Farry and Co have been successful in obtaining an important Judgment from the Court, which has clarified the distinction between residential tenancies and boarding house tenancies. His Honour Judge Crosbie in Cutlers Limited v Olivia Thompson CIV 2013-012-000410 delivered a Judgment which has sent a clear message to Tenancy Tribunals as to the matters they must take into account before determining the nature of a tenancy.
In October 2010 the Residential Tenancies Act 1986 (“the Act”) was amended to include provisions to protect tenants and landlords in boarding house tenancies. The intention of Parliament in amending the legislation was to ensure protection of the vulnerable members of society who typically reside on a short term basis in boarding houses.
Following these amendments however, Tenancy Tribunals have determined that if a property fits the definition of a boarding house then it is deemed to be such and a tenant can give 48 hours notice of termination of their tenancy.
The Appeal in the case of Cutlers Limited arose out of a student flatting situation where the tenant had signed a fixed term tenancy agreement for a period of twelve months. The tenant did not know the other tenants in the property and there were shared facilities. The tenant became unhappy with the flatting situation and gave 48 hours notice to terminate her tenancy.
Despite the fixed term tenancy agreement between the parties which made clear there was no ability to terminate the tenancy, the Tribunal held that the property matched the definition of a boarding house and therefore was a boarding house. The Tribunal further held that the tenant was entitled to terminate her tenancy on 48 hours notice and did not have to pay further rent beyond that time.
On Appeal however His Honour Judge Crosbie held the following;
- The Tribunal was wrong in reaching this decision and tenants are not entitled to attempt to reclassify a tenancy in a manner inconsistent with a tenancy agreement and an earlier intention;
- The sections relating to boarding house tenancies in the Act are not deeming provisions but rather they are enabling provisions; and
- What the Tribunal must consider in each case is the “nature of the tenancy” and implicit in such an examination is the tenancy agreement, including the notice provisions and the intention of the parties.
As the lawyers for the successful party in these proceedings we have expertise in relation to residential and boarding house tenancies and therefore can offer you specialist advice on these issues.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co who normally advises you, or alternatively contact:
Kirsten Maclean
(03) 477 8870 or (09) 379 0055
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.