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Private Board or Tenant under RTA ??

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  • Private Board or Tenant under RTA ??

    We have a "granny flat" that is attached to our house which we want to get someone into.

    I don't know if we can have someone in there as a "Private boarder", and I can't "rent" it out as a formal tenancy as it's own "rental" because it's not a seperatey consented dwelling.

    Here's the setup:
    It's it's own space, no internal access to our house but is all under one roof.
    This includes
    -kitchenette & Laundry (hot plate, but no extractor)
    -own shower and toilet
    -own mini lounge
    -2 "bedrooms"
    -own private deck

    On the plans the rooms are consented as storage areas.
    The only thing about the space that won't meet the Healthy Homes is the lack of extractor in the kitchenette, but it's a new house less than a year old. (also, again, it's not a consented dwelling so can't be rented)

    We would in include in the deal:
    water, gas for hot water, electricity, unlimited internet, netflix

    So,
    Would this person be covered by RTA??

    My worry is that if we have someone in there as a "boarder", but they take us to Tribunal we could have to refund all the rent.
    I feel like having no internal access/shared space makes it closer to a rent rather than board scenario?

    Community Law is vague about this.

    Any help appreciated!!

  • #2
    The rules are completely daft, aren't they. There is supposed to be a housing crisis. The link below is not precisely what you asked but may give you some ideas on how to go ahead. Flatmates may be the way to go. Or if possible rent to family.

    ETA If there is one street address that would support a flatmate situation.


    http://www.ird.govt.nz/property/rent...n-my-main-home
    Last edited by artemis; 08-06-2021, 02:13 PM.

    Comment


    • #3
      Thanks for that.
      We can't call it a flatmate scenario because they have their own space and we won't have any shared spaces, chores or cooking. (other than parking)

      We may be able to add a "service" to the deal such as cleaning once a week. That may put us in a safer position.

      Comment


      • #4
        Boarding houses are covered by the RTA, but (as I dimly recall) only if there is over a certain number of boarders.

        Although not agreed to by some on PT, have a look at this RTA section.

        5 Act excluded in certain cases

        (1) This Act shall not apply in the following cases:

        (n) 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:
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        • #5
          Originally posted by Perry View Post
          Boarding houses are covered by the RTA, but (as I dimly recall) only if there is over a certain number of boarders.

          Although not agreed to by some on PT, have a look at this RTA section.

          5 Act excluded in certain cases

          (1) This Act shall not apply in the following cases:

          (n) 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:

          That's great, thanks. That does make it quite a grey zone.

          I just found this "gotcha" too.
          https://www.legislation.govt.nz/act/.../DLM95011.html

          10 Onus of proof

          Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.

          Comment


          • #6
            It gets worse!

            Establishing the facts is a blind alley. For the TT Kangaroo Kourt is not bound by inconvenient facts.

            Facts can be readily fiddled and fudged in to to-be-got-around 'strict legal rights' by TT Kangaroo Kourt socialist adjudicators:

            85 Manner in which jurisdiction is to be exercised

            (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
            Plus the not-immediately evident lie that the TT 'tribunal' is actually a Unobunal. I.e. A law unto its oneself.

            When did you last see a tricycle with only one wheel!?

            They're called unicycles.
            Last edited by Perry; 08-06-2021, 10:08 PM.
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            • #7
              If you are including power etc are you dividing the bill or charging set amount? If dividing the bill that might lead to dispute. If you are basically charging a fixed amount then it looks more like a holiday stay. Maybe just limit it to less than 90 day stays and charge by the night.

              Comment


              • #8
                Originally posted by hawkeye View Post
                If you are including power etc are you dividing the bill or charging set amount? If dividing the bill that might lead to dispute. If you are basically charging a fixed amount then it looks more like a holiday stay. Maybe just limit it to less than 90 day stays and charge by the night.
                We will have a fixed amount charged for power.

                Limiting it to 90 days makes it pretty painful on us having to find new "boarders" every 3 months. We have a family and would like to reduce the admin time and number of random folks around our house.

                It's a consideration making on a nightly basis though. That could work.

                Have also considered offering some other form of "service" such as cleaning or something.

                Comment


                • #9
                  It will be an unlawful tenancy from the get-go as it's not permitted for habitation, only storage space. Check s56A of the RTA - unlawful residential premises.

                  Comment


                  • #10
                    I had pretty much what you had except I had a separate internal power meter. Initially before all these law changes a tenancy agreement and that worked fine, maybe was not legal even then but Tenancy Services don't question it. It only becomes a problem if there is a problem, and that problem will be the tenant Then decided I don't fit the criteria so i went the house sharing agreement.

                    I wrote a comprehensive agreement. If you choose not to use the the RTA (see below of why you can) then state the agreement is not covered by the RTA and disputes will be determined by the Disputes Tribunal. However many people don't know you can opt into the RTA and use that Act to determine your living arrangement if that living arrangement sits outside the RTA criteria.

                    This is known as contracting into the Act and be covered by all or SOME (of your choosing) of the RTA. This is useful as you can use the Act to set the conditions without having to be part of the Tenancy Services/Tribunal. So you can remove sections that you do not want to comply with (fairly of course). To do this, you need to agree with everyone involved that the Act (or parts thereof) will apply to the living arrangement.

                    My Granny flat would have complied in every way except no extractor fan in the kitchen. I planned to put this in but sold. I think if you opted into the RTA with the exception with tenancy services holding bond (bond held in a specific separate account), dispute resolution replaced by the Disputes Tribunal, etc. and sorted your fan then you would be shown that you have acted in a fair way.

                    Personally (and this is only my opinion) put the fan in. It won't be expensive and it will help with dampness in the home and show you are responsible if there is ever a dispute.

                    You may use the tenancy services agreement as a basis for your own (yes their website says this!) and then go through the Act and say what sections do not apply in the agreement. Then add you own extra sections such as using the Disputes Tribunal for disputes, bond to be held in a specific bank account that will only be accessed relative to the agreement.

                    Only thing is there is a limit to the $ one can claim under the Disputes Tribunal. However in the scheme of things Court would be a very expensive exercise. Make sure your insurance company is informed and OK with this arrangement.
                    Last edited by donna; 09-06-2021, 06:01 PM.

                    Comment


                    • #11
                      Originally posted by Katrina View Post
                      It will be an unlawful tenancy from the get-go as it's not permitted for habitation, only storage space. Check s56A of the RTA - unlawful residential premises.
                      Based on the details given, it does not seem to be unfit for habitation. (I appreciate that permitted and unfit are two things.) E.g. It would be unusual for any storage space to have a kitchenette, shower and toilet.

                      That said, I see only two options as BellBird99's starting point. Weigh the pros and cons and then decide to:

                      1) Let it under the RTA and ensure you comply with the Act and all of FarGoneBoy's stupidity;

                      2) Let it under some alternative arrangement that precludes the RTA and FarGoneBoy's asinine diktats.
                      Last edited by Perry; 09-06-2021, 02:58 PM.
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                      Comment


                      • #12
                        Moderator Note
                        9 Jun 2021

                        Whether the PT forum software or a by-product of the recent Internet connectivity failure, I have so far been unable to approve two posts. One by Katrina and one by BellBird99. Perversely though, I do seem to have expunged the duplicates. I'll try again, later.
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                        • #13
                          Originally posted by BellBird99 View Post
                          We have a "granny flat" that is attached to our house which we want to get someone into.
                          On the plans the rooms are consented as storage areas.
                          How did all the plumbing etc., get in there?


                          Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

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                          • #14
                            Originally posted by Perry View Post
                            Moderator Note
                            9 Jun 2021

                            Whether the PT forum software or a by-product of the recent Internet connectivity failure, I have so far been unable to approve two posts. One by Katrina and one by BellBird99. Perversely though, I do seem to have expunged the duplicates. I'll try again, later.
                            Thanks Lorenzo. Our tech has fixed the issue.

                            cheers,

                            Donna
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                            • #15
                              Originally posted by Perry View Post
                              How did all the plumbing etc., get in there?

                              It's all consented and built when the house was built.
                              The "Kitchenette" is on the plans as a laundry, and the bathroom etc is all consented and built to plan.

                              The technicality is that there is no development contribution paid to make it it's own dwelling, it's all just under the roof of my house.

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