Do Flatmates Have Rights Under the Residential Tenancies Act 1986?
The Residential Tenancies Act 1986 (RTA) is the primary legislation governing residential tenancy agreements in New Zealand. It sets out the rights and responsibilities of landlords and tenants. However, not all flatmate situations fall under the RTA's protection. A flatmate's rights depend significantly on the nature of their living arrangement and their agreement.
Understanding Tenancy vs. Flatmate Arrangements
A tenancy agreement is a contract between a landlord and a tenant for the rental of residential premises [Source: Residential Tenancies Act 1986, s 13(1)]. Under the RTA, a tenant is defined as a person who rents residential premises from a landlord, and a landlord is a person who grants a tenancy of residential premises to a tenant [Source: Residential Tenancies Act 1986, s 2(1)].
The key factor in determining RTA coverage for a flatmate is whether they are considered a 'tenant' under the Act, which usually involves having exclusive possession (the right to occupy the property to the exclusion of all others, including the landlord, subject to specific entry rights) of the premises or a part of the premises.
Flatmates Covered by the Residential Tenancies Act 1986
Co-Tenants
If all flatmates jointly sign the same tenancy agreement directly with the landlord, they are all considered co-tenants. In this scenario, each flatmate is a 'tenant' under the RTA and has all the rights and responsibilities that come with being a tenant [Source: Residential Tenancies Act 1986, s 2(1)].
Co-tenants are jointly and severally liable for the tenancy. This means that each tenant is individually responsible for all of the tenant's obligations under the tenancy agreement and the Act, including rent payments and property damage, and can be held responsible for the actions of other co-tenants [Source: Residential Tenancies Act 1986, s 13A].
Sub-Tenants
A flatmate might be a sub-tenant if they rent a room or part of the property from an existing tenant (often called the head tenant), rather than directly from the landlord. In this arrangement, the head tenant acts as the 'landlord' to the sub-tenant, and the sub-tenant has the rights and responsibilities of a 'tenant' under the RTA [Source: Residential Tenancies Act 1986, s 2(1)].
The head tenant usually requires the landlord's written consent to sublet the premises [Source: Residential Tenancies Act 1986, s 44(1)(e)]. If a sub-tenancy is established, the sub-tenant is protected by the RTA in their relationship with the head tenant.
Flatmates NOT Covered by the Residential Tenancies Act 1986
Boarders and Lodgers
The RTA specifically excludes agreements for board or lodging [Source: Residential Tenancies Act 1986, s 5(1)(d)]. A boarder or lodger is typically someone who pays for accommodation and may receive services (such as meals, laundry, or cleaning) from the homeowner or head tenant, and importantly, does not have exclusive possession of a specific part of the premises. Instead, they often share facilities and spaces, and the person providing the accommodation retains a higher degree of control over the living space.
Arrangements with boarders or lodgers are generally governed by contract law (the branch of law dealing with agreements between parties) rather than the RTA. This means they do not have the same protections regarding notice periods, bond handling, or dispute resolution mechanisms provided by the RTA.
Living with the Owner
If a person lives in premises that are also occupied by the owner of the premises, and shares facilities with the owner, their arrangement is generally excluded from the RTA [Source: Residential Tenancies Act 1986, s 5(1)(g)]. This exclusion applies even if the flatmate has a dedicated room, as long as common facilities are shared with the owner. Similar to boarders and lodgers, these arrangements are typically governed by contract law.
Key Differences in Rights and Obligations
For flatmates covered by the RTA (co-tenants, sub-tenants), their rights include, but are not limited to, the right to a written tenancy agreement, protection of their bond money through the Tenancy Services Bond Centre, minimum notice periods for termination, and the right to apply to the Tenancy Tribunal for dispute resolution [Source: Residential Tenancies Act 1986, s 13(1), s 18(2), s 77(1)].
For flatmates not covered by the RTA (boarders, lodgers, those living with owners), these specific statutory protections do not apply. Their rights and obligations are determined by the terms of their private agreement, which can be verbal or written, and general contract law principles. Disputes in these situations might need to be resolved through the Disputes Tribunal or District Court, depending on the amount in contention, rather than the Tenancy Tribunal.