Tenant's Claim Dismissed Due to Family Residency
📌 In brief
The Tenancy Tribunal dismissed a tenant's claim because the landlord's sister lived in the premises. This meant the premises were not covered by the Residential Tenancies Act.
⚖️ Legal holding
A tenant is not entitled to bring a claim under the Residential Tenancies Act if the premises are principally used by a member of the landlord’s family.
📖 What the law says
This section lists specific situations where the Residential Tenancies Act does not apply. For example, it does not apply if the premises are used for business, or if a significant part of the tenant's income comes from farming the land.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tribunal lacks jurisdiction due to the landlord's sister residing in the premises.
📜 Headnote Official document
The Tenancy Tribunal ruled that the Tribunal lacked jurisdiction to hear a tenant's claim due to the landlord's sister residing in the premises. The Tribunal found that the premises were principally used by a member of the landlord’s family, thus excluding the case from the Residential Tenancies Act.
📚 Full judgment Official document
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[2025] NZTT 5158858
TENANCY TRIBUNAL AT [Event location suppressed]
APPLICANT: [redacted]
Tenant
RESPONDENT: [redacted]
Landlord
TENANCY ADDRESS: [ADDRESS], [POSTCODE]
ORDER
1. An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
2. By way of declaration the Tribunal does not have jurisdiction to determine the substantive application.
Reasons:
3. Both parties attended the hearing, by telephone.
4. The applicant has applied for compensation, a work order, overpaid rent, refund of bond and exemplary damages for non-lodgement of the bond, breach of quiet enjoyment, breach of landlord’s obligations, unlawful entry, retaliatory notice and acting to terminate the tenancy without grounds, as a result of renting a room in the premises from 1/7/2024 to 8/2/2025.
5. Before setting a hearing for any of the substantive matters this hearing was scheduled for me to determine if the Tribunal has jurisdiction.
6. If there is no jurisdiction then the Tribunal cannot make a decision on any of the substantive claims.
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Does the Tribunal have jurisdiction?
7. The Act does not apply under section 5(1)(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 owner of the premises, or a member of the landlord’s or owner’s family.
8. In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 His Honour Judge Broadmore when considering section 5(1)(n) noted that the issue was whether the premises were used principally as a place of residence by the landlord, and that the relevant question was not whether it was the landlord’s principal place of residence.
9. His Honour discussed the broad description of a flatmate arrangement as:
By “flatmates” I understand a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
10. In [NAME] v [NAME] & Roo CIV 2010-009-2030 the Court emphasised when determining jurisdictional arguments that it was important to look at the full facts of the situation, decide the substance of the arrangement in place and avoid being diverted by labels that a party may attach to a particular arrangement.
Are the premises a boarding house?
11. For the exclusion to apply the premises must first not be a boarding house.
12. A boarding house means residential premises containing one or more boarding rooms and with facilities for communal use by tenants; and occupied or intended to be occupied by at least 6 tenants at any one time.
13. A boarding house tenancy means a residential tenancy in a boarding house that lasts for 28 days or more; where a tenant is granted exclusive right to occupy sleeping quarters and has the right to shared use of communal facilities.
14. I am satisfied the premises do not meet the definition of a boarding house because the evidence of the parties was that there were only five occupants in the premises during the seven months the applicant lived there.
15. The written agreement between the parties is not a boarding house tenancy agreement.
Is the Act excluded?
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16. As the premises are not a boarding house, I must consider whether the premises continued to be used principally, that is predominantly, as a residence by the landlord’s sister.
17. His Honour Judge Broadmore in Musson discussed that principally meant the "main use of the premises". He suggested that the question to be asked was "is the principal use of these premises as a place of residence of the landlord?"
18. I have carefully considered the evidence of the parties that [NAME] sister has occupied the premises since it was purchased in 2020 and indeed that she purchased the property with her brother, albeit she is not a registered owner on the title.
19. Further that apart from four months in 2022 [NAME] has continually lived in the sleepout attached to the premises and shared the facilities which she continued to do so throughout the applicant’s occupation.
20. Unfortunate as it may be for the applicant I am persuaded that the principal use of the premises by [NAME] was as her place of residence.
21. Moreover, having carefully perused the terms of the residential tenancy agreement I am not satisfied that the parties agreed in writing to contract into the Act pursuant to section 8.
22. I find the tenancy is therefore excluded under section 5(1)(n).
15.However, it is open to the applicant to pursue this dispute between the parties in the Disputes Tribunal as a flatmate matter.
16. No filing fee can be awarded because of the lack of jurisdiction. 17. Suppression is granted to the applicant under section 95A because I consider in
the circumstances of this case it is in her interests to do so.
J Wilson 12 March 2025
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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 for the payment of less than $1000 • a final order to undertake work worth 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:
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The premises were principally used as a place of residence by the landlord's sister.
- The number of occupants in the premises did not meet the definition of a boarding house.
- The written agreement between the parties was not a boarding house tenancy agreement.
- The applicant did not agree in writing to contract into the Act pursuant to section 8.
❌ Tends to be rejected
- The applicant sought compensation, a work order, overpayment of rent, and a refund of bond under the Residential Tenancies Act.
- The applicant claimed breach of quiet enjoyment, breach of landlord’s obligations, unlawful entry, and retaliatory notice under the Act.
- The applicant argued for exemplary damages for non-lodgement of the bond and acting to terminate the tenancy without grounds under the Act.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal decided it lacked jurisdiction to hear the tenant's claim.
What was the dispute about?
The tenant wanted compensation, a work order, refund of bond, and other remedies related to renting a room.
How did the court decide, and why?
The court decided it had no jurisdiction because the landlord's sister resided in the premises, making it ineligible under the Residential Tenancies Act.
Which laws or rules were applied?
The Residential Tenancies Act 1986, section 5(1)(n) was applied.
What was the argument that mattered most?
The argument that mattered most was whether the premises were principally used by a member of the landlord’s family.
Was the decision for or against the person who brought the case?
The decision was against the person who brought the case.
What does this mean for someone in a similar situation?
Someone in a similar situation may need to pursue their dispute through a different forum, such as the Disputes Tribunal.
What evidence or documents mattered?
The judgment does not specify the evidence or documents that mattered.