What was Tenancy Tribunal case 5406555 about?

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

How much money was awarded in case 5406555?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5406555?

The dispute type was not classified.

Where can I read the official tribunal order for case 5406555?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13091083-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5406555 about?

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

How much money was awarded in case 5406555?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5406555?

The dispute type was not classified.

Where can I read the official tribunal order for case 5406555?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13091083-Tenancy_Tribunal_Order.pdf.

52B Holmes Drive South, Massey, Auckland 0614 Tenancy Tribunal Case 5406555 — Tenancy dispute

Order

By declaration, the agreement between [The tenant/s], [The tenant/s] and [The landlord/s] in relation to the premises at 52B Holmes Drive South, Massey, 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

Both parties attended the hearing via remote video conference.
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 premises were advertised on Facebook Marketplace in 2018. The premises consist of a two-level house with 3 bedrooms downstairs with a kitchen and bathroom.
The tenant resided at the premises with his partner. The tenant says that Mr Reddy and his family were living upstairs. He further states that the downstairs area was self-contained.
The landlord in this case is the head tenant. He does not own the house. Essentially, the dispute is tenant versus tenant.
Mr Reddy says that he moved into the property in September 2018 and soon after started searching for flatmates. He says that the downstairs area was not self-contained. When he first moved in there were no cooking facilities downstairs.
The tenants paid the rent to Mr Reddy the ‘landlord’ as the head tenant. Mr Reddy says that the house had shared facilities. He further says that he was responsible for the rent for the entire house.
As noted, Mr Reddy is the head tenant of the applicant. He confirmed during the hearing that he holds the tenancy for the entire property. The premises consist of a 6-bedroom house.
Other than exclusive use of their own bedrooms the ‘tenants’ pay their share of the rent and expenses to the head tenant, Mr Reddy.
The parties signed a Flat/House Sharing Agreement for the above address in 2018. The terms of the agreement were as follows: a. Rent: $480.00 per week. b. Bond $1920.00 c. Tenancy commencement: 24 December 2018 d. Notice period: 21 days by either party.
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 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 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 Mr Reddy (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 relationship between Ms Reddy 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, sharing facilities in the usual way of flatmates.
The arrangement was for the parties to live co-operatively as flatmates, with the tenants being liable to pay the head tenant. 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.
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. 1 DC Christchurch, C IV 2010 0092030
The Tenancy Tribunal does not have jurisdiction to hear this claim.
The application is dismissed.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
The tenant applied for a name suppression order. The tenant is not entitled to name suppression as the application has been unsuccessful.

Order

By declaration, the agreement between [The tenant/s], [The tenant/s] and [The landlord/s] in relation to the premises at 52B Holmes Drive South, Massey, 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

Both parties attended the hearing via remote video conference.

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 premises were advertised on Facebook Marketplace in 2018. The premises consist of a two-level house with 3 bedrooms downstairs with a kitchen and bathroom.

The tenant resided at the premises with his partner. The tenant says that Mr Reddy and his family were living upstairs. He further states that the downstairs area was self-contained.

The landlord in this case is the head tenant. He does not own the house. Essentially, the dispute is tenant versus tenant.

Mr Reddy says that he moved into the property in September 2018 and soon after started searching for flatmates. He says that the downstairs area was not self-contained. When he first moved in there were no cooking facilities downstairs.

The tenants paid the rent to Mr Reddy the ‘landlord’ as the head tenant. Mr Reddy says that the house had shared facilities. He further says that he was responsible for the rent for the entire house.

As noted, Mr Reddy is the head tenant of the applicant. He confirmed during the hearing that he holds the tenancy for the entire property. The premises consist of a 6-bedroom house.

Other than exclusive use of their own bedrooms the ‘tenants’ pay their share of the rent and expenses to the head tenant, Mr Reddy.

The parties signed a Flat/House Sharing Agreement for the above address in 2018. The terms of the agreement were as follows: a. Rent: $480.00 per week. b. Bond $1920.00 c. Tenancy commencement: 24 December 2018 d. Notice period: 21 days by either party.

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 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 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 Mr Reddy (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 relationship between Ms Reddy 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, sharing facilities in the usual way of flatmates.

The arrangement was for the parties to live co-operatively as flatmates, with the tenants being liable to pay the head tenant. 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.

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. 1 DC Christchurch, C IV 2010 0092030

The Tenancy Tribunal does not have jurisdiction to hear this claim.

The application is dismissed.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.

The tenant applied for a name suppression order. The tenant is not entitled to name suppression as the application has been unsuccessful.

Tenancy Tribunal case 5406555 — Tenancy dispute at 52B Holmes Drive South, Massey, Auckland 0614

At a glance

Claims & awards

Tenancy Tribunal case 5406555 — Tenancy dispute at 52B Holmes Drive South, Massey, Auckland 0614

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