Tenantcheck Insights · Case study
Tenancy Tribunal case 5335254 — Tenancy dispute
Decided 8 Jan 2026 · Published 8 Jan 2026 · Application 5335254
- Property damage
Party names are redacted in the official published order. This page summarises the dispute only — not individual identities.
At a glance
Key facts from the published tribunal order.
Adjudicator
G Barnett
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s and tenant’s name and identifying details.
- The application for rehearing is granted.
- [The landlord/s] is granted possession of the premises at [Tenancy address suppressed], on Midnight Monday 24 November 2025.
Reasons
- [The landlord’s representative] appeared for the landlord and was accompanied by one of the landlord’s daughters. The tenant appeared and was represented by their daughter [The tenant’s daughter]. Background
- The tenant is the landlord’s daughter. The property is a standalone two-bedroom bungalow. The landlords, who are both in their nineties, reside in a separate larger house nearby. Both dwellings are located on a small farm.
- On 25 November 2024, the landlord attached a notice to the door of the property, giving 63 days’ notice to end the tenancy, stating that they, as the owners, wished to reside in the property.
- The tenant refused to vacate, and on 8 April 2025, the landlord filed an application for possession.
- The tenant challenged the jurisdiction of the Tribunal to consider the landlord’s claim, arguing that there was no tenancy agreement and, even if there was, the agreement was excluded from the provisions of the Act due to the familial relationship between the parties.
- The tenant also challenged the validity of the notice, claiming they did not believe the landlord intended to reside in the property.
- The Tribunal concluded that the parties entered into a residential tenancy agreement, which was not excluded from the provisions of the Act.
- The Tribunal found that the notice period was insufficient and, as a result, the notice to terminate the tenancy was invalid. Having concluded that the notice was invalid, the Tribunal did not address the tenant’s assertion that the landlord did not intend to reside at the property after possession
- On 24 April 2025, between the hearing and the decision, the landlord issued another 63-day notice to terminate the tenancy on 04 July 2025. The notice was issued on the basis that the landlord intended to occupy the property within 90 days of termination. The notice was attached to the front door of the property.
- The tenant refused to vacate the property and once again the landlord applied to the Tribunal for possession.
- The hearing took place on Friday 10 October 2025. [The landlord’s representative], Counsel, appeared for the landlord. [Landlord 1] also attended. There was no appearance by the tenant.
- After the hearing, but before the Tribunal released its decision, it was discovered that late on Thursday, 9 October 2025, the notice of hearing sent to the tenant at the property, which is the only address for service provided in this matter, had been returned.
- The registry noted on the file: “09.10.2025 GNA received – NOH letter dated 29/09/25 was returned, sent to OP [Tenancy address suppressed], marked GONE NO ADDRESS, no other address listed” and “no longer at the address.”
- The matter had not been brought to the attention of the Tribunal prior to the hearing.
- The landlord advised that the tenant appeared to be in occupation and there remained a large number of belongings, including a shipping container, three to four vehicles, a tiny home, and other miscellaneous items.
- [The tenant’s daughter] contacted the Registrar on behalf of the tenant stating they had heard via a third party that there may have been a Tribunal hearing, of which they were unaware. They stated that there had been issues with mail going missing from the letterbox. [The tenant’s daughter] also advised that the tenant remained in occupation.
- The Tribunal considered it was highly unlikely that someone interfering with the mail would then go to the trouble of returning it to the sender.
- The Tribunal was satisfied that the notice of hearing was properly served and that it was appropriate to proceed and issued a decision granting the landlord possession.
- On 15 October 2025, the tenant applied for a rehearing and that the proceedings be stayed.
- On 20 October 2025, the Tribunal set the matter down for a re hearing hearing and ordered a stay. The Tribunal stated that if the rehearing was granted it would proceed to rehear the landlord’s claim for possession immediately. Shortly afterward the tenant, again, made a request to be represented by [the tenant’s daughter] which was granted. Rehearing application
- Section 105(1) Residential Tenancies Act 1986 (Act) provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
- Usually, the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing, or they were not able to properly present their case.
- In Emshoff v McInnes, DC Auckland, TT 1038/89, 30 October 1989, the District Court held that, where a respondent does not appear at the original hearing, the relevant considerations are: a. Is there a reasonable excuse for the non-appearance? b. Did they act promptly when advising the Tribunal?
- In Mottram v Keenan, DC Wanganui TT96/87, 2 December 1988, the Tribunal considered that where a landlord, without fault, had not received notice of the hearing, this was a ground for rehearing. If a party did not receive notice of the hearing and was therefore unable to participate or present their case, this can amount to a substantial wrong or miscarriage of justice and is a proper ground for granting a rehearing. Evidence
- The tenant stated that there had been a breakdown in the wider family dynamic, and that during the tenancy mail had gone missing, after which they provided an alternative address for service. They also arranged for mail sent to the property to be forwarded to this other address. The tenant states that they were advised of the hearing by word of mouth a couple of days prior and had attempted to confirm the hearing with the Tribunal. The tenant further stated that they were not on good terms with their sister, [redacted], and suggested that either she or another member of the family may have removed the notice of hearing. They also stated that they had questioned NZ Post concerning the efficacy of the redirection.
- The landlord stated that they were unaware that another address for service had been provided. They questioned the tenant’s account, suggesting that the notice had been received by the tenant and simply returned in an attempt to avoid or postpone the matter. The landlord stated that it was implausible that, having served a notice and made an application for possession, they or another family member supporting the landlord would then set about sabotaging their own claim. Analysis and decision
- Not receiving a notice of hearing, and therefore not being able to attend a hearing to either prosecute or defend a claim, may be a ground for rehearing. However, if I am satisfied, on the balance of probabilities, that the party has purposely embarked on a course of conduct aimed at avoiding the hearing, then their request for a rehearing will be declined.
- In the previous proceedings in May 2025, the landlord had filed their application providing [the tenant’s daughter] as a contact person for the tenant. In this application, they have not done so, instead relying on the address of the property as the sole means of notifying the tenant of these proceedings. While it is implausible that the landlord has interfered with the mail, thereby self-sabotaging their own application, there is an element of doubt as to whether the tenant, as a result of something outside their control, was made aware of the hearing date. The landlord also concedes that there is some doubt.
- I am satisfied that a miscarriage of justice may have occurred, and the application for a rehearing is granted. Substantive matter.
- The notice to terminate the tenancy was attached to the front door of the property by [the landlord’s sister] for the landlord, who completed, and both signed the notice.
- The tenant argues that the termination notice is invalid because [the landlord’s sister] had been trespassed from the property earlier this year.
- The tenant claims that both the landlord, and [the landlord’s sister], had interfered with their reasonable peace comfort and privacy.
- The tenant also challenges the notice on the basis that the landlord does not have the intention of residing at the property within 90 days of gaining possession and questioned whether [Landlord 1] in particular had mental capacity to give notice. The tenant also suggested that the landlord had been coerced by [the landlord’s sister]. Law
- Section 51 of the Act states: 51Termination by notice (1) A landlord may terminate a periodic tenancy in any case by giving at least 90 days’ notice. (2) A landlord may terminate a periodic tenancy by giving at least 42 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.
- Section 51(3) states: Every notice to terminate a tenancy shall— (a) be in writing; and (b) identify the premises to which it relates; and (c) specify the date by which the tenant is to vacate the premises; and (ca) if the landlord gives less than 90 days’ notice, set out the reasons for the termination; and (d) be signed by the party giving the notice, or by that party’s agent. (e) be signed by the party giving the notice, or by that party’s agent.
- Section 136(7) of the Act provides that where any document ( a notice) is delivered to any address in accordance with any of the foregoing provisions of this section, it shall be deemed, in the absence of evidence to the contrary, to have been given or served on the second working day after the date on which it was delivered; and, in proving service, it shall be sufficient to prove that the document was properly addressed and delivered.
- Section 2(1) of the Act defines the meaning of agent and landlord as: Landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes- (e) an agent of the landlord. Agent, in relation to any person who is a landlord or a tenant, means an agent of that person in that person’s capacity as landlord or tenant; and includes an employee of that person in that person’s capacity as landlord or tenant.
- Section 4 of the Trespass Act 1980 provides that the lawful occupier of a place may trespass any person who is likely to trespass on that place. Section 4(4) states that a person commits an offence who being lawfully trespassed then wilfully trespasses on that place.
- In Dimalanta and Dimalanta v Tenant NZTT 4327030, the Tribunal established that a landlord (and by extension, their agent) cannot be trespassed by the tenant from the premises, provided the landlord or agent is acting within their rights under the Act. Conversely, a landlord cannot, without the consent of the tenant, trespass someone from the tenant’s property.
- In the case of Borlase v Davies, Nelson TT95/95, 27 July 1995, the Tribunal held that a landlord’s notice to terminate a periodic tenancy was not necessarily invalidated for a change of reason subsequent to issue. The Tribunal confirmed that in challenging a notice the tenant must establish (more likely than not) that the reason for giving the notice had not been genuinely held at the time the notice was issued. Evidence
- The tenant states that they had not been advised by the landlord that [the landlord’s sister] was acting as the landlord’s agent, nor that she had attached the notice to their door while acting in that capacity. They maintain that [the landlord’s sister] had been trespassed earlier this year which therefore resulted in the notice being invalid.
- The tenant produced CCTV footage showing [the landlord’s sister] attaching the previous termination notice, and the one the subject of these proceedings, to their front door.
- The tenant does not believe that the landlord intends to occupy the property. The tenant stated that about four years ago, they suffered a stroke, and at that time the landlord had said they could remain in the property for as long as they wished, and had in fact opposed the tenant leaving.
- The tenant states that about a year ago, Mrs Jillian Bowater removed the landlords from the property and then coerced them into giving notice. The tenant states that they have since made several unsuccessful attempts to contact the landlord and believe that the landlords have been placed in rest home care, although they have no conclusive evidence of this.
- [The tenant’s daughter] believed that both landlords were physically and mentally incapable of looking after themselves. [The tenant]s daughter states that prior to their removal, she had visited the landlords and provided care and assistance. [The tenant’s daughter] further stated that the landlords’ own property had become dilapidated and uninhabitable due to hoarding, and that neither landlord could properly look after themselves, although both had declined help.
- The tenant stated that they had recently discovered [the landlord’s sister] and a surveyor on the property, and that shortly afterwards, survey pegs were installed. The tenant believes that the landlord will not occupy the property, and it will be sold.
- The landlord submits that the notice was completed and signed by both landlords. They state that it was clear to the tenant that [the landlord’s sister] had been assisting the landlord in matters concerning the tenancy. The landlord challenged whether [the landlord’s sister] had in fact been lawfully trespassed by the tenant, but nevertheless maintained that she had visited the property at the landlord’s request solely to attach the termination notice to the door and denied that her conduct while doing so amounted to any interference.
- [The landlord’s sister] states that both landlords had been residing with her but had been harassed by the tenant and had chosen not to disclose their whereabouts until today. She states that [Landlord 2] had capacity and produced a medical certificate from a general practitioner stating that, apart from suffering a slight memory impairment, [Landlord 2] also had mental capacity. The landlord stated that while both had mobility issues, they could care for themselves in their own home with the right supports.
- The landlord stated that when the notice was issued, they had intended to move out of their own, larger property and into the tenant’s property. Once they had relocated, their original property would be renovated. Although the landlord intended returning once this renovation was completed, there was a likelihood that their house and the surrounding farmland would be sold.
- The tenant produced photographs showing the exterior of their property, highlighting areas of damage which they state contradict the validity of the landlord’s evidence.
- The landlord stated that the tenant’s property required some remedial work, which they acknowledged would be completed prior to taking up occupation. However, having heard from the tenant, they now understood that more significant repairs might be required. Analysis - validity and service
- The issues in this case are: (1) whether the notice was valid, that is, valid in form and properly served. (2) whether, at the material time, there were valid grounds for termination, in this case, whether the landlord intended to reside at the property within 90 days of gaining possession.
- The tenancy is periodic. The notice complies with section 51(3) of the Act.
- On 30 January 2025, the Act was amended to reintroduce 90-day no cause termination notices. At the same time, the required notice period under section 51(2)(a) was reduced from sixty-three days to forty-two days.
- The notice was issued or “given” by the landlord. There is no evidence before the Tribunal that the landlord does not have legal capacity to deal with their own property.
- The notice was placed on the tenant's door by [the landlord’s sister], who at the material time was acting as the landlord's agent.
- The serving of a notice of termination is an act that the landlord, or their agent, is lawfully entitled to do under the Act.
- A landlord or their agent cannot be lawfully trespassed from the premises by the tenant, provided the landlord or agent is acting within their rights under the Act.
- In my view, section 4 of the Trespass Act 1980 does not override the rights and obligations set out in the Act. The agent, acting on behalf of the landlord and for a lawful purpose (serving notice), is not "wilfully trespassing" in a way that would constitute an offence under the Trespass Act
- There is also no evidence that while attaching the notice the agent breached the tenant's rights under the Act, either by unlawfully entering the premises or by interfering with the tenant's peace, comfort, or privacy.
- In this case, the effective date of service was 28 April 2025, two working days after the notice was attached to the door. Sixty – three days from 28 April 2025 was 30 June 2025. The notice therefore gave the tenant more than the minimum forty – two days required.
- The notice is valid and has been properly served. Analysis - valid grounds
- The onus in this case is on the tenant to establish, on the balance of probabilities, that at the material time, that is, when the notice was given, the landlord did not intend to reside at the property within 90 days of gaining possession.
- There is no evidence before the Tribunal that the landlord does not have legal capacity to deal with their own property.
- I am satisfied that when the notice was issued, the landlord intended to move from their larger property into the tenant’s property, renovate their original home, and possibly sell it and the surrounding farmland after the renovation. Although a return to the original property was possible, it was more likely to be sold. If this is the case it will not necessarily have invalidated the notice.
- Apart from challenging the notice and grounds on which it was given there is no counterclaim filed by the tenant. Possession
- Section 64 (2) of the Act, states that the Tribunal must not make a possession order more than 90 days after the termination of the tenancy. In this case 90 days expired on 02 October 2025.
- Section 85(2) of the Act, states that the Tribunal shall act in a manner that is fair and just and shall have regard to the substantial merits and justice of the case, but shall not be bound by technicalities, legal forms, or rules of evidence.
- Section 85 therefore requires the Tribunal to consider fairness and the substantial merits of the case, rather than rigidly applying technical rules that could result in unfairness. It supports an interpretation that the Tribunal should consider the intent and fairness behind the timing requirements in section 64. The Tribunal’s practice is that as long as the landlord made their application within 90 days, the Tribunal should not refuse to make a possession order solely because of scheduling delays. To do so would be unfair. Decision
- The notice is valid and properly served; the tenancy ended on 4 July 2025. The landlord applied for possession on 28 August 2025, which was well within the 90- day period, although the hearing was not scheduled until after the 90-day period expired. I also take into account the delay caused by the rehearing. I am satisfied that refusing to make the order would be unfair.
- During the hearing, the tenant accepted that they would have to vacate the property but stated they had difficulties finding suitable accommodation. However, while the Tribunal has some empathy for the tenant, the landlord is entitled to possession without further unreasonable delay. In this case, the landlord is granted possession of the property at midnight on Monday, 24 November 2025. Name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the parties name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- The landlord has been wholly successful and is granted name suppression.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- The names and details of both parties were suppressed on the last occasion. While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. The dispute arises out of a familial relationship. I am satisfied that there are sufficient grounds to depart from the principle of open justice and to exercise the discretion in subsection 95A (4). Accordingly, the Tribunal also orders suppression of the tenant’s name.