Granny flats on the list of illegal premises, is this a solution? loophole potential?

[Oopsiedaisies]

Consented Granny flats who have a non family member residing in it. Could this potentially be a possibility? Operate like a very detailed 'flatmate' agreement where the flatmate may live separately to the owner of the house.
The Residential Tenancies Act (the Act) is the law that protects tenants and landlords in New Zealand. Not all living arrangements are covered by the Act.

The Act applies to every tenancy for residential purposes (renting a place to live in), except in certain cases. The Act doesn’t cover, for example, flatmates, student accommodation, holiday homes, hotels and motels, hospitals and rest-homes, or commercial tenancies.
Sometimes, parties to a living arrangement not covered by the Residential Tenancies Act (the Act) decide they’d like to be covered. To do this, they can make an agreement with each other stating that the Act will apply to their living arrangement. This is known as ‘contracting in’ to the Act.



Not sure who gets the bond as the Act says it goes into the RT Trust Account.
Who deals with disputes? Disputes Tribunal?
How does all the other TT references get handled?

Is this a possibility for the granny flat scenario?

Throw it at me guys..............I am sure there are flaws I cannot see lol.

[Oopsiedaisies]

To add, didnt see this part, part of the Act can apply:

Sometimes, parties in a living arrangement are not covered by the Residential Tenancies Act (the Act) and decide they’d like to be covered.

To do this, they can make an agreement with each other stating that the Act will apply to their living arrangement. This is known as ‘contracting in’ to the Act.
Contracting in to the Act

If both parties want to ‘contract in’ to the Act they will need to discuss whether the whole Act or just certain sections of the Act will apply to their living arrangement.
Once both parties have reached this agreement they must have that agreement in writing for the Act or certain sections to cover their living arrangement. This written agreement should be signed and dated by both parties, and each should keep a copy.

[mrsaneperson]

They can only be flatmates if they are sharing the amenities.

[sidinz]

They can only be flatmates if they are sharing the amenities.

Is there a defined list as to which 'amenities'?

[mrsaneperson]

Is there a defined list as to which 'amenities'?

I'm not sure ; usually a self contained non sharing situation would deem to be under the RTA and contracting out of the Act where the Act does apply is not possible even if both parties agree. .

Whereas a flatmate and landlord arrangement is outside of the RTA but you can contract into the RTA if both parties agree.

[sidinz]

I'm not sure ; usually a self contained non sharing situation would deem to be under the RTA.

But what is self-contained? There are heaps of granny flats built under someone's house (or beside it, so also sharing the same roof) that have their own entrance. I.e. not internally accessible. Yet they share the wiring, plumbing, HWC, phone/Internet lines, driveways, rubbish bins, TV aerials etc. with the rest of the house and may not have a full kitchen or laundry facilities. In most cases, they are not (according to the council) allowed to be tenanted separately. Yet I've seen recent TT decisions regarding these 'tenancies' even to the point of making the head tenant into a landlord. Madness.

[mrsaneperson]

But what is self-contained? There are heaps of granny flats built under someone's house (or beside it, so also sharing the same roof) that have their own entrance. I.e. not internally accessible. Yet they share the wiring, plumbing, HWC, phone/Internet lines, driveways, rubbish bins, TV aerials etc. with the rest of the house and may not have a full kitchen or laundry facilities. In most cases, they are not (according to the council) allowed to be tenanted separately. Yet I've seen recent TT decisions regarding these 'tenancies' even to the point of making the head tenant into a landlord. Madness.

It is madness you're absolutely right and the madness is centred around the council creating uncertainty in the situations where many variables can exist. However the madness is now recently being escalated to new levels by Tenancy Tribunal who are citing section 137 of the RTA regarding residential situations deemed illegal awarding the entire rent back to the tenant. There is a thread started on PT , about the whole sinister situation, there are thousands of them out there but to give you a taste of whats currently happening , a Dunedin Landlord Vic Inglis was ordered to pay back 11k of all the rent collected to his ratbag tenant who sublet an unconsented basement without his knowledge: https://www.odt.co.nz/news/dunedin/r...10k-out-pocket

[Oopsiedaisies]

Why I am asking is because of the recent cases. I see the granny flat technically not being able to be a separate residential dwelling as no fire wall. Flat is next to main house. So section 137 scaring me.

The GF has all its own entrance, full amenities, kitchen, laundry, bathroom etc. Water is on one meter. Power on one meter but a check meter installed. So where am I?

I can't rent it under the RTA because of it not being compliant ... well as far as I see, no fire wall and it is a Granny flat so intended for family. So I dont think that the Act can apply then. Why cant I choose to contract into part of the Act as it allows for this as per my first question ?
But if I cant contract into part of the Act then nothing stopping me having a flatmate with a flatmate agreement? Can't I have a flatmate with their own separate part of the house? What is stopping me from doing that? Very frustrating not knowing what or what not applies......grrrr

[John the builder]

The gtranny flat should be able to be rented legally if it is understood that the granny flat is still part of the same household.

You could achieve this by renting as a room that happens to have adjacent self contained facilities. You dont need approval to rent a room? The agreement must relate to the room and reflect that the other members of the house hold have right of entry to the whole house and vice versa, but in practice this doesn't happen and privacy is respected. This works well with owner occupier but less so when there are tenants in the main house as well but the rule that they are the same household should still apply.

Locks on doors creates issues not because it makes and difference but because some bureaucrat has opinion and decided that locks on doors in not allowed in a residential dwelling and been allowed to publish a guidance document that is being given too much credibility?

The building act allows up to 6 boarders and it is still a single dwelling but when over 6 this is less clear. Boardinghouses attract fire safey issues due to transient nature of boarders so 6 is critical to this arrangement.(similar to hotels and hostels)

The tenancy services would be happy with this room arrangement and a boarding room agreement applies. (it is not a boardinghouse under 6

Council will still have fit but as long as the arrangement is solid they cannot act (or at least succeed)

[sidinz]

The gtranny flat should be able to be rented legally if it is understood that the granny flat is still part of the same household.

You could achieve this by renting as a room that happens to have adjacent self contained facilities. You dont need approval to rent a room? The agreement must relate to the room and reflect that the other members of the house hold have right of entry to the whole house and vice versa, but in practice this doesn't happen and privacy is respected. This works well with owner occupier but less so when there are tenants in the main house as well but the rule that they are the same household should still apply.

Locks on doors creates issues not because it makes and difference but because some bureaucrat has opinion and decided that locks on doors in not allowed in a residential dwelling and been allowed to publish a guidance document that is being given too much credibility?

The building act allows up to 6 boarders and it is still a single dwelling but when over 6 this is less clear. Boardinghouses attract fire safey issues due to transient nature of boarders so 6 is critical to this arrangement.(similar to hotels and hostels)

The tenancy services would be happy with this room arrangement and a boarding room agreement applies. (it is not a boardinghouse under 6

Council will still have fit but as long as the arrangement is solid they cannot act (or at least succeed)

What you say is reasonable and common sense. However, the TT is not known for its common sense and has recently decided unilaterally that a flatmate arrangement is actually an illegal tenancy and ordered a refund of all rent paid.

[Oopsiedaisies]

Locks on doors? I have a lock on my bedroom door as I am living alone and want to feel a wee bit safer at night.
There is a door between the house and the flat and it is locked. I

asked tenancy services and they said if the Council approves the flat as being able to be rented then I can. If I cant then Tenancy Services said I need to make arrangement outside the Act for other situations. And so I will. But can I? The Act says:
tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy

so this means to me renting out a room (exclusively with own faciliites);

and then there is nothing in the Act to say my situation is exempt from the Act (section 5). So anyone paying you rent is subject to the Act but if the premises aren't up to spec under section 45 (landlord responsibilities) then you are breaching the Act. Can't win.

[mrsaneperson]

Well throughout NZ there will be thousands of these situations .

There is at least one sensible and very experienced adjudicator B Stephenson who has provided very detailed , very rational commentary - in his view, section 137 used to return all rent monies paid in these types of tenancy is wrongly being applied.

His judgment was made 7th Nov 2016, it is well thought out, interesting and can be read in full here : https://forms.justice.govt.nz/search.../109130352.pdf
If only there were more people of his caliber it would serve tenants and landlords best interests.

His final comment and summation on the matter in the TT order :

Application Number: 4024444

Dated at Manukau on Monday 07-Nov-2016

B Stephenson, Tenancy Adjudicator quote:

For the above reasons, I conclude that Anderson v FM Custodians Ltd should not be followed

in landlord and tenant cases under the Residential Tenancies Act 1986. The Tribunal has

jurisdiction to hear and determine the claims. The hearing is to be resumed

[sidinz]

I don't have a link, but there's a clause in the RTA that says that when the 'tenant' shares the premises with the 'landlord' that the RTA does not apply. the problem is, the adjudicators are starting to draw a long bow and decide for themselves what doesn't constitute shared premises.

[Keys]

"n" (mamc)

[Perry]

I had a sift through the RTA, the other day, looking for something I could not find. I vaguely recall something about TTs not being bound by precedent. Either in the same locality or elsewhere. Is it in the RTA or elsewhere, I wonder?