What was Tenancy Tribunal case 5184931 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 5184931?

The reconciled net award was $27.00.

What type of tenancy dispute was case 5184931?

The dispute type was not classified.

Where can I read the official tribunal order for case 5184931?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12046935-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5184931 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 5184931?

The reconciled net award was $27.00.

What type of tenancy dispute was case 5184931?

The dispute type was not classified.

Where can I read the official tribunal order for case 5184931?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12046935-Tribunal_Order_Redacted.pdf.

suppressed] Tenancy Tribunal Case 5184931 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the applicant’s and respondent’s names and identifying details.
[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at midnight on 28 July 2025.
[The tenant/s] must pay [The landlord/s] $27.00 immediately, being reimbursement of the filing fee.

Reasons

Both parties attended the hearing, which was conducted by teleconference. The hearing was adjourned part-heard for the filing of further written submissions.
As noted in the interim order, the applicant, [The landlord/s], has applied for a possession order from the Tribunal under section 65 of the Residential Tenancies Act 1986 (the RTA). She is recorded as the registered owner of the premises at [tenancy address suppressed] (the premises). The respondent, [The tenant/s], currently occupies the premises.
On 29 January 2025 [The landlord/s]’s solicitor sent a letter to [The tenant/s] seeking vacant possession of the premises (on behalf of [The landlord/s]) by 1 March 2025. [The tenant/s] has remained in occupation.
[The tenant/s] lodged a Notice of Claim under the Property (Relationships) Act 1976 on 17 March 2025, forbidding registration of any Memorandum of Transfer or other instrument affecting the land contained in the title. The application
[The landlord/s] states, in her application, that the premises are residential premises, she is entitled to possession, and [The tenant/s] was in possession without any right of occupation granted by herself. There is no residential tenancy agreement in place between [The tenant/s] and herself, and [The tenant/s] did not pay rent in exchange for the right to occupy the premises. The Tribunal has jurisdiction under section 65 of the RTA, despite the absence of a tenancy agreement. As legal owner, she was prima facie entitled to possession of the premises.
[The landlord/s] further submits that [The tenant/s] and herself were dividing relationship property under the Property (Relationships) Act 1976. She relied on the High Court decision in Sergeant v Nigro and Tapsell [2019] NZHC 328, which held that undetermined claims in separate proceedings challenging an applicant’s entitlement to possession, and asserting a right to occupation or other interest in the property, were not relevant to the Tribunal in considering an application for an order under section 65. She therefore sought an order for vacant possession. Hearing
At the hearing, both parties provided evidence and submissions. [The landlord/s]’s evidence is that she is the owner and had lived at the premises from around 2014, and then left her home on 10 September 2024. There was no residential tenancy agreement in place, only a verbal agreement regarding the mortgage payments, where [The tenant/s] paid the mortgage and she paid the council rates, water rates and insurance. When they refinanced in 2019, due to the costs involved, they did not change the ownership.
[The tenant/s] states that he regarded himself the owner of the premises and therefore, there was no need for a tenancy agreement. He had a caveat over the property and took over payment of the mortgage. In 2019 they refinanced, and the mortgage was in both their names. He had been paying the mortgage in full since [The landlord/s] moved out. He had been living there for 10 years. He had asked [The landlord/s]’s lawyer for a copy of the relationship property agreement, but had not received a copy of it. He had changed the locks at the house for his own protection. The Tribunal order Kanhai v Kumar [2024] NZTT 4905794 was relevant. Submissions following the hearing
[The tenant/s] submitted that the facts in his case were distinguishable from those in Sergeant v Nigro (above) and the requirements for a possession order under section 65 of the RTA have not been met. He was not a squatter, trespasser or someone living in the property without any right or permission. He lived in the property because he had a genuine and acknowledged ownership interest in the property. This came from his long-term relationship with [The landlord/s] as her de facto partner. He had been living at the property lawfully and with [The landlord/s]’s permission.
[The tenant/s] submitted that he was also joint borrower on the mortgage with Westpac, which is secured against the property. This meant he was personally responsible for the debt secured against the home, something an owner does, rather than a squatter or trespasser. He has been paying money to the mortgagee during his occupation and continues to do so. He considered himself the equitable owner. In the alternative, if he was not regarded co-owner, he had a tenancy as his contributions to mortgage payments were like paying rent for living in the property. His situation was similar to the Tenancy Tribunal case of Welch v Warren [2025] NZTT 5118969, in which the landlord accepted payment from a person who lived in a property they owned, and the Tribunal found that payment of rent by money or services equates to a tenancy. He agreed to pay the mortgage, [The landlord/s] would pay the rates, and this arrangement continued after [The landlord/s] left the property.
In reply, [The landlord/s] submits that she is the sole registered owner on the Record of Title and holds a prima facie entitlement to possession. Sergeant v Nigro applied, as it concerns a potential claim under the Property (Relationships) Act 1976, and confirmed her entitlement to seek an order under section 65. In line with the decision in Riverside 2016 Limited v Saul [2024] NZTT 4856362, 4859512, once ownership is established, the onus shifts to the other party. The case of Kanhai v Kumar (above) affirmed that Sergeant v Nigro remains binding on the Tribunal, and section 65 applies in circumstances where a legal owner seeks possession of residential premises against a person who does not hold a right of occupation.
[The landlord/s] further submits that the Tribunal is not able to establish if a party has a right in future to establish a right of occupation. Any beneficial or equitable interest claimed under the Property (Relationships) Act 1976 is not within the Tribunal's jurisdiction under section 65, and the proper forum is the Family Court. [The tenant/s] had no agreement with her granting him the right to reside in the property and therefore, he could not rely on Welch v Warren (above) to argue that making mortgage payments confers a right to occupy and exempts him from section 65. Mere financial contribution, absent a legal right to occupy, does not suffice under the Act. Legal framework
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 provisions 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.
Section 65 of the RTA states that the Tribunal is to make a possession order on application of any person entitled to possession of any residential premises, provided the Tribunal is satisfied, under section 65(1), that any other person is in possession as a squatter, 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 High Court in Sergeant v Nigro and Tapsell 1 held that under section 65, there are three conditions to be met before an order can be made: a. The premises the subject of the application are residential premises b. The applicant for possession is entitled to possession of those premises 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.
The three requirements under section 65 must be satisfied on the balance of probabilities.
Section 65(3) states that the Tribunal has jurisdiction to make a possession order even though the premises are not subject to a tenancy agreement. This provision, which followed the 2010 Amendment 2 , clarifies that in circumstances where there was no tenancy agreement between the parties, the Tribunal has jurisdiction to 1 [2019] NZHC 328 2 Residential Tenancies Amendment Act 2010 (2010 No 95) make possession orders. This has been confirmed in Sergeant v Nigro and Tapsell (above, at paragraph 66). Analysis
Having considered the evidence and submissions of both parties, I am satisfied that [The landlord/s] has established the requirements for a possession order under section 65 of the RTA. My reasons for this finding are set out below.

