What was Tenancy Tribunal case 4981990 about?

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

How much money was awarded in case 4981990?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4981990?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4981990?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11048594-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4981990 about?

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

How much money was awarded in case 4981990?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4981990?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4981990?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11048594-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4981990 — Boarding House

Order

[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] on 11:59pm on 12 January 2025.

Reasons

Both parties attended the hearing.
I use the terms landlord and tenant in this decision for ease of reference. The landlord is the tenants’ son. Background
The property at [Tenancy address suppressed] (“the property”) was purchased in 2016. I received conflicting evidence on the intent behind the purchase. The landlord submitted simply that there was a family arrangement but that he was the owner of the property. The landlord was unwilling to provide further details on the background of the purchase.
The tenant submitted that she needed to move out of her rental property and thought that rather than pay rent to a random landlord, it would be beneficial for her son if they purchased a property and she effectively “rented” or paid towards the mortgage to use the property. This would mean that the landlord would get on the property market, would get regular payments as well as the benefit of future capital gains from the property.
The tenant’s brother (who gave evidence at the hearing) provided a deposit of $100,000.00 to assist the landlord to purchase the property (“the deposit”). He advised that he provided a gift letter for this amount that the landlord could take to the bank to assist him to secure finance for the purchase.
The tenant submitted that the intention was that at some stage when the property was sold, there would be an equity split between the parties, including repayment of the deposit.
There were no formal agreements signed with respect to this transaction. The agreement was made through a series of discussions and messages between the parties as family members.
The property was purchased, and the landlord was the sole person registered on the certificate of title in 2016.
The tenant made regular payments to the landlord from March 2016 and evidence of these payments over the last 7 years from ASB and BNZ have been provided. These payments are described in the bank statements as various things, including “collective board”, “A/P Rent”, and “A/P Misc”. The tenant submits that since 4 March 2016, she has paid approximately $275,000.00 with an average monthly payment of $2,820.67 and an average weekly payment of $705.00.
During 2023 there were discussions between the parties about the tenant’s impending retirement and the need to find a more affordable property. In July 223 a smaller property was purchased for this purpose.
At this stage, all communication ceased between the parties and despite the tenant and her brother trying to contact the landlord, there has been limited response since.
On 3 April 2024 an eviction notice dated 19 March 2024, was taped to the tenant’s door. It stated that: “This letter serves as a 90-days’ notice of eviction. You are required to vacate the premise at [the property] within 90 days from the date of this notice”.
On 23 August 2024 the landlord applied to the tenancy tribunal seeking an order for possession and eviction of the tenant pursuant to section 65 Residential Tenancies Act 1986 (RTA).
The tenant says that she is willing to vacate the property so that it can be sold but would like a written agreement with the landlord on how the equity from the sale is split, including repayment of the deposit.

Is this an excluded arrangement?

The first question to consider is whether the tenant’s occupation of the property was a tenancy pursuant to the RTA.
The landlord submits that the RTA does not apply to family members. The tenant does not dispute this. The law
Section 5(1)(n) of the RTA states that: (1) This Act shall not apply in the following cases: (n) where the premises, not being a boarding house, continue to be used, during the tenant, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
Tenancy is defined in the RTA as “in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) 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.”
Despite the tenant making regular payments, I have heard or seen nothing that indicates that this was a condition of being able to occupy. The tenant submits that there was a verbal agreement for the tenant to pay a weekly amount which would be used to pay the mortgage, rates and insurance.
In addition, both parties in their written submissions have said that this wasn’t an arrangement they thought was a tenancy, and the tenant instead describes her occupation of the property as part of a family arrangement or joint purchase venture.
Based on the intention of the parties behind the transaction, I find therefore that this was not a tenancy, and it falls within the RTA s5(1)(n) exclusion. Possession
The second question is whether the Tribunal should make the possession order sought by the landlord.
Section 65 of the 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 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.
The High Court has confirmed that there are three conditions to be met before an order under s65 can be made: 1 a. The premises are residential premises. b. The applicant is entitled to possession. c. The other party is a squatter, trespasser, or is not in possession pursuant to any right of occupation granted by a person having lawful authority to do so.
The three-part test reflects of the wording in the section, and the third limb itself contains three alternatives that may be satisfied.
The High Court has confirmed that once the three-part test is satisfied, it is mandatory for the Tribunal to make the possession order. 2
Dealing with a claim in the order indicated is not necessarily the most useful way of doing so, especially where the third alternative of ‘unauthorised occupant’ is relied on. This is because the Tribunal must determine whether the other party has a lawful right of occupation before it can make a finding whether the applicant is entitled to possession. Therefore, a more useful summary of issues in these circumstances is: a. Are the premises residential? b. Who has the lawful right to grant a right of occupation? c. Has that person granted the occupant a right to occupy the premises? d. If not, is the applicant entitled to possession?

Are the premises residential?

There is no dispute that the premises are residential. 1 Sergeant v Nigro and Tapsell [2019] NZHC 328 at [74]. 2 Sergeant v Nigro and Tapsell, above at para [24].

Who has the lawful right to grant a right of occupation?

The landlord is the registered proprietor of the property. As owner, he has the lawful right to grant a right of occupation, either by lease or licence, in relation to the premises.

Has the landlord granted the tenant a right of occupation?

Initially, when the property was purchased, there appears to have been an informal arrangement for the tenant to live at the property and pay towards the mortgage and expenses. In legal terms, there was most likely a licence to occupy the property.
When the landlord served the eviction notice, this was sufficient to expressly revoke the licence to occupy.
It is therefore the case, that the tenant no longer has a legal right of occupation. Therefore, this element of s65 of the RTA is proved. Based on this finding, the tenant would also meet the legal definition of a ‘squatter’.

Is the landlord entitled to possession?

The landlord is the registered owner of the property. The landlord has revoked the tenant’s right of occupation and there is no evidence that any other person is entitled to possession. I therefore find that the landlord is entitled to possession of the premises.
As all three elements of s65 of the RTA have been established, the Tribunal must make the possession order. Possession date
At the hearing, the landlord advised that he wanted possession ‘sooner rather than later’. The tenant expressed that she had been trying to find another property but needed some time to do so. I note that the tenant has lived at the property for 8 years. The landlord lives overseas, was not sure what his plans were for the property or would not say and there didn’t appear to be any urgency submitted for an earlier possession date.
I have therefore made the possession date just over 60 days from the date of this order to enable the tenant sufficient time to find somewhere to live and to accommodate the difficult Christmas period. Suppression
The landlord has sought suppression of his name in these circumstances and given he was successful I have granted this.
I have also, on my own initiative, granted suppression to the tenant. This decision discusses personal family matters unrelated to tenancy and any benefit of the decision to the public can be gained without any names or identifying details being published. R Harvey-Lane 07 November 2024

Tenancy Tribunal case 4981990 — Boarding House

At a glance

Tenancy Tribunal case 4981990 — Boarding House

At a glance

Claims & awards

Order

Reasons

Is this an excluded arrangement?

Are the premises residential?

Who has the lawful right to grant a right of occupation?

Has the landlord granted the tenant a right of occupation?

Is the landlord entitled to possession?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is this an excluded arrangement?

Are the premises residential?

Who has the lawful right to grant a right of occupation?

Has the landlord granted the tenant a right of occupation?

Is the landlord entitled to possession?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions