What was the outcome of Tenancy Tribunal case 4562709?

The tribunal order states: Neill Island Farms Limited is granted possession of the premises at 17 Coppelia

How much money was awarded in case 4562709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4562709?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4562709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9206024-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4562709?

The tribunal order states: Neill Island Farms Limited is granted possession of the premises at 17 Coppelia

How much money was awarded in case 4562709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4562709?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4562709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9206024-Tribunal_Order.pdf.

17 Coppelia Avenue, Omokoroa 3114 Tenancy Tribunal Case 4562709 — Rent arrears

Order

Neill Island Farms Limited is granted possession of the premises at 17 Coppelia Avenue, Omokoroa 3114 at midnight on Friday 8 September 2023.

Reasons

Background

Neill Island Farms Limited (the Company) is the registered owner of the premises. The current sole director of the company is Fiona Neill. Her sister Jeanne Neill occupies the premises.
Jeanne Neill used to live in Sydney. She returned to New Zealand to care for her mother Tui Neill (now deceased) and stayed in the premises on return visits. She stayed on due to Covid and travel restrictions and remains in the premises. She says she intends to leave the premises but needs time to do so due to her physical disability (nerve damage in her right arm).
The company seeks an order for possession of the premises.
Ms Fiona Neill attended the hearing on behalf of the Company. Her partner Richard Kennerley attended as her support person.
Ms Jeanne Neill attended the hearing with her legal counsel Mr Ben Molloy. Issues
The issues for the tribunal to determine are: a. Is this a tenancy? b. If so, is the tenancy excluded from the tribunal’s jurisdiction because a family member is living in the premises? c. If not, should the tenancy be terminated for rent arrears?
If it is not a tenancy, or is an excluded tenancy, should an order for possession be granted under section 65 Residential Tenancies Act 1986 (RTA)?

Is the accommodation arrangement a tenancy?

The Company initially contended that this was a tenancy and Jeanne Neill had failed to pay rent. However after hearing submissions from both parties, Ms Fiona Neill for the Company conceded the occupation of the premises was in the nature of a licence to occupy. I agree.
Communications from the Company to Jeanne Neill between 2018 and 2022 have emphasised that the arrangement for her to stay in the premises is not a tenancy. Payment for Jeanne’s stay was requested but she never paid any money.
Because it is not a tenancy I need not determine if it would be excluded under section 5(1)(n) RTA because a family member is living there. There is the added complexity of whether the Company as a separate legal entity can have ‘a family member’.
I do record, however, the intertwining nature of family within the Company and as regards the occupier Jeanne. Jeanne Neill is the sister of Fiona Neill, the sole director of the Company. Formerly, Jeanne’s brother Iain Neill and her mother Tui Neill were directors of the Company. Tui Neill died in September 2022. It is believed that Iain Neill died in Bangkok, Thailand in May 2022. While a death certificate from Thailand is available for him, the family do not yet have a New Zealand Death Certificate for the purposes of obtaining probate for his estate.
The shareholders of the Company are Tui Neill and RN Fullerton Trustee Co Ltd (as trustees of the Family Trust) 1,980 shares. The children of Tui Neill are beneficiaries under the Trust. Because of Tui’s death the trustee company is the sole living Trustee. The other shareholders are the Estate of John Robert Neill 10 shares and Tui Neill 10 shares.
Counsel notes that once probate is granted the executors of Tui Neill’s estate, who include Jeanne Neill, will step into Tui’s roles, as a shareholder of the Company, individually and as a Trustee.

Should possession be granted under section 65 RTA?

Even where the premises are not subject to a tenancy agreement, the tribunal may grant a possession order in the circumstances set out in section 65(1) RTA, as follows: “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”.
If the elements of this section are met, then it is mandatory for the Tribunal to make a possession order. There is no discretion or ability for the Tribunal to take into account surrounding circumstances.
I turn now to consider the three elements of section 65 that must be met: a. the premises must be residential premises; b. the person seeking possession must be entitled to possession; c. the occupier must not have any right of occupation granted to her by a person with lawful authority to do so.
It is not disputed that the premises are residential premises.
The person entitled to possession of the premises is the registered owner Neill Island Farms Limited, the Company. See Record of Title SA7C/411.
Jeanne Neill questions the validity of the appointment of Fiona Neill as the sole director of the Company. I rely on the official records of the Companies Office details of directors of the Company. They record that Fiona Neill was appointed a director in 2018 when her brother Iain and her mother Tui were also directors. Fiona Neill confirms the validity of the appointment. Because Jeanne and Fiona’s brother and mother have since died, Fiona is left as the sole director. I see nothing that points to any invalidity of her appointment.
The central issue is whether Jeanne Neill as the person occupying the premises has a right of occupation granted to her by any person having lawful authority to grant that right to her. The Company is the person who may grant a right of occupation. The licence to occupy has been revoked by the Company. The Company has required Jeanne to leave the premises.
Jeanne maintains she has a right to be in the premises because of her late mother’s wishes. The Company is the ‘person’ or legal entity who may authorise occupation. Jeanne’s mother Tui Neill’s former wishes no longer apply because Tui is not the person who may authorise occupation.
For the sake of completeness I note that being a beneficiary of an estate or trust of which the premises is part, does not equate to a right to occupy the premises. See Davis v Gwilliam [2022] NZHC 2228
I find therefore that the Company is entitled to possession of the premises.
Possession is granted to the Company in seven weeks time at midnight on Friday 8 September 2023. This provides sufficient time for Jeanne Neill to pack and shift her belongings, taking account of her disability. Suppression
Neither party seeks suppression of their names or identifying details. This is so even though the dispute involves family. Accordingly, no suppression order is made. See section 95A RTA.

Order

Neill Island Farms Limited is granted possession of the premises at 17 Coppelia Avenue, Omokoroa 3114 at midnight on Friday 8 September 2023.

Reasons

Background

Neill Island Farms Limited (the Company) is the registered owner of the premises. The current sole director of the company is Fiona Neill. Her sister Jeanne Neill occupies the premises.
Jeanne Neill used to live in Sydney. She returned to New Zealand to care for her mother Tui Neill (now deceased) and stayed in the premises on return visits. She stayed on due to Covid and travel restrictions and remains in the premises. She says she intends to leave the premises but needs time to do so due to her physical disability (nerve damage in her right arm).
The company seeks an order for possession of the premises.
Ms Fiona Neill attended the hearing on behalf of the Company. Her partner Richard Kennerley attended as her support person.
Ms Jeanne Neill attended the hearing with her legal counsel Mr Ben Molloy. Issues
The issues for the tribunal to determine are: a. Is this a tenancy? b. If so, is the tenancy excluded from the tribunal’s jurisdiction because a family member is living in the premises? c. If not, should the tenancy be terminated for rent arrears?
If it is not a tenancy, or is an excluded tenancy, should an order for possession be granted under section 65 Residential Tenancies Act 1986 (RTA)?

Is the accommodation arrangement a tenancy?

The Company initially contended that this was a tenancy and Jeanne Neill had failed to pay rent. However after hearing submissions from both parties, Ms Fiona Neill for the Company conceded the occupation of the premises was in the nature of a licence to occupy. I agree.
Communications from the Company to Jeanne Neill between 2018 and 2022 have emphasised that the arrangement for her to stay in the premises is not a tenancy. Payment for Jeanne’s stay was requested but she never paid any money.
Because it is not a tenancy I need not determine if it would be excluded under section 5(1)(n) RTA because a family member is living there. There is the added complexity of whether the Company as a separate legal entity can have ‘a family member’.
I do record, however, the intertwining nature of family within the Company and as regards the occupier Jeanne. Jeanne Neill is the sister of Fiona Neill, the sole director of the Company. Formerly, Jeanne’s brother Iain Neill and her mother Tui Neill were directors of the Company. Tui Neill died in September 2022. It is believed that Iain Neill died in Bangkok, Thailand in May 2022. While a death certificate from Thailand is available for him, the family do not yet have a New Zealand Death Certificate for the purposes of obtaining probate for his estate.
The shareholders of the Company are Tui Neill and RN Fullerton Trustee Co Ltd (as trustees of the Family Trust) 1,980 shares. The children of Tui Neill are beneficiaries under the Trust. Because of Tui’s death the trustee company is the sole living Trustee. The other shareholders are the Estate of John Robert Neill 10 shares and Tui Neill 10 shares.
Counsel notes that once probate is granted the executors of Tui Neill’s estate, who include Jeanne Neill, will step into Tui’s roles, as a shareholder of the Company, individually and as a Trustee.

Should possession be granted under section 65 RTA?

Even where the premises are not subject to a tenancy agreement, the tribunal may grant a possession order in the circumstances set out in section 65(1) RTA, as follows: “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”.
If the elements of this section are met, then it is mandatory for the Tribunal to make a possession order. There is no discretion or ability for the Tribunal to take into account surrounding circumstances.
I turn now to consider the three elements of section 65 that must be met: a. the premises must be residential premises; b. the person seeking possession must be entitled to possession; c. the occupier must not have any right of occupation granted to her by a person with lawful authority to do so.
It is not disputed that the premises are residential premises.
The person entitled to possession of the premises is the registered owner Neill Island Farms Limited, the Company. See Record of Title SA7C/411.
Jeanne Neill questions the validity of the appointment of Fiona Neill as the sole director of the Company. I rely on the official records of the Companies Office details of directors of the Company. They record that Fiona Neill was appointed a director in 2018 when her brother Iain and her mother Tui were also directors. Fiona Neill confirms the validity of the appointment. Because Jeanne and Fiona’s brother and mother have since died, Fiona is left as the sole director. I see nothing that points to any invalidity of her appointment.
The central issue is whether Jeanne Neill as the person occupying the premises has a right of occupation granted to her by any person having lawful authority to grant that right to her. The Company is the person who may grant a right of occupation. The licence to occupy has been revoked by the Company. The Company has required Jeanne to leave the premises.
Jeanne maintains she has a right to be in the premises because of her late mother’s wishes. The Company is the ‘person’ or legal entity who may authorise occupation. Jeanne’s mother Tui Neill’s former wishes no longer apply because Tui is not the person who may authorise occupation.
For the sake of completeness I note that being a beneficiary of an estate or trust of which the premises is part, does not equate to a right to occupy the premises. See Davis v Gwilliam [2022] NZHC 2228
I find therefore that the Company is entitled to possession of the premises.
Possession is granted to the Company in seven weeks time at midnight on Friday 8 September 2023. This provides sufficient time for Jeanne Neill to pack and shift her belongings, taking account of her disability. Suppression
Neither party seeks suppression of their names or identifying details. This is so even though the dispute involves family. Accordingly, no suppression order is made. See section 95A RTA.

Tenancy Tribunal case 4562709 — Rent arrears at 17 Coppelia Avenue, Omokoroa 3114

At a glance

Tenancy Tribunal case 4562709 — Rent arrears at 17 Coppelia Avenue, Omokoroa 3114

At a glance

Claims & awards

Order

Reasons

Is the accommodation arrangement a tenancy?

Should possession be granted under section 65 RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Is the accommodation arrangement a tenancy?

Should possession be granted under section 65 RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions