What was the outcome of Tenancy Tribunal case 4804418?

The tribunal order states: The Landlord is to pay the bond of $450.00 to Ayush Kumar Verma and Ayushi

How much money was awarded in case 4804418?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4804418?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4804418?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10382205-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4804418?

The tribunal order states: The Landlord is to pay the bond of $450.00 to Ayush Kumar Verma and Ayushi

How much money was awarded in case 4804418?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4804418?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4804418?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10382205-Tenancy_Tribunal_Order.pdf.

Unit/Flat 4, 35 Kiteroa Terrace, Rothesay Bay, Auckland Tenancy Tribunal Case 4804418 — Boarding House

Order

The Landlord is to pay the bond of $450.00 to Ayush Kumar Verma and Ayushi Verma immediately.

Reasons

Both parties attended the hearing by video.
The Tenant applied for a refund of their bond.
The Landlord raised a preliminary issue that this living arrangement was not a tenancy but a ‘flatmate arrangement’ and therefore the Tribunal did not have jurisdiction to determine this matter.
The Tenancy began on 1 October 2023 and ended on 1 February 2024. The parties signed a document headed ‘Flathouse-sharing agreement’. This was a four-bedroom home with two levels. The Landlord and their family occupied three bedrooms, a kitchen and lounge on the upper level. The Tenants occupied one bedroom on the lower level which was equipped with a kitchen, bathroom and small lounge.
Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
Section 5(1)(n) RTA provides that the Act does not apply: 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
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house- sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant. Application of the law
The Landlord submitted this was a flatmate sharing arrangement because they lived in the property with their family and the Tenant’s had access to the upper level where the Landlord lived. The agreement both parties signed at the start of this arrangement was also called a ‘Flathouse sharing agreement’ so the intention was present from the start. I note there is a clause in the agreement which stated that any disputes are to be determined by the ‘Disputes Tribunal’. The Tenants also paid rent which was inclusive of the power and water. There was no separate power or water meter.
The Tenant’s submitted this was a ‘granny flat’ situation. They had their own self- contained unit within the property and no access to the Landlords part of the house. They had their own separate entrance to their self-contained unit. The Landlord and their family did not have free access to the lower part of the house where the Tenants lived. I note there were terms of the ‘Flathouse sharing agreement’ which were similar to that found in standard residential tenancy agreement such as the 28-day notice to terminate, bond, designated parking area and break fee.
In considering the evidence, I find on a balance of probabilities, that this arrangement is more likely than not, a residential tenancy. Although, the parties signed a ‘Flathouse sharing agreement’ the title of the agreement is not determinative of the relationship. There are other factors to consider such as the self-contained nature of the Tenant’s part of the property, the lack of access the Tenant’s had to the upper level where the Landlord resided, the lack of common areas which the parties shared and the terms of the agreement that indicate this is a residential tenancy. For these reasons, I find this is a residential tenancy. Refund of the bond
The tenant has applied for the balance of the bond following the end of the tenancy.
The bond shall be refunded to the Tenant.
As neither party has requested name suppression, this shall not be granted.

Order

The Landlord is to pay the bond of $450.00 to Ayush Kumar Verma and Ayushi Verma immediately.

Reasons

Both parties attended the hearing by video.
The Tenant applied for a refund of their bond.
The Landlord raised a preliminary issue that this living arrangement was not a tenancy but a ‘flatmate arrangement’ and therefore the Tribunal did not have jurisdiction to determine this matter.
The Tenancy began on 1 October 2023 and ended on 1 February 2024. The parties signed a document headed ‘Flathouse-sharing agreement’. This was a four-bedroom home with two levels. The Landlord and their family occupied three bedrooms, a kitchen and lounge on the upper level. The Tenants occupied one bedroom on the lower level which was equipped with a kitchen, bathroom and small lounge.
Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
Section 5(1)(n) RTA provides that the Act does not apply: 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
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house- sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant. Application of the law
The Landlord submitted this was a flatmate sharing arrangement because they lived in the property with their family and the Tenant’s had access to the upper level where the Landlord lived. The agreement both parties signed at the start of this arrangement was also called a ‘Flathouse sharing agreement’ so the intention was present from the start. I note there is a clause in the agreement which stated that any disputes are to be determined by the ‘Disputes Tribunal’. The Tenants also paid rent which was inclusive of the power and water. There was no separate power or water meter.
The Tenant’s submitted this was a ‘granny flat’ situation. They had their own self- contained unit within the property and no access to the Landlords part of the house. They had their own separate entrance to their self-contained unit. The Landlord and their family did not have free access to the lower part of the house where the Tenants lived. I note there were terms of the ‘Flathouse sharing agreement’ which were similar to that found in standard residential tenancy agreement such as the 28-day notice to terminate, bond, designated parking area and break fee.
In considering the evidence, I find on a balance of probabilities, that this arrangement is more likely than not, a residential tenancy. Although, the parties signed a ‘Flathouse sharing agreement’ the title of the agreement is not determinative of the relationship. There are other factors to consider such as the self-contained nature of the Tenant’s part of the property, the lack of access the Tenant’s had to the upper level where the Landlord resided, the lack of common areas which the parties shared and the terms of the agreement that indicate this is a residential tenancy. For these reasons, I find this is a residential tenancy. Refund of the bond
The tenant has applied for the balance of the bond following the end of the tenancy.
The bond shall be refunded to the Tenant.
As neither party has requested name suppression, this shall not be granted.

Tenancy Tribunal case 4804418 — Boarding House at Unit/Flat 4, 35 Kiteroa Terrace, Rothesay Bay, Auckland

At a glance

Tenancy Tribunal case 4804418 — Boarding House at Unit/Flat 4, 35 Kiteroa Terrace, Rothesay Bay, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions