Tenantcheck Insights · Case study
Tenancy Tribunal case 5439750 — Tenancy dispute at 9B James Street, Hamilton East, Hamilton 3216
Decided 24 February 2026 · Published 24 February 2026 · Application 5439750
Landlord favoured
- Property damage
At a glance
Key facts from the published tribunal order.
Outcome
Landlord favoured
From published order
Location
Hamilton
Tribunal region
Adjudicator
W Lang
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
- The application for a possession order under section 65 of the Residential Tenancies Act 1986 is dismissed.
- It is declared that David Campbell Coutts has a residential tenancy under the Residential Tenancies Act 1986 of 9B James Street, Hamilton East, Hamilton.
Reasons
- Mrs Clapham attended the hearing, which was an in-person hearing, with Michael Clapham as her support person. Her husband David Clapham attended as a witness.
- Mr Coutts did not attend the hearing. I am satisfied the hearing notice and claim were properly served on Mr Coutts. Background:
- Mrs Clapham said she knew work needed to be done on the premises after her previous tenants moved out. She also knew that Mr Coutts was looking for somewhere to live and they discussed him living at the premises. Mrs Clapham presented an agreement (referred to as “the house sitting agreement”), which she alleges is signed by both parties, that states:
- Mrs Clapham states she and Mr Coutts never discussed a residential tenancy arrangement and that Mr Coutts had not paid any rent.
- On 3 November 2025 Mrs Clapham gave Mr Coutts a notice terminating the arrangement and asking him to vacate the property by 8 December. Mr Coutts did not leave. He returned copies of the agreement and the termination notice to mrs Clapham with his handwritten notes on both, to the effect that: a. he denied signing the agreement and says the signature on it is not his signature; b. he “would never sign something like this as it is rubbish”
- On 17 November 2025 a letter from Mrs Clapham’s lawyer was sent to Mr Coutts enclosing a trespass notice. The letter confirmed the terms of the house- sitting agreement; that Mr Coutts had not paid any rent; and acknowledged that he has contributed to some repair and painting services at the property. A trespass notice was enclosed with the letter and Mr Coutts was advised that if he did not vacate the property by 24 November 2025 Mrs Clapham would seek a possession order and/or enforce the trespass notice.
- Along the way Mr Coutts asserted that he had a tenancy of the premises.
- While Mrs Clapham denies there is a tenancy a 42-day notice to terminate the tenancy under the Residential Tenancies Act 1986 (RTA) was served on Mr Coutts on 9 December. This was due at least in part to Mr Coutts‘ response and assertions that he had a tenancy. The basis for serving the 42-day notice was that the property was required for her son to live in. The landlord’s claim
- Mrs Clapham seeks a possession order under section 65 RTA as she considers she has ended the house-sitting agreement and Mr Coutts did not move out by 8 December 2026 after she gave him notice to vacate.
- Section 65 RTA provides that: (1) Where on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any 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.”
- Section 65(3) RTA confirms that the Tribunal has jurisdiction under section 65(1) even though premises are not subject to a tenancy agreement.
- For Mrs Clapham to be successful in getting an order under section 65 I have to be satisfied that the arrangement does not amount to a residential tenancy, and that Mr Coutts has no right to occupation of the premises under the arrangement made by the parties.
- In considering Mrs Clapham’s claim I need to determine the following issues: a) Is the arrangement between the parties a residential tenancy under the
RTA?
b) If the arrangement is not a residential tenancy is Mrs Clapham entitled to a possession order under section 65?
Is the arrangement between the parties a residential tenancy under the RTA?
- In considering whether the arrangement between the parties is a house-sitting arrangement or is a residential tenancy to which the RTA applies I need consider the following relevant definitions in section 2(1) RTA: • a ‘tenancy’ is the right to occupy premises in consideration for rent. • ‘rent’ means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant • ‘tenancy agreement’ means any express or implied agreement under which any person, for rent grants or agrees to grant to any other person a tenancy of the premises
- Section 13(1) requires a tenancy agreement to be in writing however section 13C provides that a tenancy agreement is not unenforceable if it is not in writing.
- Mrs Clapham’s evidence is that prior to her typing up the house sitting agreement she and Mr Coutts had discussed rent and agreed that he was to pay $450.00 a week in cash to her. She said they had a further rent discussion after she had typed up the house-sitting agreement which confirmed $450.00 a week was to paid.
- Mrs Clapham said she has not received any rent from Mr Coutts. She said they had also discussed and agreed that Mr Coutts was going to do some painting in the premises which would be deducted from the rent he owes. Mrs Clapham understood that as no rent had been paid and a residential tenancy agreement had not been written up and signed that meant the arrangement was not a residential tenancy.
- Mrs Clapham’s evidence convinces me that the parties verbally entered into a residential tenancy. I am not persuaded that this arrangement changed to a house sitting arrangement as recorded in the written agreement as according to Mrs Clapham’s evidence payment of rent was discussed after she had typed up the agreement as well as before she typed it.
- Based on Mrs Clapham’s evidence the parties have considered that rent could include painting work carried out by Mr Coutts. That fact that Mr Coutts has not made any monetary payments to Mrs Clapham does not negate their agreement that rent was to be paid. It may mean that Mr Coutts owes rent to Mrs Clapham under their arrangement, depending on what painting work has been undertaken and the value of that work.
- For the above reasons I find the arrangement entered into by Mrs Clapham and Mr Coutts is a residential tenancy to which the RTA applies. Accordingly Mrs Clapham is not entitled to a possession order under section 65.
- The Tribunal is restricted to the determining the matters claimed in the application as confirmed by the District Court in He v Liu [2020] NZDC 24057. Mrs Clapham’s application does not seek a possession order in the event that the arrangement is a residential tenancy 1 . Therefore no possession order is made.
- For clarity, any dispute about the 42-day termination notice or application about for possession under that notice will need to be made under a separate application.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s13(1), s13C, s15, s2(1), s64, s65, s65(1), s65(3)
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5439750?
The tribunal order states: The application for a possession order under section 65 of the Residential
How much money was awarded in case 5439750?
Verified claim lines are listed on this page.
What type of tenancy dispute was case 5439750?
The dispute type was not classified.
Where can I read the official tribunal order for case 5439750?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13153117-Tenancy_Tribunal_Order.pdf.