What was Tenancy Tribunal case 4581321 about?

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

How much money was awarded in case 4581321?

The reconciled net award was $20.44.

What type of tenancy dispute was case 4581321?

The dispute type was not classified.

Where can I read the official tribunal order for case 4581321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9394573-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4581321 about?

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

How much money was awarded in case 4581321?

The reconciled net award was $20.44.

What type of tenancy dispute was case 4581321?

The dispute type was not classified.

Where can I read the official tribunal order for case 4581321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9394573-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4581321 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at midnight on Friday 6 October 2023.
[The tenant/s] must pay [The landlord/s] $20.44 immediately, being the filing fee for the application.

Reasons

Both parties attended the telephone hearing on 6 July 2023. The hearing was completed on the papers with further written submissions from both parties. The final submissions were received on 29 August 2023. Background
The landlord and tenant are sisters. On 20 August 2018 their mother (the donor) signed an Enduring Power of Attorney relating to her property (the EPA).
A personal care and welfare EPA was also signed on 20 August 2018.
I summarise some key provisions of the property EPA: • The donor authorised her attorney(s) to act on her behalf in respect of all her property affairs without restriction. • The donor appointed the landlord and the donor’s husband (the landlord and tenant’s father) to act if she became mentally incapable. • If the appointment of either attorney ended, the donor appointed the landlord as her first successor attorney. No second successor attorney was appointed. • The attorneys were authorised to act jointly, but not severally, and not jointly and severally. • The donor indicated that she wanted the tenant and her son to be consulted in respect of all her property affairs. • The donor authorised her attorneys to use her property for the benefit of her husband, by permitting him during his lifetime to occupy her principal residence free of rent.
Since about 5 April 2022 the donor has lived in residential care. She is the sole registered owner of the premises. The donor’s husband continued to live at the premises until he passed away in July 2022. The tenant has been living at the premises since about September 2021. She says she lived with her parents in several family homes, rent free and from time to time, for about 30 years.
On 16 April 2023 the landlord gave the tenant one month’s notice to leave the premises by text message. She said it was necessary to rent the premises out to pay for the donor’s medical care.
On 10 May 2023 a health practitioner examined the donor to ascertain her mental capacity for the purpose of the EPA.
On 21 May 2023 the landlord applied for possession of the premises pursuant to section 65 of the Residential Tenancies Act 1986 (the Act).
On 31 July 2023 a health practitioner signed the prescribed form of certificate of mental incapacity, confirming that the donor was not wholly competent to manage her own affairs in relation to her property. The reason given for the lack of mental incapacity was the donor’s “advancing moderate dementia”. Relevant law
The Tribunal must make a possession order under section 65 of the Act if satisfied that: • The application for a possession order is made by a person entitled to possession. • The application is made in respect of residential premises. • The 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 someone with lawful authority to do so.
The Tribunal has jurisdiction under section 65 even where the premises are not subject to a tenancy agreement.
In Sergeant v Nigro [2019] NZHC 328 the High Court considered whether undetermined claims in separate proceedings, which challenged the applicant’s entitlement to possession and asserted a right of occupation or other interest in property, were relevant to an application under section 65 of the Act.
The High Court answered this question in the negative: “It is not open to the Tribunal to consider the fact of a claim or the contents of the claim in another court when deciding if the trustees were entitled to possession and/or if [the other person] was in possession as a squatter or trespasser or otherwise than pursuant to any right of occupation granted to him...”.
Part 9 of the Protection of Personal and Property Rights Act 1988 (the PPPR Act) sets out the law relating to the creation and exercise of EPAs. (1) Is the landlord entitled to possession?
The landlord relies on the EPA for her right to possession. Several issues about the validity of the EPA were raised by the tenant and by the Tribunal.
In my view, the Tribunal must be satisfied that the EPA is valid, otherwise, the landlord has no authority to deal with the donor’s property. An attorney who does not hold a valid EPA cannot be entitled to possession. I address the issues raised below.

Has the EPA come into effect?

The donor gave authority for the EPA to have effect only if she became mentally incapable. Section 97(5) of the PPPR Act provides that, in that case, the attorney must not act in relation to the donor’s property unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable.
The relevant medical certification of mental incapacity was only given on 31 July 2023, after these proceedings had commenced. The tenant submitted that the earliest date the landlord could make any decision about the donor’s property, including her right of occupation, was 31 July 2023.
While the tests of mental incapacity in respect of property EPA’s and personal care and welfare EPA’s are different (section 94 of the PPPR Act) it is not irrelevant that the donor also signed a personal care and welfare EPA on 20 August 2018. The health practitioner’s certificate of mental incapacity for this EPA was signed on 8 February 2022. The health practitioner stated that the donor lacked the capacity to understand the nature and foresee the consequences of decisions about her accommodation and medical condition.
It could be said, applying a substantial merits and justice approach (see section 85 of the Act) that a person unable to make decisions about a matter relating to their personal care and welfare is also necessarily “not wholly competent” to manage their own affairs in relation to their property.
While arguably some acts “in relation to” the donor’s property - these proceedings for instance - were taken before the EPA came into effect on 31 July 2023, there has been no disposition or other dealing with such property.
It is not in the interests of justice to strike out the application simply because it was brought prior to the relevant medical certificate. The landlord maintains the position that she is entitled to possession by virtue of the EPA, and the EPA is now effective. If the landlord did not have authority to bring this application initially, she has such authority now, and striking out the proceeding would merely cause further delay.
I also note section 103A of the PPPR Act. This provides that steps taken by the landlord in good faith, without knowledge of the failure to obtain the correct medical certificate, remain valid. The landlord says she thought the certificate for the personal care and welfare EPA covered both instruments and authorised her to act in relation to the donor’s property.

Did the EPA cease to have effect in July 2022?

As noted above, the donor appointed two attorneys with authority to act jointly. One of those attorneys, the donor’s husband, died in July 2022.
Section 95 of the PPPR Act provides that an EPA may provide for successive attorneys, the appointment of one being conditional upon the cessation of the appointment of another.
Under the EPA, the landlord was named as a successor attorney while also being named as one of the original attorneys authorised to act with the donor’s husband.
The landlord submitted that: • The appointment of the landlord and her father as joint attorneys ended on her father’s death, pursuant to section 106(1)(d) of the PPPR Act. The subsequent appointment of the landlord as the sole first successor attorney was activated at that time. • The authority to act jointly related only to the initial appointment of the landlord and her father, not to the subsequent appointment of the landlord as a successor attorney. There is no requirement under the PPPR Act to specify if the attorney’s appointment is joint and/or several, unless there is more than one attorney appointed. • Section 106(2) of the PPPR Act means that where an EPA appoints one or more successor attorneys, the death of an attorney only causes the EPA to cease to have effect if it is the last appointed successor attorney who has died. • The EPA did not cease to have effect on the death of the landlord’s father. Because none of the factors in section 106(1) of the PPPR Act apply with respect to the landlord’s appointment as a successor attorney, the EPA continues to have effect.
In my view, the initial joint appointment under the EPA ceased to have effect when the donor’s husband died, in accordance with section 106(1)(e) of the PPPR Act. However, this does not mean the EPA also ceased to have effect. That outcome is subject to the operation of section 106(2) of the PPPR Act, which provides: “In any case where the enduring power of attorney provides for successive attorneys, the appointment of one being conditional upon the cessation of the appointment of another, subsection (1)(ba) to (f) applies only in respect of the last such attorney”.
What the subsection appears to be envisaging is that, when one joint attorney dies or is adjudged bankrupt, or is subject to compulsory mental health treatment, or otherwise becomes incapable of acting, the EPA continues in effect so long as there is a successor attorney to replace them.
So, if the EPA had named someone other than the initial attorneys as the successor attorney, the EPA would unquestionably continue. The issue is whether the statutory language requires a successor attorney to be somebody other than the surviving joint attorney. In other words, whether each successive appointment of attorneys must result in there being more than one attorney acting jointly.
I find that the landlord was validly appointed as a successor attorney. Adopting a restrictive statutory interpretation could easily stifle the donor’s wishes. The EPA shows that the donor wanted the landlord, as a successor attorney, to be her attorney if her husband could no longer act. In other words, construing the instrument together with section 106 of the PPPR Act, the donor must have intended to give the landlord and her husband power to act jointly and, if that appointment ended, to grant the landlord power to continue as sole attorney.
The purpose of an EPA is to enable donors while mentally competent to grant authority to someone they trust, to make decisions about their property affairs when they no longer can. That purpose would be frustrated if the Tribunal were to conclude that the appointment of a successor attorney, clearly envisaged in the EPA, was invalid based on an overly technical approach to construction of section 106 of the PPPR Act.

Have the consultation requirements been complied with?

Section 99A of the PPPR Act requires the attorney “when acting under an enduring power of attorney” to (as far as is practicable) consult the donor, any person specified in the EPA to be consulted, and any other attorney appointed by the donor under another EPA.
The PPPR Act does not say consultation is a precondition to an attorney exercising their powers. It is likely that acts taken by an attorney under an EPA without consultation are still valid.
The landlord provided an email from her brother confirming that he has been consulted and that he agrees to the property being rented to cover the cost of the donor’s residential care.
The landlord says there was a family meeting with the tenant and their brother in September 2022, at which the landlord discussed renting out the property to provide an income for the donor’s ongoing costs of care. The landlord also says she offered to support the tenant in finding alternative accommodation. In April 2023 the landlord repeated this offer, and the need to rent the property to meet care costs, in text messages. The landlord says there was no substantive response.
The tenant says she has not been consulted about any matters relating to the donor’s property. No financial information has been provided concerning the donor’s financial resources. The tenant disputes whether the property needs to be rented out to generate funds for the donor’s care costs. She says there has been no discussion whether it is necessary to generate funds to support the donor’s ongoing care, or whether the tenant could sign a tenancy agreement to continue living at the property and find a flatmate to help pay rent. The tenant submits that she has not been consulted as required by the PPPR Act.
Section 99A of the PPPR Act gives no guidance about the extent of consultation required. The notes to the EPA, however (which is a prescribed form) contains a glossary of terms. “Consult” is said to mean: “To ask for advice and give that advice proper consideration before making a decision in the donor’s best interests. This includes making sure the person being asked for advice has all the information they need to base their advice on”.
In my view, this required the landlord to seek the tenant’s views about the proposal to sell or rent the premises to pay for their mother’s care and to give those views consideration. The evidence does not establish that the landlord has not done this or that the tenant has requested any information she needed before being able to provide her views.
At least one likely reason for consultation is to assist the attorney to comply with the “paramount consideration” of using the donor’s property for the promotion and protection of the donor’s best interests (section 97A of the PPPR Act). It does not necessarily involve consideration of the interests of others or require the attorney to act on advice given about those interests. Indeed, the attorney must not “act to the benefit of...a person other than the donor”. The notes to the EPA define “act to the benefit” as including allowing a person other than the donor to live in or use the donor’s house without paying rent (section 107 of the PPPR Act).
I accept that, based on the medical and other information provided, it would not be practicable to consult the donor on this issue. For example, the certificate of mental incapacity dated 31 July 2023 noted that the donor was inconsistent in her responses and had limited insight into her cognitive impairment. The landlord noted that an attempt to discuss the property with the donor caused the donor distress.
I find that the consultation requirements have been complied with.
For the reasons given above, I find that the EPA is valid, and the landlord is entitled to possession as the donor’s attorney. (2) Is the application made in respect of residential premises?
It was common ground that the premises are residential premises as understood pursuant to section 2 of the Act. The premises are described as the family home and comprise a unit in an apartment complex. As such, they are premises used or intended for occupation by any person as a place of residence.
I find that the application has been made in respect of residential premises. (3) Is the other person in possession of the premises otherwise than pursuant to a right of occupation granted by a lawful authority?
The tenant says she is in occupation pursuant to a right of occupation granted by her parents. The landlord says there is no tenancy agreement, and the tenant is in occupation pursuant to a bare licence which she (as attorney) has revoked.
A “bare licence” is a permission to enter where there is no consideration, so that the licence is not contractual. A bare licence may be revoked at any time at the will of the licensor.
The tenant does not have a tenancy. There is no tenancy agreement, and she does not pay rent. The definition of “tenancy” in section 2(1) of the Act is not met. It follows, in my view, that the tenant has a bare licence.
The landlord wants the tenant to leave the premises, so that it can be sold or rented out at a market rate to pay for the donor’s care. On 16 April 2023 the landlord texted the tenant and gave her a month’s notice to move, reiterating a willingness to help with finding and securing new accommodation.
The landlord’s application to the Tribunal for an order pursuant to section 65 was also implicit notice of the landlord’s decision to revoke the licence. There is no requirement that the revocation take any particular form or specify any reasons.
While I have held that the property EPA became effective on 31 July 2023, the landlord’s continuation of these proceedings and further written submissions indicates that the decision to revoke the tenant’s licence to occupy has not changed.
The tenant would have had her parent’s permission to live with them at the premises. However, the landlord has an EPA which authorises her to act generally in relation to the donor’s property affairs, with no restrictions. As such, I am satisfied that the landlord had the authority to revoke the tenant’s bare licence and has done so.

Does the Tribunal have jurisdiction?

The tenant made various submissions which I group together under this heading: • The attorney has an obligation to use the donor’s property in the donor’s best interests. The donor had always been concerned that the tenant should have a roof over her head, and it would be in the donor’s best interests to know that this was still the case. • There is an issue whether the landlord is exercising her powers under the EPA for a proper purpose and in compliance with the PPPR Act. The landlord, not the donor, wishes to see her evicted from the family home for her own vindictive reasons. • The EPA does not mandate that the attorney evict her from the family home. The obligation under the PPPR Act is to use the donor’s property in the promotion and protection of the donor’s best interests. • In response to the landlord’s submission that the EPA does not authorise the provision of any benefit to a third person, other than the donor’s husband, and does not authorise the landlord to provide any property rights to the tenant, the tenant says there is no legal duty to evict her and whether she should be allowed to continue living at the property is a more nuanced question. • The Tribunal does not have jurisdiction to decide whether the landlord’s termination of her right of occupation of the property is in the donor’s best interests. The Family Court is the appropriate court for determining issues relating to the exercise of a power under the EPA.
The tenant has standing to apply to court to review any decision made under the EPA. The court has a broad jurisdiction to determine matters relating to the EPA, including giving directions about the management or disposal by the attorney of the donor’s property (section 102 of the PPPR Act).
The court may revoke the appointment of an attorney if satisfied that the attorney is not acting, or proposes not to act, in the best interests of the donor, or has failed to comply with the attorney’s obligations under section 99A relating to consultation (section 105 of the PPPR Act).
Notwithstanding these avenues of review, the Tribunal has jurisdiction under section 65 of the Act and no court or other body has originating jurisdiction in respect of any matter within the jurisdiction of the Tribunal (section 82 of the Act). To exercise that jurisdiction, the Tribunal must determine whether the requirements of section 65 are met. This may mean the Tribunal has to address legal issues arising under other legislation.
Unlike in Sergeant v Nigro, there are no other undetermined claims in another forum. I have found it necessary to address certain issues arising under the PPPR Act in the exercise of the Tribunal’s originating jurisdiction.
The tenant has raised questions whether (1) the landlord is acting in the donor’s best interests; (2) the powers under the EPA are being exercised for a proper purpose; (3) the donor’s best interests require consideration of the tenant’s interests; or (4) the donor’s property can be used to benefit the tenant. There may, or may not, be merit in these points, which can be argued before the Family Court. The Tribunal does not need to address them in the exercise of its jurisdiction under section 65 of the Act. Conclusion and order for possession
I find that the landlord is entitled to possession of the premises and that the tenant is in possession of the premises without any continuing right of occupation.
I have decided to grant possession to the landlord from midnight on Friday 6 October 2023. This gives the tenant time to appeal this order and/or to apply to the Family Court under the PPPR Act. Filing fee and name suppression
The landlord’s application has succeeded. The landlord is awarded the filing fee.
Due to the private family nature of this dispute, I grant both parties name suppression pursuant to section 95A of the Act. I also grant suppression of the address of the premises.

Tenancy Tribunal case 4581321 — Tenancy dispute

At a glance

Award balance

Tenancy Tribunal case 4581321 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Has the EPA come into effect?

Did the EPA cease to have effect in July 2022?

Have the consultation requirements been complied with?

Does the Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Has the EPA come into effect?

Did the EPA cease to have effect in July 2022?

Have the consultation requirements been complied with?

Does the Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Frequently asked questions