Published tribunal order
Tenancy Tribunal case 5452708 — Tenancy dispute
Decided 25 Mar 2026 · Published 25 Mar 2026 · Application 5452708
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
- [The applicant/s] are granted possession of the premises at [address suppressed] immediately.
- [The respondent] must pay [The applicant/s]the sum of $28.00 immediately.
Reasons
- Both parties attended the hearing, the applicant represented by Mr Gleeson.
- The applicant seeks possession of the premises at [address suppressed] under section 65, which provides that the Tribunal must make a possession order in favour of an applicant where: a. the applicant is entitled to possession of the residential premises; b. another 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.
- In order to make a possession order under section 65, the premises do not need to be the subject of a tenancy agreement. Background
- The property was owned by the respondent’s grandmother, [Mrs A]. The applicant said that she had agreed to her grandson, [the respondent], living there in exchange for rent of $100. This started on 2 January 2024. There is no written agreement for the arrangement.
- The bank statements show occasional payments of varying amounts from the respondent between 27 March 2024 and 26 November 2024. These are not for $100 and are not every week
- [The respondent] says it was a rent to buy arrangement.
- [Mrs A] died on 8 January 2025.
- [The applicant has provided evidence that probate was granted to her children Ms B and Mr C (children of the deceased) on 17 March 2025 and that the property has been transferred into their names as executors.
- One of the assets of the estate is the property [address suppressed].
- On 11 November 2025, Mr Gleeson, on instructions from the executors, gave the respondent one month’s notice to vacate the premises by 15 December 2025.
- On Wednesday 26 November 2025 at 9.06pm, the respondent emailed Mr Gleeson. The body of the email was empty, but the subject line contains the following: 90 days notice as of 25 November. Leather (sic) was not received in mail untill (sic) 25 November So Tuesday 23 February will be my last day unless [Mr B] is planning on moving in full-time sorry nice try
- Mr Gleeson replied the next morning, with the same subject line. In the body is the following: Hello [respondent] Thanks for your email. I was acting under instructions of the solicitors acting for the executors in the estate. Can you ensure that your rental is paid up until the time that you vacate the property. There is the possibility that you could purchase the property from the estate if a suitable agreement could be reached.
- There was no further correspondence until an email dated 23 February 2026 from Mr Gleeson. It has the same subject line. The body of the email reads: As it is the 23 February 2026, today is your last day in the property - see the heading written by you above. I expect the property to be vacant and the keys delivered to this office by 5pm today. As you committed to be out of the property on 23 February 2026, | am sure that you are someone who honours his commitments. Failure to comply with what you have committed to do will have consequences for you. There will be an application to The Tenancy Tribunal. They will produce an order for you to get out of the property. We will ask for and be awarded costs. As a separate issue the rental arrears will be addressed by the executors. I look forward to your response.
- The next day the applicant applied to the Tribunal for possession of the premises.
- The onus is on the applicant to establish that they are entitled to possession of the premises. Based on the evidence produced, I am satisfied that the executors are entitled to possession of the premises.
- There is no dispute that the respondent is currently in possession of the premises.
- The next question is whether the respondent is in possession pursuant to any right of occupation granted by any person having lawful authority to grant that right.
- The parties agree that while alive, [Mrs A] had allowed [the respondent] to live at the property in exchange for rent. The terms of that right to occupy are not recorded. The possibilities are: a. There was an unwritten residential tenancy agreement, in which case the terms of the Residential Tenancies Act apply. That would mean that if the executors wanted to terminate the tenancy, they were obliged to give the tenants’ 90 days’ notice. The tenants could terminate by giving 21 days’ notice. b. The agreement was excluded under section 5(1)(o) of the Act, Where the tenant is the purchaser of the premises under an agreement for sale and purchase with the landlord as vendor, not being an agreement that is revocable at will by the vendor. c. The agreement was excluded under section 5(1)(n) of the Act on the basis that during the tenancy, the premises were used principally as a place of residence by a member of the owner’s family. In that case, the executors may trespass the occupier or apply for a possession order under section 61 on the basis that the occupier is now a squatter.
