Tenantcheck Insights · Case study
Tenancy Tribunal case 4401265 — Tenancy dispute
Decided 24 Nov 2023 · Published 24 Nov 2023 · Application 4401265
Party names are redacted in the official published order. This page summarises the dispute only — not individual identities.
At a glance
Key facts from the published tribunal order.
Location
New Zealand
Tribunal region
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- Suppression is granted for both parties and the address of the property.
- [The tenant/s]’s occupation is not a tenancy.
- [The tenant/s] is not a lawful occupant of the property at [Tenancy address suppressed] as his licence to occupy the property has been revoked.
- [The landlord/s] is entitled to immediate occupation of the property at [Tenancy address suppressed]. (section 65 Residential Tenancies Act 1986)
Reasons
- This matter was heard in two parts on the 28 October and 8 November 2022.
- The issue to be determined by the Tribunal is what is the nature of [The tenant/s]’s occupancy at [Tenancy address suppressed]?
- [The tenant/s] submits his occupancy is a residential tenancy. He says that whilst he does not pay rent, he has paid consideration by way of a reduction in the purchase price of $100,000 when he sold the property to [The landlord/s] in 2021.
- [The landlord/s]’s position is that this nature of the occupancy is a licence to occupy because that is what the parties agreed to in a written agreement, which was drafted by lawyers and each of them obtained legal advice before entering into the agreement. [The landlord/s] says that the occupancy is in fact as well as by agreement a licence to occupy because [The tenant/s] pays no rent. [The landlord/s] denies that there was a reduction of the purchase price or any consideration paid for the provision of the occupancy.
- The law is settled on this matter. Residential tenancies are distinguished from occupational licences on the basis of whether rent is paid or not. 1 S 2(1) of the RTA defines a tenancy as: 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. (own emphasis added).
- After hearing from the parties, I am satisfied that [The tenant/s]’s occupancy of the premises was an occupation licence not a tenancy, I say this for the following reasons: a) [The tenant/s] has not paid any rent to [The landlord/s] for his occupation. b) [The tenant/s] signed an agreement entitled a licence to occupy whereby [The tenant/s] could live at the property for one year but was not required to pay for any rent for the property. This agreement also reflected clause 25 of the Agreement for Sale and Purchase of land dated 28 July 2021 which stated, “the purchaser will allow the vendor to occupy the property for up to 12 months rent free from settlement.” c) Both [The tenant/s]’s lawyers and [The landlord/s]’ lawyers referred to the occupation as by licence rather than as a tenancy. d) Whilst parties are unable to contract out of the Residential Tenancies Act 2 , I consider that the would be contrary to the express agreement of the parties to now determine that the have a residential tenancy agreement. The parties took legal advice on their arrangement, they signed an agreement setting out their understanding and [The tenant/s] did not pay any rent during his occupation. e) [The tenant/s] and his lawyers gave evidence that the motivating factor for [The tenant/s] to reduce the purchase price was to allow a quick settlement, which in turn would allow [The tenant/s] to fulfil his obligations to his ex- partner, to allow him to reach settlement with the IRD on outstanding tax matters and to allow him time to find somewhere else to live with his dog. There was no evidence that supported [The tenant/s]’s submission at the 28 October hearing that the main reason for the reduction of the purchase price was in lieu of rent. 1 Wallath v Wallath [2021] NZDC 14323 [13 July 2021. For an analysis of the distinction between occupation licences refer to Wallath v Wallath 2021 NZTT 4272191, 17 February 2021.paras [28]-[33] 2 Sections 4 and 11 of the Residential Tenancies Act 1986. Is [The landlord/s] entitled to a possession order?
- [The landlord/s] have applied for a possession order under s65 of the RTA.
- Section 65 RTA provides: 65 Eviction of squatters (1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises. (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
- Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell.3 The Court held [at 74] that there are three conditions which have to be met before an order can be made: (a) The premises are residential premises. (b) The applicant for possession is entitled to possession of those premises. (c) Another person or persons are in possession as squatters, trespassers, or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
- The premises are residential premises. I am satisfied that [The landlord/s] is the owner of the premises and is entitled to possession and that [The tenant/s]’s licence to occupy the premises has been revoked and therefore he has no lawful authority to reside in the premises. Therefore, [The landlord/s] is entitled to immediate occupation of the premises.
- I note that [The tenant/s] has lived in the premises as the owner for over 20 years and suffers from health conditions. It appears from what he told me at the hearing that he may need some assistance to help him find alternative premises for him and his companion dog. I hope that he is able to find that assistance quickly.
- I have granted suppression orders for both parties and the address of the property. I have done so because this order contains information about the [The tenant/s]’s personal circumstances and I do not consider it in the public interest for the public to know the names of the parties.