What was Tenancy Tribunal case 5303644 about?

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

How much money was awarded in case 5303644?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5303644?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5303644?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12470017-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5303644 about?

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

How much money was awarded in case 5303644?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5303644?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5303644?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12470017-Tenancy_Tribunal_Order.pdf.

19 Para Close, Fairview Heights, Auckland 0632 Tenancy Tribunal Case 5303644 — Boarding House

Order

By declaration, the agreement between [The tenant/s] and [The landlord/s] in relation to the premises at 19 Para Close, Fairview Heights, Auckland 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

Both parties attended the hearing via remote teleconference. The tenant was assisted by the court appointed Japanese interpreter.
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 house consists of 6 bedrooms and 4 bathrooms. The landlord owns the house and resides there with his wife and children. He say the remaining people living at the address are flatmates.
On 9 February 2025 the parties signed an ‘Agreement of Flatmate and Landlord’. The terms of the agreement included: • 3 weeks’ notice period before moving out • The agreement can be terminated by the landlord • Minimum stay of 5 months
The landlord stated during the jurisdiction hearing that everyone shares the facilities, including the living room, kitchen, bathroom, toilets and outside areas including the decks. He further stated that no one is on a separate tenancy agreement. They all share the utility costs. When one flatmate moves out he simply replaces them with another. The landlord also shares the same facilities.
There is an issue as to whether or not this is a flatting type 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 respondent. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.
Section 5(1)(n) RTA specifically excludes arrangements, “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.”
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 other tenants pay the rent, in this case, the landlord or the owner; b. The understanding that exists between the parties; 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 applicant and the respondent was not that of landlord and tenant, rather flatmates. The parties have each had occupation of their own bedrooms of a house, sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates and the parties sharing common living areas. I am satisfied that the living arrangement was a flatting type agreement and excluded from the terms of the RTA. The exception to the RTA under section 5(1)(n) applies.
Section 5(1)(n) of the Residential Tenancies Act 1986 provides that the Act does not apply where, during the tenancy, the premises (not being a boarding house) continue to be used principally as a place of residence by the landlord or a member of the landlord’s family. In this case, the evidence establishes that the landlord resides at the property. As a result, the tenancy is excluded from the operation of the Act, and the Tribunal does not have jurisdiction to determine this application. The application is therefore dismissed for lack of jurisdiction.
The appropriate course would be for the applicant to re-commence her claim in the Disputes Tribunal, should she wish to continue with this.
The Tenancy Tribunal does not have jurisdiction to hear this claim.

Order

By declaration, the agreement between [The tenant/s] and [The landlord/s] in relation to the premises at 19 Para Close, Fairview Heights, Auckland 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

Both parties attended the hearing via remote teleconference. The tenant was assisted by the court appointed Japanese interpreter.
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 house consists of 6 bedrooms and 4 bathrooms. The landlord owns the house and resides there with his wife and children. He say the remaining people living at the address are flatmates.
On 9 February 2025 the parties signed an ‘Agreement of Flatmate and Landlord’. The terms of the agreement included: • 3 weeks’ notice period before moving out • The agreement can be terminated by the landlord • Minimum stay of 5 months
The landlord stated during the jurisdiction hearing that everyone shares the facilities, including the living room, kitchen, bathroom, toilets and outside areas including the decks. He further stated that no one is on a separate tenancy agreement. They all share the utility costs. When one flatmate moves out he simply replaces them with another. The landlord also shares the same facilities.
There is an issue as to whether or not this is a flatting type 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 respondent. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.
Section 5(1)(n) RTA specifically excludes arrangements, “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.”
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 other tenants pay the rent, in this case, the landlord or the owner; b. The understanding that exists between the parties; 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 applicant and the respondent was not that of landlord and tenant, rather flatmates. The parties have each had occupation of their own bedrooms of a house, sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates and the parties sharing common living areas. I am satisfied that the living arrangement was a flatting type agreement and excluded from the terms of the RTA. The exception to the RTA under section 5(1)(n) applies.
Section 5(1)(n) of the Residential Tenancies Act 1986 provides that the Act does not apply where, during the tenancy, the premises (not being a boarding house) continue to be used principally as a place of residence by the landlord or a member of the landlord’s family. In this case, the evidence establishes that the landlord resides at the property. As a result, the tenancy is excluded from the operation of the Act, and the Tribunal does not have jurisdiction to determine this application. The application is therefore dismissed for lack of jurisdiction.
The appropriate course would be for the applicant to re-commence her claim in the Disputes Tribunal, should she wish to continue with this.
The Tenancy Tribunal does not have jurisdiction to hear this claim.

Tenancy Tribunal case 5303644 — Boarding House at 19 Para Close, Fairview Heights, Auckland 0632

At a glance

Claims & awards

Tenancy Tribunal case 5303644 — Boarding House at 19 Para Close, Fairview Heights, Auckland 0632

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