What was Tenancy Tribunal case 4743592 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4743592?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743592?

The dispute type was not classified.

Where can I read the official tribunal order for case 4743592?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9796304-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4743592 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4743592?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743592?

The dispute type was not classified.

Where can I read the official tribunal order for case 4743592?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9796304-Tribunal_Order_Redacted.pdf.

suppressed] Tenancy Tribunal Case 4743592 — Tenancy dispute

Order

The application is dismissed.
By way of declaration, it is noted that the Tenancy Tribunal does not have jurisdiction over the relationship or agreement between the parties.
The Tribunal orders suppression of both parties’ names and identifying details.

Reasons

Both parties attended the hearing which was held by teleconference and set down to establish jurisdiction.
[The applicant/s] lived in [The respondent/s] home from October 2020 until December 2023. Initially, [The respondent/s] lived with her, and they signed a flat/house sharing agreement to commence their relationship. However, shortly thereafter [The respondent/s] had to relocate for personal reasons. That relocation was intended to be short term however lengthened for various reasons.
During this time other people occupied [The respondent/s] room (this is a 2 bedroomed home) on various types of agreements. Several had formal tenancy agreements pursuant to the Residential Tenancies Act 1986 (“RTA”), others had house sharing agreement.
In May 2022 [The respondent/s] offered [The applicant/s] a “proper tenancy agreement” but she replied that she would like her usual arrangements. They did subsequently sign a slightly different document to their previous documents, this time entitled “tenancy agreement” (“the May agreement”). The May agreement is the relevant agreement as it is the parties’ most recent agreement, and the conflict that is the subject of [The applicant/s] application occurred under that agreement.
In November 2022 [The respondent/s] moved back into the property and the two lived there together until the occupation ended on 1 December 2023.
[The applicant/s] perspective is that she always considered herself a tenant and [The respondent/s] her landlord. She is of the view that the arrangement they had was one of a tenancy.
[The respondent/s] perspective is that she always drafted the document each person in her home particularly wanted. Some of them wanted a tenancy agreement so she did that for them, but [The applicant/s] was different. She says their relationship started as a boarding relationship and continued on essentially those terms because the understanding always was that she would return to live with her.

Does the Tenancy Tribunal have jurisdiction?

The Tribunal’s general jurisdiction, under s77(1) RTA is 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.”
Section 2 RTA provides that a “landlord” and “tenant” are respectively grantor and grantee of a tenancy. “...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 any enactment...” rent, means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond”
Section 5 of the RTA details exclusions to the RTA. S5(n) specifically excludes arrangements where the premises are being used for residence by the landlord. Such a situation may be one where a tenant or owner has flatmates to help them pay the rent/mortgage.
In the District Court decision of Musson v Dobrisek, Catley and Low (CIV 2006- 032-36, Judge Broadmore stated, while excluding flatmate relationships from being under the jurisdiction of the Tenancy Tribunal, that “...the use of the word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and any landlord”....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."
Accordingly, The Tribunal does not have jurisdiction to hear disputes between owners and flat mates, only between tenants and landlords.
In reaching my finding, I must take into account the fact the parties have recorded the nature of their relationship in writing in the May agreement. This is evidence of their contractual intent. In the May agreement, they have expressly agreed that the relationship was one of house sharing.
It is important to note however that whilst this may be evidence of intent, the fact that the parties chose to label their relationship a “tenancy agreement” is not determinative of the issue. 1 The issue is whether or not the relationship was, in substance, a house sharing agreement, despite the label the parties have attached to the agreement. 2
Having considered the submissions of the parties, I am satisfied that this arrangement between them commenced as a boarding relationship and as such one that was exempt from the RTA. The room was advertised for a boarder and when [The applicant/s] moved in, [The respondent/s] lived there and that was to be the ongoing relationship.
The terms of that arrangement then suited them both to continue, even when [The respondent/s] moved out. In May 2022 [The applicant/s] was offered a formal tenancy arrangement but she wished to continue on her current terms. As they both got on well, they had a relatively casual arrangement at that time.
The May agreement contains several elements that are incongruous with a standard tenancy agreement under the RTA. For example: a. The utilities costs were to be shared between the occupants. This is a feature usually of flatmate situations rather than tenancies. b. The terms ‘tenant’ and ‘flatmate’ are used interchangeably. c. Clause 12 nominates the Disputes Tribunal as the relevant dispute mechanism. This was a consistent clause in all their agreements. d. The RTA is not mentioned.
At the time the May agreement was drafted, [The respondent/s] was aware of the difference between a boarding situation and a tenancy under the RTA because 1 see Watson v Watson DC Christchurch CIV 2010 – 009 – 002030, Judge Neave, at [9] and [12]. 2 See Musson v Dobrisek and others DC Lower Hutt, CIV 2006 032 36, 16.2.06, at [24]. she was using tenancy agreements for the other occupants. For this reason, she specifically asked [The applicant/s] which agreement she would like.
To be a valid contract, the key elements of a contract must be present, that is an offer, unequivocal acceptance, agreement on fundamental terms and intention to create legal obligations. I consider that both parties intentions in signing the May agreement were to have a different relationship to the other occupants on the basis that eventually [The respondent/s] would be returning, and they would live together.
I am not satisfied that it is established that the May agreement changed the legal statues of the existing relationship.
Accordingly, I consider that by the May agreement, the parties intended to have a different relationship than a tenancy agreement under the RTA. However, had the situation remained whereby [The applicant/s] was living with another person who was subject to a tenancy agreement, I may well have considered that she had a quasi-tenancy agreement herself. But that was not the situation.
[The respondent/s] moved back in in November 2022 and the parties lived together for a year under the terms of the May agreement. When they were living together, this was clearly a boarding relationship. They shared utilities and duties, and the basis for their relationship was that this was [The respondent/s] home and [The applicant/s] was residing there with her. They shared the communal areas and the only areas over which [The applicant/s] had sole authority were her bedroom and ensuite.
For these reasons, but most importantly the parties’ intentions, I find that they did not have a residential tenancy as defined in the RTA. Accordingly, the Tenancy Tribunal does not have jurisdiction over their relationship and the claim must be dismissed.
As this arrangement is excluded by the RTA, any disputes arising from this relationship should be determined in the more appropriate jurisdiction of the Disputes Tribunal. Therefore, if [The applicant/s] wishes to progress her claims, she would need to file an application in the Disputes Tribunal. Suppression
Given that neither party was clearly aware of the issues as to jurisdiction, it is not proportionate that their names be published. Accordingly, pursuant to s95A of the RTA, I direct that both party details be suppressed.

Reasons

Both parties attended the hearing which was held by teleconference and set down to establish jurisdiction.

[The applicant/s] lived in [The respondent/s] home from October 2020 until December 2023. Initially, [The respondent/s] lived with her, and they signed a flat/house sharing agreement to commence their relationship. However, shortly thereafter [The respondent/s] had to relocate for personal reasons. That relocation was intended to be short term however lengthened for various reasons.

During this time other people occupied [The respondent/s] room (this is a 2 bedroomed home) on various types of agreements. Several had formal tenancy agreements pursuant to the Residential Tenancies Act 1986 (“RTA”), others had house sharing agreement.

In May 2022 [The respondent/s] offered [The applicant/s] a “proper tenancy agreement” but she replied that she would like her usual arrangements. They did subsequently sign a slightly different document to their previous documents, this time entitled “tenancy agreement” (“the May agreement”). The May agreement is the relevant agreement as it is the parties’ most recent agreement, and the conflict that is the subject of [The applicant/s] application occurred under that agreement.

In November 2022 [The respondent/s] moved back into the property and the two lived there together until the occupation ended on 1 December 2023.

[The applicant/s] perspective is that she always considered herself a tenant and [The respondent/s] her landlord. She is of the view that the arrangement they had was one of a tenancy.

[The respondent/s] perspective is that she always drafted the document each person in her home particularly wanted. Some of them wanted a tenancy agreement so she did that for them, but [The applicant/s] was different. She says their relationship started as a boarding relationship and continued on essentially those terms because the understanding always was that she would return to live with her.

Does the Tenancy Tribunal have jurisdiction?

The Tribunal’s general jurisdiction, under s77(1) RTA is 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.”

Section 2 RTA provides that a “landlord” and “tenant” are respectively grantor and grantee of a tenancy. “...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 any enactment...” rent, means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond”

Section 5 of the RTA details exclusions to the RTA. S5(n) specifically excludes arrangements where the premises are being used for residence by the landlord. Such a situation may be one where a tenant or owner has flatmates to help them pay the rent/mortgage.

In the District Court decision of Musson v Dobrisek, Catley and Low (CIV 2006- 032-36, Judge Broadmore stated, while excluding flatmate relationships from being under the jurisdiction of the Tenancy Tribunal, that “...the use of the word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and any landlord”....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."

Accordingly, The Tribunal does not have jurisdiction to hear disputes between owners and flat mates, only between tenants and landlords.

In reaching my finding, I must take into account the fact the parties have recorded the nature of their relationship in writing in the May agreement. This is evidence of their contractual intent. In the May agreement, they have expressly agreed that the relationship was one of house sharing.

It is important to note however that whilst this may be evidence of intent, the fact that the parties chose to label their relationship a “tenancy agreement” is not determinative of the issue. 1 The issue is whether or not the relationship was, in substance, a house sharing agreement, despite the label the parties have attached to the agreement. 2

Having considered the submissions of the parties, I am satisfied that this arrangement between them commenced as a boarding relationship and as such one that was exempt from the RTA. The room was advertised for a boarder and when [The applicant/s] moved in, [The respondent/s] lived there and that was to be the ongoing relationship.

The terms of that arrangement then suited them both to continue, even when [The respondent/s] moved out. In May 2022 [The applicant/s] was offered a formal tenancy arrangement but she wished to continue on her current terms. As they both got on well, they had a relatively casual arrangement at that time.

The May agreement contains several elements that are incongruous with a standard tenancy agreement under the RTA. For example: a. The utilities costs were to be shared between the occupants. This is a feature usually of flatmate situations rather than tenancies. b. The terms ‘tenant’ and ‘flatmate’ are used interchangeably. c. Clause 12 nominates the Disputes Tribunal as the relevant dispute mechanism. This was a consistent clause in all their agreements. d. The RTA is not mentioned.

At the time the May agreement was drafted, [The respondent/s] was aware of the difference between a boarding situation and a tenancy under the RTA because 1 see Watson v Watson DC Christchurch CIV 2010 – 009 – 002030, Judge Neave, at [9] and [12]. 2 See Musson v Dobrisek and others DC Lower Hutt, CIV 2006 032 36, 16.2.06, at [24]. she was using tenancy agreements for the other occupants. For this reason, she specifically asked [The applicant/s] which agreement she would like.

To be a valid contract, the key elements of a contract must be present, that is an offer, unequivocal acceptance, agreement on fundamental terms and intention to create legal obligations. I consider that both parties intentions in signing the May agreement were to have a different relationship to the other occupants on the basis that eventually [The respondent/s] would be returning, and they would live together.

I am not satisfied that it is established that the May agreement changed the legal statues of the existing relationship.

Accordingly, I consider that by the May agreement, the parties intended to have a different relationship than a tenancy agreement under the RTA. However, had the situation remained whereby [The applicant/s] was living with another person who was subject to a tenancy agreement, I may well have considered that she had a quasi-tenancy agreement herself. But that was not the situation.

[The respondent/s] moved back in in November 2022 and the parties lived together for a year under the terms of the May agreement. When they were living together, this was clearly a boarding relationship. They shared utilities and duties, and the basis for their relationship was that this was [The respondent/s] home and [The applicant/s] was residing there with her. They shared the communal areas and the only areas over which [The applicant/s] had sole authority were her bedroom and ensuite.

For these reasons, but most importantly the parties’ intentions, I find that they did not have a residential tenancy as defined in the RTA. Accordingly, the Tenancy Tribunal does not have jurisdiction over their relationship and the claim must be dismissed.

As this arrangement is excluded by the RTA, any disputes arising from this relationship should be determined in the more appropriate jurisdiction of the Disputes Tribunal. Therefore, if [The applicant/s] wishes to progress her claims, she would need to file an application in the Disputes Tribunal. Suppression

Given that neither party was clearly aware of the issues as to jurisdiction, it is not proportionate that their names be published. Accordingly, pursuant to s95A of the RTA, I direct that both party details be suppressed.

Tenancy Tribunal case 4743592 — Tenancy dispute at suppressed]

At a glance

Claims & awards

Tenancy Tribunal case 4743592 — Tenancy dispute at suppressed]

At a glance

Claims & awards

Order

Reasons

Does the Tenancy Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Does the Tenancy Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Frequently asked questions