What was Tenancy Tribunal case 5342560 about?

The tribunal order states: The Tribunal orders suppression of the Respondent’s name and identifying

How much money was awarded in case 5342560?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5342560?

The dispute type was not classified.

Where can I read the official tribunal order for case 5342560?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12584276-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5342560 about?

The tribunal order states: The Tribunal orders suppression of the Respondent’s name and identifying

How much money was awarded in case 5342560?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5342560?

The dispute type was not classified.

Where can I read the official tribunal order for case 5342560?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12584276-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5342560 — Tenancy dispute

Order

The Tribunal orders suppression of the Respondent’s name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The Applicant has filed an application arising out of an agreement between herself and the respondent whereby the applicant had the right to occupy a room in a residential house.
The issue I must decide is whether this was a flat sharing agreement and therefore whether the Residential Tenancies Act 1986 (RTA) is excluded.
A preliminary question therefore arises, namely, whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the 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 law and discussion
The RTA does not apply to premises that continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises, or by any member of the landlord’s or owner’s family. (See s 5(1)(n) of the RTA).
In 2021, the issue was considered in the High Court in Harding v Caroto, 1 where a self-contained unit within a larger home occupied by the landlord was found to be separate residential premises.
In Whitelock v McConway, 2 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 that, clearly there was a sharing of facilities and the tenant’s area was not fully self- contained.
The Tribunal has found that the exclusion in s 5(1)(n) did not apply in: a) Nie v Zhao, 3 where the premises were a separate area located beneath the landlord’s residence containing a bedroom, a makeshift kitchen, living space and a separate entry. A door from a corridor leading upstairs was locked preventing the tenant’s access upstairs. Other than using the laundry and two rooms downstairs for storage, the landlord did not share the house with the tenant. b) Bailes v Nalini, 4 where the tenant exclusively occupied a cabin located at the back of the main residential premises. The cabin was a small freestanding bedsit arrangement with a lounge below and a bedroom above and included a hot plate but no bathroom or toilet facilities. The tenant was able to enter the main house to use the bathroom and toilet. c) Zhang v Gao 5 where the landlord rented the upstairs level of two storey house and the tenant exclusively occupied the downstairs level. All living, cooking, sleeping and bathing arrangements were separate. 1 CIV-2021-404-000378 [2021] NZHC 1265. The High Court confirmed here that there can be “premises” within premises. 2 DC Christchurch, C IV 2010 0092030, 3 [2020] NZTT North Shore 4277894 4 [2020] NZ TT North Shore 4261603, 4268721 5 [2021] NZTT North Shore 4298016, 4297675 d) McCaughan v Nasseri, 6 where there was a downstairs self-contained separate unit within an existing home. e) in Maharaj v Nair, 7 where the respondent rented out a self-contained unit that was only consented to be a garage. The tenant had no right of access to the landlord’s adjoining premises.
Consistent themes running through the foregoing cases are: • the extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry) • the extent of any free and unimpeded access by the tenant to premises 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. Analysis
In this case, the applicant has had the right to use one bedroom in a four bedroom house, owned by the respondent. All other facilities are shared.
There is also an agreement which is actually called a “flatting agreement”. Although the words that parties used to describe their contractual relationship is not determinative of the issue I consider it one factor to take into account.
I find that the evidence well establishes this was not a residential tenancy and that the exclusion under the RTA applies. The relationship between the parties is one of flatmates and the RTA jurisdiction is therefore excluded.
The claim is dismissed.

Reasons

Both parties attended the hearing.

The Applicant has filed an application arising out of an agreement between herself and the respondent whereby the applicant had the right to occupy a room in a residential house.

The issue I must decide is whether this was a flat sharing agreement and therefore whether the Residential Tenancies Act 1986 (RTA) is excluded.

A preliminary question therefore arises, namely, whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the 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 law and discussion

The RTA does not apply to premises that continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises, or by any member of the landlord’s or owner’s family. (See s 5(1)(n) of the RTA).

In 2021, the issue was considered in the High Court in Harding v Caroto, 1 where a self-contained unit within a larger home occupied by the landlord was found to be separate residential premises.

In Whitelock v McConway, 2 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 that, clearly there was a sharing of facilities and the tenant’s area was not fully self- contained.

The Tribunal has found that the exclusion in s 5(1)(n) did not apply in: a) Nie v Zhao, 3 where the premises were a separate area located beneath the landlord’s residence containing a bedroom, a makeshift kitchen, living space and a separate entry. A door from a corridor leading upstairs was locked preventing the tenant’s access upstairs. Other than using the laundry and two rooms downstairs for storage, the landlord did not share the house with the tenant. b) Bailes v Nalini, 4 where the tenant exclusively occupied a cabin located at the back of the main residential premises. The cabin was a small freestanding bedsit arrangement with a lounge below and a bedroom above and included a hot plate but no bathroom or toilet facilities. The tenant was able to enter the main house to use the bathroom and toilet. c) Zhang v Gao 5 where the landlord rented the upstairs level of two storey house and the tenant exclusively occupied the downstairs level. All living, cooking, sleeping and bathing arrangements were separate. 1 CIV-2021-404-000378 [2021] NZHC 1265. The High Court confirmed here that there can be “premises” within premises. 2 DC Christchurch, C IV 2010 0092030, 3 [2020] NZTT North Shore 4277894 4 [2020] NZ TT North Shore 4261603, 4268721 5 [2021] NZTT North Shore 4298016, 4297675 d) McCaughan v Nasseri, 6 where there was a downstairs self-contained separate unit within an existing home. e) in Maharaj v Nair, 7 where the respondent rented out a self-contained unit that was only consented to be a garage. The tenant had no right of access to the landlord’s adjoining premises.

Consistent themes running through the foregoing cases are: • the extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry) • the extent of any free and unimpeded access by the tenant to premises 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. Analysis

In this case, the applicant has had the right to use one bedroom in a four bedroom house, owned by the respondent. All other facilities are shared.

There is also an agreement which is actually called a “flatting agreement”. Although the words that parties used to describe their contractual relationship is not determinative of the issue I consider it one factor to take into account.

I find that the evidence well establishes this was not a residential tenancy and that the exclusion under the RTA applies. The relationship between the parties is one of flatmates and the RTA jurisdiction is therefore excluded.

The claim is dismissed.

Tenancy Tribunal case 5342560 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5342560 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions