What was Tenancy Tribunal case 4551130 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 4551130?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4551130?

The dispute type was not classified.

Where can I read the official tribunal order for case 4551130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9183524-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4551130 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 4551130?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4551130?

The dispute type was not classified.

Where can I read the official tribunal order for case 4551130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9183524-Tribunal_Order_Redacted.pdf.

7 Heretaunga Street, Tikipunga, Whangarei 0112 Tenancy Tribunal Case 4551130 — Tenancy dispute

Order

The Tribunal orders suppression of both parties’ names and identifying details.
The application for termination and possession is dismissed for want of jurisdiction.

Reasons

Both parties attended the hearing which was conducted via teleconference.
The applicant has applied to the Tribunal for possession of the premises following the issue of a termination notice.
The respondent disputes the validity of the notice and denies there is a residential tenancy in place. Background
The property in question is a family property previously owned by [the landlord/s grandparents].
In February 2016 [the landlord/s grandparents] sold a 1/3 share of the property to their grandson, [the landlord/s]. The purchase price was never paid but was to be remain outstanding as a debt to [the landlord/s grandparents]. However, the deed of sale was drawn up to reflect that the property was from that time owned in a joint tenancy with the intention that the property would transmit by way of survivorship to the survivors on the death of any of the proprietors.
[The tenant/s] is the daughter of [the landlord/s grandparents]. [The tenant/s] says she has lived at the property for around eight years. She moved in to be caregivers for her parents.
In 2017 [the landlord/s grandmother] passed away.
After [the landlord/s grandmother] passed away, [the tenant/s] remained living in the premises and continued looking after her father.
In 2019 [the landlord/s] issued a letter of instruction to transfer his interest in the property to [the landlord/s grandfather] and the estate of [the landlord/s grandmother].
It is unclear whether this instruction was carried out; on the record of title there is no indication that [the landlord/s]’s interest was ever removed from the title.
In July 2022 [the landlord/s grandfather] passed away.
On 9 February 2023 [the landlord/s] served a termination notice on [the tenant/s]. The notice was given under section 51(1)(a) of the Residential Tenancies Act 1986 (“the Act”) which provides that a landlord may terminate a periodic tenancy by giving at least 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.
On 30 March 2023, the record of title confirms transmission of the property to [the landlord/s] as sole survivor.
[The tenant/s] says that before her father passed away, he asked her to pay the rates on the property, which she has done. She says that she and her children have essentially grown up in this home and it is a family home.
[The tenant/s] has never paid rent nor has there ever been any tenancy agreement signed.
[The landlord/s] says that there was a family meeting in August 2022 at which [the tenant/s] agreed verbally to pay rent at $250 per week. However, [the tenant/s] says there has never been a verbal tenancy agreement between her and [the landlord/s].
[The landlord/s] says that he provided verification of a tenancy to WINZ at [the tenant/s]’s request to support her application for financial assistance.
[The tenant/s] and [the tenant/s brother] have applied to be administrators of their father’s estate, which they say includes this premises. They have also applied for a caveat to be placed on the property to prevent its sale by [the landlord/s].
Ultimately, there is an ongoing dispute in relation to the property and both parties have instructed lawyers. The matter is not yet resolved.

Does the Tenancy Tribunal have jurisdiction?

Before I can consider the substance of the claim, I must first determine whether or not I have jurisdiction to do so.
Section 77(1) of the Act provides that the Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine any dispute that: (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.
The Act defines the term “landlord” as follows: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a)a prospective landlord; and (b)a former landlord; and (c)a lawful successor in title of a landlord to the premises; and (d)the personal representative of a deceased landlord; and (e)an agent of a landlord
The Act defines the term “tenancy” as follows: 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
The Act defines the term “tenant” as follows: tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective tenant; and (b) a former tenant; and (c) a lawful successor in title of a tenant to the premises; and (d) the personal representative of a deceased tenant; and (e) an agent of a tenant
To summarise, the jurisdiction of the Tenancy Tribunal, acting in its residential tenancy capacity, only allows consideration of disputes between tenants and landlords.
The applicant filed this application in his name as the landlord and claims that he is the landlord as he owns the property by way of survivorship.
The respondent says that she is not a tenant and there has never been any tenancy agreement, verbal or otherwise.
She says that she resides at the premises pursuant to her right as a beneficiary of her parent’s estates. She says that proceedings are on foot that will result in the premises being transferred into her (and her brother’s) name as administrators of the estate.
I accept that on the face of it, [the landlord/s] may currently be the owner of the premises. However, I am not satisfied that [the tenant/s] is a tenant or that a residential tenancy exists.
[The tenant/s] has never paid rent either to her parents when they were alive nor to Anthony after they passed away.
I do not consider that her payment of the rates on the property is consideration for her right to occupation of the premises. Payment of rates is more characteristic of ownership rather than a tenancy relationship. Moreover, her current occupation is dependent on her claim to beneficial ownership of the property.
The applicant has not satisfied me that there is a residential tenancy. I find there is no residential tenancy in this case and consequently I have no jurisdiction to determine this dispute.
Proceedings are on foot in the High Court and that is the appropriate forum for this matter to be determined.
The application for termination and possession must therefore be dismissed.
I apologise for the delay in issuing this decision. J R Smith 15 July 2023

Reasons

Both parties attended the hearing which was conducted via teleconference.

The applicant has applied to the Tribunal for possession of the premises following the issue of a termination notice.

The respondent disputes the validity of the notice and denies there is a residential tenancy in place. Background

The property in question is a family property previously owned by [the landlord/s grandparents].

In February 2016 [the landlord/s grandparents] sold a 1/3 share of the property to their grandson, [the landlord/s]. The purchase price was never paid but was to be remain outstanding as a debt to [the landlord/s grandparents]. However, the deed of sale was drawn up to reflect that the property was from that time owned in a joint tenancy with the intention that the property would transmit by way of survivorship to the survivors on the death of any of the proprietors.

[The tenant/s] is the daughter of [the landlord/s grandparents]. [The tenant/s] says she has lived at the property for around eight years. She moved in to be caregivers for her parents.

In 2017 [the landlord/s grandmother] passed away.

After [the landlord/s grandmother] passed away, [the tenant/s] remained living in the premises and continued looking after her father.

In 2019 [the landlord/s] issued a letter of instruction to transfer his interest in the property to [the landlord/s grandfather] and the estate of [the landlord/s grandmother].

It is unclear whether this instruction was carried out; on the record of title there is no indication that [the landlord/s]’s interest was ever removed from the title.

In July 2022 [the landlord/s grandfather] passed away.

On 9 February 2023 [the landlord/s] served a termination notice on [the tenant/s]. The notice was given under section 51(1)(a) of the Residential Tenancies Act 1986 (“the Act”) which provides that a landlord may terminate a periodic tenancy by giving at least 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.

On 30 March 2023, the record of title confirms transmission of the property to [the landlord/s] as sole survivor.

[The tenant/s] says that before her father passed away, he asked her to pay the rates on the property, which she has done. She says that she and her children have essentially grown up in this home and it is a family home.

[The tenant/s] has never paid rent nor has there ever been any tenancy agreement signed.

[The landlord/s] says that there was a family meeting in August 2022 at which [the tenant/s] agreed verbally to pay rent at $250 per week. However, [the tenant/s] says there has never been a verbal tenancy agreement between her and [the landlord/s].

[The landlord/s] says that he provided verification of a tenancy to WINZ at [the tenant/s]’s request to support her application for financial assistance.

[The tenant/s] and [the tenant/s brother] have applied to be administrators of their father’s estate, which they say includes this premises. They have also applied for a caveat to be placed on the property to prevent its sale by [the landlord/s].

Ultimately, there is an ongoing dispute in relation to the property and both parties have instructed lawyers. The matter is not yet resolved.

Does the Tenancy Tribunal have jurisdiction?

Before I can consider the substance of the claim, I must first determine whether or not I have jurisdiction to do so.

Section 77(1) of the Act provides that the Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine any dispute that: (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.

The Act defines the term “landlord” as follows: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a)a prospective landlord; and (b)a former landlord; and (c)a lawful successor in title of a landlord to the premises; and (d)the personal representative of a deceased landlord; and (e)an agent of a landlord

The Act defines the term “tenancy” as follows: 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

The Act defines the term “tenant” as follows: tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective tenant; and (b) a former tenant; and (c) a lawful successor in title of a tenant to the premises; and (d) the personal representative of a deceased tenant; and (e) an agent of a tenant

To summarise, the jurisdiction of the Tenancy Tribunal, acting in its residential tenancy capacity, only allows consideration of disputes between tenants and landlords.

The applicant filed this application in his name as the landlord and claims that he is the landlord as he owns the property by way of survivorship.

The respondent says that she is not a tenant and there has never been any tenancy agreement, verbal or otherwise.

She says that she resides at the premises pursuant to her right as a beneficiary of her parent’s estates. She says that proceedings are on foot that will result in the premises being transferred into her (and her brother’s) name as administrators of the estate.

I accept that on the face of it, [the landlord/s] may currently be the owner of the premises. However, I am not satisfied that [the tenant/s] is a tenant or that a residential tenancy exists.

[The tenant/s] has never paid rent either to her parents when they were alive nor to Anthony after they passed away.

I do not consider that her payment of the rates on the property is consideration for her right to occupation of the premises. Payment of rates is more characteristic of ownership rather than a tenancy relationship. Moreover, her current occupation is dependent on her claim to beneficial ownership of the property.

The applicant has not satisfied me that there is a residential tenancy. I find there is no residential tenancy in this case and consequently I have no jurisdiction to determine this dispute.

Proceedings are on foot in the High Court and that is the appropriate forum for this matter to be determined.

The application for termination and possession must therefore be dismissed.

I apologise for the delay in issuing this decision. J R Smith 15 July 2023

Tenancy Tribunal case 4551130 — Tenancy dispute at 7 Heretaunga Street, Tikipunga, Whangarei 0112

At a glance

Claims & awards

Tenancy Tribunal case 4551130 — Tenancy dispute at 7 Heretaunga Street, Tikipunga, Whangarei 0112

At a glance

Claims & awards

Order

Reasons

Does the Tenancy Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Does the Tenancy Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Frequently asked questions