Published tribunal order
Tenancy Tribunal case 4656281 — Tenancy dispute at 73 Valerie Close, Warkworth 0983
Decided 6 Sept 2023 · Published 6 Sept 2023 · Application 4656281
Party names are redacted in the official published order.
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- By way of declaration, this tenancy is within the jurisdiction of the Tenancy Tribunal.
- Josephine Baker must pay Brock Cameron $805.44 immediately, being the return of the bond of $800.00 and the application filing fee of $20.44, less $15.00 surrendered by the tenant towards the approximate cost of a replacement key.
Reasons
- Both parties attended the hearing, conducted via teleconference.
- The application came via a previous hearing at the Disputes Tribunal after a tenant application made to it. That hearing was adjourned for an application to this Tribunal for jurisdiction to be determined. Given the conclusion here, Mr Cameron should withdraw the Disputes Tribunal application.
- This application sought confirmation of jurisdiction and the return of the bond as the tenancy had ended and the bond was with the landlord.
- The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
- In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where appropriate. Background.
- Mr Cameron became a tenant at the premises on or about 25 February 2023. He moved out of the premises on 21 April 2023 with minimal notice. The tenancy formed promptly but remotely in response to an advertisement by the landlord in TradeMe (in the Flatmate section). The landlord stated she advertised there as well as under the Rental section. As she put it, she used a “spray and pray” approach. Previously the apartment had been used for short- term accommodation via Air bnb. The landlord said she had received legal advice to use the term flatshare/boarding in her advertisements given the multiple dwellings were on one title. If so given, the advice was not what might be considered appropriate in these circumstances.
- The premises is a two-bedroom apartment within a larger dwelling on a rural property. The owner also lives at the property. The premises is known as the “Borgo” apartment. No written agreement was made. A text message confirmed the key terms and the landlord stated she was waiting on the tenant to finally decide on which premises he wanted before formalising any written agreement. This did not occur.
- It seems that the only area which both parties shared was the laundry.
- The landlord accepted this jurisdiction. The tenant did not. Jurisdiction
- Is the relationship between the parties one of landlord and tenant in a residential tenancy as defined by the Residential Tenancies Act 1986 (“RTA”)?
- The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act applies.
- The onus or” job” of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see s.10 RTA). In this case Mr Cameron.
- The Tribunal can only consider residential tenancies that come within the Residential Tenancies Act 1986. Section 77 of the RTA provides that: 77 Jurisdiction of Tribunal (1)The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act, any dispute that- (a)exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b)relates to any tenancy to which this Act applies or to which this Act did apply at any material time.
- The term “landlord” is defined in s.2 RTA as being; “Landlord in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement;
- The term “tenant” is defined in s.2 RTA as being; “Tenant in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under an agreement;”
- The term “tenancy” is defined in s.2 RTA as being; “Tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by an enactment; and, where appropriate includes a former tenancy.”
- Section 4 RTA provides that the Act applies to “every tenancy for residential purposes except as specifically provided”.
- Factors that point to this being a tenancy are; a. The respective parties have exclusive possession of their defined area. b. The only shared area is the laundry which under s.2 RTA is a” facility” and therefore does not fall within the definition of “premises” in the RTA. c. Mr Cameron pays “rent” to Ms Baker. d. The “bond” is paid to and is held by Ms Baker. e. Beyond the placement of the advert in the Flatmate section, and curious wording, there is minimal evidence of typical flatting agreements. f. The other terms agreed, such as one year duration, are consistent with a tenancy,
- Factors which suggest that this is not a tenancy. a. The advertisement placed by Ms Baker was placed in the Flatmate section as seen by the tenant and appears to refer to it being a flatting/boarder arrangement.
- In the circumstances of this case, and the living arrangements as outlined and agreed to by both parties at the hearing, I find that Ms Baker meets the definition of a landlord, in that she has leased residential premises to Mr Cameron. Mr Cameron falls within the definition of being a tenant, given that he is the grantee of residential premises. He has the exclusive right to occupy the apartment on the basis of the payment of rent. No other person occupied the apartment nor was entitled to occupy that area.
- I do not consider this to be a flatmate arrangement. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case the apartment), rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord.
- In Musson v Dobrisek 2006 03236, District Court, Lower Hutt, 5 May 2006, the District Court considered the issue of flatmates. The court held that: “.... the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord.” “by “flatmate” I understand a co-operative arrangement whereby, in a fundamental sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
- In Bailes v Nalini (2020) NZTT 4261603, 4268721, North Shore, the Tribunal held in similar circumstances in considering the issue of jurisdiction where there was a “flatmate agreement”, that; “The fact that the parties have entered into a “flatmate” agreement which records that the RTA does not apply, is of no effect. That is because section 11 of the RTA confirms that the parties cannot contract out of the RTA, to the tenant’s detriment. That provision holds: Section 11. Act generally to apply despite contrary provisions (1)Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify or restrict the operation of any such provision, shall be of no effect unless- (a)the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b)the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification should be permitted. (2)Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3)Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.” The RTA does not provide any permission for the provisions of the RTA to be excluded in a tenancy such as this, and furthermore, the Tenancy Tribunal would not permit the contracting out to the tenant’s detriment, as the parties have done. That means the obligations between the tenant and landlord in the RTA certainly apply, notwithstanding the flatmate agreement which in the face of it precludes the RTA applying.
- Simply calling something a “flatting” arrangement, does not make it so. I find after considering the actual arrangement entered into by the parties, as distinct from the title they may have assigned to it, there exists a tenancy in the apartment.
- Given jurisdiction is confirmed, it is appropriate to make an order regarding the bond. Bond
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- The bond was retained by the landlord.
- The landlord has a number of possible claims and she should file an appropriate application if she so chooses.
- The tenant surrendered $15.00 of the bond but that does not deny any landlord claim pertaining to keys and locks at a later stage, however, any success pertaining to any such claim should recognise this surrender, if appropriate. Application filing fee
- Because Brock Cameron has wholly succeeded with the claim I must reimburse the filing fee.