What was the outcome of Tenancy Tribunal case 4898362?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4898362?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4898362?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4898362?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10621893-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4898362?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4898362?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4898362?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4898362?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10621893-Tenancy_Tribunal_Order.pdf.

875 Mount Eden Road, Mount Eden, Auckland 1024 Tenancy Tribunal Case 4898362 — Boarding House

Order

The application is dismissed.
By declaration, the agreement between Kaneshi Tharaka Rupasinghe and Fong Bai in relation to the premises at 875 Mount Eden Road, Mount Eden, 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 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 says that she responded to an advertisement on TradeMe for a flatmate wanted, and moved in on or about May 2022. She moved out in May 2024 and now seeks the return of the $500.00 deposit she paid the landlord.
The landlord has refused to return the deposit stating that the tenant moved without giving two weeks’ notice as required in the written agreement.
The tenant says the premises consisted of a two-level house with 5 bedrooms. She occupied one of these rooms. Everyone lived downstairs where there was a kitchen, lounge and bathroom. The landlord owner lived upstairs.
The weekly rent included power, water and internet. She used the shared facilities such as the lounge, kitchen and bathroom with other people.
The tenant says that there was a head tenant who was also living downstairs. She initially paid her rent to the landlord’s brother’s account. She was then told to pay the rent to the head tenant’s account. The tenant did not sign an agreement prior to moving in. Everything was verbal.
The landlord stated during the hearing that she signed a Tenancy Agreement with the tenant. When asked for a copy of the agreement she stated she could not find it. The tenant was adamant that she did not sign anything in the beginning.
The tenant says that there was a head tenant who she dealt with most of the time.
During the hearing the tenant confirmed that she was moving in as a flatmate at the start of the verbal agreement.
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.
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.
Section 5(1)(n) RTA specifically excludes arrangements, “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.”
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 or the owner; 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 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. I also remind myself that this is a tenant application and therefore the onus is on her to prove, on the balance of probabilities, that this was a landlord and tenant relationship.
The arrangement was for the parties to live co-operatively as flatmates. I am satisfied that the living arrangement was a flatting type agreement and excluded from the terms of the RTA.
The appropriate course would be for the applicant to re-commence her claim in the Disputes Tribunal, should she wish to continue with this.
The Tenancy Tribunal does not have jurisdiction to hear this claim.
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. I have dismissed the application and therefore make no order in respect of name suppression.

Order

The application is dismissed.
By declaration, the agreement between Kaneshi Tharaka Rupasinghe and Fong Bai in relation to the premises at 875 Mount Eden Road, Mount Eden, 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 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 says that she responded to an advertisement on TradeMe for a flatmate wanted, and moved in on or about May 2022. She moved out in May 2024 and now seeks the return of the $500.00 deposit she paid the landlord.
The landlord has refused to return the deposit stating that the tenant moved without giving two weeks’ notice as required in the written agreement.
The tenant says the premises consisted of a two-level house with 5 bedrooms. She occupied one of these rooms. Everyone lived downstairs where there was a kitchen, lounge and bathroom. The landlord owner lived upstairs.
The weekly rent included power, water and internet. She used the shared facilities such as the lounge, kitchen and bathroom with other people.
The tenant says that there was a head tenant who was also living downstairs. She initially paid her rent to the landlord’s brother’s account. She was then told to pay the rent to the head tenant’s account. The tenant did not sign an agreement prior to moving in. Everything was verbal.
The landlord stated during the hearing that she signed a Tenancy Agreement with the tenant. When asked for a copy of the agreement she stated she could not find it. The tenant was adamant that she did not sign anything in the beginning.
The tenant says that there was a head tenant who she dealt with most of the time.
During the hearing the tenant confirmed that she was moving in as a flatmate at the start of the verbal agreement.
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.
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.
Section 5(1)(n) RTA specifically excludes arrangements, “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.”
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 or the owner; 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 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. I also remind myself that this is a tenant application and therefore the onus is on her to prove, on the balance of probabilities, that this was a landlord and tenant relationship.
The arrangement was for the parties to live co-operatively as flatmates. I am satisfied that the living arrangement was a flatting type agreement and excluded from the terms of the RTA.
The appropriate course would be for the applicant to re-commence her claim in the Disputes Tribunal, should she wish to continue with this.
The Tenancy Tribunal does not have jurisdiction to hear this claim.
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. I have dismissed the application and therefore make no order in respect of name suppression.

Tenancy Tribunal case 4898362 — Boarding House at 875 Mount Eden Road, Mount Eden, Auckland 1024

At a glance

Tenancy Tribunal case 4898362 — Boarding House at 875 Mount Eden Road, Mount Eden, Auckland 1024

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