What was Tenancy Tribunal case 5362281 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 5362281?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5362281?

The dispute type was not classified.

Where can I read the official tribunal order for case 5362281?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12850608-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5362281 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 5362281?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5362281?

The dispute type was not classified.

Where can I read the official tribunal order for case 5362281?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12850608-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5362281 — Tenancy dispute

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The application for possession is dismissed.
By way of declaration, the Tribunal does not have jurisdiction over the parties’ residential tenancy agreement. The application for an Order terminating the tenancy is dismissed.

Reasons

All parties attended the hearing.

What is the claim about?

[The landlord/s] and [The tenant/s] are brother and sister.
Their mother [The mother] owned this property.
[The mother] died on 14 July 2013. Her will appointed [The landlord/s] and [The sister], who is a sister of [The landlord/s] and [The tenant/s], as her executors. In her will, [The mother] left her estate to her children equally.
[The sister] has since died leaving [The landlord/s] as the sole executor. The Certificate of Title to the property shows the Registered Owner as “[The landlord/s] as Executor”.
[The landlord/s] lives in one residence on the property. [The tenant/s] and the other respondents live in another residence on the property. They pay rent to [The landlord/s].
On 30 April 2025, [The landlord/s] gave [The tenant/s] Notice of Termination in his capacity as landlord of the premises as executor in [The mother]’s estate, terminating the tenancy on 31 July 2025.
[The tenant/s] disputes [The landlord/s]’ right to end the tenancy and require that she vacate. [The landlord/s] brought this application asking for an Order terminating the tenancy and giving him possession of the premises.
The whanau relationships have become very strained.

What does the Tribunal need to decide?

The questions the Tribunal needs to answer in this case are: a. Are [The tenant/s] and the other respondents occupying the premises without any right of occupation granted by [The landlord/s]? If so, [The landlord/s] is entitled to a possession Order 1 ; b. If not, are [The landlord/s] and [The tenant/s] landlord and tenant under a residential tenancy agreement? If not the Tribunal has no jurisdiction; c. If they are, is that residential tenancy agreement one which the Residential

Tenancies Act applies to?

Are [The tenant/s] and the other respondents occupying the premises without any right of occupation granted by [The landlord/s]?

I find that the answer to this question is no. This is not a situation, which often happens, where a family member occupies the home of a deceased parent while decisions are made about distribution of the estate. In such cases, the family member occupying the property is often seen as occupying the home at the goodwill of the executor(s) under a licence that can be ended at any time.
Here [The tenant/s] has produced a document titled “Residential Tenancy Agreement” which was prepared to record the terms for her occupation of the premises. It provides for her to pay weekly rent of $400.00. It is not signed but has been implemented, with [The landlord/s] receiving the weekly rent payable under it. 1 S.65 RTA
I find that [The tenant/s] is occupying the property with a right of occupation granted by [The landlord/s] in consideration for the rent paid.
That view is supported by [The landlord/s] having given the Notice of Termination “as landlord”. Are [The landlord/s] and [The tenant/s] landlord and tenant under a residential tenancy agreement?
I find that the answer to that question is yes. The RTA defines a tenancy as being where a right of occupation is given in consideration for rent 2 . That is the case here. This is a residential property. [The landlord/s] and [The tenant/s] are landlord and tenant under a residential tenancy agreement. Is that Residential Tenancy Agreement one which the Residential Tenancies Act applies to?
I find that the answer to this question is no.
Some residential tenancy agreements are excluded from the RTA 3 .
The relevant exclusion to consider in this case is where, “...the premises...... continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family” 4
The main use of these premises is as a residence for the respondents who are members of [The landlord/s]’ whanau. [The landlord/s] also lives on the property but in a different dwelling.
There is some authority to suggest that the exclusion in s.5(1)(n) should not apply where the landlord is not landlord in a personal capacity but in a capacity as trustee/ executor 5 .
However, this situation seems more similar to the family estate situation that was before the High Court in Rio v Haturini where the Court noted “.........by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 and associated definition of “member of the landlord’s or owner’s family”, that Act does not apply.” 6 2 S.2 RTA 3 S.5(1) RTA 4 S.5(1)(n) RTA 5 Eg. Kimpton v Kimpton (CIV 2010-004-002387) 6 Rio v Haturini [2021] NZHC 3217 at para [50]
This is a residential tenancy agreement that is excluded from the RTA and from the Tribunal’s jurisdiction.
Parties to a residential tenancy agreement that is excluded under s.5(1) can agree in writing that all or any of the provisions of the RTA should still apply to their agreement 7 . The evidence does not show that these parties did that. The draft agreement does not reference the RTA as “the Act” which applies to the agreement. Conclusion
The respondents are not occupying the premises without a right of occupation granted by [The landlord/s] so the grounds for a possession Order under s.65 RA are not established.
The residential tenancy agreement under which [The tenant/s] and the other respondents are occupying the property is not an agreement to which the RTA applies so the Tribunal does not have jurisdiction to make a termination Order.
I note, as I did at the hearing, that these are not findings that the respondents have a right to ongoing occupation of the property but simply that it is a decision the Tenancy Tribunal cannot make.

