Landlord’s Place of Residence Exclusion Not Applicable in Tenancy Tribunal Case

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A case brought to the Tenancy Tribunal in November 2023 questioned whether the Tenancy Tribunal had the authority to hear the tenant's grievances, given a "flat share agreement" existed between the involved parties. The case makes interesting reading for landlords and tenants who share a primary residence. 

In this case, before hearing the case the Tribunal considered whether the exclusion in Section 5(1)(n) of the Residential Tenancies Act 1986 (RTA) applied. This section excludes certain tenancies where the premises are used primarily as the landlord's place of residence.
 

Why Was the Exclusion Not Applicable? 

In this recent case, the adjudicator found that the exclusion was not applicable as: 

• The downstairs area was a physically separate space from the landlord's residence, featuring its own entrance and amenities.
• Both the tenant and landlord functioned as separate households.
• The landlord did not freely enter into the tenant’s area and the tenant had sole occupancy of the lower level. There was no suggestion the tenant was free to use any part of the upper level.
• Having a shared driveway and sharing the power supply and internet were in themselves not sufficient grounds to establish that the ‘premises’ was the entirety of the whole house.

Having established these facts, the adjudicator ruled that despite a flat share agreement being in place the Tenancy Tribunal had the jurisdiction to deal with the tenant’s claims. The case was then heard by the Tribunal. 

What Can We Learn from This Case? 

We can take from this case that for Section 5(1)(n) of the RTA to apply it is necessary to evaluate the extent of communal living amenities and whether the tenant's area is self-contained. 

The full case can be read here. 

Other Interesting Tenancy Tribunal Cases 

At Crockers, our property managers keep a close eye on Tenancy Tribunal cases and how the law is being interpreted. 

Read our write ups of these recent interesting cases: Tenant Refunded Almost $60,000 After Illegal Tenancy and Landlords Fined Following Invalid Termination Notices. 

If you’d like some further advice on renting out your property contact our Property Management team on pm@crockers.co.nz or call for a chat on 09 623 5952.