Tenantcheck Insights · Case study
Tenancy Tribunal case 5439452 — Healthy homes at 151 Eban Avenue, Hillcrest, Auckland 0627
Published 26 March 2026 · Application 5439452
Mixed / unclear
- Healthy homes
- Boarding House
At a glance
Key facts from the published tribunal order.
Outcome
Mixed / unclear
From published order
Location
Auckland
Tribunal region
Adjudicator
R Kee
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
The application is struck out for want of jurisdiction.
Reasons
- Mr Burchell attended the hearing in person with a support person, Jo Zheng.
- Bill Finlay attended by telephone.
- Michael Chen, a manager from City Space Realty Limited attended in person for the landlord’s agent.
- Mr Burchell wants an order for rent, bond, and compensation against Mr Finlay. However, the preliminary issue of whether the Tribunal has jurisdiction to entertain the application must be decided before the substance of Mr Burchell’s claim is reached. Background
- This application is brought by Mr Burchell as “landlord”. However, that description of Mr Burchell did not sit well with another claim that was scheduled before the Tribunal today, City Space Realty v Llewellyn William Burchell [2026] NZTT 5458838, which named Mr Burchell as “tenant”. 1 I added City Space as an interested party to this claim so that City Space could help clarify the actual arrangement for the premises.
- Mr Burchell and his spouse signed a tenancy agreement as tenants with City Space as agent for landlords on 13 February 2016. The tenancy commenced on about 25 February 2026 and so the tenancy has in substance continued.
- Mr Burchell lives in the premises in one bedroom and rents out five rooms to others whom Mr Burchell regards as flatmates. The house has six large bedrooms and a small bedroom. Mr Burchell occupies one bedroom and the lounge exclusively, but he shares the kitchen, laundry, and the rest of the house with up to five flatmates. Mr Burchell does not rent the small bedroom out.
- Mr Burchell, Mr Finlay, and Mr Chen are all adamant that Mr Burchell is not the landlord, he is the head tenant.
- City Space rents out the premises to Mr Burchell for $890.00 per week. Mr Burchell previously charged Mr Finlay $470.00 per week for rent and expenses but has increased the weekly charge to $560.00. Mr Finlay says he cannot afford the increase but has continues to pay $470.00 per week. Mr Burchell condemns a person at MSD for not facilitating assistance to Mr Finlay to pay the increased rent and outgoings.
- Mr Burchell has lived at the premises for over 10 years. Mr Finlay has lived at the property for over three years. He likes living there and he and Mr Burchell get on well. The main problem between them appears to be only the shortfall in rent and outgoings. Jurisdiction - legal principles
- The long title of the Residential Tenancies Act 1986 (RTA) states, among other things, it is a establish a Tribunal to determine disputes between landlords and tenants of residential properties: 1 City Space withdrew the application before the hearing. An Act to reform and restate the law relating to residential tenancies, to define the rights and obligations of landlords and tenants of residential properties, to establish a tribunal to determine expeditiously disputes arising between such landlords and tenants, to establish a fund in which bonds payable by such tenants are to be held...
- The RTA sets out the Tribunal’s jurisdiction under the heading “Jurisdiction” at ss 77-
- Section 77(1) is the foundational subsection: 77 Jurisdiction of Tribunal (1) The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time. (Emphasis added)
- It follows, for the Tribunal to have jurisdiction to determine a dispute under s 77(1), there must be: a. a dispute must be between a landlord and a tenant (s 77(1)(a)); and b. the RTA must apply to the tenancy (s 77(1)(b)).
- In s 2 of RTA “unless the context otherwise requires” the RTA applies the following meanings to “landlord”, “tenant” and “tenancy”: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement... tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under agreement... tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent ... (Emphasis added)
- There is no getting out of the Act if there is a residential tenancy. Section 4 of the RTA provides that: This Act applies to every tenancy for residential purposes except as specifically provided.
- Consonant with s 4, s 11 of the RTA provides that an agreement to exclude the Act is “of no effect”. 2 2 There are limited exceptions set out in s 11 that do not apply here. Discussion
- It is the substance of a tenancy arrangement that matters. It does not matter what labels parties attach to themselves. Therefore, if Mr Burchell is in reality a sublandlord, it would not matter everyone described him as “head tenant”. As District Court Judge Neave commented: 3 [T]he labels that the parties give to the arrangement will not and cannot be determinative. It will always be necessary to examine the full facts of the situation and determine what the substance of the arrangement was.
- Mr Chen told the Tribunal City Space has no issue with how Mr Burchell is using the premises. In a recent tenancy agreement variation signed by Mr Burchell and the property manager, City Space agreed: [T]he tenant [may] let out the other rooms in the property to flatmates...under the name of ...”The Guest Home”.
- Mr Chen says that the landlord has never consented to Mr Burchell subletting the premises and Mr Burchell confirms he does not sublet the premises.
- In this case, it makes sense to heed what the parties consider their respective roles are. If Mr Burchell were the sublandlord, he would take on the onerous obligations of a landlord, which include maintaining the premises and complying with the Healthy Homes Standards. But that is not what the parties intend. It would not make sense to impose on Mr Burchell such obligations where nobody considers him in the light of being a landlord who bears those duties.
- Part of the costs that Mr Burchell considers in setting his charges to his flatmates include Mr Burchell’s fees for his tenancy-related attendances. That Mr Burchell generates income from work related to the tenancy does not convert the arrangement from a flat-sharing one to a landlord/tenant one. It is of course open to Mr Burchell and Mr Finlay to discuss the appropriateness of the charges.
- City Space is the landlord, Mr Burchell is the tenant (and not a sublandlord) and Mr Finlay is a flatmate. If follows, the Tribunal does not have the power to hear Mr Burchell’s claim against Mr Finlay.
- I have considered whether the tenancy is excluded by s 5(1)(n) of the RTA or whether the tenancy is a boarding house tenancy. 3 In Watson v Watson DC Christchurch CIV-2020-009-2030, 14 September 2010 at [9].
- Under s 5(1)(n), the RTA “shall not apply”: (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...
- If Mr Burchell were a landlord, I may not have found that s 5(1)(n) applied to exclude the arrangement from the RTA because although he lives at the premises his arrangements with his flatmates seem more pre-eminent than his use of the premises as a place of residence. However, having found Mr Burchell is not a landlord, it does not matter that s 5(1)(n) would not have excluded the arrangement if he had of been a landlord. The relationship is already outside the ambit of the RTA.
- Under s 66B of the RTA, for a premises to be a “boarding house” the premises must be “occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”. In this case, Mr Burchell had or intended to have only five flatmates/tenants at any one time. Conclusion
- Mr Burchell is not a landlord or a sublandlord. He is the head tenant. Mr Finlay is not a tenant. He is a flatmate. The Tribunal does not have jurisdiction to hear this claim. It is struck out.
- The Disputes Tribunal may have jurisdiction to hear such an application. Mr Burchell may wish to lodge a claim in that Tribunal. If he does, he should include a copy of this decision in his application to show that the Tribunal has found it does not have jurisdiction to hear the application.
- Mr Burchell sought costs. The Tribunal has no power to order costs in this case because s 102(1) of the RTA applies to exclude costs.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s102(1), s11, s2, s4, s5(1), s66B, s77, s77(1)
Key findings
- Dispute theme: healthy homes
- Dispute theme: boarding house
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5439452?
The tribunal order states: The application is struck out for want of jurisdiction.
How much money was awarded in case 5439452?
Verified claim lines are listed on this page.
What type of tenancy dispute was case 5439452?
The primary dispute was Healthy homes. Related themes: Boarding House.
Where can I read the official tribunal order for case 5439452?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13353368-Tenancy_Tribunal_Order.pdf.