What was Tenancy Tribunal case 5262020 about?

The tribunal order states: The Tribunal orders suppression of the names of both parties.

How much money was awarded in case 5262020?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5262020?

The dispute type was not classified.

Where can I read the official tribunal order for case 5262020?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11987604-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5262020 about?

The tribunal order states: The Tribunal orders suppression of the names of both parties.

How much money was awarded in case 5262020?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5262020?

The dispute type was not classified.

Where can I read the official tribunal order for case 5262020?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11987604-Tribunal_Order_Redacted.pdf.

Mangamuka, Okaihau Tenancy Tribunal Case 5262020 — Tenancy dispute

Order

The Tribunal orders suppression of the names of both parties.
The application for a possession order is dismissed.

Reasons

One applicant, [Applicant 1], attended the hearing, conducted via teleconference. The call to the respondent went unanswered. A call to a second number as provided was a wrong number. This was confirmed by [Applicant 1] after hearing the voice of the person who answered. Given the circumstances in this matter, and the nature of the order made, I have proceeded with the hearing per s 91B(2)(c) Residential Tenancies Act 1986
The applicant sought a possession order per s 65 Residential Tenancies Act 1986.
Section 65 provides (I have bolded in part): (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.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
The hearing was adjourned for the purpose of applicants providing: a. an up-to-date Record of Title for the address, b. a full, signed copy of the Licence to occupy, and c. a letter from [Applicant 2].
This has been done and the above evidence received, albeit the Licence to Occupy appears incomplete and with possibly two different versions in existence. Background
This application relates to a block of land with two dwellings. The ”top” dwelling is the historic residence of the applicants. The “lower” house was more recently built and has been occupied by whanau, including the respondent previously.
The owner has such a right via an occupation order granted to [Applicant 2], being recorded on the Record of Title (Partition Order) for [Land block] as: [Redacted] Occupation Order vesting exclusive use and occupation of part (8000m2) in [Applicant 2] - 3.11.2009 at 9:00 am
No details regarding occupation order has been made available.
At the same time a Status Order determining the status of the within land to be Māori Freehold Land was also recorded, as was a second occupation order vesting exclusive use and occupation of part (4000m2) to [name redacted].
An earlier Licence to Occupy granted possession to [name redacted] and [Applicant 2] as “licensee”, granted by the trustees of the [Redacted] Trust (being entered into on 3 August 2009, although the licence provided is incomplete and I received two different cover pages of a licence to occupy, suggesting more licence may have been granted). I was told by [Applicant 1] the licence was put in place for the purposes of the licensees obtaining a mortgage.

Should a possession order be made?

The respondent is not in possession of the premises. The owner has previously sought to trespass him but given uncertain legal status of the respondent regarding any right to occupy, they said they have been advised by police to bring this application. Other whanau members are currently residing there. The actual construct of the 8000m 2 granted in the occupation order is unclear and I do not have evidence that the “lower” premises is within that area.
The purpose of s 65 RTA is essentially to order possession to an applicant (so entitled to pursue) when the premises are occupied by someone without a license to do so.
In this instance, the respondent is not residing at the premises and the applicants do not seek possession. Possession is effectively with the applicants at present, although neither are able to legally reside there currently due to a separate criminal prosecution that is live.
The grounds for a possession order under s 65 RTA do not appear to exist. The respondent is not at the premises, threats to return notwithstanding, and possession is already with the applicants. Further, even if I am wrong, any possession order effectively expires after 90 days, rendering any possession order after that time unenforceable.
Due to a lack of any reasonable application of section 65 here, I dismiss the request for a possession order. Going forward
I appreciate this outcome leaves some continuing uncertainty. I have also considered the respondent’s previous licence to occupy was granted to assist a whanau member (who is living overseas but intending to return). It appears the respondent has expressed an intention to return and support her when she does.
There are two possible options, outside of whanau resolution directly. Tribunal Declaration
Section 78(1) RTA provides, that without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction (but subject to section 78A, if that section applies), make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise.
An application for a declaration regarding any person’s right to occupy may be lodged. I would suggest it might require better evidence than produced to date. Māori Land Court
The Māori Land Court has jurisdiction under s 18 of Te Ture Whenua Māori Act 1993 to hear and determine any claim as to ownership or possession of Māori freehold land.
Depending on the full circumstances here, an alternative resolution may be appropriate via that Court. Suppression
Section 95A RTA states regarding suppression that the Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
I consider it appropriate to exercise such an initiative and suppress all names given the parallel criminal proceeding. I do not suppress the address given some possibility the respondent is not aware of this order and may be found via a search of the Tenancy Orders public database.

Reasons

One applicant, [Applicant 1], attended the hearing, conducted via teleconference. The call to the respondent went unanswered. A call to a second number as provided was a wrong number. This was confirmed by [Applicant 1] after hearing the voice of the person who answered. Given the circumstances in this matter, and the nature of the order made, I have proceeded with the hearing per s 91B(2)(c) Residential Tenancies Act 1986

The applicant sought a possession order per s 65 Residential Tenancies Act 1986.

Section 65 provides (I have bolded in part): (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.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

The hearing was adjourned for the purpose of applicants providing: a. an up-to-date Record of Title for the address, b. a full, signed copy of the Licence to occupy, and c. a letter from [Applicant 2].

This has been done and the above evidence received, albeit the Licence to Occupy appears incomplete and with possibly two different versions in existence. Background

This application relates to a block of land with two dwellings. The ”top” dwelling is the historic residence of the applicants. The “lower” house was more recently built and has been occupied by whanau, including the respondent previously.

The owner has such a right via an occupation order granted to [Applicant 2], being recorded on the Record of Title (Partition Order) for [Land block] as: [Redacted] Occupation Order vesting exclusive use and occupation of part (8000m2) in [Applicant 2] - 3.11.2009 at 9:00 am

No details regarding occupation order has been made available.

At the same time a Status Order determining the status of the within land to be Māori Freehold Land was also recorded, as was a second occupation order vesting exclusive use and occupation of part (4000m2) to [name redacted].

An earlier Licence to Occupy granted possession to [name redacted] and [Applicant 2] as “licensee”, granted by the trustees of the [Redacted] Trust (being entered into on 3 August 2009, although the licence provided is incomplete and I received two different cover pages of a licence to occupy, suggesting more licence may have been granted). I was told by [Applicant 1] the licence was put in place for the purposes of the licensees obtaining a mortgage.

Should a possession order be made?

The respondent is not in possession of the premises. The owner has previously sought to trespass him but given uncertain legal status of the respondent regarding any right to occupy, they said they have been advised by police to bring this application. Other whanau members are currently residing there. The actual construct of the 8000m 2 granted in the occupation order is unclear and I do not have evidence that the “lower” premises is within that area.

The purpose of s 65 RTA is essentially to order possession to an applicant (so entitled to pursue) when the premises are occupied by someone without a license to do so.

In this instance, the respondent is not residing at the premises and the applicants do not seek possession. Possession is effectively with the applicants at present, although neither are able to legally reside there currently due to a separate criminal prosecution that is live.

The grounds for a possession order under s 65 RTA do not appear to exist. The respondent is not at the premises, threats to return notwithstanding, and possession is already with the applicants. Further, even if I am wrong, any possession order effectively expires after 90 days, rendering any possession order after that time unenforceable.

Due to a lack of any reasonable application of section 65 here, I dismiss the request for a possession order. Going forward

I appreciate this outcome leaves some continuing uncertainty. I have also considered the respondent’s previous licence to occupy was granted to assist a whanau member (who is living overseas but intending to return). It appears the respondent has expressed an intention to return and support her when she does.

There are two possible options, outside of whanau resolution directly. Tribunal Declaration

Section 78(1) RTA provides, that without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction (but subject to section 78A, if that section applies), make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise.

An application for a declaration regarding any person’s right to occupy may be lodged. I would suggest it might require better evidence than produced to date. Māori Land Court

The Māori Land Court has jurisdiction under s 18 of Te Ture Whenua Māori Act 1993 to hear and determine any claim as to ownership or possession of Māori freehold land.

Depending on the full circumstances here, an alternative resolution may be appropriate via that Court. Suppression

Section 95A RTA states regarding suppression that the Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

I consider it appropriate to exercise such an initiative and suppress all names given the parallel criminal proceeding. I do not suppress the address given some possibility the respondent is not aware of this order and may be found via a search of the Tenancy Orders public database.

Tenancy Tribunal case 5262020 — Tenancy dispute in Mangamuka, Okaihau

At a glance

Claims & awards

Tenancy Tribunal case 5262020 — Tenancy dispute in Mangamuka, Okaihau

At a glance

Claims & awards

Order

Reasons

Should a possession order be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Should a possession order be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions