Karmarkar v Pendem

[2018] NZHC 693

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2380

[2018] NZHC 693

BETWEEN

MADHAV HARI KARMARKAR

Appellant

AND

S PANDEM AND OTHERS

Respondents

Hearing:	20 March 2018
Appearances:	M H Karmarkar, in person, Appellant No appearance by Respondents
Judgment:	17 April 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by Justice van Bohemen On 17 April 2018 at 3pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Copy to:

The Appellant (by email)

The Respondents (by email)

KARMARKAR v PANDEM AND OTHERS [2018] NZHC 693 [17 April 2018]

Introduction

[1]    Madhav Hari Karmarkar appeals a decision of Judge A A Sinclair in the Auckland District Court1 upholding a decision of the Tenancy Tribunal that the tenancy agreement for the residential establishment that Mr Karmarkar operates is a boarding house tenancy under the Residential Tenancies Act 1986 (the Act). The effect of this decision is that Mr Karmarkar cannot recover monies he says are owed to him for non-payment of rent. Mr Karmarkar says the Tenancy Tribunal and the District Court were wrong in concluding that the tenancy agreement for his establishment is a boarding house tenancy agreement.

[2]    Mr Karmarkar represented himself in person before the High Court, as he had before the District Court. The respondents – Mr Karmarkar’s tenants – did not attend the High Court hearing. This is probably because, although the proceeding was brought against all the tenants listed on the tenancy agreement with Mr Karmarkar, Mr Karmarkar is seeking to recover the unpaid rent only from those tenants who have departed Mr Karmarkar’s establishment and have stopped paying rent.

[3]    This appeal raises the general question of what constitutes a boarding house tenancy in terms of Part 2A of the Act. That question appears not to have been previously considered by the High Court.2 I recognise that it would be useful for this Court to set out how this Part of the Act is to be interpreted and applied given that there has been some variation in the District Court decisions that have discussed these provisions. However, because Mr Karmarkar was self-represented and no other party took part in the hearing, I offer my interpretation with some caution and stress that a more authoritative High Court view should await a decision where the Court has had the benefit of submissions by counsel.

1      Karmarkar v Pendem [2017] NZDC 22771.

2      The decision of Goddard J in Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165 was limited to the specific question of whether the Act allows a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days.

Background

[4]    Mr Karmarkar is the landlord of a property at 37a Hayr Road, Three Kings, Auckland in which he has provided residential accommodation for 16 people under an agreement signed between Mr Karmarkar as landlord and 16 named tenants.

[5]    The agreement is a combination of a standard form agreement in which relevant sections have been filled out and others left blank, plus some customised and additional provisions, including an annexure with “Conditions for tenants/flatmates

/boarders”.

[6]    The agreement states that the tenancy commenced on 3 August 2016 and that the rent per week is $1,600, and included water, power and internet. A bond of four weeks rent was required of the tenants.

[7]Clause 2 of the agreement states:

This tenancy is for a fixed term, cannot be terminated with notice and will terminate on 3 March 2017.

[8]    However, the clarity and effect of that provision has to be set against the fact that earlier in the same clause it is stated that:

This tenancy is a Periodic tenancy and can be terminated by 90 days’ notice by landlord and 21 days’ notice by tenant.

It would seem from the position advanced by Mr Karmarkar – that the agreement was for a fixed term tenancy – that these words should have been struck.

[9]The agreement also includes the following provisions:

As a tenant, you have the right to live in the flat and cannot be asked to leave by another tenant or your flatmates. Only the landlord can give you notice to leave.

If everyone in the flat signs the tenancy agreement, you will all have tenancy rights – and obligations. Anyone who moves into a flat and signed a tenancy agreement along with any other people is taking on shared responsibility for the whole tenancy. This is called ‘being jointly and severally liable’. It means that, if one of the tenants causes damage to the property or gets behind in paying rent, all of the other tenants can be held responsible. They may have to pay the debt if the offending tenant does not.

I WILL HOLD YOU RESPONSIBLE ONLY FOR YOUR RENT SHARE AS NOTED BELOW; AS FAR AS RENT DUES ARE CONCERNED, IF YOU HAVE DONE ANY DAMAGE TO THE PROPERTY, THEN YOU ALONE WILL BE  RESPONSIBLE.   HOWEVER,  IF THE PERSONS

CAUSING THE  DAMAGE  CANNOT BE  IDENTIFIED, THEN  ALL

THE TENANTS ARE JOINTLY AND SEVERALLY LIABLE

[10]   Beneath this provision, the names of the individual tenants are listed in handwriting with their individual shares of the rent specified, totalling in aggregate

$1,600.

[11]   The 35 conditions in the Annexure address both the internal dynamics expected of the tenants as a group, as well as practical matters such as the use and maintenance of the property and its facilities. Among the former are the following:

1.   I/We the undersigned confirm that we are sharing the tenancy with other tenants/flatmates. We fully understand the implications and responsibility of such tenancy sharing arrangement.

2.   … We shall formalise an internal management plan together with all flatmates.

3.   We agree that internal management plan should clearly include allotment of bedrooms, rules about use of common lounges, stoves, outdoor area, disposal of garbage cans, cleaning schedule etc.

[12]   As described in the decisions of the Tenancy Tribunal and the District Court, the property is a large two storey dwelling consisting of eight bedrooms, four toilets, two kitchens and one lounge. The two storeys operate separately. The upper storey, comprising three bedrooms, one kitchen and a bathroom, is occupied by Mr Satish Pendem and five members of his family, each of whom is named in the agreement as a tenant. Despite the Annexure conditions providing that the tenants would not establish any exclusive use areas other than bedrooms, and that tenants would have uninterrupted access to the entire property, only Mr Pendem and his family have access to this storey, which has its own separate entrance. The lower storey, comprising five bedrooms, a kitchen, a bathroom and a lounge, is occupied by the remaining 10 tenants who sleep two to a bedroom.

[13]   In 2016, Mr Karmarkar filed an application for rent arrears and cleaning costs against four named joint tenants. The claim for rental arrears arose after the four tenants, all apparently Indian nationals, had left New Zealand for India after

encountering difficulties with their visas. The Tenancy Tribunal dismissed that application on the basis that the Mr Karmarkar’s establishment was operating as a boarding house and, therefore, he could not recover rent claimed to be due under a fixed term joint tenancy agreement. Mr Karmarkar did not appeal that decision, apparently because he was out of New Zealand when the decision was released and missed the timeframe for appealing.

[14]   Despite that earlier decision, in May 2017, Mr Karmarkar applied to the Tenancy Tribunal for rent arrears of $10,091.42 and cleaning costs of $1,430.00, again claiming a breach of the same tenancy agreement. This time, Mr Kamarkar brought the claim against 11 named joint tenants. It appears from the notes of evidence before the Tenancy Tribunal that, other than Mr Pendem himself, Mr Pendem’s family were not named as individual respondents.

[15]   Five of the named tenants appeared before the Tribunal at the  hearing of    Mr Karmarkar’s new application. They denied they owed any rent to Mr Karmarkar on  the  basis  that  they  had  found  replacement  tenants  when  they  had  left     Mr Karmarkar’s  establishment.   That   assertion   was   apparently   accepted   by Mr Karmarkar before the Tribunal and a settlement was reached with those tenants with respect to their shares of the cleaning costs.

[16]   The central issue before the Tenancy Tribunal and the District Court was whether the arrangement between Mr Kamarkar and his tenants was a boarding house tenancy or a joint tenancy. The Tribunal and the District Court went through similar processes in reaching their decisions. Each considered the relevant provisions of the Act, in particular Part 2A dealing with boarding house tenancies, and relevant case law about Part 2A, in particular the District Court decisions in Platinum Rentals NZ Ltd v Madden,3 Cutlers Ltd v Olivia Thompson,4 and Saunders v Chau.5 The Tribunal and the District Court analysed the agreement between Mr Kamarkar and his tenants and concluded that, although the agreement included elements of a standard residential

3      Platinum Rentals NZ Ltd v Madden [2013] DCR 125.

4      Cutlers Ltd v Thompson DC Dunedin CIV-2013-012-410, 4 November 2013.

5      Saunders v Chau DC Christchurch CIV-2014-0009-733, 19 November 2014.

tenancy for a fixed term, there were also aspects of the tenancy consistent with a boarding house. They both found the tenancy was a boarding house tenancy.

[17]Particular factors identified by Judge Sinclair in the District Court were:

(a)There were 16 tenants living in a property with eight bedrooms, 2 kitchens, two decks and one living room.

(b)The separate and exclusive occupation of the second floor by a family group.

(c)The tenants on the ground floor did not know each other at the start of the tenancy;6 some were already living in the property when presented with the tenancy agreement to sign; many were in New Zealand on temporary student visas and had responded to a Trade Me advertisement for a bedroom in a shared house.

(d)The tenants rented sleeping quarters in shared rooms and each was given a room key and a front door key; when a tenant wanted to leave, either  the  bedroom  or  sleeping  quarters  were  re-advertised  by  Mr Karmarkar or the tenant would find a replacement.

(e)Under the tenancy agreement, Mr Karmarkar could give notice for a tenant to leave even though it was a fixed term agreement, and the tenants did not have the right to ask another tenant to leave.

(f)While the tenancy agreement referred to joint and several liability, it also provided that a tenant would be liable only for his or her share of the rent.

6      Although the District Court Judge acknowledged that tenants’ unfamiliarity with each other was not necessarily an unusual or a determinative factor.

(g)While Mr Karmarkar did not accept there were boarding house rules of the kind provided for in s 66O of the Act, the agreement clearly contained a list of rules to be followed by tenants.

[18]   In concluding her decision, Judge Sinclair recorded that while Mr Karmarkar had given evidence that it had not been his intention to operate a boarding house and it had always been his intention that the agreement was a fixed term joint tenancy, that had not been the evidence of the tenants at the Tribunal hearing who had seen themselves as living in a boarding house. Moreover, the Judge noted that any such stated intention was contrary to the factors noted above which, in her view, supported a finding that that this was a boarding house tenancy.

Mr Karmarkar’s appeal

[19]   Mr Karmarkar’s appeal asserts that the District Court erred in concluding that the tenancy was a boarding house tenancy rather than a fixed term tenancy. In support, he asserts that the District Court:

(a)Did not take into account the fact all 16 tenants signed an agreement stating it was a fixed term agreement and in that regard was wrong to take into account the subsequent perceived intentions of the tenants;

(b)Did not take into account the fact the bond was for the whole of the tenancy;

(c)Should not have had regard to the perceived intentions of the tenants or the visa status of the tenants;

(d)Erred in considering the Annexure amounted to Boarding House rules.

Nature of appeal

[20]This appeal was brought under s 119 of the Act which provides:

119     Appeal on questions of law to High Court

(1)Any party to an appeal under section 117 who is dissatisfied with the decision of the District Court Judge as being erroneous in point of law may appeal to the High Court on that question of law.

(2)Every appeal under this section shall be dealt with in accordance with the High Court Rules 2016.

[21]   The approach to be taken in such appeals is well set out in the judgment of Duffy J in Anderson v FM Custodians Ltd7 and I respectfully adopt her reasoning:

[31]      It is clear from the wording of [section 119] that this Court can only be concerned with questions of law, so the approach identified in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 does not apply. The later reference in s 119(2) to the application of the High Court Rules, which would include the rule in Part 20 that appeals to this Court are to be by way of rehearing, cannot override the clear language of s 119(1). The procedural rules on appeals to this Court must be tailored to meet the clear language of s 119(1).

[32]      For an appeal on a question of law, the approach is that which was applied in Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 at [24]-[27], and later confirmed in Vodafone New Zealand  Ltd  v  Telecom  New  Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [5]-[55]. In short, this Court is not to substitute its own views for that of the lower Court; instead the Court must consider whether the decisions under appeal reveal a misinterpretation and/or misapplication of the statutory powers in the [Act], and if not, whether what has been decided is so misconceived that it is an unlawful decision: see Vodafone New Zealand Ltd at [50]. … However, as was recognised in Vodafone New Zealand Ltd and in Bryson, there are the rare occasions where “an ultimate conclusion of a fact finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law, because proper application of the law requires a different answer”: see Vodafone New Zealand Ltd at [52].

[22]   In summary, the task for this court is to consider whether the District Court decision reveals a misinterpretation or misapplication of the statutory powers in the Act, and if not, whether what has been decided is so misconceived that it is an unlawful decision.

The legislative scheme

[23] Part 2A was inserted into the Act in October 2010 by the Residential Tenancies Amendment Act 2010. The purpose of the Part was considered by Judge Broadmore in Platinum Rentals where he stated:8

7      Anderson v FM Custodians Ltd [2013] NZHC 2423, (2013) 15 NZCPR 123.

8      Platinum Rentals NZ Ltd v Madden [2013] DCR 125.

[41] It seems to me that the intention of Parliament was to introduce boarding house tenancies in the Act as a further and separate category of tenancies, subject to its own particular rules. That is, in my view, clear from the second reading speech of the Minister for Housing during the debate on the amendment. I quote his words from Ms Mills’ submissions:

One of the main initiatives in this bill is to provide protections for some of the most vulnerable in New Zealand – those who live in boarding houses.

I personally believe that this provision is the most important part of this legislation. It will cover those vulnerable people in boarding houses who are often transient, who are often on low incomes, and who are often in search of more formal and permanent accommodation. It is very, very important indeed to cover them while they are in boarding house tenancies.

[24]   That passage was cited with approval by Judge Crosbie in Cutlers9 and echoed by Judge Sinclair in the present case.10 Judge Broadmore’s decision, including his analysis of the purpose and effect of Part 2A was specifically approved by Goddard J in Portfolio Property where the learned Judge canvassed more extensively the legislative history of Part 2A and concluded that it was clear that Parliament intended to carve out specific provisions for boarding house tenancies.11

[25]The key provisions in Part 2A are:

(a)Section 66A, which states that the Part sets out special provisions that apply only to boarding house tenancies and provides that certain sections in the rest of the Act do not apply to such tenancies unless otherwise specifically applied. The excluded sections include:

(i)section 7 on short fixed term tenancies.

(ii)sections 36-42 and 44 to 49 on the rights and obligations of landlords and tenants.

(iii)sections 50A, 51 and 55-57 on the termination of tenancies.

9      Cutlers Ltd v Thompson DC Dunedin CIV-2013-012-410, 4 November 2013 at [23].

10     Karmarkar v Pendem & Ors [2017] NZDC 22771 at [11].

11     Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165 at [23].

(b)Section 66B, which sets out various definitions including, importantly, definitions of “boarding house”, “boarding house tenancy” and “boarding room”.

(c)Section 66C, which sets out the matters that must be included in a boarding house tenancy agreement as well as complying with s 13A of the Act. This provision is directive rather than descriptive. That is, it says what must be in a boarding house tenancy agreement; it does not provide guidance as to whether or not a particular tenancy is or is not a boarding house tenancy.

(d)Section 66F, which provides the landlord is responsible for all outgoings incurred for common facilities or for rooms occupied by more than one tenant under a boarding house tenancy. This section takes the place of s 39 of the Act which does not apply in accordance with s 66A.

(e)Sections 66H, 66I and 66J, which set out various responsibilities of the landlord and take the place of the responsibilities of landlords under s 45 of the Act.

(f)Sections 66K, 66L and 66M, which set out various responsibilities, liabilities and obligations of the tenant and take the place of the responsibilities of tenants under ss 40 and 41.

(g)Sections 66O and 66P, which enable a landlord to make house rules relating to the use and enjoyment of the premises and the provision of services, and give a tenant certain rights to object to such rules.

(h)Sections 66R, 66S and 66T, which set out special rules regarding a landlord’s right to enter a tenant’s boarding room, as distinct from the “facilities” on the premises, and take the place of s 48 which sets out the rights of landlords to enter other forms of tenancies.

(i)Sections 66U and 66V, which set out the respective rights of the landlord and tenant to terminate a boarding house tenancy and take the place of ss 50A, 51 and 55-57. There is an obvious and clearly intentional difference in the rights given to landlord and tenant respectively to terminate a boarding house tenancy. Whereas under s 66V a tenant can give 48 hours’ notice for any reason, whether orally or in writing, the landlord’s right to terminate is much more prescribed under s 66U.

[26]   The essential scheme of Part 2A, therefore, is that if a tenancy is a boarding house tenancy, then the special provisions of Part 2A apply. This was the conclusion reached by Judge Broadmore in Platinum Rentals and by Goddard J in Portfolio Property. Having reached that conclusion, Judge Broadmore held that any provision in a boarding house tenancy that was inconsistent with Part 2A, such as a provision for a fixed term of more than 28 days, was of no effect and unenforceable12 while Goddard J held that the Act does not allow a tenant and landlord to enter into a boarding house tenancy for a fixed term.13 I agree.

[27]    The more difficult question is determining whether a tenancy is or is not a boarding house tenancy – the issue considered by the District Court in Cutlers, Saunders and Raffles Lodge. Part of the problem is the circularity in the drafting of the definitions of “boarding house”, “boarding house tenancy” and “boarding room” in s 66B which refer back to each other.14 Another concern has been that a simplistic application of the definitions (i.e. by deciding the question solely by reference to the number of bedrooms in a house) could result in large numbers of residential tenancies becoming boarding house tenancies, with the consequence, unintended by landlord or tenants, that some of their provisions would become unenforceable following the decisions in Platinum Rentals and Portfolio Property.15 Another complication is that, as in the present case, some tenancy agreements have elements that would usually be found in a normal residential tenancy agreement and others that would usually be found in a boarding house tenancy.

12     Platinum Rentals NZ Ltd v Madden [2013] DCR 125 at [67]

13     Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165 at [31]

14     Saunders v Chau DC Christchurch CIV-2014-0009-733, 19 November 2014 at [16].

15     Cutlers Ltd v Thompson DC Dunedin CIV-2013-012-410, 4 November 2013 at [27].

[28]   Judge Crosbie in Cutlers considered s 66B to be an enabling rather than a deeming provision. By this he appears to have meant that just because a particular tenancy might fall within the definition of “boarding house tenancy” does not mean it has to be regarded as such and that the Court should endeavour to ascertain the parties’ intentions as evidenced by the tenancy agreement and other evidence before the Court.16 As noted by Judge Neave in Saunders, since the decision in Cutlers, Tenancy Tribunal decisions tended to focus on the intentions of the parties when called on to decide whether a particular tenancy was or was not a boarding house tenancy. 17

[29]   In Saunders, Judge Neave observed that a focus solely on the intention of the parties was as flawed as focusing solely on the number of bedrooms.18 I agree. The fact that parties may have intended a particular outcome cannot override the statute. It is the intention of the legislature that must be the driving consideration, particularly where the purpose of the legislation is remedial in the sense noted by Judge Broadmore in Platinum Rentals in his quotation of the Minister’s second reading speech: to provide protections for some of the most vulnerable in New Zealand – those who live in boarding houses. It would be an odd result to make the application of such legislation contingent on the intention of the parties when there is an inherent imbalance in the bargaining power of the two parties to the agreement.

[30]   In Saunders, Judge Neave proposed a more comprehensive approach to determining whether a tenancy is a boarding house tenancy:19

[26]      The statute clearly sets out a number of matters which will be required to establish a boarding house tenancy. Perhaps, more particularly, it lists matters which must exist if there is a boarding house tenancy, or at least will apply if a boarding house tenancy has been created.

[27]      Without being an exhaustive list, it seems to me that among the matters that will be relevant in determining what kind of tenancy one will be:

(a)The nature of the property (obviously the smaller the property and the fewer the rooms there are, the less likely it will be a boarding house).

16     Cutlers Ltd v Thompson DC Dunedin CIV-2013-012-410, 4 November 2013 at [23].

17     Saunders v Chau DC Christchurch CIV-2014-0009-733, 19 November 2014 at [24].

18     Saunders v Chau DC Christchurch CIV-2014-0009-733, 19 November 2014 at [24].

19     Saunders v Chau DC Christchurch CIV-2014-0009-733, 19 November 2014.

(b)The number of tenant (i.e. are there more than six? Any less than that will be excluded from being a boarding house tenancy by virtue of the Act.).

(c)The nature of the agreement and, in particular, does the agreement grant a right of exclusive occupancy to a particular room but with a right to use the rest of the house, or is it an agreement to occupy the house solely or in common with others?

(d)The terms of the agreement. In other words, are there terms of the agreement more consistent with those required by a boarding house tenancy or those which relate to an ordinary residential tenancy under the Act?

(e)This, to a certain extent, follows on from the previous point – What is the provision for notice, what rights of entry does the landlord have, does the agreement provide for house rules?

(f)The intention of the parties. While that cannot be crucial if the other indicia of a boarding house tenancy, as opposed to a normal residential or periodic tenancy, are present, but a clearly expressed intention one way or the other will be of assistance.

[31]   The approach set out by Judge Neave was adopted by Judge Phillips in Raffles Lodge and by Judge Sinclair in the present case.

[32]   While I recognise the practical wisdom in that approach, I consider the initial inquiry must begin with an analysis of how the tenancy being considered fits with the relevant definitions of s 66B. Those definitions determine whether or not a particular tenancy is a boarding house tenancy. The consequences of that inquiry are determined by s 66C, which sets out what a boarding house tenancy must contain as a matter of law, and by ss 66D – 66Y which apply to boarding house tenancies whether or not a particular agreement reflects those sections. To use those later sections, such as the provisions on notice, rights of landlord entry and whether the agreement provides for house rules, to determine the existence of a boarding house tenancy is problematic. To do so uses the consequences of the application of the definitions to determine whether the definitions apply in the first place. That is more circular, in my view, than the fact that the definitions refer to each other.

[33]The relevant definitions are:

boarding house means 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

boarding house tenancy means a residential tenancy in a boarding house—

(a)that is intended to, or that does in fact, last for 28 days or more; and

(b)under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house

boarding room means a room in a boarding house that is used as sleeping quarters by 1 or more tenants of the boarding house, and that is for use only by a tenant whose tenancy agreement relates to that room.

[34]   In my view, it is possible to make sense of the definitions by asking the following questions:

(a)Does the house contain one or more bedrooms along with facilities for communal use by the tenants?

(b)Is the house occupied or intended to be occupied by 6 or more tenants?

(c)Is the tenancy intended to, or does in fact, last for 28 days or more?

(d)Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use?

(e)Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?

[35]   If the answer to all of those questions is “yes”, then the tenancy is a boarding house tenancy and the rest of the provisions of Part 2A apply.

[36]   I acknowledge that applying these questions will not always be straightforward, as the current case illustrates. Questions of judgment can arise as to whether what is set out in the tenancy agreement reflects the reality of how a tenancy

operates, particularly with respect to the last two questions. But if these questions are answered in the affirmative, then it should not be necessary to enquire into whether the tenancy has the attributes required under ss 66C – 66Y as a matter of law.

[37]   I recognise the concern expressed Judge Crosbie in Cutlers that an overly simplistic application of the definitions might have the unintended consequence that tenancies of student and other flats, which are usually rented on an annual basis, might suddenly become boarding house tenancies. However, those are usually tenancies where the exclusivity of the use of a particular bedroom does not derive from the tenancy agreement between the tenants and the landlord but is a decision made by the tenants themselves. That is, the tenants and not the landlord decide the allocation of bedrooms and can make changes to that allocation without reference to the landlord.

[38]   Applying the first four of the questions in [34] to Mr Karmakar’s establishment:

(a)Yes, the house does contain one or more bedrooms along with facilities for communal use by the tenants.

(b)Yes, the house is occupied or intended to be occupied by 6 or more tenants.

(c)Yes, the tenancy is intended to last for 28 days or more.

(d)Yes, the tenants are granted exclusive rights to occupy particular bedrooms, as is evidenced by the fact that, at least as far as the lower storey is concerned, each tenant has a key to the front door and a key to his or her bedroom but cannot access the other bedrooms.

[39]   The answer to the fifth question is less straightforward. Mr Karmakar says that the allocation of rooms is chosen by the tenants themselves, consistently with Conditions 2 and 3 of the “Conditions for Tenants/Flatmates/Boarders” as noted in

[11] under which allotment of rooms is said to be for the internal management plan developed by the tenants.

[40]             On their face, those conditions suggest a negative answer to the question of whether the right to occupy a particular bedroom derives from the tenancy agreement between the tenant and the landlord. However, there are other aspects of the tenancy that strongly indicate that the right to occupy a particular room derives directly from the landlord-tenant relationship and does not involve any collective decision by the tenants as a group. These are:

(a)The listing in the tenancy agreement of what each tenant must pay and the assurance that, at least as far as rent is concerned, the landlord will hold tenants responsible only for their share of the rent;

(b)The fact that lower floor tenants have no input on matters affecting the upper floor, despite there being one tenancy agreement for both floors;

(c)Mr Karmakar’s practice (which he acknowledged in Court to be the case) of advertising individual vacancies, whether on Trademe or elsewhere, rather than leaving it to the tenants as a collective to find a replacement tenant;

(d)The strong sense I gained when Mr Karmarkar was presenting his case and from reading the tenancy agreement that Mr Karmarkar had constructed the agreement to get around Part 2A of the Act so that it is not considered a boarding house tenancy agreement whereas the practical reality is that Mr Karmarkar has been in control of room allocation and other decisions regarding the operation of the agreement.

[41]             Taken together, these factors persuade me that the right to a room derives, in the case of each individual tenant, from the tenancy agreement between the tenant and the landlord rather than from a collective decision of the tenants. Accordingly, the answer to the fifth question is also “yes”.

[42]             For these reasons, I am satisfied that the Tenancy Tribunal and the District Court were correct in their finding that the tenancy agreement for the residential

establishment that Mr Karmarkar operates is a boarding house tenancy under the Residential Tenancies Act.

Result

[43]The appeal is dismissed.

van Bohemen J