“On the evidence presented that as the usual use of the bach is for short-term stays, and clear agreements to that end are made by each party, it would be excluded by section 5(1)(k) of the RTA,” said adjudicator K Lash.
Private bach owner Jonathan Black, sought a declaration on whether his house at Riversdale Beach in Masterton, was excluded from the RTA by virtue of s5(1)(k): “Where the premises – (i) are intended to provide temporary or transient accommodation (such as those provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii) are subject to an agreement that has been entered into for the purposes of providing temporary or transient accommodation.”
When it isn’t used as a holiday home by the family, it is advertised as fully furnished, short-term accommodation which includes the use of the firewood, water and power. The property is cleaned at the end of every stay and some of the family’s personal items are left locked away.
According to the tribunal, for a bach to be excluded from the RTA it must consider the following:
The circumstances of how the premises are intended to be rented, not necessarily how they are in a particular case.
The premises are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation.
However the declaration does not mean every subsequent use of the bach will automatically be excluded. The nature of a particular arrangement may create a situation where the parties implicitly contract into the RTA by their circumstances. For example, if the intention as to the nature and length of the stay is not clear between the parties and the occupant/tenant is given the impression that it is a residential tenancy, or a short-term management extends into a lengthier occupation.