What was the outcome of Tenancy Tribunal case 5158998?

The tribunal order states: The Tenancy Tribunal declares it has jurisdiction to hear the application filed by

How much money was awarded in case 5158998?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5158998?

The dispute type was not classified.

Where can I read the official tribunal order for case 5158998?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11463941-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5158998?

The tribunal order states: The Tenancy Tribunal declares it has jurisdiction to hear the application filed by

How much money was awarded in case 5158998?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5158998?

The dispute type was not classified.

Where can I read the official tribunal order for case 5158998?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11463941-Tenancy_Tribunal_Order.pdf.

6457 State Highway 1, Kinleith, RD 1, Tokoroa 3078 Tenancy Tribunal Case 5158998 — Tenancy dispute

Order

The Tenancy Tribunal declares it has jurisdiction to hear the application filed by Shop Hop Ltd.
The hearing is adjourned.
A further 360 minutes should be allowed for the next hearing of this matter, scheduled before me at this court on the next available date.
If either party intends to produce any additional documents at the next hearing, they must email Tribunal at least 5 days before the hearing and cc email the other party at the same time.
If the hearing is not needed then Mr and Mrs Misra must advise Tenancy Services as soon as possible.

Reasons

Mr Misra, Mr Singh and Mr Minhas attended the hearing.
This matter has been set down to decide if there is a residential tenancy for the house attached to the shop at a service station. The parties signed a commercial lease.

Who are the parties?

I accept that Mr Minhas is a director of NKG Sampati Ltd and is the correct respondent.
The applicants named a second respondent, Mr Singh. Mr Singh explained that he and his wife have been running the business and Shop Hop Ltd is their company. Shop Hop Ltd has recently sold its shares to Mrs Misra. Mrs Misra currently owns 99% of the shares in Shop Hop Ltd with the final 1% held by a previous director temporarily to allow the supply of goods to the shop to continue. It seems most likely to me that Mr Singh is not a respondent. I have removed him as a party but arranged for him to receive a copy of this order.
The agreement for the sale and purchase of shares is subject to NKG Sampati Ltd consenting in writing to the change. Mr Minhas does not agree he has consented to the change. This is not really relevant to me because the company exists. I find the correct applicant is the company, Shop Hop Ltd, because Shop Hop Ltd is the other party to the commercial lease.

Does the Tenancy Tribunal have jurisdiction?

The tenancy premises is the house attached to the shop. The commercial lease commenced in November 2021, with renewal dates in 2026 and 2029. The shop runs in conjunction with the service station and provides office space to the service station operator, and motoring accessories, food and drink and grocery items to the service station and motoring customers.
Section 5(1)(a) RTA provides that the Act does not apply where the premises are commercial premises. Section 2(1) RTA defines commercial premises as premises that are not residential. Section 2(3) RTA provides that, where leased premises are used for both residential and commercial purposes, they are deemed to be residential unless it is proved that they were let “principally for purposes other than residential purposes”.
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In determining whether the premises are primarily residential or commercial, relevant factors include: the nature of the premises; any advertising and pre- contractual statements about the intended use of the premises; the terms of the agreement; and whether any chattels provided are more likely for commercial or residential use. Also, the nature of the residential premises (for example, whether the premises contained facilities that one would associate with proper residential purposes); the nature of the commercial use; and the space occupied for commercial use.
In Kahi v Lucas HC AK HC81/96 23 September 1996 the landlord had a lease of commercial premises, where the ground floor was used for a mechanical garage and the top floor was let to a tenant for residential purposes. The High Court held that because premises could include part of any premises the top floor was residential, and the sub lease came within the Act.
In the Court of Appeal decision of Main v Main [2007] NZCA 306 the Court found that premises in a commercial building, located in an industrial area, used partly by the applicant as a flat and to operate a second hand dealers’ business were let principally for purposes other than residential purposes, and the premises were commercial. The Court of Appeal said Kahi was different because in that case the whole of the top floor of the building constituted residential premises, notwithstanding other parts of the building were used for business purposes.
Section 10 of the RTA sets out that the onus of establishing that the RTA does not apply rests with the party who is challenging the Tribunal’s jurisdiction. This is Mr Minhas. The submissions made by Mr Minhas that the lease is principally commercial include: • the parties signed a commercial lease which includes both the shop and the house • GST is payable on the lease • the house is provided as part of the business of running the shop, which is an advantage because the service station is isolated • there is internal access between the shop and the house • the security of the shop was key to the running of the service station because of the shared office space.
The submissions made by Mr Singh and Mr Misra in reply include: • GST is payable on the shop lease only • the house has its own entrance separate from the shop • the people running the shop do not need to access the house in order to run the shop • the shop has the kitchen space it needs and toilet facilities • the door between the shop and the house can be locked • the house has been rented out separately to the business for two years recently • the house is a self contained residential dwelling.
I also note that: • the house is described as “Residential premises for residential use” in the lease • the lease splits out the rent to be paid for the house and to the shop • the diagram attached to the lease shows the house and the shop share one wall and the house is larger in area than the shop.
It seems most likely to me the shop and service station are principally used as a commercial venture and the house is used principally as a home. There is a clear demarcation between the house and the shop even though the parties signed a commercial lease for the use of both.
I find the landlord has not discharged the onus of establishing that part of the premises was let principally for purposes other than residential purposes. The premises are not excluded under section 5(1)(a) RTA and the Tribunal has jurisdiction to determine the substantive issues claimed by the tenant.

What happens next?

I have set the application filed by Mr and Mrs Misra down for another hearing. This will be before a different adjudicator.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.
If either party intends to produce any additional documents at the next hearing, they must email Tribunal at least 5 days before the hearing and cc email the other party at the same time.
I note Mr Minhas’ submission that he has never consented to Mr and Mrs Misra running the business. If Mr and Mrs Misra are no longer operating the shop they must let Tenancy Services know as soon as possible that they no longer have a claim against NKG Sampati Ltd.

Order

The Tenancy Tribunal declares it has jurisdiction to hear the application filed by Shop Hop Ltd.
The hearing is adjourned.
A further 360 minutes should be allowed for the next hearing of this matter, scheduled before me at this court on the next available date.
If either party intends to produce any additional documents at the next hearing, they must email Tribunal at least 5 days before the hearing and cc email the other party at the same time.
If the hearing is not needed then Mr and Mrs Misra must advise Tenancy Services as soon as possible.

Reasons

Mr Misra, Mr Singh and Mr Minhas attended the hearing.
This matter has been set down to decide if there is a residential tenancy for the house attached to the shop at a service station. The parties signed a commercial lease.

Who are the parties?

I accept that Mr Minhas is a director of NKG Sampati Ltd and is the correct respondent.
The applicants named a second respondent, Mr Singh. Mr Singh explained that he and his wife have been running the business and Shop Hop Ltd is their company. Shop Hop Ltd has recently sold its shares to Mrs Misra. Mrs Misra currently owns 99% of the shares in Shop Hop Ltd with the final 1% held by a previous director temporarily to allow the supply of goods to the shop to continue. It seems most likely to me that Mr Singh is not a respondent. I have removed him as a party but arranged for him to receive a copy of this order.
The agreement for the sale and purchase of shares is subject to NKG Sampati Ltd consenting in writing to the change. Mr Minhas does not agree he has consented to the change. This is not really relevant to me because the company exists. I find the correct applicant is the company, Shop Hop Ltd, because Shop Hop Ltd is the other party to the commercial lease.

Does the Tenancy Tribunal have jurisdiction?

The tenancy premises is the house attached to the shop. The commercial lease commenced in November 2021, with renewal dates in 2026 and 2029. The shop runs in conjunction with the service station and provides office space to the service station operator, and motoring accessories, food and drink and grocery items to the service station and motoring customers.
Section 5(1)(a) RTA provides that the Act does not apply where the premises are commercial premises. Section 2(1) RTA defines commercial premises as premises that are not residential. Section 2(3) RTA provides that, where leased premises are used for both residential and commercial purposes, they are deemed to be residential unless it is proved that they were let “principally for purposes other than residential purposes”.
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In determining whether the premises are primarily residential or commercial, relevant factors include: the nature of the premises; any advertising and pre- contractual statements about the intended use of the premises; the terms of the agreement; and whether any chattels provided are more likely for commercial or residential use. Also, the nature of the residential premises (for example, whether the premises contained facilities that one would associate with proper residential purposes); the nature of the commercial use; and the space occupied for commercial use.
In Kahi v Lucas HC AK HC81/96 23 September 1996 the landlord had a lease of commercial premises, where the ground floor was used for a mechanical garage and the top floor was let to a tenant for residential purposes. The High Court held that because premises could include part of any premises the top floor was residential, and the sub lease came within the Act.
In the Court of Appeal decision of Main v Main [2007] NZCA 306 the Court found that premises in a commercial building, located in an industrial area, used partly by the applicant as a flat and to operate a second hand dealers’ business were let principally for purposes other than residential purposes, and the premises were commercial. The Court of Appeal said Kahi was different because in that case the whole of the top floor of the building constituted residential premises, notwithstanding other parts of the building were used for business purposes.
Section 10 of the RTA sets out that the onus of establishing that the RTA does not apply rests with the party who is challenging the Tribunal’s jurisdiction. This is Mr Minhas. The submissions made by Mr Minhas that the lease is principally commercial include: • the parties signed a commercial lease which includes both the shop and the house • GST is payable on the lease • the house is provided as part of the business of running the shop, which is an advantage because the service station is isolated • there is internal access between the shop and the house • the security of the shop was key to the running of the service station because of the shared office space.
The submissions made by Mr Singh and Mr Misra in reply include: • GST is payable on the shop lease only • the house has its own entrance separate from the shop • the people running the shop do not need to access the house in order to run the shop • the shop has the kitchen space it needs and toilet facilities • the door between the shop and the house can be locked • the house has been rented out separately to the business for two years recently • the house is a self contained residential dwelling.
I also note that: • the house is described as “Residential premises for residential use” in the lease • the lease splits out the rent to be paid for the house and to the shop • the diagram attached to the lease shows the house and the shop share one wall and the house is larger in area than the shop.
It seems most likely to me the shop and service station are principally used as a commercial venture and the house is used principally as a home. There is a clear demarcation between the house and the shop even though the parties signed a commercial lease for the use of both.
I find the landlord has not discharged the onus of establishing that part of the premises was let principally for purposes other than residential purposes. The premises are not excluded under section 5(1)(a) RTA and the Tribunal has jurisdiction to determine the substantive issues claimed by the tenant.

What happens next?

I have set the application filed by Mr and Mrs Misra down for another hearing. This will be before a different adjudicator.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.
If either party intends to produce any additional documents at the next hearing, they must email Tribunal at least 5 days before the hearing and cc email the other party at the same time.
I note Mr Minhas’ submission that he has never consented to Mr and Mrs Misra running the business. If Mr and Mrs Misra are no longer operating the shop they must let Tenancy Services know as soon as possible that they no longer have a claim against NKG Sampati Ltd.

Tenancy Tribunal case 5158998 — Tenancy dispute at 6457 State Highway 1, Kinleith, RD 1, Tokoroa 3078

At a glance

Claims & awards

Tenancy Tribunal case 5158998 — Tenancy dispute at 6457 State Highway 1, Kinleith, RD 1, Tokoroa 3078

At a glance

Claims & awards

Order

Reasons

Who are the parties?

Does the Tenancy Tribunal have jurisdiction?

What happens next?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Who are the parties?

Does the Tenancy Tribunal have jurisdiction?

What happens next?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions