Tenantcheck Insights · Case study
Tenancy Tribunal case 5423442 — Tenancy dispute
Decided 8 Apr 2026 · Published 8 Apr 2026 · Application 5423442
Party names are redacted in the official published order. This page summarises the dispute only — not individual identities.
At a glance
Key facts from the published tribunal order.
Adjudicator
M Manhire
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant and landlord name and identifying details.
- By declaration, the agreement between the parties in relation to the premises at [suppressed], 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 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. If there is no jurisdiction, then the Tribunal cannot proceed to hear the application.
- The landlord is the owner of the premises.
- The premises consist of a 4-bedroom house with 2 levels. The landlord lives upstairs where there are only bedrooms and bathrooms. She resides there with her partner. There were two other flatmates also residing upstairs.
- The kitchen, lounge, dining area, laundry and garage are downstairs. These facilities were shared by the owner and flatmates together. There are no separate self-contained areas of the house. Everyone shared the same facilities and used the same entrance to enter and leave the house.
- The tenant resided there by herself. Her bedroom included an ensuite.
- The flatmates, including this tenant, paid the owner directly for the rent. The weekly amount included utilities.
- The landlord responded to the tenant’s ad for ‘flatmate wanted’ on Facebook Marketplace.
- On 6 March 2025 the parties signed a ‘House Sharing Agreement’ for the above address. The terms of the agreement were as follows a. The agreement starts on 21 March 2025 and will continue on a weekly basis. b. The rent is $350.00 per week... c. A bond of $1400.00 is payable to the head tenant. d. ... e. The agreement can be terminated by 28 days’ notice given by either party in writing. f. ... g. 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 2025. The tenant seeks the return of the money she paid the landlord in the form of a bond. The tenant has also recorded other claims within her application. 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. Name suppression
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published
- The applicant applied for non-publication of her name and identifying details. The respondent also now seeks name suppression.
- Having carefully considered the request for name suppression advanced by the respondent I am of the view that name suppression should be granted in favour of both parties. I do not consider that publication is in the public interest or is justified given the nature and circumstances of the case. It is also possible that not suppressing the applicant’s name may identify the respondent.