What was Tenancy Tribunal case 5147591 about?

The tribunal order states: This is a difficult family matter and the Tribunal orders suppression of the

How much money was awarded in case 5147591?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5147591?

The dispute type was not classified.

Where can I read the official tribunal order for case 5147591?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11425687-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5147591 about?

The tribunal order states: This is a difficult family matter and the Tribunal orders suppression of the

How much money was awarded in case 5147591?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5147591?

The dispute type was not classified.

Where can I read the official tribunal order for case 5147591?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11425687-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5147591 — Tenancy dispute

Order

This is a difficult family matter 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] immediately.

Reasons

Both parties attended the hearing. The Estate was represented by [The landlord’s representative]. [The tenant/s] appeared for himself.
This matter has a significant history, some of which it is helpful to record. Background
[The deceased] is [The tenant/s] mother. [The tenant/s] lived with her at the property and cared for her until her death on 16 February 2023.
Probate was granted on 11 October 2023 appointing the applicants as administrators of [The deceased]’s estate. Title to the property was transmitted to the applicants.
After [The deceased]’s death [The tenant/s] remained in occupation of the property. In February 2024 the applicant agreed that [The tenant/s] could remain in occupation of the premises pending its sale, on the basis that he and his sister pay $250.00 per week to cover outgoings on the property. That agreement is not documented.
[The tenant/s] and his sister brought a challenge to [The deceased]’s will under the Family Protection Act and Testamentary Promises Act. Those proceedings were determined at a judicial settlement conference, by an Order of the High Court dated 21 November 2024, which increased the share in [The deceased]’s residuary estate that [The tenant/s] and his sister would each receive.
While it is not recorded in the Order itself, the consent memorandum filed by counsel for the parties dated 20 November 2024, upon with the Consent Order was made, states, “It was also agreed that [The tenant/s] will vacate [The deceased]’s house by 6 January 2025.”
The applicants say that the agreed vacate date has been extended on a couple of occasions to allow [The tenant/s] time to present an offer to purchase the property but no offer has been forthcoming. They now seek possession of the property. Analysis
[The tenant/s] says that the Tribunal should not be considering this application as there are ongoing issues that need to be addressed by the High Court.
The Tribunal has jurisdiction to hear this application. A number of decisions have been made as to the application of s.65 Residential Tenancies Act 1986 (“RTA”) in similar circumstances. The fact that there have been other proceedings (now determined) in the High Court or that there are other claims that [The tenant/s] may wish to pursue there, does not remove the Tribunal’s responsibility to hear a claim within its jurisdiction.
The Tribunal’s jurisdiction is limited to deciding whether a possession order should be made under s.65 RTA.
Section 65 RTA provides: “(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........ (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.”
The applicants’ position is that a licence to occupy the property was granted to [The tenant/s] as a practical measure, until it was sold. They say that the license to occupy was revocable, has been revoked and [The tenant/s] now has no legal basis to be occupying the property.
[The tenant/s] claims a number of grounds for having a right to occupy the property. Those grounds are that: a. That was what [The deceased] intended. The Tribunal has no jurisdiction over the terms of [The deceased]’s will or the administration of her estate. No doubt [The deceased]’s wishes/ promises were grounds advanced in the High Court proceedings that have now been determined. b. He was paying rent and is therefore a tenant. Even if that were the case, there is clear evidence that any prior arrangement was ended by agreement on 6 January 2025, as recorded in the consent memorandum referred to above. There is no evidence that [The tenant/s] continued occupation of the property after that date has been other than at the discretion of the applicants. c. He should not be held to the agreement recorded in the consent memorandum. [The tenant/s] says he was suffering from a medical condition that impaired his judgement and that counsel representing him at the settlement conference did not adequately protect his interests. Again, those are not issues for the Tribunal to determine as they relate to proceedings in the High Court and need to be raised there. The agreement was reached in the context of a judicial settlement conference, at which both parties were represented and must be given weight according to its terms. [The tenant/s] also says that his agreement to vacate on 6 January 2025 was to allow him to see whether he could raise finance to buy the property, the expectation being that he would not be able to. He says he then discovered that he can raise the necessary finance but there are issues that need to be considered again by the High Court before a fair purchase arrangement can be agreed. He says that because his agreement to move out on 6 January was to allow him opportunity to buy the property, he should be allowed to remain in occupation until that processes is worked through. That may be how [The tenant/s] viewed matters when agreeing to the settlement, but no such conditions are recorded in the agreement or the Court Order. d. He has rights of occupation due to his having an equitable interest in the property. [The tenant/s] says that by virtue of his having paid outgoings on the property, including the mortgage, while occupying it, he has an interest in the property, through unjust enrichment and estoppel, giving him a right of occupation. I make no assessment of whether application of those doctrines might give [The tenant/s] a claim against the estate. However, even it does, that would not amount to his having a, “.... right of occupation granted to [him] by any person having lawful authority to grant that right to [him]...”, in terms of s.65 RTA. e. He has a cultural right of occupation. Essentially, I understand [The tenant/s] to be saying that as he lived in the property with his mother and cared for her, it is fair and right that he be able to remain living there. I do not doubt the sense of injustice [The tenant/s] feels at his situation. I suspect that other beneficiaries of the estate feel differently aggrieved. Simply, the Tribunal is required to apply the applicable law not any subjective viewpoint.
As registered proprietors, the applicants have unquestioned title to the property (see s.51 Land Transfer Act 2017). As such, they are entitled to an Order for possession of the property, unless [The tenant/s] can show that he has been granted a right of occupation by [The deceased] as prior owner, in circumstances binding on her executors, or by the applicants, as current owners.
For the reasons given I do not find that [The tenant/s] has such a right of occupation and the Tribunal must therefore make an Order granting possession of the property to the applicants.
In the circumstances the applicants are entitled to immediate possession. The applicants acknowledge that it will be in the interests of all affected parties if [The tenant/s] can acquire the property at a price that meets the entitlements of all beneficiaries of the estate. I record the assurance that they will allow a very brief period for [The tenant/s] to put an offer forward before seeking enforcement of this Order.

Reasons

Both parties attended the hearing. The Estate was represented by [The landlord’s representative]. [The tenant/s] appeared for himself.

This matter has a significant history, some of which it is helpful to record. Background

[The deceased] is [The tenant/s] mother. [The tenant/s] lived with her at the property and cared for her until her death on 16 February 2023.

Probate was granted on 11 October 2023 appointing the applicants as administrators of [The deceased]’s estate. Title to the property was transmitted to the applicants.

After [The deceased]’s death [The tenant/s] remained in occupation of the property. In February 2024 the applicant agreed that [The tenant/s] could remain in occupation of the premises pending its sale, on the basis that he and his sister pay $250.00 per week to cover outgoings on the property. That agreement is not documented.

[The tenant/s] and his sister brought a challenge to [The deceased]’s will under the Family Protection Act and Testamentary Promises Act. Those proceedings were determined at a judicial settlement conference, by an Order of the High Court dated 21 November 2024, which increased the share in [The deceased]’s residuary estate that [The tenant/s] and his sister would each receive.

While it is not recorded in the Order itself, the consent memorandum filed by counsel for the parties dated 20 November 2024, upon with the Consent Order was made, states, “It was also agreed that [The tenant/s] will vacate [The deceased]’s house by 6 January 2025.”

The applicants say that the agreed vacate date has been extended on a couple of occasions to allow [The tenant/s] time to present an offer to purchase the property but no offer has been forthcoming. They now seek possession of the property. Analysis

[The tenant/s] says that the Tribunal should not be considering this application as there are ongoing issues that need to be addressed by the High Court.

The Tribunal has jurisdiction to hear this application. A number of decisions have been made as to the application of s.65 Residential Tenancies Act 1986 (“RTA”) in similar circumstances. The fact that there have been other proceedings (now determined) in the High Court or that there are other claims that [The tenant/s] may wish to pursue there, does not remove the Tribunal’s responsibility to hear a claim within its jurisdiction.

The Tribunal’s jurisdiction is limited to deciding whether a possession order should be made under s.65 RTA.

Section 65 RTA provides: “(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........ (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.”

The applicants’ position is that a licence to occupy the property was granted to [The tenant/s] as a practical measure, until it was sold. They say that the license to occupy was revocable, has been revoked and [The tenant/s] now has no legal basis to be occupying the property.

[The tenant/s] claims a number of grounds for having a right to occupy the property. Those grounds are that: a. That was what [The deceased] intended. The Tribunal has no jurisdiction over the terms of [The deceased]’s will or the administration of her estate. No doubt [The deceased]’s wishes/ promises were grounds advanced in the High Court proceedings that have now been determined. b. He was paying rent and is therefore a tenant. Even if that were the case, there is clear evidence that any prior arrangement was ended by agreement on 6 January 2025, as recorded in the consent memorandum referred to above. There is no evidence that [The tenant/s] continued occupation of the property after that date has been other than at the discretion of the applicants. c. He should not be held to the agreement recorded in the consent memorandum. [The tenant/s] says he was suffering from a medical condition that impaired his judgement and that counsel representing him at the settlement conference did not adequately protect his interests. Again, those are not issues for the Tribunal to determine as they relate to proceedings in the High Court and need to be raised there. The agreement was reached in the context of a judicial settlement conference, at which both parties were represented and must be given weight according to its terms. [The tenant/s] also says that his agreement to vacate on 6 January 2025 was to allow him to see whether he could raise finance to buy the property, the expectation being that he would not be able to. He says he then discovered that he can raise the necessary finance but there are issues that need to be considered again by the High Court before a fair purchase arrangement can be agreed. He says that because his agreement to move out on 6 January was to allow him opportunity to buy the property, he should be allowed to remain in occupation until that processes is worked through. That may be how [The tenant/s] viewed matters when agreeing to the settlement, but no such conditions are recorded in the agreement or the Court Order. d. He has rights of occupation due to his having an equitable interest in the property. [The tenant/s] says that by virtue of his having paid outgoings on the property, including the mortgage, while occupying it, he has an interest in the property, through unjust enrichment and estoppel, giving him a right of occupation. I make no assessment of whether application of those doctrines might give [The tenant/s] a claim against the estate. However, even it does, that would not amount to his having a, “.... right of occupation granted to [him] by any person having lawful authority to grant that right to [him]...”, in terms of s.65 RTA. e. He has a cultural right of occupation. Essentially, I understand [The tenant/s] to be saying that as he lived in the property with his mother and cared for her, it is fair and right that he be able to remain living there. I do not doubt the sense of injustice [The tenant/s] feels at his situation. I suspect that other beneficiaries of the estate feel differently aggrieved. Simply, the Tribunal is required to apply the applicable law not any subjective viewpoint.

As registered proprietors, the applicants have unquestioned title to the property (see s.51 Land Transfer Act 2017). As such, they are entitled to an Order for possession of the property, unless [The tenant/s] can show that he has been granted a right of occupation by [The deceased] as prior owner, in circumstances binding on her executors, or by the applicants, as current owners.

For the reasons given I do not find that [The tenant/s] has such a right of occupation and the Tribunal must therefore make an Order granting possession of the property to the applicants.

In the circumstances the applicants are entitled to immediate possession. The applicants acknowledge that it will be in the interests of all affected parties if [The tenant/s] can acquire the property at a price that meets the entitlements of all beneficiaries of the estate. I record the assurance that they will allow a very brief period for [The tenant/s] to put an offer forward before seeking enforcement of this Order.

Tenancy Tribunal case 5147591 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5147591 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions