What was the outcome of Tenancy Tribunal case 5171435?

The tribunal order states: The tenant’s application for name suppression is declined.

How much money was awarded in case 5171435?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5171435?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5171435?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12073905-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5171435?

The tribunal order states: The tenant’s application for name suppression is declined.

How much money was awarded in case 5171435?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5171435?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5171435?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12073905-Tenancy_Tribunal_Order.pdf.

28 Walter Street, Hauraki, Auckland 0622 Tenancy Tribunal Case 5171435 — Boarding House

Order

The tenant’s application for name suppression is declined.
Notwithstanding the residential tenancy agreement between the parties, it is declared that the living arrangement between the parties is a flatting arrangement under the Residential Tenancies Act 1986.

Reasons

Both parties attended the hearing.
Two legal assistants from the landlord’s counsel’s office were also present to support the landlord. However, they did not make any submissions on the landlord’s behalf.
Ms. Shao served as the Mandarin interpreter for the landlord.
Mr. Lei was the primary speaker addressing me, with his wife, Ms. Wu, providing supplementary submissions. Introduction
After the hearing on 9 May 2025, I issued a decision on 12 May 2025, concluding that a legally binding residential tenancy agreement was formed between Mr. Kim and the landlord, Ms. Wu and Mr. Lei, on 18 February 2025. This agreement was for a fixed term of one year, starting on 18 February 2025 and ending on 18 February 2026. The agreement was supported by text messages exchanged between the parties, which included key terms such as the length of the tenancy, the rent amount, and the occupancy conditions. However, Mr. Kim was evicted from the premises on 19 February 2025, just one night after moving in, with the involvement of the police, who served him with a trespass notice.
The purpose of today’s hearing is to determine two key issues. First, whether the tenancy in question constitutes a "flatmate arrangement”. If so, under section 5(1)(n) of the Residential Tenancies Act 1986 (RTA), it would exclude the application of the RTA, or whether the tenancy is a "tenant” occupying a residential premises under the RTA, thus giving me jurisdiction to hear Mr Kim’s claim. Second, if the RTA applies, whether Mr Kim is entitled to compensation or damages for his unlawful eviction and related losses. The property
The property is a two-storey residential dwelling occupied by the landlord, Mr Lei, and his family. The upper floor functions as the primary living space for the landlord, containing the main kitchen, living areas, and bedrooms. The lower level of the property is where Mr Kim was to reside under the tenancy arrangement.
The downstairs area features a bedroom (designated for Mr Kim), a bathroom, and a utility room that looks like a kitchen but does not have standard cooking appliances such as a stovetop, oven, or range hood (at the time of move-in, there was a portable cooktop, microwave, and fridge). Access to the downstairs can be gained through a separate glass door with a black frame (“black door”), offering Mr Kim a dedicated entrance. Additionally, entry is available via the garage, which connects internally to the downstairs hallway. The front door on the upper level is also available.
Despite these access points, the lower level is not fully self-contained. A white internal door (“white door”) connects the downstairs hallway to a stairwell leading to the upper level. They did not install the white door. It is the same white door that they have had since they bought the property in 2018. This door can be locked from both sides. Although the door was closed, it remained part of a passageway linking the two levels.
Furthermore, several essential facilities were shared. The laundry, located on the lower floor, was regularly accessed by the landlords — Mr Lei stated he used it three to four times a week. He occasionally used the storage area under the stairs downstairs. The garage, left for Mr Kim’s use to park his car, was still accessible by Mr Lei, especially when storing tools or on days he parked there. Utility services such as power, water, gas, internet, and mailbox were all shared. Issues for determination
Jurisdictional Issue a. Whether the downstairs area occupied by Mr Kim qualifies as a "flat" or is considered "residential premises" under the RTA.
Compensation a. If the RTA applies, whether Mr Kim is entitled to compensation or damages for his unlawful eviction, breach of the residential tenancy agreement, and any associated losses, including moving costs, temporary accommodation, emotional distress, and other claims as outlined in his application. Onus of proof
Section 10 of the RTA states, “Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.” (emphasise mine)
The landlord, therefore, has the burden of proof to establish the facts that the RTA does not apply. The law
The key provision at issue is section 5(1)(n) of the RTA, which states: (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.
This section excludes the RTA where the premises are primarily used as the landlord’s residence, such as the tenant in a flatting arrangement.
The definition of "premises" under section 2 of the RTA includes "any part of any premises," meaning that a self-contained area within a larger dwelling may be treated separately from the landlord’s residence for the purposes of the RTA. Cavanagh v Jackson [2025] NZHC 1491
In Cavanagh, the High Court was asked to consider whether the RTA applied to a living arrangement between Ms Cavanagh, the appellant, and Mrs Jackson, the respondent, an elderly woman who continued to live in her longtime home. Ms Cavanagh had rented one of three bedrooms in Mrs Jackson’s house, responding to a TradeMe listing that offered a room in a residential home. Although the bedroom was for Ms Cavanagh’s exclusive use, she shared the bathroom, kitchen, and laundry with Mrs Jackson and another tenant who was rarely home. Occasionally, Ms Cavanagh also used the living room to keep Mrs Jackson company.
The Tribunal and the District Court had both ruled that the arrangement was excluded from the RTA under section 5(1)(n), which removes Tribunal jurisdiction if the premises is primarily used as the landlord’s home. The High Court upheld these findings, noting that Mrs Jackson continued to live in the house during the tenancy and retained effective control of the shared facilities. The Court found that the relationship resembled that of a flatting or boarding situation, rather than that of landlord and tenant with separate premises. Because there was no physical or functional separation of the rented bedroom from the rest of the home, and because Mrs Jackson’s use of the property as her residence continued throughout, the Tribunal’s jurisdiction was excluded. Harding v Caroto and Ors [2021] NZHC 1265
In contrast, the High Court in Harding dealt with a landlord-tenant relationship involving a so-called "granny flat" — a downstairs section of a house that had previously been rented out as a separate unit. The appellant, Ms Harding, lived upstairs with her family, while tenants occupied the lower level, which consisted of two bedrooms, a bathroom, a kitchenette, laundry, and a separate living room. The area also had its own entrance, and the tenants did not have free access to the upper floor. They also arranged their own internet, maintained their part of the property, and paid rent that covered utilities as a fixed cost.
The landlord argued that this was a flat-sharing arrangement and not a tenancy, seeking to invoke the same s5(1)(n) exclusion. However, both the Tenancy Tribunal and the District Court disagreed, and the High Court upheld those findings. The Court found that, despite the premises being part of the same house, the granny flat was functionally self-contained and provided the tenants with their own exclusive residential space. The lack of shared day-to-day living arrangements, combined with the physical separation and independent amenities, distinguished this situation from a flatmate scenario. As a result, the RTA did apply, and the Tribunal retained jurisdiction.
These cases illustrate the importance of the physical and functional nature of the premises because the courts look beyond labels like “flatmate” or “tenant” and examine how the premises are actually used. In Cavanagh, the landlord and tenant lived in the same household and shared key living facilities like the kitchen and bathroom. In Harding, by contrast, the tenant lived in a separate, self-contained unit, even though it was part of the same building.
So the key distinction is whether the tenant’s area is functionally independent. Shared day-to-day living usually supports exclusion under s 5(1)(n), while independent living (even in the same building) supports tenancy protection.
Both cases illustrate that if the landlord continues to live in and use the property during the tenancy, this strongly supports the RTA’s exclusion — but only if the premises are not separated in substance. In Cavanagh, the landlord used and shared the home normally, so the RTA did not apply. But in Harding, the landlord lived upstairs and had no day-to-day interaction or access to the tenant’s space, so the RTA did apply. Landlords’ Submissions (Ms Wu and Mr Lei)
Mr Lei argued that the downstairs area was not self-contained. He stated that the family shared the downstairs utility room, storage, laundry, garage, power, water, and internet with Mr Kim. They lived upstairs and shared the main kitchen and living area with Mr Kim. Mr Lei contends that this sharing of facilities is typical of a flatting arrangement.
Mr Lei acknowledges that a white door separates the upstairs and downstairs areas but argues that it was usually left unlocked to allow the flatmate access to the shared kitchen and living space upstairs. They dispute Mr Kim’s claim that the door was locked during his viewing. Even if it was locked, it was simply for security, as no tenant was occupying the room downstairs.
Mr Lei emphasises that his wife initially proposed a flat/house-sharing agreement, not a residential tenancy agreement. He argues that Mr Kim unilaterally altered the nature of the arrangement by insisting on a tenancy agreement. Tenant’s Submissions (Mr Kim)
Mr Kim argues that the downstairs area was a self-contained residential premises and that the RTA applies. He submitted that the downstairs area had its own entrance via the black door, a kitchenette (albeit without a cooktop), a bathroom, and access to the garage. Mr Kim asserts that he did not need to use the upstairs kitchen and that the white door was locked during his viewing, with Ms Wu describing it as "not usable." Ms Wu did not accept this assertion, however.
Mr Kim contends that he had exclusive use of the downstairs area. He states that there was no sharing of living spaces or social interaction typical of a flatting arrangement.
Mr Kim further submits that during the eviction, the police referred to the downstairs area as a "self-contained unit," which Mr Kim argues supports his claim that it was a separate residential premises. Analysis
The downstairs area had its own entrance from the lower level, featuring a kitchenette without a cooktop but equipped with a microwave and fridge, a bathroom, storage space under the stairs, laundry facilities, and access to the garage.
The white door separating the upstairs and downstairs areas could be locked, but there is conflicting evidence about whether it was locked during Mr Kim’s one-night tenancy. Ms Wu claims it was usually unlocked to allow access to the kitchen upstairs, while Mr Kim states it was locked during his viewing. In any case, the white door has two keyholes. Either the landlords or Mr Kim can unlock or lock it if they choose to. Essentially, either the landlord or Mr Kim could access the downstairs or upstairs without difficulty.
On the facts and floor plan admitted into evidence, Mr Kim had exclusive use of his room. The floor plan shows that Mr Kim’s room is separated from the utility room (or kitchenette), the storage area underneath the stairwell, the laundry and the garage. In other words, no barrier could prevent the landlord from using the utility room, the storage area underneath the stairs, the laundry or the garage.
The only area off-limits is Mr Kim’s bedroom, which has a separate entry. The same applies to the landlord’s upstairs bedroom. Conclusion
In my view, Harding can be distinguished because the downstairs area is not functionally self-contained, with its own entrance and facilities, and there is evidence of shared common areas and amenities. For example, the landlord can access the common area downstairs from the garage. The landlord can also access the common area from either the upstairs or downstairs entrance. The landlord does not need to inform Mr Kim or seek permission from Mr Kim before they access the common area downstairs from upstairs.
Cavanagh is analogous to the present case because, in that case, the tenant shared common areas with the landlord except the bedroom which is the case here.
The downstairs level provided some privacy and convenience for both parties, as Mr Lei’s evidence showed that the white door with a keyhole on each side, along with ongoing shared access to the downstairs common area, laundry use, and the absence of a fully separate kitchen or utility infrastructure. This suggests that the downstairs space was neither functionally nor physically independent.
Accordingly, I conclude that the landlord has established facts indicating that the premises did not constitute a self-contained tenancy, which would bring the RTA into play.
Mr Kim needs to address his complaint in the Dispute Tribunal if he wishes to pursue his compensation claim further. Remarks
Although I have concluded that the RTA does not apply, I acknowledge that this was a closely balanced decision. The landlord’s sudden eviction of Mr Kim after only one night, especially with police involvement, is concerning. I strongly encourage the parties to engage in settlement negotiations to resolve this matter without the need for further court proceedings.
However, it will be up to both parties to decide how they want to proceed from here. Name suppression
Mr Kim applied for a suppression order.
I declined his application on 12 May 2025 and said at paragraph 92: “Having considered the circumstances surrounding the dispute, and balancing the interests of both parties against the public interest, I find no proper grounds for granting name suppression.”
My view remains the same as it was on 12 May 2025.
Accordingly, Mr Kim’s application for suppression is declined.

Tenancy Tribunal case 5171435 — Boarding House at 28 Walter Street, Hauraki, Auckland 0622

At a glance

Tenancy Tribunal case 5171435 — Boarding House at 28 Walter Street, Hauraki, Auckland 0622

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