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The application for possession is dismissed.
By way of declaration, the Tribunal does not have jurisdiction over the parties’ residential tenancy agreement. The application for an Order terminating the tenancy is dismissed.

Reasons

All parties attended the hearing.

What is the claim about?

[The landlord/s] and [The tenant/s] are brother and sister.
Their mother [The mother] owned this property.
[The mother] died on 14 July 2013. Her will appointed [The landlord/s] and [The sister], who is a sister of [The landlord/s] and [The tenant/s], as her executors. In her will, [The mother] left her estate to her children equally.
[The sister] has since died leaving [The landlord/s] as the sole executor. The Certificate of Title to the property shows the Registered Owner as “[The landlord/s] as Executor”.
[The landlord/s] lives in one residence on the property. [The tenant/s] and the other respondents live in another residence on the property. They pay rent to [The landlord/s].
On 30 April 2025, [The landlord/s] gave [The tenant/s] Notice of Termination in his capacity as landlord of the premises as executor in [The mother]’s estate, terminating the tenancy on 31 July 2025.
[The tenant/s] disputes [The landlord/s]’ right to end the tenancy and require that she vacate. [The landlord/s] brought this application asking for an Order terminating the tenancy and giving him possession of the premises.
The whanau relationships have become very strained.

What does the Tribunal need to decide?

The questions the Tribunal needs to answer in this case are: a. Are [The tenant/s] and the other respondents occupying the premises without any right of occupation granted by [The landlord/s]? If so, [The landlord/s] is entitled to a possession Order 1 ; b. If not, are [The landlord/s] and [The tenant/s] landlord and tenant under a residential tenancy agreement? If not the Tribunal has no jurisdiction; c. If they are, is that residential tenancy agreement one which the Residential

Tenancies Act applies to?

Are [The tenant/s] and the other respondents occupying the premises without any right of occupation granted by [The landlord/s]?

I find that the answer to this question is no. This is not a situation, which often happens, where a family member occupies the home of a deceased parent while decisions are made about distribution of the estate. In such cases, the family member occupying the property is often seen as occupying the home at the goodwill of the executor(s) under a licence that can be ended at any time.
Here [The tenant/s] has produced a document titled “Residential Tenancy Agreement” which was prepared to record the terms for her occupation of the premises. It provides for her to pay weekly rent of $400.00. It is not signed but has been implemented, with [The landlord/s] receiving the weekly rent payable under it. 1 S.65 RTA
I find that [The tenant/s] is occupying the property with a right of occupation granted by [The landlord/s] in consideration for the rent paid.
That view is supported by [The landlord/s] having given the Notice of Termination “as landlord”. Are [The landlord/s] and [The tenant/s] landlord and tenant under a residential tenancy agreement?
I find that the answer to that question is yes. The RTA defines a tenancy as being where a right of occupation is given in consideration for rent 2 . That is the case here. This is a residential property. [The landlord/s] and [The tenant/s] are landlord and tenant under a residential tenancy agreement. Is that Residential Tenancy Agreement one which the Residential Tenancies Act applies to?
I find that the answer to this question is no.
Some residential tenancy agreements are excluded from the RTA 3 .
The relevant exclusion to consider in this case is where, “...the premises...... continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family” 4
The main use of these premises is as a residence for the respondents who are members of [The landlord/s]’ whanau. [The landlord/s] also lives on the property but in a different dwelling.
There is some authority to suggest that the exclusion in s.5(1)(n) should not apply where the landlord is not landlord in a personal capacity but in a capacity as trustee/ executor 5 .
However, this situation seems more similar to the family estate situation that was before the High Court in Rio v Haturini where the Court noted “.........by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 and associated definition of “member of the landlord’s or owner’s family”, that Act does not apply.” 6 2 S.2 RTA 3 S.5(1) RTA 4 S.5(1)(n) RTA 5 Eg. Kimpton v Kimpton (CIV 2010-004-002387) 6 Rio v Haturini [2021] NZHC 3217 at para [50]
This is a residential tenancy agreement that is excluded from the RTA and from the Tribunal’s jurisdiction.
Parties to a residential tenancy agreement that is excluded under s.5(1) can agree in writing that all or any of the provisions of the RTA should still apply to their agreement 7 . The evidence does not show that these parties did that. The draft agreement does not reference the RTA as “the Act” which applies to the agreement. Conclusion
The respondents are not occupying the premises without a right of occupation granted by [The landlord/s] so the grounds for a possession Order under s.65 RA are not established.
The residential tenancy agreement under which [The tenant/s] and the other respondents are occupying the property is not an agreement to which the RTA applies so the Tribunal does not have jurisdiction to make a termination Order.
I note, as I did at the hearing, that these are not findings that the respondents have a right to ongoing occupation of the property but simply that it is a decision the Tenancy Tribunal cannot make.

Tenancy Tribunal case 5362281 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5362281 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

What is the claim about?

What does the Tribunal need to decide?

Tenancies Act applies to?

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

What is the claim about?

What does the Tribunal need to decide?

Tenancies Act applies to?

Residential Tenancies Act sections

Frequently asked questions