What was Tenancy Tribunal case 4681671 about?

The tribunal order states: By declaration, the agreement between [The landlord/s], [The tenant/s]

How much money was awarded in case 4681671?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4681671?

The primary dispute was 14-day notice. Related themes: Cleanliness, Boarding House.

Where can I read the official tribunal order for case 4681671?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9555196-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4681671 about?

The tribunal order states: By declaration, the agreement between [The landlord/s], [The tenant/s]

How much money was awarded in case 4681671?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4681671?

The primary dispute was 14-day notice. Related themes: Cleanliness, Boarding House.

Where can I read the official tribunal order for case 4681671?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9555196-Tenancy_Tribunal_Order.pdf.

19 Woodpecker Street, Lake Hawea, RD 2, Lake Hawea Tenancy Tribunal Case 4681671 — 14-day notice

Order

By declaration, the agreement between [The landlord/s], [The tenant/s] and [The tenant/s] in relation to the premises at 19 Woodpecker Street, Lake Hawea, Queenstown 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 application
The Bond Centre is to pay the bond of $800.00 (6335373-003) to [The tenant/s] and [The tenant/s] immediately.
The Applicant will need to pursue the matter before the Disputes Tribunal should he wish to do so.

Reasons

The landlord attended the hearing by teleconference. There was no appearance from the respondents.
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.
Mr Caudwell is the head tenant of the respondent. He is also the owner of the house. This was confirmed by written Agreement and also during the hearing. The premises consist of a 3-bedroom house. Mr Caudwell occupies the master bedroom with ensuite. The two respondents occupied the remaining two bedrooms.
On 20 January 2020 Mr Young signed a ‘Tenancy Agreement’ with Mr Caudwell. On 4 March 2020 Mr Mowat signed a ‘Tenancy Agreement’ with Mr Caudwell.
The terms of both agreements were identical.
The wording of both agreements was as follows: a. The tenant has his own bedroom with shared bathroom, kitchen and lounge facilities b. Bond is 2x weeks in advance and 2x weeks bond which will be $800.00. One of the weeks in advance will be taken off the week of the 20 th and the second week will be used as the last week of rent or paid back to the tenant once tenant has moved out if the last week has been paid. c. At the end of this agreement the head tenant will return the bond to the flatmate. The head tenant can deduct from the bond any cost which is outstanding and is the responsibility of the flatmate. d. Power and internet are divided between all tenants in the house. e. This agreement can be terminated by 14 days’ notice given by either party in writing f. Bedroom and bathrooms must be kept tidy and ventilated daily g. Tenants must help in shared duties such as: gardening, mowing the lawns, putting out rubbish and recycling and general house cleaning h. In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.
Mr Young and Mr Mowat have long since vacated the premises. The applicant says that they vacated owing rent. There is also a damage claim component.
There is an issue as to whether or not this is a flatting type arrangement and if the premises continued to be used principally as a place of residence by the landlord or the landlord’s family and thus excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA)).
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 Whitelock v McConway 1 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.
Section 5(1)(n) RTA specifically excludes arrangements, “where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
The word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and a landlord. The word is no more than a convenient label reflecting a functional reality; and it remains necessary to ascertain the legal nature of the relationship on the basis of the evidence.
A useful analysis of the term “flatmates” is found in the District Court decision of Musson v Dobrisek DC Lower Hutt CIV-2006- 032-36, 5 May 2006 where the landlord considered himself to be the “head tenant” and that he rented the other rooms to others whom he considered to be “flatmates”.
On the issue of whether the legal relationship between a head tenant and the other occupants were flatmates of the head tenant, Judge Broadmore stated (at [22]): “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.”
Some of the factors to take into account when determining the issue include: a. The person to whom the other tenants pay the rent, in this case, the landlord or the owner; b. The understanding that exists between the parties; c. When each tenant occupied the premises and on whose authority. 1 DC Christchurch, C IV 2010 0092030
I find that the evidence establishes clearly that this was a shared flatting situation. The relationship between the applicant and Mr Young and Mr Mowat was not that of landlord and tenant, rather flatmates. The parties have each had occupation of their own bedrooms of a house, sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates, with the respondents being liable to pay the Owner, and the parties sharing common living areas. I am satisfied that the living arrangement was a flatting type agreement and excluded from the terms of the RTA. The exception to the RTA under section 5(1)(n) applies.
The appropriate course would be for the applicant to re-commence his claim in the Disputes Tribunal, should he wish to continue with this. The applicant has previously filed an application with the Disputes Tribunal. That Tribunal has the jurisdiction to hear and determine this dispute between the parties.
The Tenancy Tribunal does not have jurisdiction to hear this claim.
Because I have declined jurisdiction, I am also ordering the return of the bond to the tenants. In the absence of a valid claim bond money legally belongs to the respondents. There is no justification for holding this money and accordingly should be returned.

Order

By declaration, the agreement between [The landlord/s], [The tenant/s] and [The tenant/s] in relation to the premises at 19 Woodpecker Street, Lake Hawea, Queenstown 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 application
The Bond Centre is to pay the bond of $800.00 (6335373-003) to [The tenant/s] and [The tenant/s] immediately.
The Applicant will need to pursue the matter before the Disputes Tribunal should he wish to do so.

Reasons

The landlord attended the hearing by teleconference. There was no appearance from the respondents.
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.
Mr Caudwell is the head tenant of the respondent. He is also the owner of the house. This was confirmed by written Agreement and also during the hearing. The premises consist of a 3-bedroom house. Mr Caudwell occupies the master bedroom with ensuite. The two respondents occupied the remaining two bedrooms.
On 20 January 2020 Mr Young signed a ‘Tenancy Agreement’ with Mr Caudwell. On 4 March 2020 Mr Mowat signed a ‘Tenancy Agreement’ with Mr Caudwell.
The terms of both agreements were identical.
The wording of both agreements was as follows: a. The tenant has his own bedroom with shared bathroom, kitchen and lounge facilities b. Bond is 2x weeks in advance and 2x weeks bond which will be $800.00. One of the weeks in advance will be taken off the week of the 20 th and the second week will be used as the last week of rent or paid back to the tenant once tenant has moved out if the last week has been paid. c. At the end of this agreement the head tenant will return the bond to the flatmate. The head tenant can deduct from the bond any cost which is outstanding and is the responsibility of the flatmate. d. Power and internet are divided between all tenants in the house. e. This agreement can be terminated by 14 days’ notice given by either party in writing f. Bedroom and bathrooms must be kept tidy and ventilated daily g. Tenants must help in shared duties such as: gardening, mowing the lawns, putting out rubbish and recycling and general house cleaning h. In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.
Mr Young and Mr Mowat have long since vacated the premises. The applicant says that they vacated owing rent. There is also a damage claim component.
There is an issue as to whether or not this is a flatting type arrangement and if the premises continued to be used principally as a place of residence by the landlord or the landlord’s family and thus excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA)).
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 Whitelock v McConway 1 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.
Section 5(1)(n) RTA specifically excludes arrangements, “where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
The word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and a landlord. The word is no more than a convenient label reflecting a functional reality; and it remains necessary to ascertain the legal nature of the relationship on the basis of the evidence.
A useful analysis of the term “flatmates” is found in the District Court decision of Musson v Dobrisek DC Lower Hutt CIV-2006- 032-36, 5 May 2006 where the landlord considered himself to be the “head tenant” and that he rented the other rooms to others whom he considered to be “flatmates”.
On the issue of whether the legal relationship between a head tenant and the other occupants were flatmates of the head tenant, Judge Broadmore stated (at [22]): “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.”
Some of the factors to take into account when determining the issue include: a. The person to whom the other tenants pay the rent, in this case, the landlord or the owner; b. The understanding that exists between the parties; c. When each tenant occupied the premises and on whose authority. 1 DC Christchurch, C IV 2010 0092030
I find that the evidence establishes clearly that this was a shared flatting situation. The relationship between the applicant and Mr Young and Mr Mowat was not that of landlord and tenant, rather flatmates. The parties have each had occupation of their own bedrooms of a house, sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates, with the respondents being liable to pay the Owner, and the parties sharing common living areas. I am satisfied that the living arrangement was a flatting type agreement and excluded from the terms of the RTA. The exception to the RTA under section 5(1)(n) applies.
The appropriate course would be for the applicant to re-commence his claim in the Disputes Tribunal, should he wish to continue with this. The applicant has previously filed an application with the Disputes Tribunal. That Tribunal has the jurisdiction to hear and determine this dispute between the parties.
The Tenancy Tribunal does not have jurisdiction to hear this claim.
Because I have declined jurisdiction, I am also ordering the return of the bond to the tenants. In the absence of a valid claim bond money legally belongs to the respondents. There is no justification for holding this money and accordingly should be returned.

Tenancy Tribunal case 4681671 — 14-day notice at 19 Woodpecker Street, Lake Hawea, RD 2, Lake Hawea

At a glance

Tenancy Tribunal case 4681671 — 14-day notice at 19 Woodpecker Street, Lake Hawea, RD 2, Lake Hawea

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions