How much money was awarded in case 4494205?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4494205?

The dispute type was not classified.

Where can I read the official tribunal order for case 4494205?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8685794-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4494205?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4494205?

The dispute type was not classified.

Where can I read the official tribunal order for case 4494205?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8685794-Tribunal_Order_Redacted.pdf.

18 Totara Street, Te Hapara, Gisborne 4010 Tenancy Tribunal Case 4494205 — Tenancy dispute

Q: What was Tenancy Tribunal case 4494205 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of one of the occupier’s names and identifying details, that being [Occupier/s].
Kāinga Ora–Homes And Communities is granted possession of the premises at 18 Totara Street, Te Hapara, Gisborne 4010 at 11:59pm on Tuesday 28 March 2023.

Reasons

Mr Kalnins attended the hearing by teleconference on behalf of the landlord. [Occupier/s] attended the hearing in-person.
The owner has applied for possession of the premises pursuant to section 65(1) Residential Tenancies Act 1986 (“RTA”).
Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. Further, the evidence should be reasonable with no probable defects, such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence.
Section 65(1) RTA provides that, 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.
Mr Kalnins said that Kāinga Ora–Homes And Communities owns the property at 18 Totara Street, Gisborne, and provided a copy of title documents proving Kāinga Ora’s ownership of 18 Totara Street, Gisborne.
Mr Kalnins said that, during a tenancy that went from 22 January 2019 to 15 June 2020 (a copy of that Tenancy Agreement was provided, with the tenant’s name deleted), the property at 18 Totara Street, Gisborne was fire-damaged and that tenant had to move out temporarily, until they could be rehomed. He stated further that, since that tenant had moved out, they had been repairing the property from the fire damage, to return the property to legal standards.
Before the property’s repairs from the fire could be completed, Mr Kalnins said that they were told that some people had moved into the property at 18 Totara Street, Gisborne, without their permission or consent. He said they discovered this on 29 November 2021 and had their staff attend the property for a meeting with [occupier/s] and the family, the people who had moved into the property, on 30 November 2021. As a result of this meeting, Mr Kalnins said that [occupier/s] were offered another larger home in a different location. He said the family refused to sign a Tenancy Agreement for the alternate home offered to them.
Mr Kalnins said the family are unable to remain at 18 Totara Street, Gisborne, as this is only a two-bedroom home, which would be considered overcrowded for a 7-person family, which includes 5 children, as well as because of further repairs to the property being required.
Mr Kalnins said that one of their team leaders had contact with [occupier/s] on 23 December 2021, after meetings with the family, and then, despite multiple attempts to communicate and connect with [occupier/s] over a long period of time, they struggled to get any response or engagement from them. He said that when they did eventually connect with the family again around 18 November 2022, [occupier/s] again refused to sign a Tenancy Agreement for the alternate property offered to the family.
Kāinga Ora–Homes And Communities then applied on 1 February 2023 for a possession order, pursuant to section 65 RTA.
Mr Kalnins said that there has been no rent or any other financial contribution paid by [Occupier/s] nor had Kāinga Ora–Homes And Communities ever given them permission or consent to live at the property.
[Occupier/s] spoke in detail of her family’s hardship in attempting to find suitable accommodation. She said that her family of 7 (there are 5 children ranging from aged 3 years to aged 16 years) were offered a small cabin in [Event location suppressed] that was cramped and costly for them. She said that they had to move from accommodation that her children’s school had concerns about, and so she and her partner were becoming desperate to find suitable accommodation for the family. [Occupier/s] said she felt that authorities had failed her family in helping to provide accommodation for them, despite many requests. After a social media post by her partner asking about where there might be empty state houses, [Occupier/s] said they received information that the property at 18 Totara Street, Gisborne was empty. They moved their family into this property. [Occupier/s] said this was out of desperation.
[Occupier/s] disputed that the property was uninhabitable and said that she arranged for an electrical certificate for the property to be completed and then arranged for power to be hooked up to the property. She said much of the property is brand new, apart from a section of missing carpet, and that her family have lived in the property for over a year without any problems.
[Occupier/s] acknowledged that the family have not made any financial contribution to Kāinga Ora over the time they have lived in the property, though she also said she thought she should have been paying for the rates for the property over this time, after a conversation with a team leader. [Occupier/s] said that her family had never been asked to leave the property by Kāinga Ora. [Occupier/s] said she objects to being seen as a squatter, as she said she is tangata whenua, and so feels she is entitled to live on that land.
[Occupier/s] said she refused to take the alternate accommodation offered by Kāinga Ora–Homes And Communities as she was offended that they only managed to come up with this accommodation offer after her family had moved into the empty property at Totara Street. She detailed the numerous attempts she had made with agencies to find suitable accommodation for her family, before moving into the empty house at Totara Street, without success. [Occupier/s] said further that she does not want her family living in the street of this alternate accommodation offered, or any other gang-related area in Gisborne, as she has had past dealings with gangs that have been traumatic, and she worries for the safety of her family in such areas.
[Occupier/s] said she and her partner would be open to being rehoused by Kāinga Ora to an area outside of any gang-related areas, such as Tolaga Bay, Waihirere, Manutuke or other similar areas just outside of town, if need be, in which she feels her family would be safer. Law
The Land Transfer Act 2017 confers indefeasible title by registration, not capable of being annulled, voided or undone. The title of a registered owner may only be subject to any other estate, or interest in the land, if the land or interest is registered, or noted on the register. If ownership of the land is challenged only the High Court, and the Māori Land Court, have jurisdiction to determine the matter.
To make an order for possession under section 65(1) of the RTA, the Tribunal must be satisfied that: a. The premises are residential; b. The applicant is entitled to possession of the premises; c. The person against whom the order is sought does not have a right to be in possession of the premises.
Residential premises are defined in section 2(1) of the RTA as any premises used or intended to be used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. It is not disputed by the parties that these premises are residential.
Kāinga Ora proved, with documents confirming their legal title, that they are the legal owner of 18 Totara Street, Gisborne.
The owner of the premises is entitled to possession of it, subject to the right of any person lawfully entitled to possession of it.
There was no agreement for the payment of rent or any consideration for [Occupier/s] occupation of the premises at 18 Totara Street, Gisborne, as between them and Kāinga Ora.
Kāinga Ora–Homes And Communities say they have never given [Occupier/s] permission or consent to live at the premises, and do not consent to their occupation of the premises currently. There is no Tenancy Agreement, either written or verbal in relation to this property involving [Occupier/s].
[Occupier/s] do not dispute that there is no formal legal agreement for them to occupy the premises, although they say they were never told to leave the property by the owner. [Occupier/s] said that a team leader asked her once if she was prepared to make a contribution towards living there, she said she would pay the rates and said the team leader said the rates are not payable by tenants, and then the matter was not discussed further. Mr Kalnins disputed this.
Even if it was considered that there were circumstances that could infer a licence to occupy the premises, the owner of the property can revoke any licence to occupy at will. To be clear, in my view, [Occupier/s] have not proved that it is more likely than not that there were circumstances that could infer a licence to occupy the premises, in any event.
I understood [Occupier/s] comment about being tangata whenua to relate to her objection to the term squatter being applied to her in the application, rather than in relation to her raising any substantive claim regarding a right to occupy. Further, she confirmed that she and her partner would consider being rehoused to alternate accommodation they consider safe for their family, with an appropriate Tenancy Agreement being put into place.
Being tangata whenua does not, in itself, provide a right to be in possession of the premises, according to the High Court in Edwina Chmielowski v Fort Braggs Properties Limited HC AK CIV-2005-404-4618 [15 December 2005].
In Chmielowski, the High Court dealt with a situation where the applicant had purchased a property pursuant to the Land Transfer Act 1952, obtained a mortgage with one bank, transferred the mortgage to a second bank, then defaulted on the mortgage. The Bank then exercised its power of sale under the mortgage, contracted to sell the property and settled on the sale. The property’s title was transferred to the purchaser. The applicant, Ms Chmielowski, refused to leave the property. The respondent sought a possession order pursuant to section 65 RTA, claiming they were entitled to possession of the property. The applicant claimed that she was subject only to Māori customary laws and under those laws she was entitled to possession of the property. The Tenancy Tribunal ordered possession of the property be granted to the respondent. The applicant appealed this to the District Court, where she was unsuccessful. The District Court held that there were no meritorious reasons for challenging the respondent’s freehold title as registered proprietor. The applicant appealed further to the High Court.
The High Court considered the Treaty of Waitangi and the interpretation of the Māori text of the Treaty by Professor Sir Hugh Kawharu in New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641, 662-3.
The Court also considered the Preamble and first three Articles of the Treaty, particularly in relation to Crown government of the land and the grant to Māori of the same rights and duties of citizenship as non-Māori. The Court said these duties included compliance with the law. The Court held that for the Court to fail to give effect to the rights of the respondent under the Land Transfer Act would itself be an infringement of the law and of the Treaty of Waitangi.
The Court further held that the Land Transfer Act is the law which the Court, in due exercise of the responsibility to apply the law as was contemplated by the signatories of the Treaty of Waitangi, must apply. The Court then gave effect to the respondent’s rights under the Land Transfer Act and dismissed the appeal.
I find that Kāinga Ora–Homes And Communities has proved it is more likely than not that they own the premises and that there was no right to occupy on the part of [Occupier/s], and that there is no authority for them to remain on the premises.
As [Occupier/s] do not have any legal right to occupy the premises and are not legal tenants, Kāinga Ora–Homes And Communities is granted possession of the property at 11:59pm on Tuesday 28 March 2023. This order applies to anyone in occupation of the premises.
Mr Kalnins said he would connect a staff member with the family on an urgent basis, to arrange for rehousing of the family in an area they consider safe.
I have given [Occupier/s] until Tuesday 28 March 2023 to move out of the property. As Kāinga Ora did not file their application for a possession order until 1 February 2023, despite being aware the family lived in the property from 29 November 2021, I do not think that a short period of further time for possession to be effected will be an issue, in order for the family to be rehoused.
Neither Kāinga Ora–Homes And Communities nor [Occupier 1] wished to apply for suppression. [Occupier 2] applied for suppression at the hearing.
Section 95A RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
[Occupier 2] has a job locally and his family has been through extremely challenging times, in relation to accommodation and otherwise, from the evidence provided. In the circumstances, I do not see that any public interest will be served by exacerbating the situation by publishing his name. Therefore, I order that his name and identifying details not be published.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of one of the occupier’s names and identifying details, that being [Occupier/s].

Kāinga Ora–Homes And Communities is granted possession of the premises at 18 Totara Street, Te Hapara, Gisborne 4010 at 11:59pm on Tuesday 28 March 2023.

Reasons

Mr Kalnins attended the hearing by teleconference on behalf of the landlord. [Occupier/s] attended the hearing in-person.

The owner has applied for possession of the premises pursuant to section 65(1) Residential Tenancies Act 1986 (“RTA”).

Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. Further, the evidence should be reasonable with no probable defects, such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence.

Section 65(1) RTA provides that, 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.

Mr Kalnins said that Kāinga Ora–Homes And Communities owns the property at 18 Totara Street, Gisborne, and provided a copy of title documents proving Kāinga Ora’s ownership of 18 Totara Street, Gisborne.

Mr Kalnins said that, during a tenancy that went from 22 January 2019 to 15 June 2020 (a copy of that Tenancy Agreement was provided, with the tenant’s name deleted), the property at 18 Totara Street, Gisborne was fire-damaged and that tenant had to move out temporarily, until they could be rehomed. He stated further that, since that tenant had moved out, they had been repairing the property from the fire damage, to return the property to legal standards.

Before the property’s repairs from the fire could be completed, Mr Kalnins said that they were told that some people had moved into the property at 18 Totara Street, Gisborne, without their permission or consent. He said they discovered this on 29 November 2021 and had their staff attend the property for a meeting with [occupier/s] and the family, the people who had moved into the property, on 30 November 2021. As a result of this meeting, Mr Kalnins said that [occupier/s] were offered another larger home in a different location. He said the family refused to sign a Tenancy Agreement for the alternate home offered to them.

Mr Kalnins said the family are unable to remain at 18 Totara Street, Gisborne, as this is only a two-bedroom home, which would be considered overcrowded for a 7-person family, which includes 5 children, as well as because of further repairs to the property being required.

Mr Kalnins said that one of their team leaders had contact with [occupier/s] on 23 December 2021, after meetings with the family, and then, despite multiple attempts to communicate and connect with [occupier/s] over a long period of time, they struggled to get any response or engagement from them. He said that when they did eventually connect with the family again around 18 November 2022, [occupier/s] again refused to sign a Tenancy Agreement for the alternate property offered to the family.

Kāinga Ora–Homes And Communities then applied on 1 February 2023 for a possession order, pursuant to section 65 RTA.

Mr Kalnins said that there has been no rent or any other financial contribution paid by [Occupier/s] nor had Kāinga Ora–Homes And Communities ever given them permission or consent to live at the property.

[Occupier/s] spoke in detail of her family’s hardship in attempting to find suitable accommodation. She said that her family of 7 (there are 5 children ranging from aged 3 years to aged 16 years) were offered a small cabin in [Event location suppressed] that was cramped and costly for them. She said that they had to move from accommodation that her children’s school had concerns about, and so she and her partner were becoming desperate to find suitable accommodation for the family. [Occupier/s] said she felt that authorities had failed her family in helping to provide accommodation for them, despite many requests. After a social media post by her partner asking about where there might be empty state houses, [Occupier/s] said they received information that the property at 18 Totara Street, Gisborne was empty. They moved their family into this property. [Occupier/s] said this was out of desperation.

[Occupier/s] disputed that the property was uninhabitable and said that she arranged for an electrical certificate for the property to be completed and then arranged for power to be hooked up to the property. She said much of the property is brand new, apart from a section of missing carpet, and that her family have lived in the property for over a year without any problems.

[Occupier/s] acknowledged that the family have not made any financial contribution to Kāinga Ora over the time they have lived in the property, though she also said she thought she should have been paying for the rates for the property over this time, after a conversation with a team leader. [Occupier/s] said that her family had never been asked to leave the property by Kāinga Ora. [Occupier/s] said she objects to being seen as a squatter, as she said she is tangata whenua, and so feels she is entitled to live on that land.

[Occupier/s] said she refused to take the alternate accommodation offered by Kāinga Ora–Homes And Communities as she was offended that they only managed to come up with this accommodation offer after her family had moved into the empty property at Totara Street. She detailed the numerous attempts she had made with agencies to find suitable accommodation for her family, before moving into the empty house at Totara Street, without success. [Occupier/s] said further that she does not want her family living in the street of this alternate accommodation offered, or any other gang-related area in Gisborne, as she has had past dealings with gangs that have been traumatic, and she worries for the safety of her family in such areas.

[Occupier/s] said she and her partner would be open to being rehoused by Kāinga Ora to an area outside of any gang-related areas, such as Tolaga Bay, Waihirere, Manutuke or other similar areas just outside of town, if need be, in which she feels her family would be safer. Law

The Land Transfer Act 2017 confers indefeasible title by registration, not capable of being annulled, voided or undone. The title of a registered owner may only be subject to any other estate, or interest in the land, if the land or interest is registered, or noted on the register. If ownership of the land is challenged only the High Court, and the Māori Land Court, have jurisdiction to determine the matter.

To make an order for possession under section 65(1) of the RTA, the Tribunal must be satisfied that: a. The premises are residential; b. The applicant is entitled to possession of the premises; c. The person against whom the order is sought does not have a right to be in possession of the premises.

Residential premises are defined in section 2(1) of the RTA as any premises used or intended to be used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. It is not disputed by the parties that these premises are residential.

Kāinga Ora proved, with documents confirming their legal title, that they are the legal owner of 18 Totara Street, Gisborne.

The owner of the premises is entitled to possession of it, subject to the right of any person lawfully entitled to possession of it.

There was no agreement for the payment of rent or any consideration for [Occupier/s] occupation of the premises at 18 Totara Street, Gisborne, as between them and Kāinga Ora.

Kāinga Ora–Homes And Communities say they have never given [Occupier/s] permission or consent to live at the premises, and do not consent to their occupation of the premises currently. There is no Tenancy Agreement, either written or verbal in relation to this property involving [Occupier/s].

[Occupier/s] do not dispute that there is no formal legal agreement for them to occupy the premises, although they say they were never told to leave the property by the owner. [Occupier/s] said that a team leader asked her once if she was prepared to make a contribution towards living there, she said she would pay the rates and said the team leader said the rates are not payable by tenants, and then the matter was not discussed further. Mr Kalnins disputed this.

Even if it was considered that there were circumstances that could infer a licence to occupy the premises, the owner of the property can revoke any licence to occupy at will. To be clear, in my view, [Occupier/s] have not proved that it is more likely than not that there were circumstances that could infer a licence to occupy the premises, in any event.

I understood [Occupier/s] comment about being tangata whenua to relate to her objection to the term squatter being applied to her in the application, rather than in relation to her raising any substantive claim regarding a right to occupy. Further, she confirmed that she and her partner would consider being rehoused to alternate accommodation they consider safe for their family, with an appropriate Tenancy Agreement being put into place.

Being tangata whenua does not, in itself, provide a right to be in possession of the premises, according to the High Court in Edwina Chmielowski v Fort Braggs Properties Limited HC AK CIV-2005-404-4618 [15 December 2005].

In Chmielowski, the High Court dealt with a situation where the applicant had purchased a property pursuant to the Land Transfer Act 1952, obtained a mortgage with one bank, transferred the mortgage to a second bank, then defaulted on the mortgage. The Bank then exercised its power of sale under the mortgage, contracted to sell the property and settled on the sale. The property’s title was transferred to the purchaser. The applicant, Ms Chmielowski, refused to leave the property. The respondent sought a possession order pursuant to section 65 RTA, claiming they were entitled to possession of the property. The applicant claimed that she was subject only to Māori customary laws and under those laws she was entitled to possession of the property. The Tenancy Tribunal ordered possession of the property be granted to the respondent. The applicant appealed this to the District Court, where she was unsuccessful. The District Court held that there were no meritorious reasons for challenging the respondent’s freehold title as registered proprietor. The applicant appealed further to the High Court.

The High Court considered the Treaty of Waitangi and the interpretation of the Māori text of the Treaty by Professor Sir Hugh Kawharu in New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641, 662-3.

The Court also considered the Preamble and first three Articles of the Treaty, particularly in relation to Crown government of the land and the grant to Māori of the same rights and duties of citizenship as non-Māori. The Court said these duties included compliance with the law. The Court held that for the Court to fail to give effect to the rights of the respondent under the Land Transfer Act would itself be an infringement of the law and of the Treaty of Waitangi.

The Court further held that the Land Transfer Act is the law which the Court, in due exercise of the responsibility to apply the law as was contemplated by the signatories of the Treaty of Waitangi, must apply. The Court then gave effect to the respondent’s rights under the Land Transfer Act and dismissed the appeal.

I find that Kāinga Ora–Homes And Communities has proved it is more likely than not that they own the premises and that there was no right to occupy on the part of [Occupier/s], and that there is no authority for them to remain on the premises.

As [Occupier/s] do not have any legal right to occupy the premises and are not legal tenants, Kāinga Ora–Homes And Communities is granted possession of the property at 11:59pm on Tuesday 28 March 2023. This order applies to anyone in occupation of the premises.

Mr Kalnins said he would connect a staff member with the family on an urgent basis, to arrange for rehousing of the family in an area they consider safe.

I have given [Occupier/s] until Tuesday 28 March 2023 to move out of the property. As Kāinga Ora did not file their application for a possession order until 1 February 2023, despite being aware the family lived in the property from 29 November 2021, I do not think that a short period of further time for possession to be effected will be an issue, in order for the family to be rehoused.

Neither Kāinga Ora–Homes And Communities nor [Occupier 1] wished to apply for suppression. [Occupier 2] applied for suppression at the hearing.

Section 95A RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

[Occupier 2] has a job locally and his family has been through extremely challenging times, in relation to accommodation and otherwise, from the evidence provided. In the circumstances, I do not see that any public interest will be served by exacerbating the situation by publishing his name. Therefore, I order that his name and identifying details not be published.

Tenancy Tribunal case 4494205 — Tenancy dispute at 18 Totara Street, Te Hapara, Gisborne 4010

At a glance

Claims & awards

Tenancy Tribunal case 4494205 — Tenancy dispute at 18 Totara Street, Te Hapara, Gisborne 4010

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions