What was Tenancy Tribunal case 4656189 about?

The tribunal order states: Leave is granted for [the respondent’s representative] to represent [the

How much money was awarded in case 4656189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4656189?

The dispute type was not classified.

Where can I read the official tribunal order for case 4656189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10630168-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4656189 about?

The tribunal order states: Leave is granted for [the respondent’s representative] to represent [the

How much money was awarded in case 4656189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4656189?

The dispute type was not classified.

Where can I read the official tribunal order for case 4656189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10630168-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4656189 — Tenancy dispute

Order

Leave is granted for [the respondent’s representative] to represent [the respondent/s] by consent.
[The applicant/s] are granted possession of the premises at [property address suppressed] from the end of Sunday 25 August 2024.

Reasons

All parties attended the hearing.
The applicants attended the hearing on 2 July 2024 supported by family members. They are represented by legal counsel, [the applicant’s representative].
The respondent [the respondent/s] attended and is represented by a friend [the respondent’s representative].
Both parties are granted leave to have representation due to the complexity of the issues.
This is an application for possession pursuant to section 65 of the Residential Tenancies Act 1986 (“RTA”). History of these proceedings
The parties first appeared before me on 30 October 2023 and the matter was part heard.
On 6 November 2023 the Tribunal adjourned the proceedings and made a direction for the filing of further evidence.
The Tribunal recorded in the reasons for adjournment at paragraph 18: “I consider it appropriate to adjourn the hearing to allow [the respondent/s] the opportunity to seek legal advice and to file further evidence in the Tribunal. If [the respondent/s] is asserting a right of occupation either as a tenant or licensee there will need to be evidence of the existence and terms of any such arrangement.”
The matter was set down for hearing on 6 March 2024.
On 6 March 2024 the respondent requested an adjournment on the grounds that a High Court application had been filed.
The Tribunal ordered an adjournment to allow for the parties to advise the outcome of High Court proceedings and directed that the next hearing be scheduled on the next available date.
The matter was set down for hearing on 29 April 2024. On that date the respondent produced a copy of a document headed “Interlocutory application without notice” which records it is “In the matter of Removal/Appointment of estate administrators”. The document is dated 4 March 2024 but does not have a file number.
An interlocutory application is an application for directions or orders secondary to the main claim. The respondent did not provide evidence of substantive proceedings filed in the High Court.
The applicant stated that they had not been served with any High Court proceedings or received any notice of such.
At the hearing on 29 April 2024 the respondent’s representative advised that [the respondent/s] has suffered hearing loss since the last hearing due to an injury and requires amplification of sound in the hearing room. [The respondent/s] stated that there was ringing in his ears. The hearing room on that day had unusually loud background air conditioning noise which may have affected hearing.
The Tribunal granted a further adjournment to give all parties a fair opportunity to hear what is being said in the hearing.
The matter was set down before me on 2 July 2024 in a different room where microphones and amplification were working. The Registrar also offered the respondent the use of headphones, but this was declined.
The hearing of evidence and submissions was completed on 2 July 2024. The background
The parties are children of [the father] and [the mother] who sadly passed away only 11 months apart in 2018 and 2019 respectively.
The parties’ parents’ estate includes a 6-acre family property in [suburb]. This property was purchased in the 1960s and I am told that the premises were formerly used for a farming operation which has now downsized.
On 2 June 2020 the High Court granted probate of the will of [the mother] dated 7 June 2016 to the applicants.
On 2 August 2021 the High Court granted letters of administration (with will annexed) to the applicants in respect of the estate of [the father].
[Owner 1], [Owner 2] and [Owner 3] are registered as the owners of [address] as executors and administrators of the estate.
[The respondent/s] is a 1/8 beneficiary of the estate along with his siblings or their children. I am informed that due to the way that the Wills are structured there is a single estate to be considered.
A copy of the wills of each parent have been provided to the Tribunal. Neither will makes any provision for a life interest in the [suburb] property to any person.
The property was also the family home and although other siblings have moved out over the years, [the respondent/s] remained living at the property with his parents and has continued to live there since they passed away.
[The respondent/s] stated that the property has as a number of buildings including a 2 bedroom house, a cabin, 12 sheds, and a processing plant. He lives in the cabin on the property and expressed a deep attachment to the property where he has lived for many years. The application
The applicants have applied for possession of the premises pursuant to section 65 of the Residential Tenancies Act 1986 (RTA) in order to proceed with administration of the estate to ensure distribution to all beneficiaries.
Section 65 provides that where on the application of a person entitled to possession of any residential premises the Tribunal is satisfied that any other person is in possession of the premises without a right of occupation granted by someone having lawful authority to grant that right to that person the Tribunal shall make a possession order granting possession to the applicant.
The respondent opposes the application, and is asserting that: (a)he has lived at the property since 1960 with the permission of his parents and wishes to continue living there (b)he has an entitlement under the estate to an extent beyond that of the will (c)there is mismanagement of either the estate or the family trust associated with the estate. In particular the respondent referred to Deed of Family Arrangement sent to him in 2021 regarding a partial estate distribution which he disputes and has not signed and to requesting audited accounts of the estate.
The Tenancy Tribunal has no authority to decide either of the claims in paragraph 30 (b) and (c). They may need a Court application if they are to be pursued. The Tribunal cannot take notice of any such possible claims without an order of a Court of competent jurisdiction. No such order has been provided.
The respondent may still choose to proceed with a claim in respect of the administration of the estate in a different Court but that is a separate issue to the right of occupation.
The application before this Tribunal is for possession of the premises. Issues to determine
It is agreed by all parties that this is not a tenancy, however, the Tribunal has jurisdiction to consider this claim under section 65 of the Residential Tenancies Act 1986. Section 65(3) states “To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement”.
The issue for the Tribunal to determine is whether the applicants are able to prove their claim for a possession order in respect of the premises.
Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held [at 74] that there are three conditions which have to be met before a possession order can be made: (a) The premises the subject of the application 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.
If the applicants are able to prove (a) and (b) then the onus is on [the respondent/s] to prove on the balance of probabilities that he has a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated.

Are the premises residential premises?

The parties do not dispute that the premises are residential premises which were the family home for the [redacted] family for many years notwithstanding that part of the land was used for farming.

Are the applicants entitled to possession of the premises?

The applicants have provided a copy of the wills of [the father] and [the mother] both dated [date] and both of which name them as executors and trustees.
The applicants have provided a copy of the grant of probate for [the mother] dated [date] and a copy of the grant of letters of administration for [the father] dated [date] which authorise the applicants to administer both estates.
The applicants have provided a copy of a search of the certificate of title for the premises obtained on 2 July 2024. This records [owner 1], [owner 2] and [owner 3] as registered owners on the title as to a ½ share as executors and a ½ share as administrators.
Registered owners of the property in the absence of any lease or tenancy to any other person are entitled to possession of the premises.
The respondent disputes that the applicants are entitled to possession of the premises and claims that the change to the registered title from his parent to the applicants is invalid.
The respondent further claims that he has been or will be filing an application in the High Court seeking to remove the applicants as executors and administrators of the estate.
It is now eleven months since the application was filed and the respondent has filed no evidence of a substantive High Court application being filed. The applicants advise that they have received no notice of any High Court proceedings.
The applicant further referred the Tribunal to the decision of the High Court in Sergeant v Nigro (as Trustees for the Tapsell Family Trust) [2019] NZHC 328, in particular paragraphs [91],[92],[93] and [94] and claimed that the Tribunal is not entitled to take in to account the fact that there may be a claim in another court when considering the possession claim. Gordon J states at paragraph 94 of the decision “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”.
Having carefully considered the evidence and submissions of both parties the Tribunal finds that the applicants have proved on the balance of probabilities that they are entitled to possession of the premises pursuant to grant of probate and letters of administration for the purpose of administering the estate of their parents. Is [the respondent/s] in possession of the premises as a squatter, trespasser, or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so?
The respondent claims that his long-term occupancy and status as a beneficiary of his parents’ estates give him a right to occupation of the premises.
It is agreed by all parties that [the respondent/s] is not a squatter or trespasser on the premises.
Prior to the death of his parents [the respondent/s] lived at the premises with them.
The issue for the Tribunal to determine, therefore, is whether he is now in possession of the premises without a right of occupation granted to him by the persons with lawful authority to do so, ie. the applicants.
The applicants claim that the respondent has no right of occupation at the premises granted by them. The applicants further claim that even if he had a right of occupation this ended when notice to vacate was issued to him 30 June 2023.
The applicants provided a copy of a letter addressed to [the respondent/s] dated 30 June 2023 from [lawyers] who act for the applicants. The letter is headed “Notice to vacate property – [address]” and states at paragraph 3 “As the registered owners, our clients have the lawful right to possession of the Property and have endeavoured for some time now to secure your voluntary departure so that it can be made ready for sale and the administration of the estate can be progressed” and at paragraph 6 “Our clients hereby demand that you vacate the Property forthwith and in any case by no later than 31 July 2023”.
The fact that the respondent is one of the beneficiaries of his parents’ estate does not grant a right of occupation unless this is provided for in their wills which it is not.
The High Court has stated that simply being a beneficiary of a will, does not give a right to occupy. See the decision of David v Gwilliam [2022] NZHC 2228 which states at paragraph [14] “the plaintiff and her daughter have no right of occupation of the property in question. They are only beneficiaries of the estate. There is no right to the property itself.”
As the respondent remains in the premises the Tribunal finds that he is currently in possession of the premises without a right of occupation. Therefore, the application for a possession order is proved.
The applicants acknowledge that the respondent will need some time to move and sought that possession be granted 28 days after the date of the order made.
An order is made granting the applicants possession of the premises at [address] from the end of Sunday 25 August 2024. Suppression
The Tribunal may on the application of any party or on its own initiative make a suppression order, having regard to the interests of the parties and to the public interest. Section 95A (4) Residential Tenancies Act 1986. There has not been an application for suppression in this case.
The issues in this hearing are of a sensitive and personal family nature. The Tribunal acknowledges that this has been a very difficult time for all parties and particularly the respondent. Whilst the legal issues in this case may be of public interest the personal identities are not. Therefore, out of consideration for the interests of all family involved the Tribunal of its own initiative orders that the decision is to be published with all identifying details suppressed.

Reasons

All parties attended the hearing.

The applicants attended the hearing on 2 July 2024 supported by family members. They are represented by legal counsel, [the applicant’s representative].

The respondent [the respondent/s] attended and is represented by a friend [the respondent’s representative].

Both parties are granted leave to have representation due to the complexity of the issues.

This is an application for possession pursuant to section 65 of the Residential Tenancies Act 1986 (“RTA”). History of these proceedings

The parties first appeared before me on 30 October 2023 and the matter was part heard.

On 6 November 2023 the Tribunal adjourned the proceedings and made a direction for the filing of further evidence.

The Tribunal recorded in the reasons for adjournment at paragraph 18: “I consider it appropriate to adjourn the hearing to allow [the respondent/s] the opportunity to seek legal advice and to file further evidence in the Tribunal. If [the respondent/s] is asserting a right of occupation either as a tenant or licensee there will need to be evidence of the existence and terms of any such arrangement.”

The matter was set down for hearing on 6 March 2024.

On 6 March 2024 the respondent requested an adjournment on the grounds that a High Court application had been filed.

The Tribunal ordered an adjournment to allow for the parties to advise the outcome of High Court proceedings and directed that the next hearing be scheduled on the next available date.

The matter was set down for hearing on 29 April 2024. On that date the respondent produced a copy of a document headed “Interlocutory application without notice” which records it is “In the matter of Removal/Appointment of estate administrators”. The document is dated 4 March 2024 but does not have a file number.

An interlocutory application is an application for directions or orders secondary to the main claim. The respondent did not provide evidence of substantive proceedings filed in the High Court.

The applicant stated that they had not been served with any High Court proceedings or received any notice of such.

At the hearing on 29 April 2024 the respondent’s representative advised that [the respondent/s] has suffered hearing loss since the last hearing due to an injury and requires amplification of sound in the hearing room. [The respondent/s] stated that there was ringing in his ears. The hearing room on that day had unusually loud background air conditioning noise which may have affected hearing.

The Tribunal granted a further adjournment to give all parties a fair opportunity to hear what is being said in the hearing.

The matter was set down before me on 2 July 2024 in a different room where microphones and amplification were working. The Registrar also offered the respondent the use of headphones, but this was declined.

The hearing of evidence and submissions was completed on 2 July 2024. The background

The parties are children of [the father] and [the mother] who sadly passed away only 11 months apart in 2018 and 2019 respectively.

The parties’ parents’ estate includes a 6-acre family property in [suburb]. This property was purchased in the 1960s and I am told that the premises were formerly used for a farming operation which has now downsized.

On 2 June 2020 the High Court granted probate of the will of [the mother] dated 7 June 2016 to the applicants.

On 2 August 2021 the High Court granted letters of administration (with will annexed) to the applicants in respect of the estate of [the father].

[Owner 1], [Owner 2] and [Owner 3] are registered as the owners of [address] as executors and administrators of the estate.

[The respondent/s] is a 1/8 beneficiary of the estate along with his siblings or their children. I am informed that due to the way that the Wills are structured there is a single estate to be considered.

A copy of the wills of each parent have been provided to the Tribunal. Neither will makes any provision for a life interest in the [suburb] property to any person.

The property was also the family home and although other siblings have moved out over the years, [the respondent/s] remained living at the property with his parents and has continued to live there since they passed away.

[The respondent/s] stated that the property has as a number of buildings including a 2 bedroom house, a cabin, 12 sheds, and a processing plant. He lives in the cabin on the property and expressed a deep attachment to the property where he has lived for many years. The application

The applicants have applied for possession of the premises pursuant to section 65 of the Residential Tenancies Act 1986 (RTA) in order to proceed with administration of the estate to ensure distribution to all beneficiaries.

Section 65 provides that where on the application of a person entitled to possession of any residential premises the Tribunal is satisfied that any other person is in possession of the premises without a right of occupation granted by someone having lawful authority to grant that right to that person the Tribunal shall make a possession order granting possession to the applicant.

The respondent opposes the application, and is asserting that: (a)he has lived at the property since 1960 with the permission of his parents and wishes to continue living there (b)he has an entitlement under the estate to an extent beyond that of the will (c)there is mismanagement of either the estate or the family trust associated with the estate. In particular the respondent referred to Deed of Family Arrangement sent to him in 2021 regarding a partial estate distribution which he disputes and has not signed and to requesting audited accounts of the estate.

The Tenancy Tribunal has no authority to decide either of the claims in paragraph 30 (b) and (c). They may need a Court application if they are to be pursued. The Tribunal cannot take notice of any such possible claims without an order of a Court of competent jurisdiction. No such order has been provided.

The respondent may still choose to proceed with a claim in respect of the administration of the estate in a different Court but that is a separate issue to the right of occupation.

The application before this Tribunal is for possession of the premises. Issues to determine

It is agreed by all parties that this is not a tenancy, however, the Tribunal has jurisdiction to consider this claim under section 65 of the Residential Tenancies Act 1986. Section 65(3) states “To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement”.

The issue for the Tribunal to determine is whether the applicants are able to prove their claim for a possession order in respect of the premises.

Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held [at 74] that there are three conditions which have to be met before a possession order can be made: (a) The premises the subject of the application 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.

If the applicants are able to prove (a) and (b) then the onus is on [the respondent/s] to prove on the balance of probabilities that he has a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated.

Are the premises residential premises?

The parties do not dispute that the premises are residential premises which were the family home for the [redacted] family for many years notwithstanding that part of the land was used for farming.

Are the applicants entitled to possession of the premises?

The applicants have provided a copy of the wills of [the father] and [the mother] both dated [date] and both of which name them as executors and trustees.

The applicants have provided a copy of the grant of probate for [the mother] dated [date] and a copy of the grant of letters of administration for [the father] dated [date] which authorise the applicants to administer both estates.

The applicants have provided a copy of a search of the certificate of title for the premises obtained on 2 July 2024. This records [owner 1], [owner 2] and [owner 3] as registered owners on the title as to a ½ share as executors and a ½ share as administrators.

Registered owners of the property in the absence of any lease or tenancy to any other person are entitled to possession of the premises.

The respondent disputes that the applicants are entitled to possession of the premises and claims that the change to the registered title from his parent to the applicants is invalid.

The respondent further claims that he has been or will be filing an application in the High Court seeking to remove the applicants as executors and administrators of the estate.

It is now eleven months since the application was filed and the respondent has filed no evidence of a substantive High Court application being filed. The applicants advise that they have received no notice of any High Court proceedings.

The applicant further referred the Tribunal to the decision of the High Court in Sergeant v Nigro (as Trustees for the Tapsell Family Trust) [2019] NZHC 328, in particular paragraphs [91],[92],[93] and [94] and claimed that the Tribunal is not entitled to take in to account the fact that there may be a claim in another court when considering the possession claim. Gordon J states at paragraph 94 of the decision “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”.

Having carefully considered the evidence and submissions of both parties the Tribunal finds that the applicants have proved on the balance of probabilities that they are entitled to possession of the premises pursuant to grant of probate and letters of administration for the purpose of administering the estate of their parents. Is [the respondent/s] in possession of the premises as a squatter, trespasser, or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so?

The respondent claims that his long-term occupancy and status as a beneficiary of his parents’ estates give him a right to occupation of the premises.

It is agreed by all parties that [the respondent/s] is not a squatter or trespasser on the premises.

Prior to the death of his parents [the respondent/s] lived at the premises with them.

The issue for the Tribunal to determine, therefore, is whether he is now in possession of the premises without a right of occupation granted to him by the persons with lawful authority to do so, ie. the applicants.

The applicants claim that the respondent has no right of occupation at the premises granted by them. The applicants further claim that even if he had a right of occupation this ended when notice to vacate was issued to him 30 June 2023.

The applicants provided a copy of a letter addressed to [the respondent/s] dated 30 June 2023 from [lawyers] who act for the applicants. The letter is headed “Notice to vacate property – [address]” and states at paragraph 3 “As the registered owners, our clients have the lawful right to possession of the Property and have endeavoured for some time now to secure your voluntary departure so that it can be made ready for sale and the administration of the estate can be progressed” and at paragraph 6 “Our clients hereby demand that you vacate the Property forthwith and in any case by no later than 31 July 2023”.

The fact that the respondent is one of the beneficiaries of his parents’ estate does not grant a right of occupation unless this is provided for in their wills which it is not.

The High Court has stated that simply being a beneficiary of a will, does not give a right to occupy. See the decision of David v Gwilliam [2022] NZHC 2228 which states at paragraph [14] “the plaintiff and her daughter have no right of occupation of the property in question. They are only beneficiaries of the estate. There is no right to the property itself.”

As the respondent remains in the premises the Tribunal finds that he is currently in possession of the premises without a right of occupation. Therefore, the application for a possession order is proved.

The applicants acknowledge that the respondent will need some time to move and sought that possession be granted 28 days after the date of the order made.

An order is made granting the applicants possession of the premises at [address] from the end of Sunday 25 August 2024. Suppression

The Tribunal may on the application of any party or on its own initiative make a suppression order, having regard to the interests of the parties and to the public interest. Section 95A (4) Residential Tenancies Act 1986. There has not been an application for suppression in this case.

The issues in this hearing are of a sensitive and personal family nature. The Tribunal acknowledges that this has been a very difficult time for all parties and particularly the respondent. Whilst the legal issues in this case may be of public interest the personal identities are not. Therefore, out of consideration for the interests of all family involved the Tribunal of its own initiative orders that the decision is to be published with all identifying details suppressed.

Tenancy Tribunal case 4656189 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4656189 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Are the premises residential premises?

Are the applicants entitled to possession of the premises?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Are the premises residential premises?

Are the applicants entitled to possession of the premises?

Topics & place

Residential Tenancies Act sections

Frequently asked questions