Flat-sharing and the RTA

Question from Luke updated on 10th February 2020:

Briefly, the circumstances are as follows:

The head tenant of a property is also the property owner. The head tenant has entered into a flat sharing agreement with other flatmates. The head tenant has not been physically residing at the property for an extended period of time (due travelling, staying with family/partner, etc).

Does the fact that the head tenant/property owner has not been physically been residing in the property (for say a few months to a year) affect the flatmate relationship with the other flatmates? More specifically, does this convert the nature of the relationship to one of "landlord/tenant" or is it still excluded from the RTA 1986 because of the flat sharing agreement?

Finally, if the term of the flat sharing agreement has expired and no action taken by either the head tenant/flat, does the nature of the relationship remain in place until action is taken by either party?

 

Our expert Jennifer Sykes responded:

For the purposes of this answer, we have assumed this is a flat-sharing arrangement rather than a boarding house. Flat-sharing agreements between tenants and other flatmates are not covered by the Residential Tenancies Act. Flatmates’ rights depend on the arrangement they have with the tenant or home owner. This includes what may happen at the expiry of the agreement.

For the arrangement to be excluded from the RTA the premises must continue to be used predominantly as a residence (as a home) by the landlord or owner. If the landlord or owner is no longer using the place in this way then the arrangement may no longer be excluded. You need to discuss with everyone involved as to what the future living situation will be where the relationship has changed (i.e. the head tenant or property owner is no longer living at the premises and will not have rights to access the property freely as they would as a resident).

This may include opting into a residential tenancy agreement as tenant and landlord, or renewing the flat-sharing arrangement. If you consider the owner no longer uses the property as a place of residence, then you may apply to the Tenancy Tribunal to resolve the matter if you are unable to reach agreement with the owner.

For more information on flatting, go to tenancy.govt.nz/starting-a-tenancy/flatting/. You can also subscribe to our e-newsletter Tenancy Matters here

The Ministry of Business, Innovation and Employment provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.

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