What was Tenancy Tribunal case 4673012 about?

The tribunal order states: The applications are dismissed as the Tribunal does not have jurisdiction to

How much money was awarded in case 4673012?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4673012?

The dispute type was not classified.

Where can I read the official tribunal order for case 4673012?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9578126-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4673012 about?

The tribunal order states: The applications are dismissed as the Tribunal does not have jurisdiction to

How much money was awarded in case 4673012?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4673012?

The dispute type was not classified.

Where can I read the official tribunal order for case 4673012?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9578126-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4673012 — Tenancy dispute

Order

The applications are dismissed as the Tribunal does not have jurisdiction to consider the matter.

Reasons

Both parties attended this remote teleconference hearing on 26 October 2023.
For the purposes of this decision, I propose referring to the parties as owner [The owner/s] and occupier (Ms Chisholm).
This hearing was set down to consider the issue of jurisdiction only. The Tribunal has the jurisdiction or power to hear disputes between landlords and tenants. It does not have jurisdiction to hear claims involving boarders or flatmates.
Where, in any proceedings before the Tribunal, any party contends that the Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that the Act does not apply (see s.10 of the Residential Tenancies Act 1986 (“RTA”). That means that the job of proving that the Tribunal does not have jurisdiction is with the owner. The owner must prove that the Tribunal does not have jurisdiction to the civil standard called the “balance of probabilities” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
The issue of jurisdiction is an important one. If I find that the Tribunal does not have jurisdiction to hear this matter, then the matter cannot proceed further in the Tribunal. The parties would need to file their respective claims in another jurisdiction, usually the Disputes Tribunal.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.
The RTA does not apply to premises that continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises, or by any member of the landlord’s or owner’s family. (See s 5(1)(n) RTA).
The test to be applied under s 5(1)(n) RTA is not whether the premises are the principal place of residence of the landlord or owner (or the landlord’s or owner’s family) but instead turns on the principal use of the premises during the tenancy. In order for the exclusion to apply, the premises must continue to be used predominantly as a residence by the landlord or owner or their family.
It has been held by the District Court that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 RTA should be interpreted strictly and not liberally.
The issue that I must determine is whether the relationship between the parties was a tenancy or a flat sharing agreement of premises, shared with the landlord. If it is the later, then the exclusion in s.5(1)(n) RTA will apply.
In reaching my finding, I must take into account the fact the owner recorded his understanding of the nature of the relationship in writing. The email containing the terms is dated 19 March 2023. Having said that, the draft agreement was never signed by the occupier. This is limited evidence of the owner’s contractual intent.
In the agreement, the owner have expressly referred to a “tenancy” on a number of occasions. The landlord said in evidence the reference to a tenancy was simply a misunderstanding of the correct terminology on his part. He remained uncertain of the correct terminology for the arrangement at the hearing date. I accept that he was uncertain as to the correct terminology.
It is important to note however that whilst this may be evidence of intent, whatever label the parties chose to use for the arrangement is not determinative of the issue. The issue for the Tribunal to consider is whether or not the relationship was, in substance, a tenancy, irrespective of, or despite the label the parties have attached to the agreement.
There are a number of previous cases that have come before the Tenancy Tribunal and the District Court where the question of whether an agreement is a flat sharing agreement or not has been considered.
As a starting point, I note the broad description of a flatmate arrangement proposed by Judge Broadmore in Musson v Dobreski and others DC Lower Hutt, CIV 2006,03236,16.2.2006, as follows: “By “flatmates” I understand a co-operative arrangement whereby, in a functional 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.”
This is only a broad guideline, of course. Unpacking the various characteristics of a true flat sharing agreement is a more nuanced exercise, as the cases I now mention below indicate, mainly because, as is usual in cases of this sort, every case is different and must be judged on its own facts.
In Whitelock v McConway, DC Christchurch, CIV 2010 0092030 ,the subject premises were a sleepout, contained in a building which also contained the family shower and laundry room. The facilities within the sleepout where the tenant lived were limited in that there was no kitchen or sitting room. The tenant was expected to share the shower and laundry with the family. It was found that the exclusion in s.5(1)(n) RTA applied and so the Tribunal did not have jurisdiction to hear the claim. In that case that, clearly there was a sharing of facilities and the tenant’s area was not fully self-contained.
In Watson v Watson, DC Christchurch, CIV 2010 0092030,14 September 2010, the exclusion in s 5(1)(n) RTA did not apply, in a case where the premises were exclusive to the tenant and fully separate from the landlord’s premises.
Likewise in Dempsey v Barnett, DC Auckland TT 790/93, 12 November 2003, the exclusion did not apply. The room occupied by the tenant was furnished with a couch, drapes, a table, bed, drawers, a cupboard, crockery and some linen. The room had a power supply which the tenant used to heat meals and a microwave oven. The room had a fridge and a cooktop. There was no water supply to the room and the tenant had to wash dishes in the kitchen of the main house. He was given a key to the back door to enable him to use the toilet and shower in the house. At times he used the lounge in the house but only did so when invited in by the landlord and, apart from the water supply and toilet facilities, the tenant was self-contained.
More recently, the Tribunal has found that the exclusion in s 5(1)(n) RTA did not apply in: a) Nie v Zhao (2020)NZTT North Shore 4277894,where the premises were a separate area located beneath the landlord’s residence containing a bedroom, a makeshift kitchen, living space and a separate entry. A door from a corridor leading upstairs was locked preventing the tenant’s access upstairs. Other than using the laundry and two rooms downstairs for storage, the landlord did not share the house with the tenant. b) Bailes v Nalini,(2020) NZTT North Shore 4261603, 4268721,(2021) , where the tenant exclusively occupied a cabin located at the back of the main residential premises. The cabin was a small freestanding bedsit arrangement with a lounge below and a bedroom above and included a hot plate but no bathroom or toilet facilities. The tenant was able to enter the main house to use the bathroom and toilet. c) Zhang v Gao (2021)NZTT North Shore 4298016, 4297675, where the landlord rented the upstairs level of two storey house and the tenant exclusively occupied the downstairs level. All living, cooking, sleeping and bathing arrangements were separate.
Consistent themes running through the foregoing cases appear to be: • The extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry); • The extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord; • Whether the tenant area is fully or partly self-contained; • Whether the tenant area is exclusive to the tenant.
I find that the evidence from the parties is clear; • The occupier had exclusive use of one bedroom only. • The owner had the exclusive use of the bedsit only. The bedsit was not self-contained and was merely an area for sleeping. • All other areas of the premises were shared by the occupier with, the other resident and the owner. • The owner used a room for a member of his family (his child) to stay in on a bi weekly weekend basis. • The occupier would not have considered the premises to be her “flat.” • The owner, despite being away from the premises for 2 weeks on vacation during the term, and staying with a friend from time to time at night, clearly considered the premises to be his place of residence.
In light of that evidence, I consider it more likely than not that this was not a tenancy, but was a flat sharing arrangement and that the exclusion to s.5(1)(n) RTA applies. The Tribunal does not have jurisdiction to deal with the applications. Both the occupier and owner applications are dismissed.
Both parties have applied for name suppression. The occupier has not been wholly or substantially successful and the application for suppression is dismissed. I find that the owner has not been wholly successful, but has been substantially successful in his claim that the Tribunal does not have jurisdiction, and suppression of the landlord details is ordered.

Reasons

Both parties attended this remote teleconference hearing on 26 October 2023.

For the purposes of this decision, I propose referring to the parties as owner [The owner/s] and occupier (Ms Chisholm).

This hearing was set down to consider the issue of jurisdiction only. The Tribunal has the jurisdiction or power to hear disputes between landlords and tenants. It does not have jurisdiction to hear claims involving boarders or flatmates.

Where, in any proceedings before the Tribunal, any party contends that the Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that the Act does not apply (see s.10 of the Residential Tenancies Act 1986 (“RTA”). That means that the job of proving that the Tribunal does not have jurisdiction is with the owner. The owner must prove that the Tribunal does not have jurisdiction to the civil standard called the “balance of probabilities” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.

The issue of jurisdiction is an important one. If I find that the Tribunal does not have jurisdiction to hear this matter, then the matter cannot proceed further in the Tribunal. The parties would need to file their respective claims in another jurisdiction, usually the Disputes Tribunal.

The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.

The RTA does not apply to premises that continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises, or by any member of the landlord’s or owner’s family. (See s 5(1)(n) RTA).

The test to be applied under s 5(1)(n) RTA is not whether the premises are the principal place of residence of the landlord or owner (or the landlord’s or owner’s family) but instead turns on the principal use of the premises during the tenancy. In order for the exclusion to apply, the premises must continue to be used predominantly as a residence by the landlord or owner or their family.

It has been held by the District Court that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 RTA should be interpreted strictly and not liberally.

The issue that I must determine is whether the relationship between the parties was a tenancy or a flat sharing agreement of premises, shared with the landlord. If it is the later, then the exclusion in s.5(1)(n) RTA will apply.

In reaching my finding, I must take into account the fact the owner recorded his understanding of the nature of the relationship in writing. The email containing the terms is dated 19 March 2023. Having said that, the draft agreement was never signed by the occupier. This is limited evidence of the owner’s contractual intent.

In the agreement, the owner have expressly referred to a “tenancy” on a number of occasions. The landlord said in evidence the reference to a tenancy was simply a misunderstanding of the correct terminology on his part. He remained uncertain of the correct terminology for the arrangement at the hearing date. I accept that he was uncertain as to the correct terminology.

It is important to note however that whilst this may be evidence of intent, whatever label the parties chose to use for the arrangement is not determinative of the issue. The issue for the Tribunal to consider is whether or not the relationship was, in substance, a tenancy, irrespective of, or despite the label the parties have attached to the agreement.

There are a number of previous cases that have come before the Tenancy Tribunal and the District Court where the question of whether an agreement is a flat sharing agreement or not has been considered.

As a starting point, I note the broad description of a flatmate arrangement proposed by Judge Broadmore in Musson v Dobreski and others DC Lower Hutt, CIV 2006,03236,16.2.2006, as follows: “By “flatmates” I understand a co-operative arrangement whereby, in a functional 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.”

This is only a broad guideline, of course. Unpacking the various characteristics of a true flat sharing agreement is a more nuanced exercise, as the cases I now mention below indicate, mainly because, as is usual in cases of this sort, every case is different and must be judged on its own facts.

In Whitelock v McConway, DC Christchurch, CIV 2010 0092030 ,the subject premises were a sleepout, contained in a building which also contained the family shower and laundry room. The facilities within the sleepout where the tenant lived were limited in that there was no kitchen or sitting room. The tenant was expected to share the shower and laundry with the family. It was found that the exclusion in s.5(1)(n) RTA applied and so the Tribunal did not have jurisdiction to hear the claim. In that case that, clearly there was a sharing of facilities and the tenant’s area was not fully self-contained.

In Watson v Watson, DC Christchurch, CIV 2010 0092030,14 September 2010, the exclusion in s 5(1)(n) RTA did not apply, in a case where the premises were exclusive to the tenant and fully separate from the landlord’s premises.

Likewise in Dempsey v Barnett, DC Auckland TT 790/93, 12 November 2003, the exclusion did not apply. The room occupied by the tenant was furnished with a couch, drapes, a table, bed, drawers, a cupboard, crockery and some linen. The room had a power supply which the tenant used to heat meals and a microwave oven. The room had a fridge and a cooktop. There was no water supply to the room and the tenant had to wash dishes in the kitchen of the main house. He was given a key to the back door to enable him to use the toilet and shower in the house. At times he used the lounge in the house but only did so when invited in by the landlord and, apart from the water supply and toilet facilities, the tenant was self-contained.

More recently, the Tribunal has found that the exclusion in s 5(1)(n) RTA did not apply in: a) Nie v Zhao (2020)NZTT North Shore 4277894,where the premises were a separate area located beneath the landlord’s residence containing a bedroom, a makeshift kitchen, living space and a separate entry. A door from a corridor leading upstairs was locked preventing the tenant’s access upstairs. Other than using the laundry and two rooms downstairs for storage, the landlord did not share the house with the tenant. b) Bailes v Nalini,(2020) NZTT North Shore 4261603, 4268721,(2021) , where the tenant exclusively occupied a cabin located at the back of the main residential premises. The cabin was a small freestanding bedsit arrangement with a lounge below and a bedroom above and included a hot plate but no bathroom or toilet facilities. The tenant was able to enter the main house to use the bathroom and toilet. c) Zhang v Gao (2021)NZTT North Shore 4298016, 4297675, where the landlord rented the upstairs level of two storey house and the tenant exclusively occupied the downstairs level. All living, cooking, sleeping and bathing arrangements were separate.

Consistent themes running through the foregoing cases appear to be: • The extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry); • The extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord; • Whether the tenant area is fully or partly self-contained; • Whether the tenant area is exclusive to the tenant.

I find that the evidence from the parties is clear; • The occupier had exclusive use of one bedroom only. • The owner had the exclusive use of the bedsit only. The bedsit was not self-contained and was merely an area for sleeping. • All other areas of the premises were shared by the occupier with, the other resident and the owner. • The owner used a room for a member of his family (his child) to stay in on a bi weekly weekend basis. • The occupier would not have considered the premises to be her “flat.” • The owner, despite being away from the premises for 2 weeks on vacation during the term, and staying with a friend from time to time at night, clearly considered the premises to be his place of residence.

In light of that evidence, I consider it more likely than not that this was not a tenancy, but was a flat sharing arrangement and that the exclusion to s.5(1)(n) RTA applies. The Tribunal does not have jurisdiction to deal with the applications. Both the occupier and owner applications are dismissed.

Both parties have applied for name suppression. The occupier has not been wholly or substantially successful and the application for suppression is dismissed. I find that the owner has not been wholly successful, but has been substantially successful in his claim that the Tribunal does not have jurisdiction, and suppression of the landlord details is ordered.

Tenancy Tribunal case 4673012 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4673012 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions