relationship?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was this a flatmate or landlord and tenant relationship?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions