Tenancy Tribunal dismisses application for lack of jurisdiction

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[2026] NZTT 5488831

TENANCY TRIBUNAL AT REMOTE LOCATION

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The tenant was living at the premises as a boarder, so the Residential Tenancies Act 1986 does not apply.

2. The application is dismissed for lack of jurisdiction.

Reasons:

1. Both parties attended the remote hearing.

2. The start of the hearing was delayed slightly because neither the interpreter nor the respondent ([NAME]) dialled into the hearing as expected. The Tribunal managed to contact them and the hearing started about 10 minutes late. I heard that [NAME] was at work so [NAME] attended for them both.

3. The applicant, [NAME], requested an interpreter but it transpired that she was able to participate in the hearing fully in English. The interpreter simply remained in the hearing ready to translate anything that was needed. She did not need his assistance.

4. [NAME] has filed an application with the Tribunal. However, questions of jurisdiction must be decided before the Tribunal can go on to make any other findings in a case. This is because, as explained in the hearing, if there is no jurisdiction, then the Tribunal cannot proceed to hear the case.

5. [NAME] says [NAME] lived in his family home so tenancy laws do not apply.

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Summary of findings

6. Where a person is paying rent to live in the landlord’s home the exclusion in section 5(1)(n) of the RTA may be applicable.

7. After fully considering the issues and evidence I have found that the exclusion in section 5(1)(n) of the RTA applies to this living arrangement and that the Tribunal does not have jurisdiction for the reasons set out in full below.

8. Put briefly, and to summarise the position below, the reason the tenancy law does not apply here is because the main purpose of the house is for the landlord, owner or their family to live in. It is a family home.

The law and the exclusion in section 5(1)(n) RTA

9. Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the RTA applies.

10. Section 4 RTA provides that the Act applies to every tenancy for residential purposes except as specifically provided.

11. The RTA sets out the following relevant definitions in section 2:

A 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.

A 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 the agreement.

Residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.

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.

12. A tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises

13. Premises includes (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies):

a. any part of any premises;

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b. any land and appurtenances, other than facilities;

c. any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.

14. There is a statutory presumption that the RTA will apply to all residential tenancies, unless specifically excluded by the RTA. See section 4 of the RTA. Parties cannot contract out of the RTA: see section 11 of the RTA. The RTA applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 of the RTA applies.

15. When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than any labels they have applied.

16. The District Court in [NAME] v [COMPANY] (TT 43/94, 10 October 1994) stated that in order to give effect to the RTA's true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.

17. Where a party says that the RTA does not apply, that party must establish the facts upon which it is claimed that the RTA does not apply. See section 10 of the RTA. So, in the present case, [NAME] must prove that the RTA does not apply.

18. As explained at the hearing the section 5(1)(n) exclusion provides that the RTA does not apply

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

19. Section 2(1) of the RTA provides the following definition: “member of the landlord’s or owner’s family, in relation to a landlord or an owner, means—(a) any person who is or has been related to the landlord or owner—(i) by blood…”

20. Harding v Schellivis & Ors [2021] NZHC 1265 is a High Court case dealing with section 5(1)(n) of the RTA. That case is binding authority upon the Tribunal.

21. In [NAME], the High Court considered the interpretation of s 5(1)(n) of the Act in circumstances where tenants occupied a distinct area within a larger residential dwelling. In [NAME] the property was a two-level house containing six bedrooms. The landlord and her family generally occupied the upper level, which included four bedrooms, a kitchen, bathrooms and a living area. On the lower level of the house there was a separate area described as a "granny flat". That area consisted of two bedrooms, a kitchenette, a bathroom, a laundry and a living room. The occupants who entered into occupation agreements with the landlord resided in this lower-level area. 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 living

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spaces used by the occupants were therefore functionally separate from those used by the landlord and her family. Although the entire structure formed part of a single building, the High Court emphasised that the occupiers of the granny flat had exclusive use of that part of the dwelling and that there were no communal living or shared spaces between them and the landlord's family. [ADDRESS] therefore regarded the granny flat as a separate residential unit within the building. In those circumstances the Court concluded that the relevant "premises" for the purposes of the Act was the self-contained granny flat rather than the entire house. Because that area was not used as the landlord's residence, the exclusion in s 5(1)(n) did not apply and the RTA applied to the tenancy.

22. More recently, in Cavanagh v Jackson [2025] NZHC 1491 the High Court dealt with a jurisdiction issue where the appellant lived with the landlord in the same household. It was a three-bedroom residential dwelling. [NAME], the respondent, an elderly woman who continued to live in her longtime home. [NAME] had rented one of three bedrooms in [NAME]’s house, responding to a TradeMe listing that offered a room in a residential home. Although the bedroom was for [NAME]’s exclusive use, she shared the bathroom, kitchen, and laundry with [NAME] and another tenant who was rarely home. Occasionally, [NAME] also used the living room to keep [NAME] company. The tenant argued that the relevant "premises" was the bedroom that she occupied and that the landlord did not reside in that room. However, the High Court rejected that submission. [ADDRESS] held that the tenancy extended to the shared use of the household facilities and therefore the relevant premises included the broader dwelling rather than only the bedroom.

23. The Tribunal and the District Court had both ruled that the arrangement was excluded from the RTA under section 5(1)(n). The High Court upheld these findings, noting that [NAME] continued to live in the house during the tenancy and retained effective control of the shared facilities. [ADDRESS] 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 [NAME]’s use of the property as her residence continued throughout, the Tribunal’s jurisdiction was excluded

24. [ADDRESS] said:

[33] I consider the premises rented by [NAME] extended to other parts of the dwelling that continued to be used during [NAME]'s tenancy principally as a place of residence by [NAME]. It follows that the Judge's conclusion that s 5(1)(n) applied to exclude the application of the Act, which in large part rested on factual findings that are not amenable to a further appeal, must remain undisturbed.

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25. The exclusion in 5(1)(n) was also considered by the District Court in [NAME] v [NAME] 2006-032-36, 16 Feb 2006 by Judge Broadmore.

26. In [NAME], the District Court considered whether the RTA applied to a large residential property where the owner occupied one room and permitted several other occupants to live in the house. The property was a substantial dwelling containing approximately nine bedrooms. The owner occupied one of those bedrooms while the remaining bedrooms were occupied by other residents who paid rent.

27. The occupants each had exclusive use of their own bedrooms but shared the common areas of the house, including the kitchen and other living facilities. The owner argued that the occupants were merely "flatmates" and that the RTA did not apply. [ADDRESS] observed that the label "flatmate" does not determine the legal relationship between the parties and that the true nature of the arrangement must be determined from the circumstances of the occupation.

28. [ADDRESS] then considered whether the exclusion in s 5(1)(n) applied. The Judge emphasised that the word "principally" in that provision refers to the main use of the premises rather than simply whether the landlord happens to live there. The relevant question was whether the principal use of the premises was as the landlord's residence.

29. On the evidence in that case, the owner occupied only one bedroom while the other occupants used the remainder of the house in substantially the same way. [ADDRESS] found that the owner's occupation of the premises was functionally commensurate with that of the other occupants and that the property was not being used principally as the owner's residence.

30. In those circumstances, the Court concluded that the exclusion in s 5(1)(n) did not apply and that the RTA governed the relationship between the parties. The focus in that case was on the principal residence point. The issue was not whether this was the landlord’s main residence, but whether this house was being used mainly as a home or being used as a business.

31. As section 5(1)(n) refers to the exclusion in the context where the premises are not a boarding house, I note that a boarding house is defined in the RTA as meaning 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 (see section 66B RTA).

32. In Four Seasons Realty Limited v Matchitt [2023] NZDC 21359 the District Court confirmed that the question around whether there are 6 (or less) tenants to make the premises a boarding house is based on the number of tenants living there during the tenancy in question. It is not the number that potentially could have lived there.

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Facts and analysis

33. I heard how the property concerned is owned by [NAME] and is their family home. I heard how [NAME] moved into the [NAME]’s family home after meeting [NAME].

34. There is no written agreement. There is no dispute that the property is a six bedroom house and that the occupants of the house are [NAME], his wife, [NAME], his mother ([NAME]) and his two children (one of which is aged 10). They have been joined at different times by other occupants.

35. There is no doubt that the premises concerned is residential premises and the tenant paid rent.

36. The property has two levels. There are four bedrooms upstairs. One such bedroom is occupied by [NAME] (there was a difference of opinion if one of the children also slept in that room, but nothing turns on this) and she has an en- suite for her own use. Downstairs there are two bedrooms which I also heard have ensuites. The downstairs rooms are occupied by [NAME] and their children. These rooms are all regarded as private spaces of those using those rooms. There was a disagreement as to whether [NAME] had a lock on their bedroom door, but I find nothing turns on this.

37. This leaves three bedrooms upstairs potentially for other occupants. I heard how on 3 September 2025 [NAME] moved into the premises. She occupied one of these rooms upstairs and that room was regarded as her own private space (although I heard at times other occupants of the house would come to her room at times that inconvenienced her). Later on in the arrangement she requested a lock be put on her door. [NAME] also had a bathroom for her use, but this was not exclusively by her, it was also used by people occupying the bedrooms that had no en-suite.

38. I heard how initially another woman lived in one of the other upstairs bedrooms. She had a baby and her mother, who came from Nepal, also came to stay with her. I heard how they left in about December 2025. The parties disagreed as to the status of these occupiers. [NAME] says they paid rent but [NAME] says they are friends of his mother, [NAME].

39. [NAME] gave evidence as a witness, but she did not give evidence clearly and the evidence she gave was not directly on point. She simply said that one lady came and stayed here for two to three weeks, it was a lady and a daughter and that they are now in Christchurch. I am not satisfied that any of the evidence she gave was compelling but nothing turns on the evidence she gave anyway.

40. I heard from the tenant that after that group left a man came and took over that room for about 2 weeks. The tenant says he said he paid rent. She says she spoke with him about this in their native language. I heard that after that there

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was also another “boy” who came. He was there for one week and then he moved out.

41. The landlord initially did not agree that anyone else was living there during [NAME]’s occupation (other than his family) but after some discussion he accepted that such people did come and go but that there were many people coming from time to time to stay as guests of the family in his house rather than people paying rent. He says people would visit including a friend who had passed away at the premises in February. The Tribunal expresses its condolences for this loss which was upsetting for [NAME] to recall.

42. All parties agreed that the family and the others staying at the premises and [NAME] did their cooking in the garage where there was a sink and cooking facilities. I heard how there was a fridge in the kitchen in the house as well as in the garage. [NAME] says that both she and the family (and others staying) used the fridge in the garage. There is no dispute that everybody did their cooking in the garage. The occupants of the house, including the [NAME], would meet there from time to time as they did their cooking. I heard how this was because [NAME] wanted to avoid smells and grease from cooking curries in the house which he clearly has high regard for and described as being expensive.

43. I heard how there were no locks preventing [NAME] from using the living space and she would need to go through the living area to hang her washing outside in the small garden area that was directly off the lounge where everyone hung their washing. The washing machine was in the garage and shared. She says that she did not use the living space because she felt uncomfortable as there were cameras. The access ways were all communal spaces. Bedrooms and ensuite bathrooms were private spaces but I heard how the other spaces were available for [NAME] to use. She could go wherever she wanted. [NAME] disagreed she had any right to use the kitchen in the house. [NAME] regarded that she would be free to get a glass of water for example, but not to cook as the garage was for the cooking.

44. I heard that the occupants of the house shared the parking on the driveway (although it was not clear if there were allocated spaces or if it was on a first come first served basis). Utilities were included in her rental payments.

45. I consider that this premises cannot be a boarding house. The occupancy does not meet the statutory definition set out above. I am not satisfied on the evidence of either party that there were boarding rooms with facilities for communal use by the boarding house that were intended to be occupied by at least six tenants at one time. Even on [NAME]’s evidence there were never six tenants occupying the property at one time. For the sake of completeness, I do not consider that [NAME], or their children or [NAME]’s mother can be regarded as tenants.

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46. Turning therefore to the application of the exclusion in section 5(1)(n) RTA, I am satisfied that [NAME] did not have a separate ‘premises’ to the landlord. There was no separate granny flat or similar self-contained area. I am satisfied that she was sharing the landlord’s house. While her use of the kitchen inside was restricted the evidence was that the [NAME] were also using the garage as their kitchen space and her own evidence was that they would (at least at times) share the fridge in the garage. Her access to the lounge was not restricted and her own evidence was that she chose not to spend time there due to cameras.

47. As I have found that the premises are not separate I must also determine whether the landlord’s use of the premises were principally a place of residence for the landlord.

48. The landlord had six bedrooms and the agreed evidence is that at least four of them were occupied by the [NAME]’s own family (2 bedrooms downstairs + [NAME]’s room + spare room + ensuites). [NAME] occupied one of the other bedrooms.

49. There is a dispute whether the fifth bedroom was occupied by other people who were paying rent or if it was being occupied by the [NAME]’s guests. Ultimately, I do not have to determine whether this is the case or not.

50. This is because even if the group who stayed (daughter/mother/baby) and the two men on separate occasions were paying to stay at the premises I would find that the house was still being used by [NAME] principally as their residence. The [NAME]’s occupation was not equivalent to that of other occupants. They clearly exercised control over parts of the premises. The occupation clearly resembles a situation where a homeowner lives in a home and rents out a spare room (or rooms) to others. The arrangement is consistent of the type detailed in [NAME] v [NAME]. During the tenancy the premises functioned as the [NAME]’s home within which they permitted others to occupy bedrooms.

51. [NAME] involved a self-contained living area exclusively occupied by the tenants which was separate from the rest of the house. [NAME] did not occupy a self-contained part of the property she occupied a bedroom within a main house with shared facilities. Therefore, this arrangement is more consistent with [NAME] v [NAME].

52. This case is also different from [NAME] because the [NAME]’s use of the premises is not equal or less than that of [NAME]. The landlord’s occupation differed materially to that of [NAME] retaining the larger share for exclusive use and also having control. This remains the case even if I accept the tenant’s position that the daughter/mother and baby and the two men who stayed were paying rent when they occupied the fifth bedroom.

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Conclusion

53. [NAME]’s occupation the premises were used principally as a place of residence by [NAME] and their family. This means that the arrangement falls within the exclusion in section 5(1)(n) RTA.

54. The RTA does not apply to the arrangement between the parties. The Tribunal does not have jurisdiction to determine this dispute.

55. The application is dismissed.

56. The Disputes Tribunal may have jurisdiction to hear an application by either party. They may wish to lodge a claim in that Tribunal. If this is done, they should include a copy of this decision in his application to show that this Tribunal has already found it does not have jurisdiction to hear the application.

Suppression

57. Neither party sought suppression of their identifying details, so this is not awarded.

58.59.

[NAME]

17 June 2026

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order, or the failure to make an order, where the amount in dispute on appeal is

less than $1000 • a final order to undertake work, or the failure to make an order, where the value of the

work in dispute on appeal is less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: