What was the outcome of Tenancy Tribunal case 5118969?

The tribunal order states: The application for a possession order is dismissed.

How much money was awarded in case 5118969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5118969?

The dispute type was not classified.

Where can I read the official tribunal order for case 5118969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11312883-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5118969?

The tribunal order states: The application for a possession order is dismissed.

How much money was awarded in case 5118969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5118969?

The dispute type was not classified.

Where can I read the official tribunal order for case 5118969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11312883-Tenancy_Tribunal_Order.pdf.

97A Massey Street, Frankton, Hamilton 3204 Tenancy Tribunal Case 5118969 — Tenancy dispute

Order

The application for a possession order is dismissed.

Reasons

The landlord has applied to the Tribunal for a possession order. The Tribunal convened a telephone hearing today to consider that application, and both parties attended.
The parties both agree, that there was an original tenancy in place between the original tenant, Sargine, and the landlord. The tenant says that Sargine in turn sublet the premises to him, but nothing will turn on that as far as this application for possession is concerned.
The landlord states that Sargine requested to terminate the tenancy immediately because of concerns in relation to what was happening in the premises, and the landlord agreed to that. However, Mr Warren continued living in the premises.
Mr Warren says that the landlord verbally offered him a tenancy which he accepted verbally, but that is strongly disputed by Ms Welch who was firm in her view that no such offer was made.
Mr Warren says that the next day, the landlord turned up with a trespass notice.
Mr Warren says that Police later attended the premises, and in the process Ms Welch said to the Officer that there had been a tenancy made or offered to Mr Warren. I have not received any evidence from the police officer on that point, so will not place any significant weight on that evidence from Mr Warren.
But what the parties agreed on, is that Ms Welch provided her bank account details to Mr Warren, because she expected to be paid rent for the time he was there. Mr Warren says he paid two weeks of rent into that nominated bank account, but that is also disputed by the landlord. I record here that neither party has provided any bank statements or records.

ANALYSIS

Section 65 of the RTA relates to the eviction of squatters. A squatter is a person in possession of premises when they are not a lawful tenant. Section 65 holds:
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). ... (3). To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held [at 74] that there are three conditions which have to be met before a possession order can be made: (a) The premises which are the subject of the application must be residential premises; and (b) The applicant for possession must be entitled to possession of those premises; and (c) Another person or persons are in possession as squatters, trespassers, or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
If the Applicant can prove (a) and (b) then the onus will move to the Respondent to prove on the balance of probabilities that they have a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated.
Taking those considerations into account, I find as follows:
There is no suggestion these are not residential premises, so consideration (a) is met.
The next question is whether Ms Welch is entitled to possession of the premises, and it is Ms Welch who must prove this. I find she has not done so.
The primary question in this case is whether there is a tenancy between Mr Warren and Ms Welch. If there is a tenancy then of course Mr Warren would have a right to possession of the premises, if there was no tenancy then Ms Welch would have a right to possess.
The Residential Tenancies Act 1986 (RTA) applies, and in that legislation section 2 provides the following definition of the word ‘tenancy’: tenancy, 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
In this case, it is plain that Ms Welch requested that Mr Warren pay rent, both parties agree that is the case. That would be entirely consistent with a conclusion that Tenancy had been agreed verbally between the parties, as Mr Warren says is the case.
The normally the case with a tenancy that a landlord expects the tenant to pay rent by way of money (it could be services) whereas if there is no tenancy, and the occupier is there simply as a squatter, then the landlord would not ask them to pay rent. To that extent, the effect of asking the occupier to pay rent, aligns much better with there being a tenancy, than a squatting situation.
In fact, from a strict legal perspective the obligation to return the premises empty at the end of her tenancy, was with Sargine. If the original occupier had not returned the premises empty, meaning without Mr Warren living there, then she has not returned vacant possession, and any liability for rent would sit with Sargine under the original tenancy agreement, not Mr Warren. But in this case the information before the tribunal is that the rent payments were requested from Mr Warren, not Sargine, not supporting this as simply being a case of an ‘old’ flatmate squatting in the premises.
I conclude by addressing a further point raised by Ms Welch, which is that there was no written tenancy agreement, which was confirmed to be the case by Mr Warren. The RTA requires that the tenancy agreement be in writing (section 13), but section 13C confirms that just because the tenancy agreement is not in writing (like a verbal agreement), that fact does not mean there is no tenancy, or that the tenancy agreement would be unenforceable.
For those reasons I find that Ms Welch has not established that she has a right of possession of the premises, and therefore it is not necessary for Mr Warren to go on and address consideration (c) above. The application for possession is declined.

Order

The application for a possession order is dismissed.

Reasons

The landlord has applied to the Tribunal for a possession order. The Tribunal convened a telephone hearing today to consider that application, and both parties attended.
The parties both agree, that there was an original tenancy in place between the original tenant, Sargine, and the landlord. The tenant says that Sargine in turn sublet the premises to him, but nothing will turn on that as far as this application for possession is concerned.
The landlord states that Sargine requested to terminate the tenancy immediately because of concerns in relation to what was happening in the premises, and the landlord agreed to that. However, Mr Warren continued living in the premises.
Mr Warren says that the landlord verbally offered him a tenancy which he accepted verbally, but that is strongly disputed by Ms Welch who was firm in her view that no such offer was made.
Mr Warren says that the next day, the landlord turned up with a trespass notice.
Mr Warren says that Police later attended the premises, and in the process Ms Welch said to the Officer that there had been a tenancy made or offered to Mr Warren. I have not received any evidence from the police officer on that point, so will not place any significant weight on that evidence from Mr Warren.
But what the parties agreed on, is that Ms Welch provided her bank account details to Mr Warren, because she expected to be paid rent for the time he was there. Mr Warren says he paid two weeks of rent into that nominated bank account, but that is also disputed by the landlord. I record here that neither party has provided any bank statements or records.

ANALYSIS

Section 65 of the RTA relates to the eviction of squatters. A squatter is a person in possession of premises when they are not a lawful tenant. Section 65 holds:
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). ... (3). To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held [at 74] that there are three conditions which have to be met before a possession order can be made: (a) The premises which are the subject of the application must be residential premises; and (b) The applicant for possession must be entitled to possession of those premises; and (c) Another person or persons are in possession as squatters, trespassers, or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
If the Applicant can prove (a) and (b) then the onus will move to the Respondent to prove on the balance of probabilities that they have a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated.
Taking those considerations into account, I find as follows:
There is no suggestion these are not residential premises, so consideration (a) is met.
The next question is whether Ms Welch is entitled to possession of the premises, and it is Ms Welch who must prove this. I find she has not done so.
The primary question in this case is whether there is a tenancy between Mr Warren and Ms Welch. If there is a tenancy then of course Mr Warren would have a right to possession of the premises, if there was no tenancy then Ms Welch would have a right to possess.
The Residential Tenancies Act 1986 (RTA) applies, and in that legislation section 2 provides the following definition of the word ‘tenancy’: tenancy, 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
In this case, it is plain that Ms Welch requested that Mr Warren pay rent, both parties agree that is the case. That would be entirely consistent with a conclusion that Tenancy had been agreed verbally between the parties, as Mr Warren says is the case.
The normally the case with a tenancy that a landlord expects the tenant to pay rent by way of money (it could be services) whereas if there is no tenancy, and the occupier is there simply as a squatter, then the landlord would not ask them to pay rent. To that extent, the effect of asking the occupier to pay rent, aligns much better with there being a tenancy, than a squatting situation.
In fact, from a strict legal perspective the obligation to return the premises empty at the end of her tenancy, was with Sargine. If the original occupier had not returned the premises empty, meaning without Mr Warren living there, then she has not returned vacant possession, and any liability for rent would sit with Sargine under the original tenancy agreement, not Mr Warren. But in this case the information before the tribunal is that the rent payments were requested from Mr Warren, not Sargine, not supporting this as simply being a case of an ‘old’ flatmate squatting in the premises.
I conclude by addressing a further point raised by Ms Welch, which is that there was no written tenancy agreement, which was confirmed to be the case by Mr Warren. The RTA requires that the tenancy agreement be in writing (section 13), but section 13C confirms that just because the tenancy agreement is not in writing (like a verbal agreement), that fact does not mean there is no tenancy, or that the tenancy agreement would be unenforceable.
For those reasons I find that Ms Welch has not established that she has a right of possession of the premises, and therefore it is not necessary for Mr Warren to go on and address consideration (c) above. The application for possession is declined.

Tenancy Tribunal case 5118969 — Tenancy dispute at 97A Massey Street, Frankton, Hamilton 3204

At a glance

Claims & awards

Tenancy Tribunal case 5118969 — Tenancy dispute at 97A Massey Street, Frankton, Hamilton 3204

At a glance

Claims & awards

Order

Reasons

ANALYSIS

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

ANALYSIS

Topics & place

Residential Tenancies Act sections

Frequently asked questions