What was Tenancy Tribunal case 4749469 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4749469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4749469?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4749469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10123965-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4749469 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4749469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4749469?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4749469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10123965-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4749469 — Exemplary damages

Order

The application is dismissed.

Reasons

Both parties attended the hearing. On 24 November 2023, the applicant filed an application alleging that they had been unlawfully evicted for which they seek exemplary damages and general damages for emotional distress.
The Tribunal has jurisdiction to deal with disputes between landlord and tenant. There is preliminary issue in this case as to whether there is a landlord/ tenant relationship. If there is not, the Tribunal does not have jurisdiction to deal with the substantive claim of unlawful eviction.
The applicant submits, that having agreed to their staying in the garage, the respondent had entered into a residential tenancy agreement.
The applicant states that there are usually of no fixed abode and primarily choose to live out of their vehicle. Based on the applicant’s timeline, on or about March / April 2023, they were staying with their partner in a location near the property. The property in this dispute is a section where the main dwelling has been removed, leaving a small garage and what can best be described as a small implement shed. The applicant describes the small shed as a bach. There are no services to the property. The applicant states that they noticed the property was uninhabited. Without the permission of the respondent, the applicant decided to park their vehicle on the property. The applicant stayed in the vehicle. The applicant states that over a six-month period they made enquiries with neighbours nearby about the identity of the respondent. The applicant states that one day a neighbour appeared and gave them the name and contact number of the respondent. The applicant states they sent the respondent a text message. The applicant states that sometime later they received a call from the respondent who identified themselves as the owner. The applicant states, surprisingly, the respondent seemed happy that the applicant was staying on the property as it was discouraged people from dumping rubbish. The applicant states that the respondent offered the applicant money and food to stay. The applicant stated that they declined the offer but said that to show their appreciation they would help clean up the property. The applicant did this by surreptitiously using the waste bins of neighbours in the street. The applicant states that as winter approached, they asked the respondent if they could move into the garage, to which the respondent agreed. The applicant states that the respondent visited and approved of what the applicant was doing. The applicant describes the relationship with the respondent as good. The applicant states that on or about November 2023, the respondent came to the property and told the applicant that they had to leave, stating that the section was going dwellings were going to be removed or demolished. The applicant refused to leave. The applicant states they obtained advice that they were a tenant and could not be summarily evicted. The applicant states they went to Police seeking trespass notice against the respondent. The applicant states that the respondent appeared about three or four days later and was angry and aggressive. The applicant states the respondent called the Police. The applicant states that after explaining the situation to Police they advised the respondent to leave and seek some legal advice. The applicant states that the respondent returned and started to demolish the shed until being told to go by neighbours. The applicant states that despite repeated attempts by the respondent to remove them, they remain at the property.
The respondent denies that they entered in a tenancy agreement with the applicant. The respondent produced an email from the applicant received on or about mid-June 2023 which states: “Hello this is [redacted] asked you about Bach. Could you please ring wondering if I could park up in my van on your property. In exchange ill clean pull tug at weeds clean up your section”.
The respondent states they went to the property and met with the applicant, discovering that they were living out of their van. The respondent states that having learned of the applicant’s personal circumstances, they were happy to have the van parked on the property, which deterred others from dumping rubbish. The respondent states that later in on or about July 2023 they visited the property and discovered that the applicant was using the small shed to store petrol cans. The respondent states that they took no issue. The respondent states that in on or about October 2023, they returned from overseas to discover that the applicant had moved into and appeared to be sleeping in the garage. Although the applicant appeared settled, they advised the applicant they could not stay in the garage as it was uninhabitable. The respondent states that they have rental properties and are aware of the regulations that apply to residential dwellings and, if offered for residential purposes, the garage and shed would be classified as unlawful premises. The respondent states that despite telling the applicant that they could not stay in the garage, they continued to do so. The respondent states that they had sympathy for the applicant’s circumstances and did not take immediate action to remove them, but made it clear they had three weeks to move, as work was going to begin demolishing the garage and shed. The respondent accepts that when they returned, they were unhappy to find the applicant still in the garage. The respondent states it was, in fact, the applicant who called the Police. The respondent accepts that he left the property when he was asked by Police to de-escalate the situation. The respondent states that in November 2023 he served the applicant with a trespass notice, which the Police enforced. The respondent produced the notice and email correspondence with Police confirming that the applicant had, in fact left the property.
Premises are defined in section 2(1) of the Residential Tenancies Act 1986 (The “Act”) to include (a) any part of premises and, (b) any land and appurtenances, other than facilities, and (3) any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.
Residential premises are defined in the Act to mean any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
A tenancy is defined, in relation to any residential premises, the right to occupy the premises, (whether exclusively or not) 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.
A tenancy agreement is defined, in relation to any residential premises, as any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises and, where appropriate, includes a former tenancy and any variation of a tenancy agreement.
Rent is defined and means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the applicant; but does not include any sum of money payable or paid by way of bond.
The garage and shed can be defined as premises. The applicant’s occupation of the garage as place of residence brings it within the definition of residential premises. A tenancy agreement for residential premises is a contract. A legally binding contract requires key elements such as a clear offer, unequivocal acceptance of that offer, adequate consideration, an intention to enter legal relations, and certainty of terms must be present.
I have seen and heard the parties give evidence. I consider the respondent to be the more accurate historian. The respondent agreed that the applicant could park his van on the property. They did not agree for the applicant to reside in the garage or shed. There is no dispute about this fact. There has been no evidence that the respondent required the applicant to provide a pay or provide service in return, or that if the ceased to clean up, the respondent would ask the applicant to leave. It was envisaged by the parties that the applicant’s mere presence would deter dumping. I do not consider this to be adequate consideration for a binding contract. In my opinion, the right to park the van on the section was a mere licence revocable at will by the respondent.
I am not satisfied that having discovered the applicant had moved into the garage that the respondent either expressly or by not immediately removing the applicant, they impliedly entered into a tenancy agreement. I accept the respondent’s evidence that they advised the applicant that they could not continue to stay in the garage. I do not consider that by then letting the applicant stay for a short period then created a legally binding landlord / tenant relationship between the parties. There was no meeting of the minds, no offer and acceptance, no consideration, or intention to create leal relations.
The application is dismissed. Any dispute between the parties is not within the jurisdiction of the Tribunal. At the conclusion of the hearing, both wished each other well. It appears that the pair struck up a friendship during their brief encounter. Despite the disagreement, it appears that they maintain a mutual respect.
There is no order for reimbursement of the filing fee. Both parties seek name suppression. The respondent has been wholly successful and is granted name suppression. See section 95A of the Act. The applicant has provided evidence regarding their physical and mental health. I am satisfied that there are grounds to exercise the discretion in section 95A (4) of the Act, and I also grant the applicant suppression.

Tenancy Tribunal case 4749469 — Exemplary damages

At a glance

Tenancy Tribunal case 4749469 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions