What was Tenancy Tribunal case 5346445 about?

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

How much money was awarded in case 5346445?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5346445?

The dispute type was not classified.

Where can I read the official tribunal order for case 5346445?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12729389-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5346445 about?

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

How much money was awarded in case 5346445?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5346445?

The dispute type was not classified.

Where can I read the official tribunal order for case 5346445?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12729389-Tenancy_Tribunal_Order.pdf.

Unit/Flat Unit 207, 5 Howe Street, Freemans Bay, Auckland Tenancy Tribunal Case 5346445 — Tenancy dispute

Order

By declaration, the agreement between [The landlord/s] and [The tenant/s] in relation to the premises at Unit/Flat 207, 5 Howe Street, Freemans Bay, 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 he wish to do so.

Reasons

The landlord (“head tenant”) attended the hearing via remote teleconference. There was no attendance by the respondent.
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 applicant says that he was the head tenant, and the tenant was a flatmate. The parties signed a house sharing agreement on 22 June 2025. The respondent moved in on 10 July 2025 and moved out shortly thereafter on 28 July 2025.
The arrangement was that if a flatmate moved out then they needed to find a replacement.
The landlord says that the parties had common use of shared facilities within the premises such as kitchen, living room and other facilities.
The landlord advertised through various flatmate wanted channels.
Rent was $310.00 per week plus an extra $30.00 for utilities. The rent was paid to the head tenant as landlord.
The parties signed a “Flat/House – Sharing Agreement with the following terms: a. The agreement starts on 10 July 2025 and will continue on a weekly basis for a 6-month minimum tenancy. Should the 6-month minimum tenancy be broken the flatmate must locate a replacement flatmate... b. The rent is $310.00 per week c. The flatmate must pay $30.00 per week of the cost of electricity, gas and water each week d. A bond of $1240.00 is payable to the head tenant. e. ...
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 landlord. 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 1 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 1 DC Christchurch, C IV 2010 0092030 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 other tenants pay the rent, in this case, the landlord (head tenant); 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 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, with the respondent being liable to pay the head tenant, and the parties sharing common living areas.
I am entirely 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.
The appropriate course would be for the applicant to re-commence his claim in the Disputes Tribunal, should he 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.

Order

By declaration, the agreement between [The landlord/s] and [The tenant/s] in relation to the premises at Unit/Flat 207, 5 Howe Street, Freemans Bay, 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 he wish to do so.

Reasons

The landlord (“head tenant”) attended the hearing via remote teleconference. There was no attendance by the respondent.

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 applicant says that he was the head tenant, and the tenant was a flatmate. The parties signed a house sharing agreement on 22 June 2025. The respondent moved in on 10 July 2025 and moved out shortly thereafter on 28 July 2025.

The arrangement was that if a flatmate moved out then they needed to find a replacement.

The landlord says that the parties had common use of shared facilities within the premises such as kitchen, living room and other facilities.

The landlord advertised through various flatmate wanted channels.

Rent was $310.00 per week plus an extra $30.00 for utilities. The rent was paid to the head tenant as landlord.

The parties signed a “Flat/House – Sharing Agreement with the following terms: a. The agreement starts on 10 July 2025 and will continue on a weekly basis for a 6-month minimum tenancy. Should the 6-month minimum tenancy be broken the flatmate must locate a replacement flatmate... b. The rent is $310.00 per week c. The flatmate must pay $30.00 per week of the cost of electricity, gas and water each week d. A bond of $1240.00 is payable to the head tenant. e. ...

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 landlord. 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 1 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 1 DC Christchurch, C IV 2010 0092030 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 other tenants pay the rent, in this case, the landlord (head tenant); 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 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, with the respondent being liable to pay the head tenant, and the parties sharing common living areas.

I am entirely 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.

The appropriate course would be for the applicant to re-commence his claim in the Disputes Tribunal, should he 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.

Tenancy Tribunal case 5346445 — Tenancy dispute at Unit/Flat Unit 207, 5 Howe Street, Freemans Bay, Auckland

At a glance

Claims & awards

Tenancy Tribunal case 5346445 — Tenancy dispute at Unit/Flat Unit 207, 5 Howe Street, Freemans Bay, Auckland

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