Tenantcheck Insights · Case study
Tenancy Tribunal case 5377246 — Exemplary damages at 22 Marama Street, Castor Bay, Auckland 0620
Published 23 March 2026 · Application 5377246
Mixed / unclear
- Exemplary damages
- Boarding House
At a glance
Key facts from the published tribunal order.
Outcome
Mixed / unclear
From published order
Location
Auckland
Tribunal region
Adjudicator
M Pollak
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- Ms Lou’s application is struck out for want of jurisdiction.
Reasons
- Both parties attended the hearing. The tenant and the Tribunal was supported by a mandarin interpreter. The landlord was represented by Ms Monica Lee.
- The tenant applied for compensation, general damages and exemplary damages, refund of the bond and reimbursement of filing fee following the end of the tenancy.
- The issue of jurisdiction was also raised by the landlord in its defence to the tenant’s claims.
- At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the tenant’s substantive claim.
- The tenant argued that the Residential Tenancies Act 1986 (“RTA”) applies to her relationship with the landlord because she rented a self-contained unit that had a separate living room, bathroom, kitchen and bedroom and shared laundry facilities.
- The landlord argued this was a flatmate situation and accepts she used an incorrect contract defining the relationship as a boarding house tenancy. Jurisdiction
Is this a boarding house tenancy?
- Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
- The landlord is an elderly person who owns the property and she and her husband reside in the top two levels of the three-level dwelling. The area the tenant rents is not entirely separate from the rest of the house. The evidence proves the four residents share the downstairs lounge and laundry facilities in the unit as well as the upstairs entrance and kitchen facilities with the tenant. The self-contained unit does not have a separate entrance. The only key the tenant has is to the main entrance of the house. The door between the top two storeys and the unit downstairs was never locked and the landlord made it clear in the agreement that the landlord was able to access the lounge to go to and from the yard as and when she needed to. She could also access the laundry when she wanted. The only room that the tenant had exclusive rights to occupy was her bedroom, which had a separate lock.
- The landlord accepted that she had used an incorrect agreement with the tenant and that she should have used a flat sharing agreement.
- The tenant argued that the landlords used the boarding house tenancy agreement as they always intended to have 6 tenants plus themselves living in the property and, but for them not being able to attract that number of tenants, this would have been a boarding house situation and s66B of the RTA applies.
- The landlord was clear she never intended the tenant to have exclusive use of the downstairs area, other than her bedroom, and during her and her son’s tenancy with the landlord it was only ever four persons living in the three-storey house.
- I am satisfied that the landlord never envisaged setting up a boarding house, that s66B of the RTA does not apply to the relationship between them, and Ms Lou did not have exclusive use of the downstairs area as a self-contained unit. The law and whether the landlord continue to use the premises principally as their place of residence
- Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 22 Marama Street, Castor Bay, Auckland 0620 (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
- “Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
- Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...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.”
- The parties confirmed that for the duration of the tenancy, the landlord lived on the second and third level of the house with her husband, shared kitchen, lounge and laundry facilities with the tenant, and both had access to and use of the yard and the main entrance to the house. They also confirmed that the house was one single dwelling, and the landlords’ areas of the house were not completely separate to that of the tenant. The parties description was that the tenant rented a bedroom and her room was locked and only accessible by her, as was the landlords’ bedroom, but both parties could access the other areas of the house as and when they liked.
- Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
- In reality, the landlord granted the right to the tenant and her son as flatmates to occupy a bedroom and to share the other household facilities with her and her husband.
- Section 10 of the Act 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.”
- The Landlord has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that she and her husband continued to use the premises as their principal place of residence during the flatmate’s tenure and that s66B of the RTA does not apply.
- Therefore, Ms Lou’s claim that she was a tenant that is covered by the provisions of the RTA must fail. Conclusion
- The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s10, s2, s4, s5, s5(1), s66, s66B
Key findings
- Dispute theme: exemplary damages
- Dispute theme: boarding house
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5377246?
The tribunal order states: Ms Lou’s application is struck out for want of jurisdiction.
How much money was awarded in case 5377246?
Verified claim lines are listed on this page.
What type of tenancy dispute was case 5377246?
The primary dispute was Exemplary damages. Related themes: Boarding House.
Where can I read the official tribunal order for case 5377246?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13327973-Tenancy_Tribunal_Order.pdf.