Does Sergeant v Nigro apply?

While noting [The tenant/s]’s submissions, I find that the High Court decision in Sergeant v Nigro applies in this case. I am not persuaded that the facts here may be distinguished on the basis that he had been making mortgage payments and a financial contribution, and that he began living at the premises as [The landlord/s]’s de facto partner.
[The tenant/s] states he has a clear interest in the property under the Property (Relationships) Act 1976, however, the claimed ownership interest has yet to be determined. He has taken the step of lodging a Notice of Claim under section 42 of the Property (Relationships) Act 1976, but that does not confirm ownership. The lodgement of the notice of interest against the title acts as a caveat. So, while acknowledging that the circumstances in [The tenant/s]’s case are not identical to those in Sergeant v Nigro, the principles in that case will apply to him since he has a potential, yet undetermined claim.
In Sergeant v Nigro, one of the questions of law considered by the Court was whether undetermined claims in separate proceedings, challenging an applicant’s entitlement to possession, and asserting a right of occupation or other interest in the property, were relevant in considering an application for an order under section 65 of the RTA. The Court stated: [91] The wording of s 65 requires the Tribunal to be satisfied that the applicant is “entitled” to possession. The fact that there is an extant claim challenging that entitlement does not change the present position. Similarly, Mr Sergeant’s undetermined claim as to his rights in respect of the property does not change the position that the legal owners have given him notice to vacate.
The Court held that section 85 (which deals with the manner in which jurisdiction is to be exercised by the Tribunal) did not change that position. Furthermore, it was noted: [94] It is not open to the Tribunal to consider the fact of a claim or the contents of the claim in another court when deciding if the trustees were entitled to possession and/or if Mr Sergeant was in possession as a squatter or trespasser or otherwise than pursuant to any right of occupation granted to him. The Judge was correct to hold that the Tribunal had erred in its approach in this regard.
The Court concluded that: [106]...the Tribunal cannot consider claims made by the appellant in another proceeding when deciding if the applicant for an order for possession has proven the pre-condition for an order under s 65. That is the correct position even employing s 85. That section does not have such a wide ambit so as to allow a consideration of Mr Sergeant’s claim in those other (undetermined) proceedings.
As in Sergeant v Nigro, the existence of an undetermined claim in this case does not prevent the Tribunal from making a possession order under section 65.
Both parties have referred to the Tribunal case of Kanhai v Kumar [2024] NZTT 4905794, which I consider to be relevant, and supports my interpretation above. In that case the Tribunal held that Sergeant v Nigro was binding on the Tribunal, noting that this case was applicable to any situation under section 65 where an owner seeks possession against a person who has not been granted a right of occupation. The Tribunal also noted that it was not able to assess whether one party may establish a future right of occupation, and, as a matter of law, cannot consider existing claims in the Family Court when exercising its jurisdiction.

Is there a residential tenancy?

I also do not accept that [The tenant/s]’s contribution to mortgage payments equates to the payment of rent, thus creating a tenancy. I find the facts in this case can be distinguished from those in Welch v Warren [2025] NZTT 5118969, where the applicant (landlord) had requested that the respondent (occupant) pay rent. No such agreement was made in this case. Section 65 requirements
In line with the High Court’s approach in Sergeant v Nigro, the three requirements under section 65 are considered below.

Are the premises residential premises?

In this case, it is not disputed that the premises are residential premises. The property comes within the definition of “residential premises” in section 2 of the RTA, since it is used or intended for occupation as a place of residence.

Is the applicant entitled to possession?

[The landlord/s] has provided evidence that she is entitled to possession of the premises. She has produced a copy of the Record of Title to the property. This shows that she is the sole registered owner of the property. The rights of a registered owner will generally prevail in accordance with the principle of indefeasibility of title.

Does the respondent have a right of occupation?

It is clear from the evidence that [The tenant/s] lived at the premises with [The landlord/s] for many years. His evidence is that he has lived there for 10 years. [The landlord/s]’s evidence is that she lived at the premises from around 2014, and then left on 10 September 2024. The parties have provided oral evidence of their financial contribution, with [The tenant/s] stating he took over the mortgage payments, and [The landlord/s] saying she paid the council rates, water rates and insurance.
In this case, [The landlord/s], being the registered owner of the property, has the lawful authority to grant a right of possession. It is acknowledged that [The tenant/s] is in occupation, and for many years lived at the premises with [The landlord/s]. However, he has now been given notice by [The landlord/s] to leave the premises. Notice was given on 29 January 2025 seeking vacant possession by 1 March 2025. This means he no longer has an ongoing right to occupy the property.
I acknowledge [The tenant/s]’s submission that he considers there to be an ownership interest in the property from his relationship with [The landlord/s] as her de facto partner. He also notes the lodgement of a notice of claim of interest under the Property (Relationships) Act 1976. He points to payments to the mortgagee bank during his occupation, and considers himself the equitable owner. These factors, while relevant, do not establish a current right of occupation.
In this case, [The tenant/s] has a potential claim, which has been notified to [The landlord/s]. However, having an undetermined claim as to any rights in respect of the property does not change the position that the legal owner has given him notice to vacate.
As the High Court in Sergeant v Nigro has established, the Tribunal cannot consider claims made in another proceeding when deciding if the applicant has proven the pre-condition for an order under section 65. Therefore, the fact that [The tenant/s] may have a potential claim for ownership that is yet to be determined will not prevent the Tribunal from granting a possession order. Once the preconditions in the section are established, the Tribunal must order possession.
In summary, I find that [The tenant/s] has not established that he has a right of occupation granted by any person having such authority. In this case [The landlord/s] is the only person having lawful authority to grant a right of possession. While he has been in occupation for a number of years, he no longer has an ongoing right of occupation after he was given notice by [The landlord/s], the legal owner of the property, to vacate the premises.
Accordingly, as [The landlord/s] has satisfied all three elements of section 65, a possession order is granted.
In doing so, the Tribunal is mindful of the impact of this order on [The tenant/s]. For this reason, possession is delayed for four weeks to give [The tenant/s] a fair and reasonable opportunity to remove his possessions and vacate the premises. Name suppression and filing fee
An application for suppression has been made by both parties. The Tribunal orders suppression of [The landlord/s]’s name and identifying details, in view of her being successful in the proceedings. The request for the filing fee is awarded on the same basis.
While noting [The tenant/s] is the unsuccessful party, having had regard to the interests of the parties and to the public interest, the Tribunal orders suppression of [The tenant/s]’s name and identifying details.

Tenancy Tribunal case 5184931 — Tenancy dispute at suppressed]

At a glance

Award balance

Tenancy Tribunal case 5184931 — Tenancy dispute at suppressed]

At a glance

Award balance

Claims & awards

Order

Reasons

Does Sergeant v Nigro apply?

Is there a residential tenancy?

Are the premises residential premises?

Is the applicant entitled to possession?

Does the respondent have a right of occupation?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Does Sergeant v Nigro apply?

Is there a residential tenancy?

Are the premises residential premises?

Is the applicant entitled to possession?

Does the respondent have a right of occupation?

Topics & place

Residential Tenancies Act sections

Frequently asked questions