What was the outcome of Tenancy Tribunal case 5129413?

The tribunal order states: Priscila Menozzi must pay Christopher Graham Duma and Kodi Whetu Barlow

How much money was awarded in case 5129413?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5129413?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 5129413?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11690135-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5129413?

The tribunal order states: Priscila Menozzi must pay Christopher Graham Duma and Kodi Whetu Barlow

How much money was awarded in case 5129413?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5129413?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 5129413?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11690135-Tenancy_Tribunal_Order.pdf.

Room 1, 39C Sawmill Road, Queenstown, Queenstown Tenancy Tribunal Case 5129413 — Exemplary damages

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Reasons

Both parties attended the hearing, conducted via teleconference.

The applicant sought the return of the bond and exemplary damages for the landlord’s failure to lodge the bond.

By the date of this hearing the bond, in full, had been returned to the tenants.

The respondent disputed the jurisdiction of the Tenancy Tribunal as she believed the arrangement was one of flat sharing and as such not covered under the RTA. Background

The parties never signed any agreement. The terms were agreed separately. A draft/template tenancy agreement was provided to the tenants by the landlord but for information only with no signature requested or expected. It is not considered to significantly or accurately reflect the parties, or their agreement.

The tenants left the property on 20 December 2024. The bond of two weeks rent was held by the landlord and not returned until this application was lodged. Relevant law

The Tribunal has jurisdiction to determine in accordance with the Act any dispute between a landlord and a tenant which relates to any tenancy to which the Act applies (section 77(1)).

The Act applies to every tenancy for residential purposes except as specifically provided (section 4).

Section 2(1) of the Act defines the meaning of “tenancy” and “residential premises”. A “tenancy”, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. “Premises” includes any part of any premises.

The meaning of “boarding house” and “boarding house tenancy” are defined by section 66B of the Act. A “boarding house” means residential premises containing 1 or more boarding rooms, along with facilities for communal use by the tenants of the boarding house, that is occupied by at least 6 tenants at any one time.

Where a party contends that the Act does not apply in respect of any tenancy of residential premises, it is for that party to establish the facts on which it is contended that the Act does not apply (section 10).

Was this a boarding house tenancy?

The parties agreed that at that address there are two buildings. The front building is not part of this arrangement. The rear building comprises two attached four-bedroom units, all bedrooms have ensuite facilities. The landlord lives in one unit, she has others occupying rooms in her unit. The tenants lived next door. There is no interconnection between the two units. Each has a separate entrance and separate electricity meters. In the tenant premises here, three bedrooms have two occupants, one has a single occupant. Based on that, the total occupancy is 7.

The landlord explained she had been a tenant residing at her unit since 2018. In 2019 she met the owner of both units and the owner offered her a tenancy across both units. She accepted that offer and entered into and has rented rooms to other since. No copy of that tenancy agreement was provided. The bond record for this address records the landlord here as the tenant of record and Monarch Investments Ltd as the landlord.

There is some confusion in the template agreement supplied that the landlord may have assumed she was some form of agent for the property owner, based on the naming conventions. I have no evidence to support that stance is what was intended.

The second unit is not occupied by the landlord, nor does it operate as a flatting situation. The landlord lives elsewhere (albeit next door) and she advertises and selects new tenants as required. She collects outgoings from each occupant based on a percentage apportionment. The unit has facilities for communal use by the tenants, such as a kitchen and laundry. A shared common area is available for all.

In my view, the definitions of “boarding house” and “boarding house tenancy” in section 66B of the Act are met. This is a boarding house.

As noted above, the landlord had the onus of proving that the tenancy is excluded from the Act. I do not find she has been able to do this.

I have no evidence that any exclusion of this arrangement under s 5(s) RTA might be applicable. Such consideration was of my own instigation as no argument regarding this was advanced by the landlord. Bond

The bond has been returned to the tenants. The landlord failed to lodge the two-week bond as required. Such a failure is an unlawful act. See s 19 RTA.

Should exemplary damages be awarded?

As I have determined that the landlord committed an unlawful act I must decide if it is appropriate to award exemplary damages.

Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.

I do not consider the landlord was acting intentionally when the bond was not lodged. The arrangement for the letting of rooms has been in place for some years. It is expected that given the clarification in this order, any other bonds of more than one week held by the landlord will be lodged with the Bond Centre.

Given the lack of intent, no order for exemplary damages is made. Conclusion

For these reasons, I find that this was a boarding house tenancy to which the Act applies.

The landlord is encouraged to review the appropriate legislation for such an arrangement and access advice that is available via Tenancy Services and other sources. This will assist her in improving the structure of existing as well as future such agreements. This will be mutually beneficial. Filing fee

Christopher Graham Duma and Kodi Whetu Barlow were justified in this application. While the bond is now returned to them, considering the overall facts here it is appropriate to reimburse their filing fee.

Reasons

Both parties attended the hearing, conducted via teleconference.

The applicant sought the return of the bond and exemplary damages for the landlord’s failure to lodge the bond.

By the date of this hearing the bond, in full, had been returned to the tenants.

The respondent disputed the jurisdiction of the Tenancy Tribunal as she believed the arrangement was one of flat sharing and as such not covered under the RTA. Background

The tenants left the property on 20 December 2024. The bond of two weeks rent was held by the landlord and not returned until this application was lodged. Relevant law

The Tribunal has jurisdiction to determine in accordance with the Act any dispute between a landlord and a tenant which relates to any tenancy to which the Act applies (section 77(1)).

The Act applies to every tenancy for residential purposes except as specifically provided (section 4).

Was this a boarding house tenancy?

In my view, the definitions of “boarding house” and “boarding house tenancy” in section 66B of the Act are met. This is a boarding house.

As noted above, the landlord had the onus of proving that the tenancy is excluded from the Act. I do not find she has been able to do this.

The bond has been returned to the tenants. The landlord failed to lodge the two-week bond as required. Such a failure is an unlawful act. See s 19 RTA.

Should exemplary damages be awarded?

As I have determined that the landlord committed an unlawful act I must decide if it is appropriate to award exemplary damages.

Given the lack of intent, no order for exemplary damages is made. Conclusion

For these reasons, I find that this was a boarding house tenancy to which the Act applies.

Tenancy Tribunal case 5129413 — Exemplary damages at Room 1, 39C Sawmill Road, Queenstown, Queenstown

At a glance

Tenancy Tribunal case 5129413 — Exemplary damages at Room 1, 39C Sawmill Road, Queenstown, Queenstown

At a glance

Claims & awards

Order

Reasons

Was this a boarding house tenancy?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was this a boarding house tenancy?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions