What was Tenancy Tribunal case 5041631 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5041631?

The reconciled net award was $27.00.

What type of tenancy dispute was case 5041631?

The dispute type was not classified.

Where can I read the official tribunal order for case 5041631?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11540772-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5041631 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5041631?

The reconciled net award was $27.00.

What type of tenancy dispute was case 5041631?

The dispute type was not classified.

Where can I read the official tribunal order for case 5041631?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11540772-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5041631 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] are granted possession of the premises at [Tenancy address suppressed], from 11:59pm on Sunday 23 March 2025.
[The tenant/s] must pay [the landlord/s] $27.00 immediately, being the filing fee on this application.

Reasons

On 21 January 2025 the Tribunal made an Order granting immediate possession of the property to the applicants.
[The tenant/s] filed an application for rehearing which was granted on 28 January 2025.
I note that [the tenant’s son] was a party to the previous Order. He was served with notice of the earlier hearing but did not take part. He was not included in the application for rehearing and [the tenant/s] says he should not be a party to the proceedings. There is no evidence of possible prejudice to the applicants if he is not named as a respondent in this possession Order.
This was the rehearing of the applicants’ claim for possession of the premises.
The hearing was held by teleconference. The trustees attending confirm, which I accept, that they are authorised to bring this application and ro appear on behalf of the Trust Board. [The tenant/s] attended with a support person. The Property and Background
The applicants are registered proprietors of a 7.125 Ha block of land described as [The land block], which is located at [Tenancy address suppressed].
The applicants advise that it is settled as an Ahu Whenau Trust under the Te Ture Whenua Maori Act 1993.
The land is divided into lots. The dwelling in question here is situated on Lot 17.
Typically, the lots are leased to the occupiers, who own the dwelling situated on the lot. I have not been provided with the lease for Lot 17, but I have been provided with what I am told is the form of lease used. The lease document provides that: a. the term of the lease is 3 years from 31 December 1998 with 2 x 3 year rights of renewal for a total term of 9 years; b. the lessee pays a nominal annual rent and a proportional share of the total rates for the property; c. the lessee must not demolish the dwelling or make improvements without consent (not to be unreasonably withheld) d. the lessee may not assign the lease without consent (not to be unreasonably withheld) but may sub-let the property as a residential tenancy;
The applicant’s evidence is that the lease for this Lot was held by [the lessee] (now deceased).
Because this part of the larger property is required for riparian planting, as part of an erosion control scheme negotiated with [the Council], the applicants advised [the lessee] that no further extensions of his lease would be available.
[The lessee] passed away late 2021/ 2022. Thereafter, the applicants negotiated with his whanau for acquisition of the dwelling, as the whanau could not afford to remove or demolish it, so it can be removed and the riparian planting undertaken.
Around 6 months later, the applicants became aware that the respondent was occupying the dwelling. Their response was delayed due to the impact of covid-19 measures but then on 14 November 2024 had their lawyers issue a trespass notice against the respondent and her son.
When that notice was not complied with, this application for possession was brought.
The applicants are clear that no permission of any kind has been given to the respondent and/ or her son to occupy the property.
The respondent’s position is that after [the lessee] passed she was given permission by his son, who she believes to be the executor of [the lessee]’s estate, to live in the property. She says she has done a significant amount of work to clean up and improve the dwelling and has also done some work to prevent erosion damage. The Law
The applicable law is as set out in the Tribunal’s Order dated 21 January 2025.
In summary, what s.65 RTA requires, is that the applicants prove: a. that the premises are residential premises; and b. that they are entitled to possession of those premises.
If the applicants do so, then the respondent must prove that she has a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated. Analysis Residential Premises
Section 2 RTA refines “residential premises” as, “....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.” These are residential premises. Entitlement to occupation
As registered proprietors, the applicants have unquestioned title to the property (see s.51 Land Transfer Act 2017). As such, they are entitled to possession of the property, unless they have granted possession to someone else.

Have the applicants granted the respondent a right of occupation?

It is not suggested that the applicants have granted any right of occupation to the respondent. Has the respondent been granted a right of occupation by anybody else with lawful authority to grant it?
There is no corroboration of the respondent’s position that she was given a right to occupy the premises by [the lessee’s] son/ executor.
Even if it were, my finding is that [the lessee]’s son/ executor had no lawful authority to grant the respondent a right to occupy the property. That could only be the case if: a. [The lessee]’s rights as lessee were current at the date of his death; and b. those rights passed to his executor on his death; and c. in exercise of those rights, the executor granted a tenancy of the premises to the respondent.
The evidence satisfies me on balance that: a. the lease between the applicants and [the lessee] had expired and no new lease term been granted at the date of his death. Discussions with his whanau/ estate thereafter had the effect of terminating any ongoing lease (see s.210 Property law Act 210); b. [The lessee]’s executors cannot have granted the respondent a residential tenancy, a requirement of which is the payment of rent (definition of “tenancy” in s.2 RTA). The respondent pays no rent to the applicants or [the lessee]’s estate; c. even if, at the time the respondent moved into the premises, there was a continuing lease and [the lessee]’s personal representatives had entered into a residential tenancy agreement with the respondent (none of which is supported by evidence), I am satisfied that subsequent negotiations with [the lessee]’s whanau/ estate ended any head lease, which will in turn have had the effect of ending any sub-tenancy (see s.57 RTA)
Out of respect for the respondent’s situation, I have tried to consider any possible legal basis on which she might assert a right to occupation of the premises, despite having been given no occupation right by the applicants. For the reasons given I do not find it proved that any such lawful right of occupation has been granted to the respondent, which can be asserted against the applicants.
I therefore find that the applicants are entitled to possession of the property and an Order is made accordingly.
I note, as I did at the hearing, that this is not a finding that the respondent has no claim to compensation for improvements she says she has carried out to the property. Any such claim is outside the Tribunal’s jurisdiction.
The respondent should have a little time to make arrangements to vacate before this Order takes effect.
Because the applicants have succeeded with the claim I must reimburse the filing fee.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] are granted possession of the premises at [Tenancy address suppressed], from 11:59pm on Sunday 23 March 2025.
[The tenant/s] must pay [the landlord/s] $27.00 immediately, being the filing fee on this application.

Reasons

On 21 January 2025 the Tribunal made an Order granting immediate possession of the property to the applicants.
[The tenant/s] filed an application for rehearing which was granted on 28 January 2025.
I note that [the tenant’s son] was a party to the previous Order. He was served with notice of the earlier hearing but did not take part. He was not included in the application for rehearing and [the tenant/s] says he should not be a party to the proceedings. There is no evidence of possible prejudice to the applicants if he is not named as a respondent in this possession Order.
This was the rehearing of the applicants’ claim for possession of the premises.
The hearing was held by teleconference. The trustees attending confirm, which I accept, that they are authorised to bring this application and ro appear on behalf of the Trust Board. [The tenant/s] attended with a support person. The Property and Background
The applicants are registered proprietors of a 7.125 Ha block of land described as [The land block], which is located at [Tenancy address suppressed].
The applicants advise that it is settled as an Ahu Whenau Trust under the Te Ture Whenua Maori Act 1993.
The land is divided into lots. The dwelling in question here is situated on Lot 17.
Typically, the lots are leased to the occupiers, who own the dwelling situated on the lot. I have not been provided with the lease for Lot 17, but I have been provided with what I am told is the form of lease used. The lease document provides that: a. the term of the lease is 3 years from 31 December 1998 with 2 x 3 year rights of renewal for a total term of 9 years; b. the lessee pays a nominal annual rent and a proportional share of the total rates for the property; c. the lessee must not demolish the dwelling or make improvements without consent (not to be unreasonably withheld) d. the lessee may not assign the lease without consent (not to be unreasonably withheld) but may sub-let the property as a residential tenancy;
The applicant’s evidence is that the lease for this Lot was held by [the lessee] (now deceased).
Because this part of the larger property is required for riparian planting, as part of an erosion control scheme negotiated with [the Council], the applicants advised [the lessee] that no further extensions of his lease would be available.
[The lessee] passed away late 2021/ 2022. Thereafter, the applicants negotiated with his whanau for acquisition of the dwelling, as the whanau could not afford to remove or demolish it, so it can be removed and the riparian planting undertaken.
Around 6 months later, the applicants became aware that the respondent was occupying the dwelling. Their response was delayed due to the impact of covid-19 measures but then on 14 November 2024 had their lawyers issue a trespass notice against the respondent and her son.
When that notice was not complied with, this application for possession was brought.
The applicants are clear that no permission of any kind has been given to the respondent and/ or her son to occupy the property.
The respondent’s position is that after [the lessee] passed she was given permission by his son, who she believes to be the executor of [the lessee]’s estate, to live in the property. She says she has done a significant amount of work to clean up and improve the dwelling and has also done some work to prevent erosion damage. The Law
The applicable law is as set out in the Tribunal’s Order dated 21 January 2025.
In summary, what s.65 RTA requires, is that the applicants prove: a. that the premises are residential premises; and b. that they are entitled to possession of those premises.
If the applicants do so, then the respondent must prove that she has a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated. Analysis Residential Premises
Section 2 RTA refines “residential premises” as, “....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.” These are residential premises. Entitlement to occupation
As registered proprietors, the applicants have unquestioned title to the property (see s.51 Land Transfer Act 2017). As such, they are entitled to possession of the property, unless they have granted possession to someone else.

Have the applicants granted the respondent a right of occupation?

It is not suggested that the applicants have granted any right of occupation to the respondent. Has the respondent been granted a right of occupation by anybody else with lawful authority to grant it?
There is no corroboration of the respondent’s position that she was given a right to occupy the premises by [the lessee’s] son/ executor.
Even if it were, my finding is that [the lessee]’s son/ executor had no lawful authority to grant the respondent a right to occupy the property. That could only be the case if: a. [The lessee]’s rights as lessee were current at the date of his death; and b. those rights passed to his executor on his death; and c. in exercise of those rights, the executor granted a tenancy of the premises to the respondent.
The evidence satisfies me on balance that: a. the lease between the applicants and [the lessee] had expired and no new lease term been granted at the date of his death. Discussions with his whanau/ estate thereafter had the effect of terminating any ongoing lease (see s.210 Property law Act 210); b. [The lessee]’s executors cannot have granted the respondent a residential tenancy, a requirement of which is the payment of rent (definition of “tenancy” in s.2 RTA). The respondent pays no rent to the applicants or [the lessee]’s estate; c. even if, at the time the respondent moved into the premises, there was a continuing lease and [the lessee]’s personal representatives had entered into a residential tenancy agreement with the respondent (none of which is supported by evidence), I am satisfied that subsequent negotiations with [the lessee]’s whanau/ estate ended any head lease, which will in turn have had the effect of ending any sub-tenancy (see s.57 RTA)
Out of respect for the respondent’s situation, I have tried to consider any possible legal basis on which she might assert a right to occupation of the premises, despite having been given no occupation right by the applicants. For the reasons given I do not find it proved that any such lawful right of occupation has been granted to the respondent, which can be asserted against the applicants.
I therefore find that the applicants are entitled to possession of the property and an Order is made accordingly.
I note, as I did at the hearing, that this is not a finding that the respondent has no claim to compensation for improvements she says she has carried out to the property. Any such claim is outside the Tribunal’s jurisdiction.
The respondent should have a little time to make arrangements to vacate before this Order takes effect.
Because the applicants have succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 5041631 — Tenancy dispute

At a glance

Award balance

Tenancy Tribunal case 5041631 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Have the applicants granted the respondent a right of occupation?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Have the applicants granted the respondent a right of occupation?

Topics & place

Residential Tenancies Act sections

Frequently asked questions