Tenant's Claims Dismissed for Lack of Jurisdiction - Tenancy Tribunal Decision
📌 In brief
The Tenancy Tribunal dismissed the tenant's claims because the premises were primarily commercial and not residential, falling outside the scope of the Residential Tenancies Act 1986.
⚖️ Legal holding
The Act does not apply to premises that are primarily commercial in nature.
📖 What the law says
This section states that the Residential Tenancies Act does not apply if the premises are commercial premises. This means the Act does not cover tenancies for places mainly used for business.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tribunal lacks jurisdiction over commercial premises.
📜 Headnote Official document
The Tribunal found that it lacked jurisdiction to hear the tenant's claims regarding maintenance and compliance with healthy homes standards, as the premises were primarily commercial in nature and thus fell outside the scope of the Residential Tenancies Act 1986.
📚 Full judgment Official document
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[2025] NZTT 5034450
TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA
APPLICANT: [redacted]
Tenant
RESPONDENT: [redacted]
Landlord
TENANCY ADDRESS: [ADDRESS], [POSTCODE]
ORDER
1. The application is struck out for want of jurisdiction.
Reasons:
1. Both parties attended the hearing. [NAME] represented the applicant tenant. [NAME] represented the respondent landlord.
2. The applicant seeks compensation for failure by the landlord to maintain and repair the premises and to comply with the Healthy Homes Standards.
3. The premises here are part of a building which is primarily commercial in nature. The applicant operates the premises as a [NAME] business under the trading name [NAME].
4. The applicant says the accommodation area of the premises should be subject to the additional rights and obligations imposed on landlords of residential tenancies set out in the Residential Tenancies Act 1986 (the Act).
5. [NAME] submits that the premises do not come within the Act.
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Does the Tribunal have jurisdiction to hear the claims?
6. The Tribunal only has jurisdiction to hear disputes between landlords and tenants provided the dispute is in relation to a tenancy which comes within the Act.
7. The starting point in answering the question of whether the tenancy comes within the Act is section 4 which provides that the Act applies to all tenancies of residential premises unless specifically excluded.
8. Section 5 contains a list of occupancies which are excluded from the Act. The relevant one here is section 5(1)(a) which provides that the Act does not apply to premises that are commercial premises. “Commercial premises” are defined in section 2(1) to mean “premises that are not residential premises”. “Residential premises” are defined in the same section as “any premises used or intended for occupation by any person as a place of residence”.
9. In the situation where there is a dual use of the premises (as here), section 2(3) of the Act applies. This section provides that where premises are used for both commercial and residential purposes the premises are deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential.
10. Counsel for the applicant says that the landlord has failed to maintain the property from the time the lease was entered into. He says that the premises were impacted by the Auckland severe weather events which resulted in the property being uninhabitable.
11. Counsel for the applicant seeks to have a rent refund for the accommodation portion of the premises. He submits that it is only within the last month or so the landlord has started to inspect the property. Counsel says the tenant is paying the rent and the rates and has paid all the rates for the accommodation even though the tenant is not living there.
12. Counsel submits that there are certain features indicating a residential tenancy such as the recording of heat pumps on the equipment list of the lease agreement. There is also a diagram which highlights part of premises which suggests residential use.
13. There are two rates notices – one for commercial and one for residential. Counsel also confirmed that the landlord was living there at the time the lease was signed. The applicant provided a copy of the Deed of Lease dated 1 December 2015 which I have sighted and carefully considered. The Lease confirms the use of the premises to be that of business use: [NAME]/superette.
14. Counsel for the respondent submits that s5 RTA of the Act has no jurisdiction over commercial premises. He also refers to s2 of the Act. He further submits that one must look at the principal purpose for which the premises were let.
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15. Counsel referred me to Main v Main [2007] NZCA 306 which held in that case that the residential use was incidental to the commercial use.
16. Counsel for the respondent says that it is illogical to argue that this is a residential tenancy. He says that this is a company and that companies do not require residential premises. They require commercial premises. He also says that it has never been used as residential premises. Counsel submits that one must look at the intention of the use. He further says that there could be certainty if they were dealing with a natural person. In this case they have a non-natural person, a company.
17. I am completely satisfied that the premises here were let principally for commercial purposes. I am also satisfied that the kitchen, lounge, room 1 and room 2 as recorded on the plan is incidental to the commercial space. The evidence provided, in my view, clearly confirms this. I also accept that the applicant leased the premises for the principal purpose of carrying on the business of a [NAME].
18. I do not consider that the extended definition of premises applies here. The parties entered into a commercial deed of lease for the entire building, including the accommodation, and as mentioned above, it is clear that the purpose of the lease was for the applicant to carry on the business of a [NAME] and superette. In my view the use of the accommodation was merely incidental to the principal purpose of the building.
19. This situation is different from the situation in Kahi v Lucas HC Auckland HC81/96, 23 September 1996, a leading case on the meaning of “part of any premises” in the section 2 definition. In that case the landlord had a lease of commercial premises. He used the ground floor of the premises as a mechanical garage, and he sublet the top floor of the building to a tenant for residential purposes. The High Court held that, because premises could include part of any premises and the top floor was residential, the sublease came within the Act. However, as mentioned, here the applicant leased the entire building for commercial purposes. It is not a situation where there is a separate lease for the [NAME]’s accommodation only.
20. I am therefore satisfied that the premises were let principally for commercial purposes and the Tribunal has no jurisdiction to hear the claims.
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21. The application is therefore struck out for want of jurisdiction.
[NAME]
03 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 primarily used for commercial purposes.
- The lease agreement confirmed the use of the premises for business purposes.
- The accommodation area was deemed incidental to the commercial space.
❌ Tends to be rejected
- The argument that the premises should be subject to residential tenancy laws due to the presence of residential features.
- The claim that the premises were impacted by severe weather events and became uninhabitable, thus qualifying as residential.
- The request for a rent refund based on the premise's dual use, suggesting it should be treated as residential.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tribunal decided it lacked jurisdiction to hear the tenant's claims.
What was the dispute about?
The dispute was about the landlord's failure to maintain and repair the premises and comply with healthy homes standards.
How did the court decide, and why?
The court decided that it lacked jurisdiction because the premises were primarily commercial, not residential.
Which laws or rules were applied?
The Residential Tenancies Act 1986, particularly section 5, was applied.
What was the argument that mattered most?
The argument that mattered most was that the premises were primarily commercial and thus not covered by the Act.
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 find that their claims are dismissed if the premises are primarily commercial.
What evidence or documents mattered?
The evidence included the nature of the premises and the lease agreement confirming commercial use.