Man Oock Holdings Ltd v Kalauta [2018] NZDC 7953

Published 11 July 2019

Appeal of Tenancy Tribunal — boarding house tenancy — Residential Tenancies Act 1986, ss 66B, 66U, 66V & 117 — Karmarker v Pandem [2018] NZHC 693 — Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165. The appellant appeared in Court to appeal a Tenancy Tribunal decision that ordered: (a) The respondent was liable for compensation to the appellant in the amount of $227.86 for the cost of a replacement lamp and carpet cleaning; (b) That the bond for Room 6 and the balance of the bond for Room 1 of $1,146.18 be refunded to the respondent. The respondent entered a fixed term tenancy agreement with the plaintiff for Room 6 for the period between 1 January 2017 to 31 December 2017 at a rental of $162 per week. When the respondent arrived at the property she was unhappy with the room and negotiated with the appellant, signing an agreement for Room 1. The tenancy for Room 1 was for a period between 10 January 2017 and 31 December 2017 at an increased rental of $185 per week. The issue arose when the appellant also wanted to charge the respondent rent for Room 6 for the period 10-24 January. Room 6 was re-let on 25 January, and on 4 February 2017, the respondent gave the appellant 48 hours’ notice for termination of her tenancy of Room 1. The respondent vacated the property on 6 February, after receiving advice that the tenancy was a boarding house tenancy. The Tribunal determined the tenancy met the definition of a "boarding house" under the Residential Tenancies Act, therefore entitling the respondent to terminate the tenancy by giving 48 hours' notice. The appellant appealed the decision on the basis it erred in fact and law, specifically, in determining it was a "boarding house" tenancy and in not determining rent arrears. The Judge had three issues to determine: (a) Does the property come within the definition of a “boarding house” under s 66B? (b) If so, did the respondent’s occupation of the property constitute a “boarding house tenancy?” (c) Was the respondent liable for rent arrears on Room 6 after 10 January 2017, the date on which she signed the new tenancy agreement for Room 1? On whether it was a "boarding house" the appellant submitted that it was not, because her intention was for the rooms to be let as studio rooms. The Judge referred to the test for determining a boarding house tenancy in Karmarkar v Pandem, and held that it was a boarding house tenancy and the respondent was entitled to give just 48 hours' notice. On the question of liability for rent for both Room 1 and Room 6, the Judge held that in signing the lease for the new room, the respondent was effectively swapping the rooms, as evidenced by the fact the respondent was asked to pay slightly more bond to reflect the increased rent on the Room 1, not a full additional bond payment demonstrating the rental of two rooms. Therefore, the Judge dismissed the appeal. Judgment Date: 24 April 2018.

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