What was Tenancy Tribunal case 5020208 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5020208?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5020208?

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

Where can I read the official tribunal order for case 5020208?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11179314-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5020208 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5020208?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5020208?

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

Where can I read the official tribunal order for case 5020208?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11179314-Tribunal_Order_Redacted.pdf.

suppressed] Tenancy Tribunal Case 5020208 — 14-day notice

Order

The application is dismissed.
By way of declaration: the Residential Tenancies Act 1986 excludes the jurisdiction of the Tenancy Tribunal from deciding these claims.
All party identifying details are to be suppressed from the published order.

Reasons

Both parties attended the hearing which was set down to establish the question of jurisdiction.
The parties had an agreement which allowed [The tenant/s] to reside in the home [The landlord/s] own. A dispute has now arisen regarding the bond and costs after a short period of occupation. However, before that can be determined, the issue of jurisdiction must be decided. This is because the respondents contend theirs was not a tenancy to which the Residential Tenancies Act 1986 (RTA) applies.
The parties signed an agreement named the Room Rental Agreement on 3- August and 2 September after [The tenant/s] answered a flatmate wanted advertisement on TradeMe. [The tenant/s] moved into the home on 22 September and moved out two days later due to issues with the property.
[The tenant/s] filed her claim in the Tenancy Tribunal after receiving advice, although accepts she isn’t sure which is the correct jurisdiction. She says the areas the landlords reside in is separate to the areas their tenants live in, they signed an agreement referring to themselves as landlords and they lodged her bond with the Bond Centre. Accordingly, she seeks the Tenancy Tribunal determine the dispute.
[The landlord/s] contend that this is their home, they have a shared access to all areas of the house (other than bedrooms) with anyone else living in the home. They have flatmates stay to help with the mortgage but essentially the premise is their home. [Landlord 1] says she took advice at the outset and set up the flatmate arrangement in line with that advice. The Law
Section 77(1) RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2 notes the follow definitions: tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; 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;
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 has flatmates to help them pay the rent.
The onus of proving that this arrangement does not come under the RTA is on the respondents here, see section 10: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
There is relevant case law. Particularly, the District Court decision of Musson v Dobrisek, Catley and Low (CIV 2006-032-36). In that case Judge Broadmore stated 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."
Judge Broadmore also relevantly stated 1 when discussing the policy objectives of the RTA: “it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.”
The relevant standard of proof is the civil standard, that being the balance of probabilities, or what is more likely than not. Discussion
As submitted by the parties the factors in support of the contention that this is a tenancy are as follows: a. The bond was lodged at the bond centre. [Landlord 1] says she did this to keep it safe. b. The use of the term “landlord” in the agreement. c. The area that [The landlord/s] reside in is self-contained and on a different floor.
Factors in support of the contention that this is not a tenancy: a. The parties signed an agreement contracting out of the RTA specifically noting the jurisdiction of the Disputes Tribunal. b. The agreement states that the parties agree to share the premise. c. The parties followed the terms of the agreement, i.e. [The tenant/s] gave 14 days’ notice. d. The terms of the agreement are consistent with shared living rather than a residential tenancy.
I accept the evidence of [The landlord/s] that this is their home, and they use all of it at times. Although they have a kitchenette in their room, I accept the evidence that they use the upstairs kitchen as their kitchenette does not have an oven. They also utilise the living room, deck and garden as they wish. They gave clear evidence of sharing the chores for the house with flatmates, having flat movie nights and dinners and using rooms upstairs for friends to stay in. 1 Paragraph 41
[The tenant/s] only had a limited time at the property and whilst I accept she relied on what she was told that the upstairs and downstairs operate separately, I find [The tenant/s] description of arrangements more likely to be the primary one.
The premise is [The landlord/s] home. It is their chattels and furnishings throughout and there are no exclusive areas other than bedrooms. Flatmates have been to date short-term, and I accept that they share responsibility for chores.
I do not find that the use of the term ‘landlord’ alters the rest of the agreement which is geared towards a flatting arrangement. I also do not accept that the lodgement of the bond at the bond centre changes the nature of the relationship. The bond is not required to be lodged in a flatting situation but there is no preclusion to it being so.
I find this arrangement one to which section 5(n) of the RTA applies. Accordingly, I find that the Tenancy Tribunal does not have jurisdiction over the relationship between the parties and as such must dismiss the application. The parties will need to seek recourse in an alternate jurisdiction for their claims.
The area of law regarding jurisdiction is complex. Both parties received contradicting advice. Accordingly, I find it disproportionate that their details be published, particularly given their dispute remains live. Therefore, I direct that both party identifying details be redacted from the published order.

Order

The application is dismissed.
By way of declaration: the Residential Tenancies Act 1986 excludes the jurisdiction of the Tenancy Tribunal from deciding these claims.
All party identifying details are to be suppressed from the published order.

Reasons

Both parties attended the hearing which was set down to establish the question of jurisdiction.
The parties had an agreement which allowed [The tenant/s] to reside in the home [The landlord/s] own. A dispute has now arisen regarding the bond and costs after a short period of occupation. However, before that can be determined, the issue of jurisdiction must be decided. This is because the respondents contend theirs was not a tenancy to which the Residential Tenancies Act 1986 (RTA) applies.
The parties signed an agreement named the Room Rental Agreement on 3- August and 2 September after [The tenant/s] answered a flatmate wanted advertisement on TradeMe. [The tenant/s] moved into the home on 22 September and moved out two days later due to issues with the property.
[The tenant/s] filed her claim in the Tenancy Tribunal after receiving advice, although accepts she isn’t sure which is the correct jurisdiction. She says the areas the landlords reside in is separate to the areas their tenants live in, they signed an agreement referring to themselves as landlords and they lodged her bond with the Bond Centre. Accordingly, she seeks the Tenancy Tribunal determine the dispute.
[The landlord/s] contend that this is their home, they have a shared access to all areas of the house (other than bedrooms) with anyone else living in the home. They have flatmates stay to help with the mortgage but essentially the premise is their home. [Landlord 1] says she took advice at the outset and set up the flatmate arrangement in line with that advice. The Law
Section 77(1) RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2 notes the follow definitions: tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; 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;
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 has flatmates to help them pay the rent.
The onus of proving that this arrangement does not come under the RTA is on the respondents here, see section 10: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
There is relevant case law. Particularly, the District Court decision of Musson v Dobrisek, Catley and Low (CIV 2006-032-36). In that case Judge Broadmore stated 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."
Judge Broadmore also relevantly stated 1 when discussing the policy objectives of the RTA: “it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.”
The relevant standard of proof is the civil standard, that being the balance of probabilities, or what is more likely than not. Discussion
As submitted by the parties the factors in support of the contention that this is a tenancy are as follows: a. The bond was lodged at the bond centre. [Landlord 1] says she did this to keep it safe. b. The use of the term “landlord” in the agreement. c. The area that [The landlord/s] reside in is self-contained and on a different floor.
Factors in support of the contention that this is not a tenancy: a. The parties signed an agreement contracting out of the RTA specifically noting the jurisdiction of the Disputes Tribunal. b. The agreement states that the parties agree to share the premise. c. The parties followed the terms of the agreement, i.e. [The tenant/s] gave 14 days’ notice. d. The terms of the agreement are consistent with shared living rather than a residential tenancy.
I accept the evidence of [The landlord/s] that this is their home, and they use all of it at times. Although they have a kitchenette in their room, I accept the evidence that they use the upstairs kitchen as their kitchenette does not have an oven. They also utilise the living room, deck and garden as they wish. They gave clear evidence of sharing the chores for the house with flatmates, having flat movie nights and dinners and using rooms upstairs for friends to stay in. 1 Paragraph 41
[The tenant/s] only had a limited time at the property and whilst I accept she relied on what she was told that the upstairs and downstairs operate separately, I find [The tenant/s] description of arrangements more likely to be the primary one.
The premise is [The landlord/s] home. It is their chattels and furnishings throughout and there are no exclusive areas other than bedrooms. Flatmates have been to date short-term, and I accept that they share responsibility for chores.
I do not find that the use of the term ‘landlord’ alters the rest of the agreement which is geared towards a flatting arrangement. I also do not accept that the lodgement of the bond at the bond centre changes the nature of the relationship. The bond is not required to be lodged in a flatting situation but there is no preclusion to it being so.
I find this arrangement one to which section 5(n) of the RTA applies. Accordingly, I find that the Tenancy Tribunal does not have jurisdiction over the relationship between the parties and as such must dismiss the application. The parties will need to seek recourse in an alternate jurisdiction for their claims.
The area of law regarding jurisdiction is complex. Both parties received contradicting advice. Accordingly, I find it disproportionate that their details be published, particularly given their dispute remains live. Therefore, I direct that both party identifying details be redacted from the published order.

Tenancy Tribunal case 5020208 — 14-day notice at suppressed]

At a glance

Tenancy Tribunal case 5020208 — 14-day notice at suppressed]

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