What was Tenancy Tribunal case 4762639 about?

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

How much money was awarded in case 4762639?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4762639?

The dispute type was not classified.

Where can I read the official tribunal order for case 4762639?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10411900-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4762639 about?

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

How much money was awarded in case 4762639?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4762639?

The dispute type was not classified.

Where can I read the official tribunal order for case 4762639?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10411900-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4762639 — Tenancy dispute

Order

[The landlord/s] are granted possession of the premises at [Tenancy address suppressed] at 12.00 midday on Monday 26 August 2024.

Reasons

Both parties attended two hearings and had legal representation. I have referred to the applicants as the owners and to the other party as the partner.
The owners have applied for possession of a house. In the alternative they submitted the Tribunal should make an order that the partner sign a tenancy agreement with the owners. The partner does not agree to either of these.
There is no disagreement that the house in question is residential premises. The house was built by the owners’ mother and her partner of many years. After the mother died in 2017 her partner remained living in the house. Initially the owners understood that the house was owned by their mother, but this was not the case. A trust owned the house instead. This ownership meant that the mother was unable to give her partner a life interest in the house after she died. The absence of a life interest allows me to consider the application for possession because the Tribunal has jurisdiction.
In 2021 the trust was wound up and the house was transferred into the names of the owners in their personal capacities. In 2022 the owners decided they no longer wanted the partner to live in the house and they gave him notice to leave. The partner got legal advice and has continued to live in the house. In 2023 the lawyers for the owners wrote again asking that the partner enter into a tenancy agreement, or an agreement he stay and pay a contribution towards the outgoings. No agreement was reached and the owners filed this application with the Tenancy Tribunal. The partner has filed claims in the Family Court in the last months because he wants to stay living in the house.
The questions I have to decide are: • Do the owners own the house? • Does the partner have a right to live in the house? • Can the partner’s potential claim in another jurisdiction be considered? • Should the owners get possession? • Should the Tribunal order that the parties sign a tenancy agreement?
Section 65 of the Residential Tenancies Act 1986 (RTA) is the law which gives the Tenancy Tribunal the jurisdiction to grant possession of a tenancy premises, even if there is no tenancy agreement. This section 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: • the premises are residential premises, • the applicant is entitled to possession of those premises, and • another person is in possession as a squatter, trespasser, or otherwise than pursuant to any right of occupation granted by a person having the lawful authority to do so.

Do the owners own the house?

The lawyer for the owners provided me with an up to date certificate of title for the house. The applicants are named as the owners on the certificate of title. I have also been provided with recent council rates information. I find they have proved ownership of the house.

Does the partner have a right to live in the house?

[The owners’ lawyer], lawyer for the owners, submitted there was a verbal tenancy agreement from 2017 when the owners – acting as trustees – advised the partner that there was a life interest and $50,000 to cover costs incurred during the life interest. A 90 day notice was served in 2022 because the house was going to be put on the market for sale and this ended the tenancy. [The owners’ lawyer] submitted that subsequently there was no right of occupation granted by the owners.
[The partner’s lawyer], the lawyer for the partner, submitted there was an agreement in 2017 between the owners/trustees and the partner that he could live in the house for the rest of his life. The partner took them at their word and this cannot be revoked now. In the alternative [The partner’s lawyer] submitted that if there had been a tenancy agreement a clause prohibiting a new relationship would be unenforceable, and that the owners could not unilaterally change the terms of a tenancy agreement.
I have considered the history and the submissions. I find there was no verbal tenancy agreement because the partner never paid rent. It seems most likely to me that the parties agreed to a licence to occupy the house from 2017.
Licences were discussed in the Tribunal decision of Wallath v Wallath and also in the appeal heard in the District Court. In that case the occupier never paid rent or gave any valuable consideration. The Judge found there was a license to occupy the premises which had been revoked and granted possession to the owner. The Judge said that licences to occupy consist only of permission to enter and use the land and are revocable at will. See Wallath v Wallath [2021] NZDC 14323.
It is arguable that the partner has provided valuable consideration – another way of paying rent - by maintaining the house since 2017. However this point was also considered in Wallath, where the Judge referred to Chou v Chou and found that the licence to occupy could be revoked at will even though the occupier had been responsible for upkeep. See Chou v Chou [2016] NZDC 15768.
Despite his long connection to the house, I find the partner no longer has the right to live there. The lawyers have made the position of the owners clear, by giving a 90 day notice and subsequently by advising that the partner would have to leave if the parties could not reach an agreement on use and payment. This application has been made to the Tribunal. Using the language of section 65 RTA, the partner currently in possession otherwise than pursuant to any right of occupation granted by a person having the lawful authority to do so. Can the partner’s potential claim in another jurisdiction be considered?
The lawyer for the partner has filed proceedings in the Family Court for orders under the Property Relationships Act and the Family Protection Act. Strong submissions were made that the Tribunal should wait for the order of the Family Court before making a decision.
The District and High Courts in Tapsell have made it clear that the Tribunal cannot evaluate the merits of any claim in another Court in determining whether the applicant has a right to possession. The Tribunal simply has no jurisdiction to allow any consideration of other, undetermined claims. In Tapsell the High Court stated that the Adjudicator was not in a position to evaluate other potential claims before the High Court. I find this means I cannot evaluate a potential claim in the Family Court either.

Should the owners get possession?

I find the house is residential premises. I find the applicants are the owners. I find the partner is occupying the house without any legal right. I find the owners are entitled to possession.
The owners have allowed the partner three months after the date of the order to make arrangements and to move out.
Accordingly, possession is granted to the owners at midday on Monday 26 August 2024, which is 12 weeks from now.

Should the Tribunal order that the parties sign a tenancy agreement?

[The owners’ lawyer] submitted that the Tribunal could use section 85 RTA and make an order that the partner sign a tenancy agreement. Section 85 allows the Tribunal to make an order by considering the substantial merits and justice of the case. However I decline to make the order. It is clear to me from the witness evidence that the owners do not want the partner to have a new relationship and live in the house. Without making any finding on that point, I note that including a clause that prohibits a new relationship would be in breach of the RTA. See sections 11 and 137 of the RTA, which do not allow the inclusion of provisions which are inconsistent with the Act. Suppression
The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. See section 95A RTA.
I am using my discretion to make an order for suppression. There have been no breaches of the RTA and any public interest is in the law rather than the names of the parties. See section 95A RTA.

Reasons

Both parties attended two hearings and had legal representation. I have referred to the applicants as the owners and to the other party as the partner.

The owners have applied for possession of a house. In the alternative they submitted the Tribunal should make an order that the partner sign a tenancy agreement with the owners. The partner does not agree to either of these.

There is no disagreement that the house in question is residential premises. The house was built by the owners’ mother and her partner of many years. After the mother died in 2017 her partner remained living in the house. Initially the owners understood that the house was owned by their mother, but this was not the case. A trust owned the house instead. This ownership meant that the mother was unable to give her partner a life interest in the house after she died. The absence of a life interest allows me to consider the application for possession because the Tribunal has jurisdiction.

In 2021 the trust was wound up and the house was transferred into the names of the owners in their personal capacities. In 2022 the owners decided they no longer wanted the partner to live in the house and they gave him notice to leave. The partner got legal advice and has continued to live in the house. In 2023 the lawyers for the owners wrote again asking that the partner enter into a tenancy agreement, or an agreement he stay and pay a contribution towards the outgoings. No agreement was reached and the owners filed this application with the Tenancy Tribunal. The partner has filed claims in the Family Court in the last months because he wants to stay living in the house.

The questions I have to decide are: • Do the owners own the house? • Does the partner have a right to live in the house? • Can the partner’s potential claim in another jurisdiction be considered? • Should the owners get possession? • Should the Tribunal order that the parties sign a tenancy agreement?

Section 65 of the Residential Tenancies Act 1986 (RTA) is the law which gives the Tenancy Tribunal the jurisdiction to grant possession of a tenancy premises, even if there is no tenancy agreement. This section 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: • the premises are residential premises, • the applicant is entitled to possession of those premises, and • another person is in possession as a squatter, trespasser, or otherwise than pursuant to any right of occupation granted by a person having the lawful authority to do so.

Do the owners own the house?

The lawyer for the owners provided me with an up to date certificate of title for the house. The applicants are named as the owners on the certificate of title. I have also been provided with recent council rates information. I find they have proved ownership of the house.

Does the partner have a right to live in the house?

[The owners’ lawyer], lawyer for the owners, submitted there was a verbal tenancy agreement from 2017 when the owners – acting as trustees – advised the partner that there was a life interest and $50,000 to cover costs incurred during the life interest. A 90 day notice was served in 2022 because the house was going to be put on the market for sale and this ended the tenancy. [The owners’ lawyer] submitted that subsequently there was no right of occupation granted by the owners.

[The partner’s lawyer], the lawyer for the partner, submitted there was an agreement in 2017 between the owners/trustees and the partner that he could live in the house for the rest of his life. The partner took them at their word and this cannot be revoked now. In the alternative [The partner’s lawyer] submitted that if there had been a tenancy agreement a clause prohibiting a new relationship would be unenforceable, and that the owners could not unilaterally change the terms of a tenancy agreement.

I have considered the history and the submissions. I find there was no verbal tenancy agreement because the partner never paid rent. It seems most likely to me that the parties agreed to a licence to occupy the house from 2017.

Licences were discussed in the Tribunal decision of Wallath v Wallath and also in the appeal heard in the District Court. In that case the occupier never paid rent or gave any valuable consideration. The Judge found there was a license to occupy the premises which had been revoked and granted possession to the owner. The Judge said that licences to occupy consist only of permission to enter and use the land and are revocable at will. See Wallath v Wallath [2021] NZDC 14323.

It is arguable that the partner has provided valuable consideration – another way of paying rent - by maintaining the house since 2017. However this point was also considered in Wallath, where the Judge referred to Chou v Chou and found that the licence to occupy could be revoked at will even though the occupier had been responsible for upkeep. See Chou v Chou [2016] NZDC 15768.

Despite his long connection to the house, I find the partner no longer has the right to live there. The lawyers have made the position of the owners clear, by giving a 90 day notice and subsequently by advising that the partner would have to leave if the parties could not reach an agreement on use and payment. This application has been made to the Tribunal. Using the language of section 65 RTA, the partner currently in possession otherwise than pursuant to any right of occupation granted by a person having the lawful authority to do so. Can the partner’s potential claim in another jurisdiction be considered?

The lawyer for the partner has filed proceedings in the Family Court for orders under the Property Relationships Act and the Family Protection Act. Strong submissions were made that the Tribunal should wait for the order of the Family Court before making a decision.

The District and High Courts in Tapsell have made it clear that the Tribunal cannot evaluate the merits of any claim in another Court in determining whether the applicant has a right to possession. The Tribunal simply has no jurisdiction to allow any consideration of other, undetermined claims. In Tapsell the High Court stated that the Adjudicator was not in a position to evaluate other potential claims before the High Court. I find this means I cannot evaluate a potential claim in the Family Court either.

Should the owners get possession?

I find the house is residential premises. I find the applicants are the owners. I find the partner is occupying the house without any legal right. I find the owners are entitled to possession.

The owners have allowed the partner three months after the date of the order to make arrangements and to move out.

Accordingly, possession is granted to the owners at midday on Monday 26 August 2024, which is 12 weeks from now.

Should the Tribunal order that the parties sign a tenancy agreement?

[The owners’ lawyer] submitted that the Tribunal could use section 85 RTA and make an order that the partner sign a tenancy agreement. Section 85 allows the Tribunal to make an order by considering the substantial merits and justice of the case. However I decline to make the order. It is clear to me from the witness evidence that the owners do not want the partner to have a new relationship and live in the house. Without making any finding on that point, I note that including a clause that prohibits a new relationship would be in breach of the RTA. See sections 11 and 137 of the RTA, which do not allow the inclusion of provisions which are inconsistent with the Act. Suppression

The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. See section 95A RTA.

I am using my discretion to make an order for suppression. There have been no breaches of the RTA and any public interest is in the law rather than the names of the parties. See section 95A RTA.

Tenancy Tribunal case 4762639 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4762639 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Do the owners own the house?

Does the partner have a right to live in the house?

Should the owners get possession?

Should the Tribunal order that the parties sign a tenancy agreement?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Do the owners own the house?

Does the partner have a right to live in the house?

Should the owners get possession?

Should the Tribunal order that the parties sign a tenancy agreement?

Topics & place

Residential Tenancies Act sections

Frequently asked questions