What was Tenancy Tribunal case 4860127 about?

The published order could not be summarised from available data.

How much money was awarded in case 4860127?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4860127?

The dispute type was not classified.

Where can I read the official tribunal order for case 4860127?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10743097-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4860127 about?

The published order could not be summarised from available data.

How much money was awarded in case 4860127?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4860127?

The dispute type was not classified.

Where can I read the official tribunal order for case 4860127?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10743097-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4860127 — Tenancy dispute

Reasons

Both parties attended the hearing
The Landlord has applied for possession of the property. They claim this was a periodic tenancy and a valid notice to vacate was served upon the Tenant on 24 August 2023. Background
The parties were friends and the Tenant previously owned the property. On 20 December 2016, the parties entered into an agreement for the Tenant to sell the property to the Landlord.
On 10 August 2019, the parties entered into a Tenancy agreement conveyed through a handwritten statement titled ‘Rental agreement’ (“agreement”) that stipulated: “Upon issue of the title 50A Tunis Road, Panmure Tental to be paid to Ollie Olsen (Robert) for duration of the build [50A Tunis] fortnightly ($700.00) cash”
The agreement was signed by both parties reflecting their mutual understanding that the Tenant had the right to occupy the property, construct a dwelling at 50A Tunis Avenue and then move into that property.
On 22 December 2021, the Landlord paid the Tenant the settlement funds for the purchase of the property.
On 11 July 2023, the Landlord passed away.
On 15 March 2023, the Public Trust was granted an Order to administer the Landlord’s estate.
On 24 August 2023, Public Trust served a notice to vacate by 3 November 2024 upon the Tenant. On 4 September 2023, the Tenant wrote to Public Trust confirming he would vacate by this date.
On 23 November 2023, Public Trust wrote to the Tenant advising the letter of 24 August 2023 had an administrative error and the actual date to vacate was intended for 3 November 2023.
The Tenant did not agree to vacating on this date so Public Trust filed these proceedings. Landlords case
The Landlord submits that this was an informal tenancy agreement and the physical build undertaken by the Tenant is artificial. Since the agreement was signed in 2019, the Landlord submits that there has been nominal progress with the construction of the property, the Tenant had no intention to build and at one stage the property was listed for sale. The Landlord submits that because the Tenant has been given a reasonable period to build this property, the fixed term tenancy has come to an end and the tenancy is now periodic.
The Landlord submitted there were three relevant dates to consider which were the signing of the sale and purchase agreement on 20 December 2016, the settlement date when the title was issued on 16 December 2021 and the date of the agreement being 10 August 2019. The Landlord deposes there has only been a flurry of activity with the building since May 2023.
The Landlord questioned whether the Tenant now had the funds to complete the build and asked what the Tenant applied the settlement funds towards.
The Landlord seeks possession pursuant to section 51(2)(a) and section 64 RTA. Tenant’s case
The Tenant submits that this is a fixed term tenancy that terminates once the property has been built. This was the clear intention of both parties from the outset, and they had both sought legal advice before signing the agreement. The Tenant submits “his hands were tied” because there have been several factors outside his control that have hindered construction. A timeline was submitted outlining the Tenants actions. These actions showed the Landlord paid the Tenant $150,000.00 less than the current market value and the Landlord transferring the settlement funds in December 2021. This hindered his building plans and a bank statement was provided to substantiate the payment. Further delays in construction occurred from January 2020 to February 2022 as a result of COVID lockdown. There was also difficulty in commissioning builders and ‘red tape’ in respect of Council communication. The Tenant outlined their interactions with Council which commenced with filing an application for subdivision on 24 March 2017.
The Tenant also submitted that he never wanted to remain in a tenancy and pay rent. He was ‘willing to do his bit’ in getting this construction completed. The construction has taken a toll on his health. Some of this was financial due to the the materials increasing in price and he just wanted to get on with his life. He has always had an intention to build and move out of the current property but the ‘bureaucracy’ was hindering.
Further evidence was provided by the Tenants builder who verified that the issuing of consents took four years, there was supply shortages and concurrent contracts in 2022 due to COVID which delayed progress. In 2024, the delays meant the builder had to redesign the build to accommodate the increase in supply materials.
Since the last hearing in May 2024, the Tenant deposed he had arranged for Geothermal engineers to attend the property and the Tenant has responded to the Councils request for further information in June 2024. The Landlord is currently awaiting the outcome of their consent application.
The Tenant submitted that he had not used the settlement funds wastefully. He was not working because this project required his time and he does not gamble or drink. The Tenant submitted his use of the settlement funds was irrelevant.
The Tenant submits that if it is found that this was a periodic tenancy, then he seeks to claim breach of enjoyment. An application however was not made through Tenancy services for this. The law

Is this a fixed term tenancy or period tenancy?

The issue to determine is whether this is a fixed term or periodic tenancy.
A fixed term tenancy is a tenancy for a fixed term which cannot be terminated by notice before the end of the term except as provided in section 58(1) or section 58A 1 . A fixed term tenancy has been found to terminate where there is an identifiable event when the tenancy terminates. Fixed term tenancies can 1 RTA 1986 section 2 end either by agreement between the parties or by becoming periodic pursuant to section 60A of the Residential Tenancies Act 1986 (“RTA”).
In considering the evidence, I find that whilst this was an informal agreement amongst two friends, it is still a valid, current and binding fixed term tenancy. I find from the intention and actions of the parties, that the identifiable event which ends this tenancy is when the building is completed. The evidence clearly indicates the intention between the parties for the Tenant to rent the property until the Tenant’s neighbouring property was built. The parties had a trusting longstanding friendship which gave room for flexibility terms of the tenancy agreement. This is evident in the delayed transfer of settlement funds for example because there was mutual trust between the two parties. I also accept the parties obtained legal advice before signing the agreement.
I do not accept that the delays in building progress reflect the Tenants intention to not build the property. The Tenants evidence was persuasive in indicating that the delay was caused in the granting of building consents, the impact of COVID and his interactions with Council. The Tenant submitted evidence from the builder, council correspondence and in a statement from the Tenant. This evidence indicates that there were factors outside the Tenants control hindering his progress. The Landlord submitted the Tenant had the property listed for sale at one point however no evidence was provided of this. The Tenant was also unequivocal that being a Tenant in a property and paying rent was less than ideal. He wanted to build and move into his new property was soon as possible.
I find that the delay in progress to build a property does not satisfy any of the grounds in section 60A RTA for the fixed term tenancy to become a periodic tenancy. There is no agreement between the parties for this to occur either.
For these reasons, I dismiss the Landlords application.
The Tenant’s claim for breach of quiet enjoyment has not been determined as the Tribunal has deemed this is a fixed term tenancy.
In terms of whether this fixed term tenancy should be reduced, Public Trust position was that this was a periodic tenancy so that issue has not been determined either.
As the Tenant has sought name suppression, this has been granted to the Tenant.

Reasons

Both parties attended the hearing

The Landlord has applied for possession of the property. They claim this was a periodic tenancy and a valid notice to vacate was served upon the Tenant on 24 August 2023. Background

The parties were friends and the Tenant previously owned the property. On 20 December 2016, the parties entered into an agreement for the Tenant to sell the property to the Landlord.

On 10 August 2019, the parties entered into a Tenancy agreement conveyed through a handwritten statement titled ‘Rental agreement’ (“agreement”) that stipulated: “Upon issue of the title 50A Tunis Road, Panmure Tental to be paid to Ollie Olsen (Robert) for duration of the build [50A Tunis] fortnightly ($700.00) cash”

The agreement was signed by both parties reflecting their mutual understanding that the Tenant had the right to occupy the property, construct a dwelling at 50A Tunis Avenue and then move into that property.

On 22 December 2021, the Landlord paid the Tenant the settlement funds for the purchase of the property.

On 11 July 2023, the Landlord passed away.

On 15 March 2023, the Public Trust was granted an Order to administer the Landlord’s estate.

On 24 August 2023, Public Trust served a notice to vacate by 3 November 2024 upon the Tenant. On 4 September 2023, the Tenant wrote to Public Trust confirming he would vacate by this date.

On 23 November 2023, Public Trust wrote to the Tenant advising the letter of 24 August 2023 had an administrative error and the actual date to vacate was intended for 3 November 2023.

The Tenant did not agree to vacating on this date so Public Trust filed these proceedings. Landlords case

The Landlord submits that this was an informal tenancy agreement and the physical build undertaken by the Tenant is artificial. Since the agreement was signed in 2019, the Landlord submits that there has been nominal progress with the construction of the property, the Tenant had no intention to build and at one stage the property was listed for sale. The Landlord submits that because the Tenant has been given a reasonable period to build this property, the fixed term tenancy has come to an end and the tenancy is now periodic.

The Landlord submitted there were three relevant dates to consider which were the signing of the sale and purchase agreement on 20 December 2016, the settlement date when the title was issued on 16 December 2021 and the date of the agreement being 10 August 2019. The Landlord deposes there has only been a flurry of activity with the building since May 2023.

The Landlord questioned whether the Tenant now had the funds to complete the build and asked what the Tenant applied the settlement funds towards.

The Landlord seeks possession pursuant to section 51(2)(a) and section 64 RTA. Tenant’s case

The Tenant submits that this is a fixed term tenancy that terminates once the property has been built. This was the clear intention of both parties from the outset, and they had both sought legal advice before signing the agreement. The Tenant submits “his hands were tied” because there have been several factors outside his control that have hindered construction. A timeline was submitted outlining the Tenants actions. These actions showed the Landlord paid the Tenant $150,000.00 less than the current market value and the Landlord transferring the settlement funds in December 2021. This hindered his building plans and a bank statement was provided to substantiate the payment. Further delays in construction occurred from January 2020 to February 2022 as a result of COVID lockdown. There was also difficulty in commissioning builders and ‘red tape’ in respect of Council communication. The Tenant outlined their interactions with Council which commenced with filing an application for subdivision on 24 March 2017.

The Tenant also submitted that he never wanted to remain in a tenancy and pay rent. He was ‘willing to do his bit’ in getting this construction completed. The construction has taken a toll on his health. Some of this was financial due to the the materials increasing in price and he just wanted to get on with his life. He has always had an intention to build and move out of the current property but the ‘bureaucracy’ was hindering.

Further evidence was provided by the Tenants builder who verified that the issuing of consents took four years, there was supply shortages and concurrent contracts in 2022 due to COVID which delayed progress. In 2024, the delays meant the builder had to redesign the build to accommodate the increase in supply materials.

Since the last hearing in May 2024, the Tenant deposed he had arranged for Geothermal engineers to attend the property and the Tenant has responded to the Councils request for further information in June 2024. The Landlord is currently awaiting the outcome of their consent application.

The Tenant submitted that he had not used the settlement funds wastefully. He was not working because this project required his time and he does not gamble or drink. The Tenant submitted his use of the settlement funds was irrelevant.

The Tenant submits that if it is found that this was a periodic tenancy, then he seeks to claim breach of enjoyment. An application however was not made through Tenancy services for this. The law

Is this a fixed term tenancy or period tenancy?

The issue to determine is whether this is a fixed term or periodic tenancy.

A fixed term tenancy is a tenancy for a fixed term which cannot be terminated by notice before the end of the term except as provided in section 58(1) or section 58A 1 . A fixed term tenancy has been found to terminate where there is an identifiable event when the tenancy terminates. Fixed term tenancies can 1 RTA 1986 section 2 end either by agreement between the parties or by becoming periodic pursuant to section 60A of the Residential Tenancies Act 1986 (“RTA”).

In considering the evidence, I find that whilst this was an informal agreement amongst two friends, it is still a valid, current and binding fixed term tenancy. I find from the intention and actions of the parties, that the identifiable event which ends this tenancy is when the building is completed. The evidence clearly indicates the intention between the parties for the Tenant to rent the property until the Tenant’s neighbouring property was built. The parties had a trusting longstanding friendship which gave room for flexibility terms of the tenancy agreement. This is evident in the delayed transfer of settlement funds for example because there was mutual trust between the two parties. I also accept the parties obtained legal advice before signing the agreement.

I do not accept that the delays in building progress reflect the Tenants intention to not build the property. The Tenants evidence was persuasive in indicating that the delay was caused in the granting of building consents, the impact of COVID and his interactions with Council. The Tenant submitted evidence from the builder, council correspondence and in a statement from the Tenant. This evidence indicates that there were factors outside the Tenants control hindering his progress. The Landlord submitted the Tenant had the property listed for sale at one point however no evidence was provided of this. The Tenant was also unequivocal that being a Tenant in a property and paying rent was less than ideal. He wanted to build and move into his new property was soon as possible.

I find that the delay in progress to build a property does not satisfy any of the grounds in section 60A RTA for the fixed term tenancy to become a periodic tenancy. There is no agreement between the parties for this to occur either.

For these reasons, I dismiss the Landlords application.

The Tenant’s claim for breach of quiet enjoyment has not been determined as the Tribunal has deemed this is a fixed term tenancy.

In terms of whether this fixed term tenancy should be reduced, Public Trust position was that this was a periodic tenancy so that issue has not been determined either.

As the Tenant has sought name suppression, this has been granted to the Tenant.

Tenancy Tribunal case 4860127 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4860127 — Tenancy dispute

At a glance

Claims & awards

Reasons

Is this a fixed term tenancy or period tenancy?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Reasons

Is this a fixed term tenancy or period tenancy?

Topics & place

Residential Tenancies Act sections

Frequently asked questions