What was Tenancy Tribunal case 5112368 about?

The tribunal order states: By declaration, the agreement between [The tenant/s] and [The landlord/s]

How much money was awarded in case 5112368?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5112368?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5112368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11522392-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5112368 about?

The tribunal order states: By declaration, the agreement between [The tenant/s] and [The landlord/s]

How much money was awarded in case 5112368?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5112368?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5112368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11522392-Tenancy_Tribunal_Order.pdf.

52 Corinna Street, Welcome Bay, Tauranga 3112 Tenancy Tribunal Case 5112368 — 14-day notice

Order

By declaration, the agreement between [The tenant/s] and [The landlord/s] in relation to the premises at 52 Corinna Street, Welcome Bay, Tauranga is not a residential tenancy and is therefore not subject to the Residential Tenancies Act 1986.
The Tenancy Tribunal does not have jurisdiction to hear this application.
The Applicant will need to pursue the matter before the Disputes Tribunal should she wish to do so.

Reasons

The landlord and tenant attended the hearing by remote teleconference.
A preliminary question arises in this case, namely, whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 (RTA).
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 I cannot proceed to hear the case.
The landlord is the owner of the premises. The premises consist of a 3- bedroom, 3 level house with 3 bathrooms, a small kitchenette downstairs and the main kitchen and living area upstairs.
The premises consist of a house with 3 levels, 3 bedrooms and 3 bathrooms. The tenant had her own bedroom, small kitchenette downstairs. The kitchenette was small with a portable cooker. The tenant was able to go upstairs and use the shared facilities if she wanted to. The tenant says that she had her own separate entrance. The main front door was on the other side of the house. The landlord says he gave her both keys to both doors. The landlord says she had the option to use the main entrance.
The landlord owned the premises and resided there by himself. The landlord had two flatmates for the first month and then it was just this tenant.
The landlord says that the kitchen downstairs was only a small kitchenette and because of that he encouraged the tenant to come upstairs to use the facilities. The landlord confirmed that the tenant was able to use all outdoor areas of the house. The rent was payable directly to the landlord and included water, Wi-Fi, and a portion of the power bill.
The landlord advertised through TradeMe for flatmates wanted. The tenant also confirmed during the hearing that she responded to a ‘flatmates wanted’ advertisement. This would certainly confirm that the tenant understood at the time that she was moving in as a flatmate and not a tenant.
On 15 April 2024 the tenant signed a ‘House Sharing Agreement’ for the above address. The terms of the agreement were as follows: a. The agreement starts on 20 April 2024 b. The rent is $330.00 per week payable to the landlord c. A bond of $1320.00 payable to the landlord d. The flatmate cannot assign the right to live in the flat e. The house sharing term is intended to be at least 3 months in duration. After 3 months of house sharing this agreement can be terminated by 14 days’ notice given by either party in writing f. No pets g. The flatmate needs to pay 30% of the cost of electricity each month h. The flatmate must not remove any chattels or fixtures from the premises that do not belong to the flatmate. i. At the end of this agreement the landlord will return the bond to the flatmate immediately. The landlord can deduct from the bond any cost which is outstanding and is the responsibility of the flatmate. j. In the event of any dispute the parties agree that the dispute will be determined by the Disputes Tribunal.
The tenant vacated the premises on or about 30 November 2024. The tenant seeks the return of the money she paid the landlord in the form of a bond. The landlord is withholding the money saying that he has expense claims against the tenant. The bond was not lodged with the bond centre.
There is an issue as to whether or not this is a flatting type of arrangement and if the premises continued to be used principally as a place of residence by the landlord or the landlord’s family and thus excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA).
If the parties are in a flatting situation then I do not have jurisdiction. The issue that I must determine is whether the relationship was a flat sharing agreement of premises shared with the applicant. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.
There are a number of previous 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.
In Whitelock v McConway 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.
The word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and a 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.
A useful analysis of the term “flatmates” 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.”
Some of the factors to take into account when determining the issue include: a. The person to whom the tenant pays the rent, in this case, the landlord; b. The understanding that exists between the parties at the start of the arrangement; c. When each tenant occupied the premises and on whose authority.
I find that the evidence establishes clearly that this was a shared flatting situation. The relationship between the landlord and the tenant was not that of landlord and tenant, rather flatmates. The parties have each had occupation of their own bedrooms of a house, with the option of sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates, with the tenant being liable to pay the landlord, and the parties sharing common living areas. I am satisfied that the living arrangement was a flatting type of agreement and excluded from the terms of the RTA. The exception to the RTA under section 5(1)(n) applies.
The appropriate course would be for the applicant to re-commence her claim in the Disputes Tribunal, should she wish to continue with this. That Tribunal has the jurisdiction to hear and determine this dispute between the parties.
The Tenancy Tribunal does not have jurisdiction to hear this claim.
The application is dismissed.
The tenant applied for non-publication of her name and identifying details. She has been unsuccessful in the proceedings.
There is nothing to warrant a departure from the principle of open justice. I do not make any suppression orders regarding the publication of this decision.

Order

By declaration, the agreement between [The tenant/s] and [The landlord/s] in relation to the premises at 52 Corinna Street, Welcome Bay, Tauranga is not a residential tenancy and is therefore not subject to the Residential Tenancies Act 1986.
The Tenancy Tribunal does not have jurisdiction to hear this application.
The Applicant will need to pursue the matter before the Disputes Tribunal should she wish to do so.

Reasons

The landlord and tenant attended the hearing by remote teleconference.
A preliminary question arises in this case, namely, whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 (RTA).
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 I cannot proceed to hear the case.
The landlord is the owner of the premises. The premises consist of a 3- bedroom, 3 level house with 3 bathrooms, a small kitchenette downstairs and the main kitchen and living area upstairs.
The premises consist of a house with 3 levels, 3 bedrooms and 3 bathrooms. The tenant had her own bedroom, small kitchenette downstairs. The kitchenette was small with a portable cooker. The tenant was able to go upstairs and use the shared facilities if she wanted to. The tenant says that she had her own separate entrance. The main front door was on the other side of the house. The landlord says he gave her both keys to both doors. The landlord says she had the option to use the main entrance.
The landlord owned the premises and resided there by himself. The landlord had two flatmates for the first month and then it was just this tenant.
The landlord says that the kitchen downstairs was only a small kitchenette and because of that he encouraged the tenant to come upstairs to use the facilities. The landlord confirmed that the tenant was able to use all outdoor areas of the house. The rent was payable directly to the landlord and included water, Wi-Fi, and a portion of the power bill.
The landlord advertised through TradeMe for flatmates wanted. The tenant also confirmed during the hearing that she responded to a ‘flatmates wanted’ advertisement. This would certainly confirm that the tenant understood at the time that she was moving in as a flatmate and not a tenant.
On 15 April 2024 the tenant signed a ‘House Sharing Agreement’ for the above address. The terms of the agreement were as follows: a. The agreement starts on 20 April 2024 b. The rent is $330.00 per week payable to the landlord c. A bond of $1320.00 payable to the landlord d. The flatmate cannot assign the right to live in the flat e. The house sharing term is intended to be at least 3 months in duration. After 3 months of house sharing this agreement can be terminated by 14 days’ notice given by either party in writing f. No pets g. The flatmate needs to pay 30% of the cost of electricity each month h. The flatmate must not remove any chattels or fixtures from the premises that do not belong to the flatmate. i. At the end of this agreement the landlord will return the bond to the flatmate immediately. The landlord can deduct from the bond any cost which is outstanding and is the responsibility of the flatmate. j. In the event of any dispute the parties agree that the dispute will be determined by the Disputes Tribunal.
The tenant vacated the premises on or about 30 November 2024. The tenant seeks the return of the money she paid the landlord in the form of a bond. The landlord is withholding the money saying that he has expense claims against the tenant. The bond was not lodged with the bond centre.
There is an issue as to whether or not this is a flatting type of arrangement and if the premises continued to be used principally as a place of residence by the landlord or the landlord’s family and thus excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA).
If the parties are in a flatting situation then I do not have jurisdiction. The issue that I must determine is whether the relationship was a flat sharing agreement of premises shared with the applicant. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.
There are a number of previous 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.
In Whitelock v McConway 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.
The word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and a 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.
A useful analysis of the term “flatmates” 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.”
Some of the factors to take into account when determining the issue include: a. The person to whom the tenant pays the rent, in this case, the landlord; b. The understanding that exists between the parties at the start of the arrangement; c. When each tenant occupied the premises and on whose authority.
I find that the evidence establishes clearly that this was a shared flatting situation. The relationship between the landlord and the tenant was not that of landlord and tenant, rather flatmates. The parties have each had occupation of their own bedrooms of a house, with the option of sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates, with the tenant being liable to pay the landlord, and the parties sharing common living areas. I am satisfied that the living arrangement was a flatting type of agreement and excluded from the terms of the RTA. The exception to the RTA under section 5(1)(n) applies.
The appropriate course would be for the applicant to re-commence her claim in the Disputes Tribunal, should she wish to continue with this. That Tribunal has the jurisdiction to hear and determine this dispute between the parties.
The Tenancy Tribunal does not have jurisdiction to hear this claim.
The application is dismissed.
The tenant applied for non-publication of her name and identifying details. She has been unsuccessful in the proceedings.
There is nothing to warrant a departure from the principle of open justice. I do not make any suppression orders regarding the publication of this decision.

Tenancy Tribunal case 5112368 — 14-day notice at 52 Corinna Street, Welcome Bay, Tauranga 3112

At a glance

Claims & awards

Tenancy Tribunal case 5112368 — 14-day notice at 52 Corinna Street, Welcome Bay, Tauranga 3112

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions