What was Tenancy Tribunal case 5177332 about?

The tribunal order states: [The tenant/s] landlord/s] is granted possession of the premises at 330 Lakes Boulevard, Pyes

How much money was awarded in case 5177332?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5177332?

The dispute type was not classified.

Where can I read the official tribunal order for case 5177332?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11676528-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5177332 about?

The tribunal order states: [The tenant/s] landlord/s] is granted possession of the premises at 330 Lakes Boulevard, Pyes

How much money was awarded in case 5177332?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5177332?

The dispute type was not classified.

Where can I read the official tribunal order for case 5177332?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11676528-Tenancy_Tribunal_Order.pdf.

330 Lakes Boulevard, Pyes Pa, Tauranga 3112 Tenancy Tribunal Case 5177332 — Tenancy dispute

Order

[The tenant/s] landlord/s] is granted possession of the premises at 330 Lakes Boulevard, Pyes Pa, Tauranga 3112 immediately.
[The tenant/s] tenant/s] is to pay [The tenant/s] landlord/s] $3,527.00 immediately for costs ($3,500.00) and reimbursement of the filing fee ($27.00).

Reasons

The applicant was represented by counsel at the hearing and also attended personally by telephone. The respondent did not attend.
The applicant seeks possession of the premises, costs for representation and reimbursement of the filing fee. Background
The applicant is the registered owner of the tenancy address, as evidenced by the certificate of title.
The respondent has lived in the property since June 2023.
There was some confusion about whether the respondent was a family member of the applicant, however, the applicant advised during the hearing that the respondent was from his village outside New Zealand and was a family friend.
As a result, the applicant had permitted the respondent to reside at the property. free of charge. The respondent only paid for her own outgoings – including power, internet, and food.
Is it not disputed that the applicant gave the respondent a right to occupy the property from June 2023.
On 15 January 2025 the applicant provided the respondent with a written notice to vacate the property, as he required the property to be sold. Within that notice the applicant advised the respondent that if she failed to vacate the property by 19 January 2025, a trespass notice would be served.
The respondent refused to leave the property; however, it is not clear why.
On 27 February 2025 the applicant arranged for a process server to serve the respondent with a trespass notice, and engaged with police who advised that the respondent required an order for possession.
Accordingly, the applicant filed this application seeking immediate possession of the property.

Is this a tenancy?

The first question to consider is whether the respondent’s occupation of the property was a tenancy pursuant to the Residential Tenancies Act 1986 (RTA).
Section 77(1) of the RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the RTA applies.
Section 2(1) of the RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy and where appropriate includes a lawful successor in title of a landlord to the premises.
The terms “residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined in section s2(1) of the RTA as: a. Residential premises means 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. b. 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 enactments; and where appropriate, also includes a former tenancy. c. Tenancy agreement, in relationship to any residential premises means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate includes a former tenancy agreement and any variation of the tenancy agreement.
Rent is defined as meaning any money, goods, services, or other valuable consideration in the nature of rent, to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond.
The applicant submits that there has never been any residential tenancy agreement between the parties, and nor is there any tenancy arrangement. No rent has ever been paid, requested, or required. The occupation of the property instead arises through family obligation.
I am satisfied that as there is no rent or other consideration for the respondent’s right to occupy the property, nor any tenancy agreement or arrangement and therefore the circumstances fail to meet the definition of tenancy in the RTA. Possession
The second question is whether the Tribunal should make the possession order sought by the applicant.
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.

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

The applicant 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. 1 Sergeant v Nigro and Tapsell [2019] NZHC 328 at [74]. 2 Sergeant v Nigro and Tapsell, above at para [24].

Has the applicant granted the respondent a right of occupation?

There appears to have been an informal arrangement for the respondent to live at the property. In legal terms, there was most likely a licence to occupy the property.
When the applicant served the written notice to vacate the property, this was sufficient to expressly revoke the licence to occupy.
It is therefore the case, that the respondent no longer has a legal right of occupation. Therefore, this element of s65 of the RTA is proved. Based on this finding, the respondent would also meet the legal definition of a ‘squatter’.

Is the applicant entitled to possession?

The applicant is the registered owner of the property. The landlord has revoked the respondent’s right of occupation and there is no evidence that any other person is entitled to possession. I therefore find that the applicant 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 applicant sought immediate possession. This was on the basis that through the process and failure of the respondent to vacate willingly, the applicant had already suffered significant financial implications through the delay in being able to obtain possession.
I received no evidence to the contrary and have granted immediate possession to the applicant. Costs
Pursuant to section 102 of the RTA, the Tribunal may order to pay the other party’s reasonable costs in connection with the proceedings.
Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was presented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd, 3 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%, there is a feeling of some comfort...
The High Court confirmed that when a party is represented by counsel, that the following factors are relevant to be considered when assessing costs: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd, 4 Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non- monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.
The applicant submitted that they required legal representation in these proceedings as: a. The applicant had tried multiple avenues to remove the respondent from the property without success, prior to instructing counsel and filing a claim with the Tribunal. These actions included asking the respondent to leave and issuing the notice to vacate. b. The respondent has failed to engage with the applicant and the applicant needed advice on how to legally evict the respondent from the property. c. The matter involves complex factual and legal issues. d. The applicant’s second language is English, he resides overseas and required assistance with making this application. 3 Holden v Architectural Finishes Ltd [1997] 3 NZLR 143. 4 David Blair Ltd v Hawkins Arms and Engineering Ltd, (No 2) [1988] 1 PRNZ 162.
The applicant seeks an order for the respondent to pay his reasonable legal costs. The documents provided appear to show that bills have been rendered for $5,079.00 with respect to advising on ending occupancy by the respondent and that there was an additional $4,318.00 in work in progress (unbilled time), totalling $9,397.00 (excluding time attending the actual hearing).
The hearing for this matter was relatively short and was also attended by the owner. There was no attendance by the respondent. There was no actual sum of money involved, however, the inability of the applicant to have possession of the property could have a significant financial impact, especially as the applicant intended to sell the property in January 2025.
The applicant was entirely successful and had tried to resolve matters prior to the application to the Tribunal. I note from the rendered invoices that some of the costs sought relate to the difficulties in trying to obtain possession through other means, such as issuing a trespass order prior to filing in the Tribunal.
Weighing the evidence, I consider that it is appropriate to award reasonable costs against the respondent of $3,500.00.
Because [The tenant/s] landlord/s] has wholly succeeded with the claim I must also reimburse the filing fee. No name suppression was sought. R Harvey-Lane 11 April 2025

Tenancy Tribunal case 5177332 — Tenancy dispute at 330 Lakes Boulevard, Pyes Pa, Tauranga 3112

Tenancy Tribunal case 5177332 — Tenancy dispute at 330 Lakes Boulevard, Pyes Pa, Tauranga 3112

Order

Reasons

Is this a tenancy?

Are the premises residential?

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

Has the applicant granted the respondent a right of occupation?

Is the applicant entitled to possession?

Reduce avoidable tribunal risk with proper tenant checks.

Order

Reasons

Is this a tenancy?

Are the premises residential?

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

Has the applicant granted the respondent a right of occupation?

Is the applicant entitled to possession?

Reduce avoidable tribunal risk with proper tenant checks.