What was Tenancy Tribunal case 5392588 about?

The tribunal order states: Applications for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5392588?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5392588?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5392588?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12970722-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5392588 about?

The tribunal order states: Applications for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5392588?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5392588?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5392588?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12970722-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5392588 — Exemplary damages

Order

Applications for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
The Tribunal does not have jurisdiction to determine these applications save for the landlords’ application for possession based on s65 of the Residential Tenancies Act 1986
[The landlord/s] are granted possession of the land and premises at [Tenancy address suppressed]. The tenant must vacate the land and premises by 11 February 2026.

Reasons

The parties attended the hearing by video conference.
The tenant has applied for compensation and exemplary damages and other orders for various breaches by the landlords of their tenancy obligations. The crux of the tenant’s application is that the landlords agreed to grant her a tenancy of the premises and she wants the Tribunal to make orders to give effect to that.
The landlords seek possession of the premises following service of a purported termination notice. During the hearing they sought to add a claim for possession under s65 of the Residential Tenancies act 1986 (the Act) on the ground that the tenant has become a trespasser.
The hearing was set down for case management, but it was clear from the papers that there is an issue of jurisdiction that first needs to be determined. The tenant claims that she is a tenant and the landlords disagree. Brief Background
The landlords are trustees of a trust that holds land including residential rental properties.
In early 2024, the tenant and her daughter were living in the tenant’s caravan. The owner of the landlord required her to leave, and she was in need of somewhere to place her caravan and more permanent accommodation.
The landlords offered a place for the tenant, her daughter and the caravan on land on which there was also a house in need of renovation. The tenant accepted and the parties agreed that the tenant would pay the landlords $50 per week for use of the land. The landlords said that the payment was to cover the cost of utilities such as water, but the relevant thing is that the payment was for the tenant’s right to put her caravan on the land and to live in it.
The landlords also granted the tenant the right to use the bathroom facilities in the house, which she did. The tenant also used the laundry. The landlords said that she was not given the right to do so but that disagreement has no bearing on what I must decide.
It is clear from the evidence that at the very least the parties envisaged that the house would be renovated and that the tenant would become the tenant of it. There is reference in communications between the parties to that and there was a meeting to which the landlords said they would “bring tenancy papers for signing you (meaning the tenant) up””.
It seems that it was at that meeting that the landlords decided that they did not want to grant the tenant a tenancy of the house. The parties have been in dispute since then. Two Preliminary Findings The Caravan
Section 5(1)(t) of the Act excludes from the Tribunal’s jurisdiction cases where the tenant has been granted the right to put a caravan on the landlord’s bare land (with or without facilities).
There was such an agreement in this case. It corresponds squarely with the exclusion. The landlord allowed the tenant to put her caravan on bare land. There was a house on the land as well and the tenant was allowed to use facilities in the house but not occupy the house itself. The tenant agreed that the house was not habitable at that time. The exclusion therefore applies.
Section 8 of the Act states that the parties may agree that the Act applies notwithstanding an applicable exclusion. There is no evidence of such an agreement here. The landlords purported to serve a termination notice on the tenant. The notice was defective. Such service could be seen as consistent with there being a tenancy, but I see it as a response to the tenant’s claim of a tenancy and as a precaution. It is not evidence of an agreement to contract back into the Act and it occurred very late in the piece in any case.
It follows that the arrangement for the caravan to be placed on the landlords’ land is outside the Tribunal’s jurisdiction.

Grant of a Tenancy?

The tenant gave evidence that after the landlords had allowed her to put her caravan on the land, she and one of the landlords discussed and agreed the terms of a tenancy of the house. The landlord disputed that.
In my view, there was not, even on the tenant’s evidence, a grant of a tenancy at that time. This was, at best from the tenant’s position, an impromptu discussion between one trustee and the tenant about the terms of a tenancy to be granted to the tenant in the future.
The premises were not habitable, and it was unclear when they would become habitable and be available for occupation by the tenant. Nothing was put in writing or officially confirmed on behalf of the trust. The tenant was speaking with only one of the trustees and it should have been obvious to her that there would need to be formal confirmation on behalf the trustees before a tenancy was granted to her.
At most, what the tenant and the trustee could have concluded at that meeting was an agreement for the trustees to grant a tenancy to the tenant at a future date. That is the issue that I must now consider.

Agreement to Grant a Tenancy?

Agreements to grant a lease or a tenancy are not uncommon. They are referred to in the Property Law Act 2007 (PLA). The definition of a lease in that Act includes an agreement to lease. The provisions in the PLA relating to leases to not apply to residential tenancies. Agreements to grant a lease or tenancy differ from a lease or tenancy agreement because they confer merely contractual rights on the parties, they do not grant an interest in land. But those contractual rights are enhanced by the rule in Walsh v Lonsdale (1982) 21 Ch D 9 (CA).
Walsh v Lonsdale held that where the Court would order specific performance of the agreement to lease (i.e. order the lease to be granted), the parties should be treated as if the lease had been granted. It has been said that that an agreement to lease is as good as a lease. But that needs to be qualified because the rule depends on specific performance of the agreement being granted and that is discretionary. In other words, the Court or Tribunal is not bound to order specific performance after finding the existence of an agreement to lease. It may order other remedies such as compensation.
In considering whether there has been an agreement to lease, the Court or Tribunal must construe the parties’ intentions from the material available. The High Court has considered the distinctions between the following situations (Coachman Properties Limited v Panmure Video Club Limited [1984] NZLR 200): a. An arrangement that amounts to no more than an expression of the parties’ intention to negotiate. b. A contract that will come into existence only if and when a condition precedent is satisfied; that condition may be the execution of a formal lease. c. An agreement which is unconditionally binding from its inception. d. An agreement which is binding from its inception but is subject to discharge if a condition subsequent is not satisfied.
The Court in that case acknowledged that it is not always a simple matter to determine the category to which a particular agreement should be assigned.
The tenant’s evidence is that the parties agreed on three essential elements of a tenancy agreement being the property, the parties and the rent ($200 per week). The tenant said that she expected the tenancy to be periodic but that the parties’ intention was that it would be long term. As to the final element, the commencement date of the tenancy, she said that it would be when the renovation work was completed, and the house was ready for occupation. She said that she was told that it would be ready by the start of winter.
Assuming, for the moment, that the tenant’s evidence is accepted, there is an obvious problem with the commencement date. The start of winter is not a date. The so-called meteorological start date is 1 June, but there are other dates that can be used such as 22 June which is the winter solstice. It could also mean when the weather turns wintry. The point is that the start of winter may mean different things to different people, and it is not capable of definitive identification on the calendar.
Added to that is the uncertainty as to when the renovation work would be completed. As anyone with experience of building work knows, it often takes longer (and is more expensive) than the people involved expect. The trustees said that the work on the house was just one job that that they were undertaking, and it was being done in between other work that took priority. The house is still not ready for occupation almost two years on. The key point here is that it is unrealistic to expect the landlords to know when the work would be completed. There are any number of unexpected events that can intervene. Therefore, it cannot be said that the date on which a tenancy would be granted was certain.
I note as well, that there is no evidence in the communications between the parties of the tenant querying why the work had not been completed and the tenancy granted in mid-2024 or even afterwards. Plainly that does not support the case that there was a firm agreement as to the start date of a tenancy at the start of June.
Another problem with the tenant’s case, as I have mentioned, is that she was speaking informally with one of the trustees. There was no confirmation in writing which one would expect if there was a firm commitment. I note that the tenant could have confirmed the agreement in writing herself but did not do so. As well, trustees must act unanimously and it was not reasonable, in my view, for the tenant to assume that there was a binding agreement on the say-so of one trustee in an informal context. This point goes to the need for there to an intention to create legal relations before there can be a binding and enforceable agreement.
The trustees also said that there had been no assessment of what the rent for the house would be. That would be assessed by Harcourts for the trust. Subsequently, the trustees took over management of their properties from Harcourts, but they said they would still need a professional assessment of the rent to be charged for the house. That strikes me as credible. Possibly Ms mentioned an amount for rent but did not intend it to be taken as an offer capable of acceptance.
Taking all these things together, I am not satisfied that there was a binding and enforceable agreement to grant a tenancy to the tenant at a future date. The evidence is that both parties believed and intended that there would be a tenancy at a future date, but they had not agreed on all the essential terms, and it was uncertain as to what some of those terms would be. To state the obvious, having an intention to grant a tenancy, does not necessarily create one or an agreement to create one.
For these reasons I find that there was no agreement for the grant of a tenancy and therefore the Tribunal does not have jurisdiction to determine the tenant’s application. The Landlords’ Application
The same of course applies to the landlord’s application as filed. But I allow the amendment to the application by adding a claim for possession under s65 of the Act.
I have found that there is no tenancy or agreement to grant a tenancy in this case and it follows that the tenant has been occupying the land as a licensee. That is a contractual arrangement that can be terminated by the landlord at any time. The landlords have made it clear to the tenant that they want her to vacate the land and so her licence to occupy it is at an end. That makes the tenant a trespasser and so the Tribunal must make an order granting possession of the land to the landlord.
Arguably, the Tribunal has no option but to order the tenant to give possession of the land to the landlord immediately. Otherwise, the Tribunal would be permitting the tenant to continue trespassing on the land. But s85 of the Act allows the Tribunal to consider the substantial merits and justice of the case. To give effect to that, I have ordered the tenant to give up possession within 28 days. The landlords have not dealt with this situation well. They did not record the original arrangement in writing, and they encouraged the tenant to believe that she would be granted a tenancy of the house.
I note that the tenant accepts that she cannot interfere with access to the house by the landlords and their agents. The tenant will continue to have access to the house to use the bathroom and laundry for the next 28 days and I would expect the landlords and their agents to be respectful of that.
I note that the fact that the Tribunal has declined jurisdiction over the tenant’s application does not mean, necessarily, that she is without recourse against the landlord. I am not suggesting that the tenant has a good claim to make against the landlord elsewhere, such as in the Disputes Tribunal, and I am not encouraging her to make a claim. But she may wish to obtain advice on her options. Suppression
I see no reason of public interest for the identity of the parties to be published and so I have granted name suppression for all the parties. Filing Fee
The landlords have not succeeded in their claims as filed and so I make no award of the filing fee.

Tenancy Tribunal case 5392588 — Exemplary damages

At a glance

Claims & awards

Tenancy Tribunal case 5392588 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Grant of a Tenancy?

Agreement to Grant a Tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Grant of a Tenancy?

Agreement to Grant a Tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions