What was Tenancy Tribunal case 4708409 about?

The tribunal order states: [The landlord/s] is granted possession of the premises at [Tenancy address

How much money was awarded in case 4708409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4708409?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4708409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9683126-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4708409 about?

The tribunal order states: [The landlord/s] is granted possession of the premises at [Tenancy address

How much money was awarded in case 4708409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4708409?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4708409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9683126-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4708409 — 14-day notice

Order

[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 11.59 am on Friday 8 December 2023.

Reasons

Both parties attended this remote teleconference hearing on 24 November 2023.
[The landlord/s] was represented by [The landlord’s representative/s]. [The tenant/s] was represented by [The tenant’s representative/s].
I record that all parties names are suppressed by consent of the parties.
The applicant seeks possession of the premises in accordance with s.65(1) of the Residential Tenancies Act 1986 (“RTA”). Background Facts
The premises are at [Tenancy address suppressed] (“the premises”).
[The landlord/s] is a trustee of the [The trust], a trust formed by Trust Deed in 2003 (“the Trust”). The initial trustees of the Trust were, [The landlord/s], [Trustee 1] and [The tenant/s].
The Trust is the registered owner of the premises.
[Trustee 1] passed away on 19 March 2017.
[The tenant/s] was removed as a trustee of the Trust by Deed of Removal dated 4 September 2023. [The tenant/s] did not file an application in opposition to her removal within the time limits set out in the Trusts Act 2019.
As at the date of this hearing, [The landlord/s] remains the sole trustee of the trust and owner of the premises. Counsel for [The landlord/s] says that the record of title to the premises is being updated.
Following the death of [Trustee 1], the Trust allowed [The tenant/s] to live at the premises temporarily whilst negotiations took place between the various related parties. Those negotiations have been unsuccessful.
[The tenant/s] has remained living at the premises at all times relevant to these proceedings.
By notice dated 29 June 2023, [The landlord/s] in their capacity as trustee, advised [The tenant/s] that her right to reside at the premises was revoked. [The tenant/s] responded by saying that proceedings would be issued under the Property (Relationships) Act 1976 (“PRA”).
By letter dated 8 September 2023, [The landlord/s] gave [The tenant/s] notice to vacate the premises.
The respondent says that [The tenant/s] has a claim pursuant to the PRA and that an application to the court is being finalised. The further submission is that a possession order, if granted by the Tribunal, should remain dormant until such time as the Family Court or High Court proceedings are dealt with. Adjournment Application
An application for an adjournment was filed by the respondent on 22 November 2023. That application was declined and reasons were contained in my minute dated 23 November 2023.
Further investigation of the Tribunal file shows the following.
On 17 October 2023 [The tenant/s] spoke to the Tenancy Services call centre and confirmed her email address.
On 25 October Tenancy Services sent a copy of the application and notice of hearing to the email address provided by [The tenant/s].
The respondent has confirmed that her appearance at the hearing today was under protest.
Section 136 (10) RTA provides that; (10) In proving service of a document transmitted by email, it is sufficient to prove that the email was- (a) properly addressed to the email address in question; and (b) properly transmitted with the document to that email address.
The only evidence relating to the receipt of the email is that of the respondent who says that she did not receive it.
In the circumstances and in light of the deeming provision in s 136 RTA, I find that email service of the application was carried out and the hearing proceeded. Law
Section 65 RTA provides; 65 Eviction of squatters (1) 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. (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises. (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
Section 65 RTA was considered by the High Court in Sergeant v Nigro and Tapsell (2019) NZHC 328. The Court held that there are three conditions which have to be met before an 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.
The respondent says that she has an entitlement to the premises pursuant to her PRA claim.

Are the premises Residential Premises?

The parties accepted that the premises are residential premises and the matter does not require further consideration. Is [The landlord/s] entitled to possession?
The evidence provided by [The landlord/s] was not opposed by the respondent and I have no difficulty finding that [The landlord/s] is entitled to possession. Does the respondent have a right to occupation provided by any party with lawful authority to do so?
The evidence provided shows that any lawful right to occupy the premises that [The tenant/s] had, has been revoked by [The landlord/s].
In respondent’s submissions, the respondent argues that “[The landlord’s representative/s] bases her application to evict [The tenant/s] as a squatter, on her submission that [The tenant/s] has no entitlement to the property in which she is residing, because it is in the name of the [The trust]....The submission is not accepted.”
Section 65 RTA does not refer to an “entitlement”. The third limb of the test relates solely to having a right of occupation. The concepts are different. The respondent may or may not have an entitlement. The evidence does not however disclose that she has any lawful authority to reside at the premises.
The District and High Courts have made it clear that the Tribunal cannot evaluate the merits of any claim in another court in determining whether a party has a right to possession. The Tribunal simply has no jurisdiction to allow any consideration of other (undetermined) claims.
It is clear that the Trust is the only party with lawful authority to grant a right of occupation and the right of occupation previously held by [The tenant/s] has been revoked.
As the respondent has no lawful right to occupy the premises, all elements of s.65 RTA have been satisfied and a possession order is granted.
I have delayed possession to the Trust for 14 days from the date of this order to give the respondent a fair and reasonable opportunity to shift and remove her possessions form the premises.

Order

[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 11.59 am on Friday 8 December 2023.

Reasons

Both parties attended this remote teleconference hearing on 24 November 2023.
[The landlord/s] was represented by [The landlord’s representative/s]. [The tenant/s] was represented by [The tenant’s representative/s].
I record that all parties names are suppressed by consent of the parties.
The applicant seeks possession of the premises in accordance with s.65(1) of the Residential Tenancies Act 1986 (“RTA”). Background Facts
The premises are at [Tenancy address suppressed] (“the premises”).
[The landlord/s] is a trustee of the [The trust], a trust formed by Trust Deed in 2003 (“the Trust”). The initial trustees of the Trust were, [The landlord/s], [Trustee 1] and [The tenant/s].
The Trust is the registered owner of the premises.
[Trustee 1] passed away on 19 March 2017.
[The tenant/s] was removed as a trustee of the Trust by Deed of Removal dated 4 September 2023. [The tenant/s] did not file an application in opposition to her removal within the time limits set out in the Trusts Act 2019.
As at the date of this hearing, [The landlord/s] remains the sole trustee of the trust and owner of the premises. Counsel for [The landlord/s] says that the record of title to the premises is being updated.
Following the death of [Trustee 1], the Trust allowed [The tenant/s] to live at the premises temporarily whilst negotiations took place between the various related parties. Those negotiations have been unsuccessful.
[The tenant/s] has remained living at the premises at all times relevant to these proceedings.
By notice dated 29 June 2023, [The landlord/s] in their capacity as trustee, advised [The tenant/s] that her right to reside at the premises was revoked. [The tenant/s] responded by saying that proceedings would be issued under the Property (Relationships) Act 1976 (“PRA”).
By letter dated 8 September 2023, [The landlord/s] gave [The tenant/s] notice to vacate the premises.
The respondent says that [The tenant/s] has a claim pursuant to the PRA and that an application to the court is being finalised. The further submission is that a possession order, if granted by the Tribunal, should remain dormant until such time as the Family Court or High Court proceedings are dealt with. Adjournment Application
An application for an adjournment was filed by the respondent on 22 November 2023. That application was declined and reasons were contained in my minute dated 23 November 2023.
Further investigation of the Tribunal file shows the following.
On 17 October 2023 [The tenant/s] spoke to the Tenancy Services call centre and confirmed her email address.
On 25 October Tenancy Services sent a copy of the application and notice of hearing to the email address provided by [The tenant/s].
The respondent has confirmed that her appearance at the hearing today was under protest.
Section 136 (10) RTA provides that; (10) In proving service of a document transmitted by email, it is sufficient to prove that the email was- (a) properly addressed to the email address in question; and (b) properly transmitted with the document to that email address.
The only evidence relating to the receipt of the email is that of the respondent who says that she did not receive it.
In the circumstances and in light of the deeming provision in s 136 RTA, I find that email service of the application was carried out and the hearing proceeded. Law
Section 65 RTA provides; 65 Eviction of squatters (1) 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. (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises. (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
Section 65 RTA was considered by the High Court in Sergeant v Nigro and Tapsell (2019) NZHC 328. The Court held that there are three conditions which have to be met before an 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.
The respondent says that she has an entitlement to the premises pursuant to her PRA claim.

Are the premises Residential Premises?

The parties accepted that the premises are residential premises and the matter does not require further consideration. Is [The landlord/s] entitled to possession?
The evidence provided by [The landlord/s] was not opposed by the respondent and I have no difficulty finding that [The landlord/s] is entitled to possession. Does the respondent have a right to occupation provided by any party with lawful authority to do so?
The evidence provided shows that any lawful right to occupy the premises that [The tenant/s] had, has been revoked by [The landlord/s].
In respondent’s submissions, the respondent argues that “[The landlord’s representative/s] bases her application to evict [The tenant/s] as a squatter, on her submission that [The tenant/s] has no entitlement to the property in which she is residing, because it is in the name of the [The trust]....The submission is not accepted.”
Section 65 RTA does not refer to an “entitlement”. The third limb of the test relates solely to having a right of occupation. The concepts are different. The respondent may or may not have an entitlement. The evidence does not however disclose that she has any lawful authority to reside at the premises.
The District and High Courts have made it clear that the Tribunal cannot evaluate the merits of any claim in another court in determining whether a party has a right to possession. The Tribunal simply has no jurisdiction to allow any consideration of other (undetermined) claims.
It is clear that the Trust is the only party with lawful authority to grant a right of occupation and the right of occupation previously held by [The tenant/s] has been revoked.
As the respondent has no lawful right to occupy the premises, all elements of s.65 RTA have been satisfied and a possession order is granted.
I have delayed possession to the Trust for 14 days from the date of this order to give the respondent a fair and reasonable opportunity to shift and remove her possessions form the premises.

Tenancy Tribunal case 4708409 — 14-day notice

At a glance

Tenancy Tribunal case 4708409 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Are the premises Residential Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Are the premises Residential Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions