What was Tenancy Tribunal case 4762144 about?

The tribunal order states: This was not a service tenancy.

How much money was awarded in case 4762144?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4762144?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4762144?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9996017-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4762144 about?

The tribunal order states: This was not a service tenancy.

How much money was awarded in case 4762144?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4762144?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4762144?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9996017-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4762144 — Boarding House

Order

This was not a service tenancy.
The relationship between the parties was that of flatmates and not of landlord and tenant.
The Tenancy Tribunal does not have jurisdiction to hear either party’s claims.

Reasons

Both parties attended the hearing by telephone.
For convenience, throughout this Order, I will refer to the parties as the tenant and the landlord.
The tenant had indicated that he wanted a support person to attend the hearing, despite it being a telephone hearing. At the start of the hearing, the support person was telephoned twice but did not answer. After making enquiries of the landlord about his property and the arrangements with the tenant, I asked the tenant for his response. He did not reply. Eventually he asked that his support person be telephoned again. This time he answered.
After explaining once again that a support person cannot speak at a hearing, the tenant asked if his support person could speak on his behalf. Despite the Tribunal not having received any request prior to the hearing so that the landlord could be advised that the tenant was to have a representative and to allow the landlord an opportunity to have a representative also, permission was granted to the tenant and his support person spoke on the tenant’s behalf. His submissions and evidence were in accordance with the submissions and evidence in the tenant’s application. The landlord had no difficulty in representing himself and was not placed at any disadvantage by the tenant having a representative speak on his behalf.
The hearing was to determine whether the Tenancy Tribunal has jurisdiction to hear the parties’ applications. Background
No written agreement was signed by the parties. When requested, after the tenant had vacated the property, the landlord prepared an agreement called a “Flat/house – sharing agreement”. Even if signed by both parties, its terms would not determine the nature of the relationship between the parties. That is a matter of fact for the decision of the Tribunal based upon the unique circumstances of the case.
The landlord provided evidence in the form of a Tenancy Agreement that he rented the property from its owner who is unrelated to the landlord and is not involved in the landlord’s business. He gave evidence that: a. The flatmates paid their rent into an account in the landlord’s name. The landlord paid the rent directly to the owner. b. If a flatmate did not pay their rent on time, he was responsible for paying the rent in full to the owner. c. Only the landlord had contact with the owner. Any repairs were arranged by the landlord directly with the owner. Arrangements for regular inspections by the owner were made directly with the landlord. d. Each flatmate had exclusive use of a bedroom and that all other facilities were shared. e. The tenant’s room contained no cooking or washing facilities. f. All the utilities were in the landlord’s name. He collected a share from each of the flatmates. g. He had shown the property to the tenant by video link on two occasions and had explained to the tenant the nature of his occupation of the property prior to the tenant emigrating. h. He had offered the tenant the option of moving out and finding his own accommodation. i. He decides who lives in the property and whether they pay rent to him. j. He decides who stays casually at the property without paying rent, such as his mother. k. The property was occupied by himself and his partner as their principal place of residence. The law
Section 4 RTA provides that the Tenancy Tribunal has jurisdiction over “every tenancy for residential purposes”, subject to the exemptions in section 5 RTA.
A “tenancy” means the right to occupy “residential premises” in consideration for rent. Residential premises are any premises used or intended for occupation as a place of residence. See section 2 RTA.
The parties agree that the landlord rented part of the premises to the tenant for rent and that the property was a residential property. A tenancy for residential purposes therefore existed.
The Tenancy Tribunal therefore has jurisdiction unless one of the exemptions in section 5(1) RTA applies.
Section 5(1)(n) RTA provides that the RTA does 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 owner’s family.
This exclusion may apply to the situation where premises are let to a person who then shares the premises with someone else to whom he or she sublets. A boarder or flatmate is a person who lives with the owner of the premises or legal occupier and who has a licence from the owner or legal occupier to live there.
A useful analysis of the term “flatmate” 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.”
The Court concluded (at paragraph 24): “It follows that the use of the word ‘flatmate’ does not in itself define the nature of the legal relationship between a flatmate and any 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.”
Concerning section 5(1)(n) of the Act, the Court said “principally” referred to the main use of the premises. The question to be asked was whether the principal use of the premises was as a place of residence by the landlord (paragraph 39): “I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(1)(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed-sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord’s family.” Service tenancy
The tenant claimed that the relationship was that of a service tenancy because he claimed it was a requirement of his employment in a business owned by a company of the landlord’s that he lived in the property.
Service tenancy is defined in section 2 of the Residential Tenancies Act 1986 (“RTA”): “service tenancy means a tenancy granted under a term of, or otherwise as an incident of, a contract of service or a contract for services between the landlord as employer and the tenant as employee or contractor, whether or not a separate tenancy agreement is concluded in writing between the parties, and whether or not any rent is payable for the tenancy; and includes— (a) any tenancy of that kind granted under or in accordance with any enactment; and (b) any tenancy of that kind granted by a company to an employee or contractor of an associated company (within the meaning of subsection (2)); and (c) any tenancy granted by the Armed Forces to any person subject to the Armed Forces Discipline Act 1971”.
The Employment Agreement between the tenant and the landlord’s company provided: “The employer will help find a suitable accommodation for the employee during the term of the employment. The accommodation will be a house and the employee may be sharing the house with fellow employees who will be working with them. The employee will cover all associated costs, including and not limited to rent, utilities and general maintenance of the property.”
This clause does not impose an obligation on the employer to provide accommodation to the tenant. It provides that the landlord will help the employee to find accommodation. It was not a condition or term of the tenant’s employment that he lived in the property. Nor was it necessary for the employee to live in the property as the landlord’s business was operated at some distance from the property.
The landlord confirmed that living in the property was not a condition of the tenant’s employment by his company. The tenancy was not therefore granted because the landlord was required to grant the tenancy under a term of the employment agreement.
The landlord explained that the employment agreement contained this provision as his employee was emigrating to this country with few resources of his own and he wanted him to be assured that his immediate accommodation needs would be met. He gave evidence that the other two new employees who came at the same time as the tenant continue to reside in the property and are free to leave at any time. He advised that he and his partner have had a number of people living with them as flatmates over the years. Decision
The landlord has persuaded the Tribunal that this was not a service tenancy. The landlord was not required to provide the tenancy under a term of the employment agreement.
The landlord has a tenancy agreement with the owner. He has entered into flatmate arrangements with other persons, some of whom, from time to time, have been his employees. Other flatmates have not been his employees. Some have been his family members, some have been students.
The landlord had direct responsibility to the owner for all rent, repairs and communication. The tenant was not responsible to the owner for his rent or any damage to the property. He was responsible to the landlord. The landlord decided who lived at the property and on what terms.
The property is the landlord’s principal place of residence and so the exclusion to the Tribunal’s jurisdiction in section 5(n) RTA applies.
The arrangement between the parties was that of flatmates and the Tenancy Tribunal does not have jurisdiction. Name 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.
This application has been dismissed for lack of jurisdiction and so naming the parties has no public interest.
It is therefore appropriate to order suppression of the parties’ names and identifying details.

Tenancy Tribunal case 4762144 — Boarding House

At a glance

Tenancy Tribunal case 4762144 — Boarding House

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