What was the outcome of Tenancy Tribunal case 4806559?

The tribunal order states: The application is dismissed for lack of jurisdiction.

How much money was awarded in case 4806559?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4806559?

The primary dispute was 14-day notice. Related themes: Boarding House.

Where can I read the official tribunal order for case 4806559?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10274031-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4806559?

The tribunal order states: The application is dismissed for lack of jurisdiction.

How much money was awarded in case 4806559?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4806559?

The primary dispute was 14-day notice. Related themes: Boarding House.

Where can I read the official tribunal order for case 4806559?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10274031-Tenancy_Tribunal_Order.pdf.

3 George Herring Place, Glen Eden, Auckland 0602 Tenancy Tribunal Case 4806559 — 14-day notice

Order

The application is dismissed for lack of jurisdiction.

Reasons

Both parties attended the hearing by remote teleconference.
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 tenant was residing in the garage which had been converted to a sleepout. The landlord in this matter also resides at the address and is the owner of the property.
The tenant says that he did not have access to the main house. He says that he did all his cooking from a microwave in the garage. He further stated that he did not have a key to the main house. The tenant did not step foot inside the main house while he was there.
The rent included power, water and internet.
The room was advertised on Trademe as a flatmate/flat house sharing arrangement.
The tenant paid rent to the landlord.
The landlord stated that there was another flatmate living in the main house. Both paid rent to the landlord. The other flatmate moved out during this tenancy.
The landlord gave the tenant notice to move out due to concerns regarding his behaviour. She says the tenant also lost the key to the house which he was provided with.
The landlord says that the tenant’s deposit was returned. The landlord maintains that the room is merely a sleep out and not a studio.
On 22 and 23 September 2023 the parties signed a flat/house sharing agreement.
The rent was $350.00 per week payable to the owner. The tenant also paid a ‘bond’ of $350.00.
The Agreement could be terminated by either party giving 14 days’ notice.
The parties agreed that any disputes should be advanced via the Disputes Tribunal.
There is an issue as to whether or not this is a house sharing 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 house sharing situation then I do not have jurisdiction. The issue that I must determine is whether the relationship was a flat sharing agreement of the 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.
Section 5(1)(n) RTA specifically excludes arrangements, 1 DC Christchurch, C IV 2010 0092030 “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.”
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.”
In this case an Agreement provided for payment of two weeks rent in advance to secure the premises and held by the respondent. This is inconsistent with a tenancy bond which is lodged with the bond centre.
I find that the evidence establishes clearly that this was a house sharing situation and not a tenancy.
If I am wrong on that, then s5(1)(n) applies. In this situation Ms Perry would have been the landlord and the premises were used principally as her place of residence during this tenancy. I also accept Ms Perry’s evidence that the tenant did in fact have access to the house and the shared facilities contained within the premises.
The tenant’s application is dismissed for lack of jurisdiction.
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 is unsuccessful.

Order

The application is dismissed for lack of jurisdiction.

Reasons

Both parties attended the hearing by remote teleconference.
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 tenant was residing in the garage which had been converted to a sleepout. The landlord in this matter also resides at the address and is the owner of the property.
The tenant says that he did not have access to the main house. He says that he did all his cooking from a microwave in the garage. He further stated that he did not have a key to the main house. The tenant did not step foot inside the main house while he was there.
The rent included power, water and internet.
The room was advertised on Trademe as a flatmate/flat house sharing arrangement.
The tenant paid rent to the landlord.
The landlord stated that there was another flatmate living in the main house. Both paid rent to the landlord. The other flatmate moved out during this tenancy.
The landlord gave the tenant notice to move out due to concerns regarding his behaviour. She says the tenant also lost the key to the house which he was provided with.
The landlord says that the tenant’s deposit was returned. The landlord maintains that the room is merely a sleep out and not a studio.
On 22 and 23 September 2023 the parties signed a flat/house sharing agreement.
The rent was $350.00 per week payable to the owner. The tenant also paid a ‘bond’ of $350.00.
The Agreement could be terminated by either party giving 14 days’ notice.
The parties agreed that any disputes should be advanced via the Disputes Tribunal.
There is an issue as to whether or not this is a house sharing 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 house sharing situation then I do not have jurisdiction. The issue that I must determine is whether the relationship was a flat sharing agreement of the 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.
Section 5(1)(n) RTA specifically excludes arrangements, 1 DC Christchurch, C IV 2010 0092030 “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.”
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.”
In this case an Agreement provided for payment of two weeks rent in advance to secure the premises and held by the respondent. This is inconsistent with a tenancy bond which is lodged with the bond centre.
I find that the evidence establishes clearly that this was a house sharing situation and not a tenancy.
If I am wrong on that, then s5(1)(n) applies. In this situation Ms Perry would have been the landlord and the premises were used principally as her place of residence during this tenancy. I also accept Ms Perry’s evidence that the tenant did in fact have access to the house and the shared facilities contained within the premises.
The tenant’s application is dismissed for lack of jurisdiction.
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 is unsuccessful.

Tenancy Tribunal case 4806559 — 14-day notice at 3 George Herring Place, Glen Eden, Auckland 0602

At a glance

Tenancy Tribunal case 4806559 — 14-day notice at 3 George Herring Place, Glen Eden, Auckland 0602

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