What was Tenancy Tribunal case 5017651 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5017651?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5017651?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5017651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11202499-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5017651 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5017651?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5017651?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5017651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11202499-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5017651 — Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The applicants attended by video conference. The applicants were assisted with a mandarin interpreter. The respondent attended by phone. Background
The applicants stayed with the respondent from 14 August 2024 to 19 September 2024.
The applicants have applied for a refund of the balance of the security deposit or bond (“bond”) they paid to the respondent. The bond amount was $760.00. The balance of the bond is $70.00.
The respondent says the applicants were flatmates and not subject to a residential tenancy. Relevant legal considerations
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
In the decision that follows I may not have referred to all the evidence provided, but the parties should know that I have considered all the evidence. Jurisdiction
At the beginning of the hearing the respondent raised that the applicants were flatmates, not tenants.
I explained to the parties that this was an issue that would need to be determined first. 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 the Tribunal cannot proceed to hear the case.
The Tribunal can only consider disputes in relation to residential tenancies which fall within the RTA between a landlord and a tenant or between a landlord and the guarantor of a tenant. See section 77 (1) (a) - (b) of the RTA.
There is a statutory presumption that the RTA will apply to all residential tenancies, unless specifically excluded. See section 4 of the RTA.
The Act sets out several cases which are excluded from the RTA. See section 5 of the RTA.
In this case the respondent claims the exclusion in section 5 (1)(n) applies. This exclusion provides that the RTA will not apply where the premises 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.
Where a party says that the RTA does not apply, that party must establish the facts upon which it is claimed that the RTA does not apply. See section 10 of the RTA. So, in the present case the respondent must prove, on the balance of probabilities that section 5(1)(n) applies.
The issue that I must determine is whether the relationship was a that of flatmates, with the premises being shared by the parties. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply. Definitions in the RTA
Section 2 of the RTA sets out the following relevant definitions: 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. 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 the agreement. residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. 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; and, where appropriate, also includes a former tenancy. premises is defined as including: (a) Any part of any premises; and (b) Any and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises. Relevant cases
There are a number of 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.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.
In Harding v Schellevis & Ors [2021] NZHC Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions. d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
I also consider the definition of “flatmates” set out by the District Court in Musson v Dobrisek CIV-2006-032-36, 5 May 2006, is useful. The Court noted, at paragraph [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.
In Whitelock v McConway, DC Christchurch, CIV 2010 0092030, 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, clearly there was a sharing of facilities and the tenant’s area was not fully self-contained.
In Dempsey v Barnett DC Auckland, TT 790/93, 12 November 2003 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.
Consistent themes running through the cases are: a. the extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry, b. the extent of any free and unimpeded access by the tenant to the premises, c. whether the premises is occupied mainly by the landlord, the nature of the tenant’s area and whether it is fully or partly self-contained and whether it is exclusive.
Ultimately, each case will turn on its facts. It can be helpful but not determinative to look at other cases even where the facts seem similar. That is because no households are the same, the way that the parties interact with each other and the different ways they use the premises will make each case unique. This case
I understand the applicants posted a rental search in a Facebook group, and the respondent contacted one of the applicants who organised the accommodation through Facebook Messenger. Neither party provided any documentation as to the Facebook messages between them. I am unclear what was agreed as to the duration of the stay.
The respondent said she allowed the applicants to stay as guests in her home because there was a lack of accommodation in the area. The address was close to the ski fields and the applicants stayed with the respondent for about a month during the ski season, so they could go skiing.
The parties reached an agreement for the applicants to use two rooms (one used as a bedroom and one used as a living area), the second-floor bathroom and sharing the kitchen and dining and laundry area. The rent, which included utilities and internet, was $190 per person per week. The bond of $720 was paid as were the weekly rent or board payments.
From 14 August 2024 to 7 September 2024 three of the applicants stayed with the respondent and from 8 September 2024 to 19 September 2024 all four applicants stayed at the respondent’s address.
The tenant’s had exclusive use of the upstairs bedroom and a second living area (as flatmates often do) but shared the kitchen, dining room, laundry and driveway. The applicants also had access to the respondent’s bathroom if needed.
The applicant’s cleaned the shared areas, bathrooms, and their own rooms (including washing the bedding) once a week.
The applicants also expected that the respondent would provide “equipment”, which I take to mean chattels, linen, kitchen ware, much like that which is provided in the motel, bed and breakfast, Airbnb or furnished flat. This also indicates a cooperative relationship.
On the morning of their “check-out” (the term used by the applicants in the application form), the applicants met with the respondent and informed her that they would be leaving at a specified time. At the end of their stay the applicants did not clean their bedding. The applicant’s say they were not told they would need to do a final clean or to clean the sheets.
The respondent retained $70 to clean the applicant’s linen but paid the balance of the bond to them.
If the applicants were tenant’s then I consider they should have been aware of the obligation on a tenant to leave a premises reasonably clean and tidy. By not cleaning their sheets the applicant’s have treated this property similar to that of a hotel, motel or bed and breakfast, not a tenancy.
The impression I had during the hearing was that the applicants saw this as short-term accommodation in the respondent’s home and not a residential tenancy. Rent was paid per person like a flatting arrangement.
I find that the evidence establishes that this was a shared flatting situation. I consider the respondent lived in the premises and it was her principal place of residency. I am not satisfied that this was a residential tenancy. The provisions of the RTA therefore do not apply. Contracting into the RTA
While the RTA confirms that certain case become ‘excluded tenancies’, the RTA also confirms that the parties can agree to contract back into the RTA in writing. See section 8 of the RTA. There is no evidence, by way of a written agreement, that the parties in this matter contracted into the RTA. Outcome
By declaration I find this is a case that is excluded from the RTA and the application is dismissed. Filing fee
Because the applicants have not succeeded with the claim, I have not reimbursed the filing fee. Suppression
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. See section 95A of the Residential Tenancies Act 1986
The landlord sought suppression and as she has been successful in defending this claim, I have made an order accordingly.
The applicants sought name suppression. In having regards to the interests of the parties and the public interest, I do not order suppression for the applicants.

Tenancy Tribunal case 5017651 — Cleanliness

At a glance

Tenancy Tribunal case 5017651 — Cleanliness

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