What was Tenancy Tribunal case 4788717 about?

The tribunal order states: [The landlord/s] is granted possession of the premises at 182 Lake Road,

How much money was awarded in case 4788717?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4788717?

The dispute type was not classified.

Where can I read the official tribunal order for case 4788717?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10061806-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4788717 about?

The tribunal order states: [The landlord/s] is granted possession of the premises at 182 Lake Road,

How much money was awarded in case 4788717?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4788717?

The dispute type was not classified.

Where can I read the official tribunal order for case 4788717?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10061806-Tribunal_Order_Redacted.pdf.

182 Lake Road, Northcote, Auckland 0627 Tenancy Tribunal Case 4788717 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4788717 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Order

[The landlord/s] is granted possession of the premises at 182 Lake Road, Northcote, Auckland 0627 immediately.
The respondents must reimburse the landlord/s the filing fee as ordered below.

Reasons

Both parties attended the hearing. The tenants (“the occupants”) were assisted by the court appointed Korean interpreter. The applicant was represented by counsel.
The landlord has applied for possession of the above address and compensation for unpaid power and water invoices. Background:
The applicant says that the Residential Tenancies Act (“the RTA”) applies to this application. The occupiers, through a letter from their lawyer, say that this is a civil dispute in which the RTA does not apply.
Counsel for the applicants’ state that they do not agree with the occupiers assertion that the Tenancy Tribunal does not have jurisdiction. She says that the occupiers are living there as tenants. She says that they have exclusive use of the property.
The ‘tenancy’ began on 20 January 2023.
There was no written tenancy agreement.
No bond was paid.
Counsel submits that the arrangement was only a verbal agreement. The occupiers were introduced to the applicants through an acquaintance.
The verbal arrangement was that ‘rent’ was to be paid in arrears. The ‘rental’ amount was $300.00 per week.
The premises consisted of a stand-alone two-level house with a living area upstairs and a converted area downstairs to be used as a hair salon. All three occupants lived upstairs and paid the ‘rent’ of $300.00 per week.
The ‘rent’ was paid in cash.
Other than a ‘rent’ schedule the applicant was unable to produce any evidence confirming how much was paid.
The verbal arrangement in the beginning was an initial term of three months. The landlord was unable to produce evidence confirming any arrangement.
Counsel for the applicants say that her clients purchased the property on 20 January 2023. The arrangement was that the occupiers would live there, and the applicants would set up a hair salon on the ground floor and, when set up, the occupiers were to purchase the entire property.
Counsel for the applicants submitted that the occupiers paid ‘rent’ up until 15 June 2023 (the last payment made on 20 June). The applicant’s claim is in respect of arrears and unpaid power and water from 20 June 2023 onwards.
The parties did not enter into any Sale and Purchase Agreement to purchase the property.
The occupiers understood that they were not paying rent but rather paying towards a mortgage with a view to purchase (a ‘lease to buy’ arrangement). Nothing was recorded on paper, just verbally agreed. She says that the applicant has now asked them to move out.
The applicant says that they gave the occupants the opportunity to purchase the property in April 2023. This did not go ahead. The occupiers then went ahead and lodged a caveat against the title on 19 January 2024.
The occupiers say that they moved into the premises with the intention of buying the property.
‘Rent’ was paid in cash each month. Counsel advised that nothing has been paid since July 2023. Counsel also stated that it was the occupier’s decision not to continue with the purchase arrangement. She says that the occupiers had decided to purchase elsewhere.
The occupiers say they have spent significant money renovating the downstairs space for the hair salon.
They say that they are running a hair salon downstairs which is set up under their name. Counsel says that the occupiers continue running their business downstairs and not paying any rent. She further submits says that her clients have essentially been funding the occupier’s business downstairs.
Counsel says that the occupiers should not think that the property is their property. Their name is not on the title. A copy of the Certificate of Title confirming the applicants as owners was filed in support of this application.
The occupier says that it was their intention that they would purchase the property. Counsel says that her clients have not received any formal offer to purchase the property. Residential Tenancy
I have considered whether this is a residential tenancy and concluded that it is not.
Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
In order to determine whether a contract (residential tenancy agreement) existed the following matters need to be considered: a. the making of an offer; b. the fact of acceptance of an offer so that an agreement has been reached; c. consideration; d. Intention to create legal relations; e. The requirement of certainty – whether the terms are sufficiently certain for the parties to be legally bound.
What matters is if the contract was sufficiently formed between the tenant and the landlord. I need to be satisfied that the terms were sufficiently formed to create a binding contract.
Having carefully reviewed all of the evidence in detail, and having heard the submissions during the hearing, I cannot be certain that there was a binding residential tenancy agreement. The evidence provided by the applicant does not clearly set out the details of a tenancy. The arrangements made between the applicants and the occupiers were made verbally which may have amounted to an agreement but in my view there is a significant degree of uncertainty whether this was a tenancy agreement.
In my view the arrangement lacks the required essential contractual terms.
I have concluded that the loose verbal arrangement regarding the occupier’s contribution to the property, does not constitute “rent”.
This is an application by the owner of the property and as such they have the onus to prove, on the balance of probabilities, that a binding tenancy agreement existed between the parties. The applicant has not done this. There is no evidence produced whatsoever of what the original intentions were between the parties.
It follows from the conclusion that this is not a tenancy arrangement, that the Tribunal’s only jurisdiction to consider the applicant’s request for possession of the property is under s65 RTA.
That sections states: “Eviction of squatters a. 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. b. 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. c. To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.”
The applicants have effectively withdrawn their consent for the occupiers to remain at the property.
It is my view that the occupiers are there as squatters, trespassers or otherwise than pursuant to a right of occupation. I must grant possession to applicants. See James Alan Wallath v Alan John Wallath [2021] NZDC 14323.
The applicant’s claim for compensation in respect of the power and water invoices must therefore be refused.
Because [The applicant/s] has partly succeeded with the claim I have reimbursed the filing fee.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
Although the applicant has only been partly successful I do not consider that publication is in the public interest or is justified.

Claims and awards in Tenancy Tribunal application 4788717 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Order

[The landlord/s] is granted possession of the premises at 182 Lake Road, Northcote, Auckland 0627 immediately.
The respondents must reimburse the landlord/s the filing fee as ordered below.

Reasons

Both parties attended the hearing. The tenants (“the occupants”) were assisted by the court appointed Korean interpreter. The applicant was represented by counsel.
The landlord has applied for possession of the above address and compensation for unpaid power and water invoices. Background:
The applicant says that the Residential Tenancies Act (“the RTA”) applies to this application. The occupiers, through a letter from their lawyer, say that this is a civil dispute in which the RTA does not apply.
Counsel for the applicants’ state that they do not agree with the occupiers assertion that the Tenancy Tribunal does not have jurisdiction. She says that the occupiers are living there as tenants. She says that they have exclusive use of the property.
The ‘tenancy’ began on 20 January 2023.
There was no written tenancy agreement.
No bond was paid.
Counsel submits that the arrangement was only a verbal agreement. The occupiers were introduced to the applicants through an acquaintance.
The verbal arrangement was that ‘rent’ was to be paid in arrears. The ‘rental’ amount was $300.00 per week.
The premises consisted of a stand-alone two-level house with a living area upstairs and a converted area downstairs to be used as a hair salon. All three occupants lived upstairs and paid the ‘rent’ of $300.00 per week.
The ‘rent’ was paid in cash.
Other than a ‘rent’ schedule the applicant was unable to produce any evidence confirming how much was paid.
The verbal arrangement in the beginning was an initial term of three months. The landlord was unable to produce evidence confirming any arrangement.
Counsel for the applicants say that her clients purchased the property on 20 January 2023. The arrangement was that the occupiers would live there, and the applicants would set up a hair salon on the ground floor and, when set up, the occupiers were to purchase the entire property.
Counsel for the applicants submitted that the occupiers paid ‘rent’ up until 15 June 2023 (the last payment made on 20 June). The applicant’s claim is in respect of arrears and unpaid power and water from 20 June 2023 onwards.
The parties did not enter into any Sale and Purchase Agreement to purchase the property.
The occupiers understood that they were not paying rent but rather paying towards a mortgage with a view to purchase (a ‘lease to buy’ arrangement). Nothing was recorded on paper, just verbally agreed. She says that the applicant has now asked them to move out.
The applicant says that they gave the occupants the opportunity to purchase the property in April 2023. This did not go ahead. The occupiers then went ahead and lodged a caveat against the title on 19 January 2024.
The occupiers say that they moved into the premises with the intention of buying the property.
‘Rent’ was paid in cash each month. Counsel advised that nothing has been paid since July 2023. Counsel also stated that it was the occupier’s decision not to continue with the purchase arrangement. She says that the occupiers had decided to purchase elsewhere.
The occupiers say they have spent significant money renovating the downstairs space for the hair salon.
They say that they are running a hair salon downstairs which is set up under their name. Counsel says that the occupiers continue running their business downstairs and not paying any rent. She further submits says that her clients have essentially been funding the occupier’s business downstairs.
Counsel says that the occupiers should not think that the property is their property. Their name is not on the title. A copy of the Certificate of Title confirming the applicants as owners was filed in support of this application.
The occupier says that it was their intention that they would purchase the property. Counsel says that her clients have not received any formal offer to purchase the property. Residential Tenancy
I have considered whether this is a residential tenancy and concluded that it is not.
Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
In order to determine whether a contract (residential tenancy agreement) existed the following matters need to be considered: a. the making of an offer; b. the fact of acceptance of an offer so that an agreement has been reached; c. consideration; d. Intention to create legal relations; e. The requirement of certainty – whether the terms are sufficiently certain for the parties to be legally bound.
What matters is if the contract was sufficiently formed between the tenant and the landlord. I need to be satisfied that the terms were sufficiently formed to create a binding contract.
Having carefully reviewed all of the evidence in detail, and having heard the submissions during the hearing, I cannot be certain that there was a binding residential tenancy agreement. The evidence provided by the applicant does not clearly set out the details of a tenancy. The arrangements made between the applicants and the occupiers were made verbally which may have amounted to an agreement but in my view there is a significant degree of uncertainty whether this was a tenancy agreement.
In my view the arrangement lacks the required essential contractual terms.
I have concluded that the loose verbal arrangement regarding the occupier’s contribution to the property, does not constitute “rent”.
This is an application by the owner of the property and as such they have the onus to prove, on the balance of probabilities, that a binding tenancy agreement existed between the parties. The applicant has not done this. There is no evidence produced whatsoever of what the original intentions were between the parties.
It follows from the conclusion that this is not a tenancy arrangement, that the Tribunal’s only jurisdiction to consider the applicant’s request for possession of the property is under s65 RTA.
That sections states: “Eviction of squatters a. 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. b. 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. c. To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.”
The applicants have effectively withdrawn their consent for the occupiers to remain at the property.
It is my view that the occupiers are there as squatters, trespassers or otherwise than pursuant to a right of occupation. I must grant possession to applicants. See James Alan Wallath v Alan John Wallath [2021] NZDC 14323.
The applicant’s claim for compensation in respect of the power and water invoices must therefore be refused.
Because [The applicant/s] has partly succeeded with the claim I have reimbursed the filing fee.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
Although the applicant has only been partly successful I do not consider that publication is in the public interest or is justified.

Tenancy Tribunal case 4788717 — Tenancy dispute at 182 Lake Road, Northcote, Auckland 0627

At a glance

Award balance

Tenancy Tribunal case 4788717 — Tenancy dispute at 182 Lake Road, Northcote, Auckland 0627

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions