What was Tenancy Tribunal case 4713369 about?

The tribunal order states: By way of declaration;

How much money was awarded in case 4713369?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4713369?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4713369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9777775-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4713369 about?

The tribunal order states: By way of declaration;

How much money was awarded in case 4713369?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4713369?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4713369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9777775-Tribunal_Order_Redacted.pdf.

77 Allum Street, Kohimarama, Auckland 1071, Bottom Unit Tenancy Tribunal Case 4713369 — Boarding House

Order

By way of declaration; a. The House – Sharing Agreement between [The subtenant] and [The sublandlord] dated 9 January 2023 is a residential tenancy agreement that creates a sub-tenancy of part of the subject premises, with [The sublandlord] as sublandlord and [The subtenant] as subtenant; b. The Residential Tenancies Act 1986 (RTA) is excluded from applying under s.5(1)(n) as the principal use of the premises is as a place of residence for the landlord. The Tribunal has no jurisdiction to hear and determine the application filed with it.
The tenant application is dismissed.

Reasons

Both parties attended the hearing, conducted via teleconference. The purpose of this hearing was to consider the issue of this Tribunal’s jurisdiction only.
The position of [The sublandlord] is that the Tribunal does not have jurisdiction as this is a dispute between flatmates. The position of [The subtenant] is that it is a tenancy and that the correct forum for hearing the issues is the Tenancy Tribunal.
The issues to be determined by the Tribunal are; a. Is the relationship between the parties one of landlord and tenant in a residential tenancy as defined by the Residential Tenancies Act 1986 (“RTA”)? b. If the answer is yes, is the Tribunal’s jurisdiction excluded by section 5(1)

RTA?

Background

[The subtenant] became what for present purposes I will call a “tenant” at the premises on 14 January 2023. The premises was advertised on Trade Me under Flatmates. [The sublandlord] has been a tenant at the premises for some 11 years and had a number of similar arrangements over this period, with the agreement of her landlord.
The premises are a two-storey building. The ground floor consists of a self- contained apartment in which [The subtenant] lived. The upper storey is a self- contained area in which [The sublandlord] resided. The outdoor and carpark area was used jointly with designated areas for each. There was an interior stairwell from the downstairs unit giving access to the upstairs unit. [The subtenant] said in evidence that he never held a key to the interior stair well or used it to go upstairs. [The sublandlord] gained access to his unit via an exterior entrance. The parties essentially lived separate existences at the premises. The door between the two floors was not lockable but a slide latch from either side could secure it.
On 9 January 2023 the parties entered into a “House sharing Agreement”. [The sublandlord] was of the belief that a Tenancy Agreement between her and [The subtenant] was not appropriate as she alone was a tenant under a tenancy agreement from her landlord. She never intended [The subtenant] be added as a second tenant to her agreement.
The House Sharing Agreement signed by the parties provides; “House sharing agreements between tenants and Housemates are not covered under the Residential Tenancies Act 1986. In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.”
The parties seemed in agreement as to their living arrangements. [The subtenant] had exclusive use of the downstairs self-contained unit. [The sublandlord] had exclusive use of the upstairs apartment. Each apartment had separate cooking facilities, toilet and shower. Jurisdiction
Does the Tribunal have jurisdiction? 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 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 that is [The sublandlord].
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.
Significantly in this case, 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 definition does not limit a “landlord” to being the owner. It would therefore be possible for [The sublandlord] to be what is called a “sublandlord” without being the owner.
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; • The respective parties have exclusive possession of their defined area. • 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. • [The subtenant] pays “rent” to [The sublandlord]. • A “bond” is paid to and is held by [The sublandlord]. • The House sharing agreement refers to [The sublandlord] as the “head tenant”, the payment of “rent” and a “bond”.
Factors which suggest that this is not a tenancy; • There is a house sharing agreement. • The advertisement placed by [The sublandlord] looking for a person to live at the house referred to flatting and not a tenancy, albeit highlighting the self-contained aspect. • There is only one electricity meter for the premises. • Utility costs were to be shared equally as was internet access.
In the circumstances of this case and the living arrangements as outlined and agreed to by both parties at the hearing, I find that [The sublandlord] meets the definition of a landlord or in this case a “sublandlord”, in that she has leased residential premises to [The subtenant]. [The subtenant] falls within the definition of being a tenant, given that he is the grantee of residential premises. [The subtenant] has the exclusive right to occupy the downstairs unit on the basis of the payment of rent. No other person occupied the downstairs unit or was entitled to occupy that area.
I accept that [The sublandlord]genuinely believed that the arrangement was correctly described as house sharing. I find that [The subtenant] signed the House Sharing Agreement after an onsite visit and discussion between the parties on specific terms, such as the notice to terminate period. I have no evidence to support his contention that this was some interim agreement with a residential tenancy agreement to follow.
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 downstairs unit), rented from the sublandlord. 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. This is not a case where [The subtenant] was only residing in the downstairs unit by way of licence. He had exclusive rights to occupy the downstairs unit.
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.
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. That means the obligations between the tenant and landlord in the RTA certainly apply, notwithstanding the flatmate agreement which on the face of it precludes the RTA applying.
Simply calling something a “house sharing” arrangement, does not make it so. I find after considering the actual arrangements entered into by the parties, as distinct from the title they have assigned to it, that there exists a sub-tenancy of part of the premises with [The sublandlord] as sublandlord and [The subtenant] as subtenant. [The sublandlord]has sub-let part of the premises with the head landlord’s knowledge and consent. This was confirmed by a letter from the landlord.
Having found that, as between [The sublandlord] and [The subtenant], a residential tenancy agreement between landlord and tenant exists, the next matter to consider is whether or not s.5(1)(n) RTA operates to exclude the agreement from the operation of the RTA. Exclusion
Section 5(1)(n) RTA provides that the Act will not apply; “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 owners’ family.”
The premises were not being used as a boarding house.
Were the premises used, during the tenancy principally as a place of residence by the landlord? I have already held in this decision that [The sublandlord]is the sublandlord and so is included in the definition of “landlord”.
The District Court in Musson v Dobrisek DC Lower Hutt, CIV- 2006-032-36, 5 May 2006, held that the correct question for the Tribunal to answer when considering s 5(1)(n) RTA is... “Is the principal use of these premises as a place of residence by the landlord”
In the Musson case, the Court found that the use of the premises was not principally that of a residence for the landlord, as there were 9 bedrooms of which the landlord only used one. It could therefore not be the principal use of the premises.
In Shrouder v Joynt (2-19) NZTT 4191954, the Tribunal held that as the unit occupied by the tenant was on the property where the landlord lived, it was excluded from the jurisdiction of the Tenancy Tribunal and there was no evidence that the parties had intended to contract back into the Act.
In this case, [The sublandlord] as sublandlord, occupies the top floor of the premises and has lived there for approximately 11 years. The lower floor unit was occupied by [The subtenant].
The definition of “principal” in the Concise Oxford English dictionary 11 th edition is “first in order of importance, main.”
I consider that in the circumstances of this case, that the “principal use” is the “main use” or any use which is more than 50%.
Taking into consideration the finding of the District Court in Musson that a landlord using one bedroom out of an available nine bedrooms could not be a principal use of the premises, the question becomes whether a landlord using at least, if not more than, half of the premises is a principal use? Are more of the premises exclusively used by [The sublandlord] than [The subtenant]? Given that the area exclusively used by [The sublandlord] incudes the upper story, side carport and the backyard and clothesline, I find that it is a larger area than the area exclusively used by [The subtenant]. I find that [The sublandlord] held more than 50% of the tenanted exclusive area, means that it is her main or principal use of the premises.
The premises continue to be used during the tenancy principally by the sublandlord as a place of residence and accordingly the RTA does not apply (see s 5(1)(n) RTA). I acknowledge this changed later when “[Flatmate]” also occupied the premises and [The sublandlord] said she was often away for work but I do not consider that alters the above conclusion that this premises was her principal place of residence.
The application is dismissed. The parties are entitled to pursue these matters further in the Disputes Tribunal if they so wish. I would encourage them to revisit the question of what, if any rent is in arrears and revisit a possible settlement agreement before commencing further Tribunal applications. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenant requested suppression in his application. As the more appropriate jurisdiction for this dispute does not make its orders public with the parties named I have applied my own initiative to mirror that here and suppress the parties details.

Tenancy Tribunal case 4713369 — Boarding House at 77 Allum Street, Kohimarama, Auckland 1071, Bottom Unit

At a glance

Tenancy Tribunal case 4713369 — Boarding House at 77 Allum Street, Kohimarama, Auckland 1071, Bottom Unit

At a glance

Claims & awards

Order

Reasons

RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions