Boarding houses or shared tenancy?
Recent changes to the residential tenancies Act that included Boarding houses has meant that the tenancy services and councils have been more active in monitoring and investigating alleged boardinghouses. This is particularly the case in Auckland where tag teams involving Building planning tenancy services Fire service and others are inspecting properties.
Part of the problem stems from the lack of a definition of "boarder" in the relevant Building Act and Residential Tenancies Act (RTA)..The Unitary plan is not helpful either in that it simply refers to the RTA for a definition of Boardinghouse. There are slightly different planning consideration that apply to boardinghouses and not shared dwellings.
Why is this important?
The Building act and the building code generally imposes more stringent fire safety requirements on a boardinghouse including fire separations between suites and intermediate floors. While smoke alarms.are required in all sleeping spaces (and should be checked and maintained regularly) whether boarding or private residential Boardinghouses are recognoised as catering for itinerant residents who may not be in residence for long enough to develop social cohesion with others in the building and need special consideration and greater protection.(this aplies to hotels and motels etc for the same reason.
What is a boarder?
The ordinary meaning of a boarder is usually something like "somebody who pays to sleep and eat in a private home or boarding house" This is consistent with the Building Act that includes boardinghouses in Classified uses Community service where the limited assistance or care is extended and includes hotels hostels halls of residence as other examples. A distinction is made for less than 6 boarders in a residence here under both the RTA and the building Act less than 6 is deemed still a detached dwelling.
The problem stem from how to demonstrate the use of the building and not inadvertently contradict one act such as the RTA when trying to comply with the Building Act.(and vice versa).
The intended use;
The intended use must inform and govern the further assessment of any building and we refute any attempt to impose someone's assumption of what that “intended use” may be. It is unreasonable for say the council to assume some perception of use that is not justified and to not resile from this assumption when the reality is established.
If there is some inconsistency between the building act or some other document you rely on then you must reserve the right to clarify that document so that all tenant and landlord obligations and relationships are in accord and aligned with the building act. This requires owners to be properly informed as to what the different Acts require.
In a recent submission we stated;
“The intended use of this building(s) is as a single home/household intended to operate as tenants jointly responsible for the self care and service (internal management of the house consistent with classified use 2.0.2 of A1 of the New Zealand Building Code. “
We note that this same classified use allows for fewer than 6 boarders to be occupying the house and it is still considered a detached dwelling. The intended use in this case(s) is that boarders are not occupying. All the occupants will be permanent occupants and part of a shared household and self managed and not transient boarders. There is no intention to provide services or limited care and the household is responsible for its own care and management. The household is required to practice caring and cooperative relationships which represents the social cohesion that is expected in any household or family group.
intended use, in relation to a building,--
includes any or all of the following:any reasonably foreseeable occasional use that is not incompatible with the intended use: i. normal maintenance: ii.activities undertaken in response to fire or any other reasonably foreseeable emergency; but iii. does not include any other maintenance and repairs or rebuilding
We interpret this to mean the common use and ordinary meaning prevails but there is allowance in the meaning for other occasional inadvertent use that is not incompatible with the intended use.
We note that the stated intended use of this building to be occupied by members of the same household satisfies the definition of Household unit in the Building Regulations and the Building Act;"
means a building or group of buildings, or part of a building or group of buildings, that is—used, or intended to be used, only or mainly for residential purposes; and occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but does not include a hostel, boardinghouse, or other specialized accommodation
We note the emphasis on intended use in the definition. We accept that boardinghouse is excluded in the definition of house hold unit along with hostels or other specialized accommodation, but if there is no intention to offer transient accommodation to boarders even if less than 6 under the allowance for a detached dwelling then a boardinghouse is not present.
This relationship is demonstrated in the way the tenants manage themselves and also the house rules that require respect and cooperation between members and assumes that all will look out for each other. If this is not clear then please allow the owner the opportunity to correct the misunderstanding of council. If council need the arrangement clarified to conform to household unit/ shared household then please convey to us the issues that need clarification.
There is no definition of Boarder or Boarding house in the Building Act or regulations but the previous CAS1 2005 was more helpful in describing under 'SA (as below) ‘sleeping activity transient' as typically not more than 90 Days or where limited assistance or care is provided for primary users.
The current applicable CAS2 in comparison does not make the same distinction for transient or permanent accommodation and puts all these uses together under SM. The scope however 1.1.1 states that
b. Hotel, motel and serviced apartment buildings
c. Backpackers, cabins on holiday parks
d. Buildings where more than 5 people pay for accommodation (such as
homestay/ bed and breakfast)
e. University halls of residence, education accommodation (eg,
school oarding hostels), and
f. Wharenui and other community sleeping spaces.
g. Sheltered housing such as refuges, reintegration for prisoners, homeless shelters etc.
Thus is SH single Home sleeping in respect to the Change of Use Regulations 2005 is covered under the fire clauses with CAS1 (also deemed to be SH). We also recognise that up to five boarders may be accommodated in a detached dwelling and Sleeping Home (SH) plus a family. This is a slightly different definition than A2.0.2 and more permissive. This is stated in CAS2;
Boarding houses/bed and breakfast
2.2.9 As permitted by NZBC A1 2.0.2, a detached dwelling used as a boarding house
accommodating up to five people (not including members of the residing family) can be
treated as risk group SH (see C/AS1).
CAS2 2.2.9 is consistent with SH because it recognizes that 6 transient occupiers still have sufficient social cohesion to be similar to and operate as a household. A greater number (if bed spaces were available) could demonstrate the same level of social cohesion (or more) as any other household if the period of occupancy was such that this social cohesion could develop, This is why the previous acceptable solution recognized 90 days as evidence of permanent because this cohesion naturally occurs in this period of time. This should still be a reasonable threshold for not transient.
The Fire Safety clauses
The fire requirements for a building require specialist fire design usually based on the acceptable solutions. There are some requirements that apply to a detached dwelling (smoke detector to sleeping spaces etc) but in general terms there are minimal requirements unless there is inter-unit walls or walls on a boundary or the open paths are longer than 25m.
Residential tenancy Act;
The RTA was recently amended to include boarding houses that were previously excluded from the RTA.
The unitary plans references the definition in s66B of the RTA as its definition of Boarding house. Neither legislation defines “boarder”.
The RTA includes interpretations that include;
Boarding room:as being a room in a boarding house with a tenancy ages to that room.
This means that anyone who rents a room with a “tenancy agreement that relate is that room” is considered a tenant (boarder) in a boarding house (boarder is not defined) under the RTA and any tenancy with a boarding room and more than 6 tenants is considered a ‘boarding house’. A boarding room is one where a tenant has exclusive use of a room and that tenancy agreement relates to that room. The distinction must therefore be made between renting a room and receiving care and meals and renting a share of a house that includes the use of a bedroom, In a shared house the occupants are responsible for the communal facilities and cleaning and the like and damage but in a Boardinghouse the are provided for the boarder.
The RTA does not make a distinction as to transient or permanent accommodation as the Building Act does it is simply establishing tenancy rights under the act. A ‘boarding house tenancy’ is required if it is intended to last for only 28 days or more. This is still transient under the Building Act but if 90 days is understood as the threshold for ‘not transient’ then this threshold is not met under the building act and the tenants are not boarders or transient under the Building Act.
This means that a dwelling that is rented to tenants may be a ‘boarding house’ for the purposes of the RTA and require ‘boarding house tenancy agreements’ if the requirement for a tenancy agreement that relates to that room applies and a boarding room is present. But it may still not be a ‘boardinghouse’ in terms of the Building Act 2004 and the building code. The requirements in respect to a boardinghouse particularly in the fire clause acceptable solution are therefore not triggered.
The affect of triggering the Boarding room definition is to include boarders in the protection offered by the RTA and requiring a boarding house tenancy agreement.However if Boarding rooms are not present then a shared tenancy agreement is sufficient This avoids conflict with the Building Act
The key to clarifying the situation is a clear agreement that demonstrates the shared nature of the dwelling if that is what is intended, rather than a room rent or boarding arrangement.This is in practice the same arrangement that the traditional NZ flat is organized under, where members have a greater or lesser relationship with each other but are expected to exercise social cohesion and naturally look out for each other in an emergency..
The RTA is aligned with the Building Act to the extent that it a dwelling is not a ‘boarding house’ if under 6 tenants (under the RTA) and the Building Act also allows for less than 6 boarders and the building is still a detached dwelling (but the occupants are still boarders. (Some parts say family plus up to 6 which could allow for greater numbers in total occupants)). This presupposes that there is a tenancy agreement under the RTA that relates to that room (and boarding rooms are present) and that the boarders under the building act are transient occupants
A shared house however can have more that 6 occupants and not bne a boarding house under the RTA or the Building act The key is a tenancy agreement that reflects this reality. The argument under the RTA is that tenants are given quiet enjoyment over their tenancy. The tenancy is reflected in the tenancy agreement as the 'premises'. If there are multiple agreements for the same premises the argument is that technically the tenant does not have quiet enjoyment.A joint tenancy is possible with all the occupants named on the agreement but this may be impractical if there is no head tenant to manage the tenancy.
Another option is to have a head tenant who could be the owner and have a flat-sharing arrangement. This arrangement is outside the RTA and any disputes are settled at Disputes tribunal.
What ever arrangement is settled on legal advise is recommended to ensure that arrangements are not 'unraveled' later. and uses alleged that are not intended.
This is a very complex area with conflicting and confusing requirements that need to be considered. on a case by case basis.
If you want assistance with your situation then contact us to see if we can offer our services..