What was the outcome of Tenancy Tribunal case 5206133?

The tribunal order states: By way of declaration, the current agreement at 4D Henry Street, Blenheim

How much money was awarded in case 5206133?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5206133?

The dispute type was not classified.

Where can I read the official tribunal order for case 5206133?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11999998-Tenancy_Tribunal_Order - AP.pdf.

What was the outcome of Tenancy Tribunal case 5206133?

The tribunal order states: By way of declaration, the current agreement at 4D Henry Street, Blenheim

How much money was awarded in case 5206133?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5206133?

The dispute type was not classified.

Where can I read the official tribunal order for case 5206133?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11999998-Tenancy_Tribunal_Order - AP.pdf.

4D Henry Street, Blenheim, Blenheim 7201 Tenancy Tribunal Case 5206133 — Tenancy dispute

Order

By way of declaration, the current agreement at 4D Henry Street, Blenheim 7201 is a residential tenancy under the Residential Tenancies Act 1986 and is within the jurisdiction of the Tenancy Tribunal.

Reasons

The applicant attended the hearing, Ms Penelope Baber represented the landlord, with appropriate written approval from the Board.
The applicant sought a declaration as to whether the current licence to occupy at the premises is a residential tenancy that is not excluded from the Residential Tenancies Act 1986 (“RTA”). In other words, is it withing the jurisdiction of the

Tenancy Tribunal?

Section 78(1)(a) RTA allows the Tribunal to make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any part. Background
The landlord has built six units at this address. All were occupied originally under a licence to occupy similar to that in place at this premises. They have further properties provided elsewhere under residential tenancy arrangements.
Over time, four of the six units licenced occupancy have ended and the units have been reoccupied under residential tenancy arrangements. I was advised the intention is to do the same as the remaining two units vacate.
The Retirement Villages Act 2003 placed a number of requirements on retirement village operators. The Board did not intend the arrangement at this address to form such an arrangement and addressed this in the licence Background [C] and as agreed at [4] - both are copied below.

In the agreement a tenancy agreement?

In Ziki Investments (Properties) Ltd v McDonald [2008] 3 NZLR 417 (HC), Asher J found that a life interest in a dwelling-house that was not registered under s 115 of the Land Transfer Act 1 came within the definition of a fixed term tenancy under the RT Act, and so the Tribunal had jurisdiction to make determinations 1 S 115 Form and registration of leases. Of no apparent application here. regarding that tenancy. In Anderson v FM Custodians Ltd [2013] NZHC 2423, and concurred a life interest in land could be characterised as a fixed term tenancy.
The tenants paid a sum of money to obtain the licence. The tenants had an ongoing obligation to pay rates, unit insurance and a part-share of the external maintenance and costs. The ongoing costs are considered an obligation or contribution to actual costs and not “rent”. However, the upfront sum was paid in return for enjoying the right to occupy the unit. I consider the future 18% retention by the Board of any later proceeds of sale should also be viewed as consideration for the right to occupy.
I consider there is precedent and evidence to consider this arrangement is also a “fixed-term” tenancy agreement.

Given it is a residential tenancy, is this arrangement excluded from the RTA?

Section 5(l) RTA provides the Act shall not apply where the tenant occupies the premises under an occupation right agreement within the meaning of the Retirement Villages Act 2003.
Section 5 Retirement Villages Act 2003 interprets that an: occupation right agreement means any written agreement or other document or combination of documents that: (a) confers on any person the right to occupy a residential unit within a retirement village; and (b) specifies any terms or conditions to which that right is subject
In Adams v Massey University Palmerston North TT 43/94, 10 October 1994 Judge Toomey stated that, in order to give effect to the Act’s true intent and meaning, the courts (and the Tribunal) are required to interpret the exemptions in section 5 RTA strictly and not liberally.
In Harding v Caroto and Others, [2021] NZHC 1265 Walker J found that the Tribunal’s jurisdiction should be construed generously: [37] [T]the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions. There are many provisions which support that view. One illustrative indicator is s 10 which stipulates that the onus of establishing the facts on which it is contended that the Act does not apply lies on the party trying to exclude the Act. The s 11 restrictions on contracting out of the Act are another.
In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the Residential Tenancies Act 1986 is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act, and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
The Board did not want this arrangement to be bound by the requirements of the Retirement Villages Act 2003 (“RVA”). For a small, six retirement unit complex this desire is understandable. However, this also has the effect of preventing any application of the exemption in s 5(l) RTA, as any retirement unit must reside within a retirement village for this exclusion to apply. 2 Limits of this declaration
The occupant was not privy to this single-party application and I have relied on the evidence and submissions as available, or made, by the applicant only. If a challenge to this jurisdiction was later made (presumably by the tenant), section 10 RTA requires it shall be for that party to establish the facts upon which it is contended that this Act does not apply.

Order

By way of declaration, the current agreement at 4D Henry Street, Blenheim 7201 is a residential tenancy under the Residential Tenancies Act 1986 and is within the jurisdiction of the Tenancy Tribunal.

Reasons

The applicant attended the hearing, Ms Penelope Baber represented the landlord, with appropriate written approval from the Board.
The applicant sought a declaration as to whether the current licence to occupy at the premises is a residential tenancy that is not excluded from the Residential Tenancies Act 1986 (“RTA”). In other words, is it withing the jurisdiction of the

Tenancy Tribunal?

Section 78(1)(a) RTA allows the Tribunal to make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any part. Background
The landlord has built six units at this address. All were occupied originally under a licence to occupy similar to that in place at this premises. They have further properties provided elsewhere under residential tenancy arrangements.
Over time, four of the six units licenced occupancy have ended and the units have been reoccupied under residential tenancy arrangements. I was advised the intention is to do the same as the remaining two units vacate.
The Retirement Villages Act 2003 placed a number of requirements on retirement village operators. The Board did not intend the arrangement at this address to form such an arrangement and addressed this in the licence Background [C] and as agreed at [4] - both are copied below.

In the agreement a tenancy agreement?

In Ziki Investments (Properties) Ltd v McDonald [2008] 3 NZLR 417 (HC), Asher J found that a life interest in a dwelling-house that was not registered under s 115 of the Land Transfer Act 1 came within the definition of a fixed term tenancy under the RT Act, and so the Tribunal had jurisdiction to make determinations 1 S 115 Form and registration of leases. Of no apparent application here. regarding that tenancy. In Anderson v FM Custodians Ltd [2013] NZHC 2423, and concurred a life interest in land could be characterised as a fixed term tenancy.
The tenants paid a sum of money to obtain the licence. The tenants had an ongoing obligation to pay rates, unit insurance and a part-share of the external maintenance and costs. The ongoing costs are considered an obligation or contribution to actual costs and not “rent”. However, the upfront sum was paid in return for enjoying the right to occupy the unit. I consider the future 18% retention by the Board of any later proceeds of sale should also be viewed as consideration for the right to occupy.
I consider there is precedent and evidence to consider this arrangement is also a “fixed-term” tenancy agreement.

Given it is a residential tenancy, is this arrangement excluded from the RTA?

Section 5(l) RTA provides the Act shall not apply where the tenant occupies the premises under an occupation right agreement within the meaning of the Retirement Villages Act 2003.
Section 5 Retirement Villages Act 2003 interprets that an: occupation right agreement means any written agreement or other document or combination of documents that: (a) confers on any person the right to occupy a residential unit within a retirement village; and (b) specifies any terms or conditions to which that right is subject
In Adams v Massey University Palmerston North TT 43/94, 10 October 1994 Judge Toomey stated that, in order to give effect to the Act’s true intent and meaning, the courts (and the Tribunal) are required to interpret the exemptions in section 5 RTA strictly and not liberally.
In Harding v Caroto and Others, [2021] NZHC 1265 Walker J found that the Tribunal’s jurisdiction should be construed generously: [37] [T]the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions. There are many provisions which support that view. One illustrative indicator is s 10 which stipulates that the onus of establishing the facts on which it is contended that the Act does not apply lies on the party trying to exclude the Act. The s 11 restrictions on contracting out of the Act are another.
In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the Residential Tenancies Act 1986 is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act, and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
The Board did not want this arrangement to be bound by the requirements of the Retirement Villages Act 2003 (“RVA”). For a small, six retirement unit complex this desire is understandable. However, this also has the effect of preventing any application of the exemption in s 5(l) RTA, as any retirement unit must reside within a retirement village for this exclusion to apply. 2 Limits of this declaration
The occupant was not privy to this single-party application and I have relied on the evidence and submissions as available, or made, by the applicant only. If a challenge to this jurisdiction was later made (presumably by the tenant), section 10 RTA requires it shall be for that party to establish the facts upon which it is contended that this Act does not apply.

Tenancy Tribunal case 5206133 — Tenancy dispute at 4D Henry Street, Blenheim, Blenheim 7201

At a glance

Claims & awards

Tenancy Tribunal case 5206133 — Tenancy dispute at 4D Henry Street, Blenheim, Blenheim 7201

At a glance

Claims & awards

Order

Reasons

Tenancy Tribunal?

In the agreement a tenancy agreement?

Given it is a residential tenancy, is this arrangement excluded from the RTA?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Tenancy Tribunal?

In the agreement a tenancy agreement?

Given it is a residential tenancy, is this arrangement excluded from the RTA?

Topics & place

Residential Tenancies Act sections

Frequently asked questions