What was Tenancy Tribunal case 4676151 about?

The tribunal order states: By declaration, the agreement between Sidhant Thapa and [Flatmate 1] in

How much money was awarded in case 4676151?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4676151?

The dispute type was not classified.

Where can I read the official tribunal order for case 4676151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9517240-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4676151 about?

The tribunal order states: By declaration, the agreement between Sidhant Thapa and [Flatmate 1] in

How much money was awarded in case 4676151?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4676151?

The dispute type was not classified.

Where can I read the official tribunal order for case 4676151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9517240-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4676151 — Tenancy dispute

Order

By declaration, the agreement between Sidhant Thapa and [Flatmate 1] in relation to the premises at [Tenancy address suppressed] is not a residential tenancy and is therefore not subject to the Residential Tenancies Act 1986.
The Tenancy Tribunal does not have jurisdiction to hear this case.
The application is dismissed.
Suppression is ordered with respect to [The landlord/s]’s name, given Mr Thapa wrongfully named his own landlord as the respondent and given Mr Thapa has not been successful against [The landlord/s].

Reasons

A preliminary question arises in this case, namely, whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 (RTA).
Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then I cannot proceed to hear the case. The evidence
Mr Thapa is the head tenant of [The landlord/s]. This was confirmed by evidence provided by [The landlord/s]. He rents the premises from [The landlord/s]. The premises are an apartment which comprises 3 bedrooms. One is occupied by Mr Thapa. The other was occupied by [Flatmate 1]. A third bedroom was occupied by another tenant.
[Flatmate 1] has vacated the premises causing damage and giving rise to other claims that Mr Thapa has against him. A written agreement was allegedly prepared recording the agreement between Mr Thapa and [Flatmate 1], but this was not produced. The law and discussion
I explained to Mr Thapa that 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) of the Act).
If the parties are in a flatting situation then I do not have jurisdiction. The issue that I must determine is whether the relationship was a flat sharing agreement of premises shared with the applicant. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.
There are a number of previous cases that have come before the Tenancy Tribunal and the Courts where the question of whether an agreement is a flat sharing agreement or not has been considered. In 2021, the issue was considered in the High Court in Harding v Caroto, 1 where a self-contained unit within a larger home occupied by the landlord was found to be separate residential premises.
In Whitelock v McConway, 2 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) 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. 1 CIV-2021-404-000378 [2021] NZHC 1265. The High Court confirmed here that there can be “premises” within premises. 2 DC Christchurch, C IV 2010 0092030,
In Watson v Watson, 3 the exclusion in s 5(1)(n) 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 4 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.
The Tribunal has found that the exclusion in s 5(1)(n) did not apply in: a) Nie v Zhao, 5 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, 6 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 7 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. d) McCaughan v Nasseri, 8 where there was a downstairs self-contained separate unit within an existing home. Decision
I find that the evidence establishes clearly that this was a shared flatting situation. The relationship between Mr Thapa and [Flatmate 1] was not that of landlord and tenant, rather, it was that of flatmate and flatmate. The parties have each had 3 DC Christchurch COV 2010 0092030, 14 September 2010, at[14] 4 DC Auckland, TT 790/93, 12 November 2003 5 [2020] NZTT North Shore 4277894 6 [2020] NZ TT North Shore 4261603, 4268721 7 [2021] NZTT North Shore 4298016, 4297675 8 [2021] NZTT Waitakere 4209883 occupation of their own bedrooms of an apartment, sharing facilities in the usual way of flatmates.
I endeavoured to explain the issues to Mr Thapa during the course of the hearing and suggested that the appropriate course would be to re-commence his claim in the disputes tribunal.
I did not contact [The landlord/s] at any time during the hearing because Mr Thapa made it very clear he did not want me to do so. He said that [The landlord/s] was his own landlord and he did not want her involved.
I did not contact [Flatmate 1] because Mr Thapa did not name him in the application as the respondent, and he therefore would have had no notice of the hearing.
The Tribunal does not have jurisdiction to hear this claim.

Order

By declaration, the agreement between Sidhant Thapa and [Flatmate 1] in relation to the premises at [Tenancy address suppressed] is not a residential tenancy and is therefore not subject to the Residential Tenancies Act 1986.

The Tenancy Tribunal does not have jurisdiction to hear this case.

The application is dismissed.

Suppression is ordered with respect to [The landlord/s]’s name, given Mr Thapa wrongfully named his own landlord as the respondent and given Mr Thapa has not been successful against [The landlord/s].

Reasons

A preliminary question arises in this case, namely, whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 (RTA).

Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then I cannot proceed to hear the case. The evidence

Mr Thapa is the head tenant of [The landlord/s]. This was confirmed by evidence provided by [The landlord/s]. He rents the premises from [The landlord/s]. The premises are an apartment which comprises 3 bedrooms. One is occupied by Mr Thapa. The other was occupied by [Flatmate 1]. A third bedroom was occupied by another tenant.

[Flatmate 1] has vacated the premises causing damage and giving rise to other claims that Mr Thapa has against him. A written agreement was allegedly prepared recording the agreement between Mr Thapa and [Flatmate 1], but this was not produced. The law and discussion

I explained to Mr Thapa that 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) of the Act).

If the parties are in a flatting situation then I do not have jurisdiction. The issue that I must determine is whether the relationship was a flat sharing agreement of premises shared with the applicant. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.

There are a number of previous cases that have come before the Tenancy Tribunal and the Courts where the question of whether an agreement is a flat sharing agreement or not has been considered. In 2021, the issue was considered in the High Court in Harding v Caroto, 1 where a self-contained unit within a larger home occupied by the landlord was found to be separate residential premises.

In Whitelock v McConway, 2 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) 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. 1 CIV-2021-404-000378 [2021] NZHC 1265. The High Court confirmed here that there can be “premises” within premises. 2 DC Christchurch, C IV 2010 0092030,

In Watson v Watson, 3 the exclusion in s 5(1)(n) 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 4 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.

The Tribunal has found that the exclusion in s 5(1)(n) did not apply in: a) Nie v Zhao, 5 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, 6 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 7 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. d) McCaughan v Nasseri, 8 where there was a downstairs self-contained separate unit within an existing home. Decision

I find that the evidence establishes clearly that this was a shared flatting situation. The relationship between Mr Thapa and [Flatmate 1] was not that of landlord and tenant, rather, it was that of flatmate and flatmate. The parties have each had 3 DC Christchurch COV 2010 0092030, 14 September 2010, at[14] 4 DC Auckland, TT 790/93, 12 November 2003 5 [2020] NZTT North Shore 4277894 6 [2020] NZ TT North Shore 4261603, 4268721 7 [2021] NZTT North Shore 4298016, 4297675 8 [2021] NZTT Waitakere 4209883 occupation of their own bedrooms of an apartment, sharing facilities in the usual way of flatmates.

I endeavoured to explain the issues to Mr Thapa during the course of the hearing and suggested that the appropriate course would be to re-commence his claim in the disputes tribunal.

I did not contact [The landlord/s] at any time during the hearing because Mr Thapa made it very clear he did not want me to do so. He said that [The landlord/s] was his own landlord and he did not want her involved.

I did not contact [Flatmate 1] because Mr Thapa did not name him in the application as the respondent, and he therefore would have had no notice of the hearing.

The Tribunal does not have jurisdiction to hear this claim.

Tenancy Tribunal case 4676151 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4676151 — 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