- If either party argues that the agreement was not a residential tenancy agreement, the onus of proof rests with them. (See section 10).
- The respondent says that there was a rent to buy agreement with his grandmother. He said it was the same as the arrangement that his grandmother had with his sister. He said that the agreement was verbal.
- Section 24 of the Property Law Act 2007, says that such an agreement should be in writing to be enforceable, but the law relating to acts of part performance is not affected.
- An absence of a formal written agreement is not fatal where there is sufficient evidence of an agreement and the terms of that agreement. For example, in Meng and Guan v Zhang and Xu, 1 the parties had an oral agreement for sale and purchase, the defendants moving into the premises. They agreed on the purchase price, a deposit and that they would pay the mortgage, rates and insurance up until settlement. When they required an agreement for sale and purchase, in order to obtain finance, a caveat was lodged against the title, and that was sustained by the High Court.
- In TT5091928 an agreement for sale and purchase was found where there was no dispute between the parties that there had been a rent to buy agreement on the basis of an agreed purchase price, payment of a deposit of approximately 26%, the rent under the previous tenancy agreement to increase to cover the mortgage, insurance and rates. There were informal electronic messages and records between the parties confirming some of the terms of the agreement. The tenant had made weekly payments and paid the rates and insurance.
- These examples contrast with the present case, where there is simply no evidence of an agreement for sale and purchase. In fact, when the respondent replied to the notice of eviction, he referred to the requirement to give 90 days’ notice. That is consistent with section 51(1) which says that a landlord may terminate on 90 days’ notice. The respondent made no argument in reply that he was entitled to remain in the premises pursuant to an agreement for sale and purchase. It therefore appears that he believed that he was in occupation pursuant to a residential tenancy agreement.
- Neither party argued that the agreement was excluded under section 5(1)(n), which provides that the Act does not apply 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. 2 1 Meng and Guan v Zhang and Xu HC Auckland CIV-2020-406-816. 2 See also Rio v Haturini [2021] HC 3217; Voss v Voss [2022] DC 677 for interpretations of section 5(1)(n) where the owner rents to a family member.
- Because I did not hear evidence or argument on this point, I make no ruling on jurisdiction, noting: a. Where, any party contends that the Act does not apply in respect of any tenancy of any residential premises, the onus is on that party to establish the facts on which contended that the Act does not apply. 3 b. In order to make a possession order under section 65, there does not need to be a residential tenancy agreement under the Act.
- If the arrangement is considered an ordinary residential tenancy, then the landlord was entitled to give the tenant notice to quit. Under section 51, the landlord is obliged to give 90 days’ notice.
- The one-month notice did not comply with the Residential Tenancies Act. However, the tenant replied with: 90 days notice as of 25 November. Leather was not received in mail untill 25 November . So Tuesday 23 February will be my last day unless [Mr B] is planning on moving in full-time sorry nice try
- [The respondent] said that the reference to [Mr B] moving in was that [Mr B] would have had to have given 42 days’ notice. He does not accept that he gave notice to leave. If he had said that Tuesday 23 February “would be” his last day, then his argument would have some merit, but using the words “will be my last day.” I find that on 26 November, the respondent gave the applicant notice that he was ending the arrangement on 23 February 2026.
- Therefore, the applicant is entitled to possession under alternative grounds: a. there was no tenancy agreement. They had asked the respondent to move out and he had said that 23 February would be his last day. The applicant is entitled to possession under section 65; or b. there was a tenancy agreement and the tenant had given 90 days’ notice. The tenancy ended on 23 February. The applicant applied for possession the next day, which is within 90 days. 4
- There may be ongoing disputes between the parties. The applicant has referred to unpaid rent. The question of whether the agreement between the parties is covered by the Residential Tenancies Act 1986 has not been determined and so if the parties cannot reach agreement, this Tribunal may need to decide the question of jurisdiction. 3 See section 10 4 See section 64(2).
- The applicant has been successful and so there is an order for reimbursement of the filing fee and suppression of name and identifying details, which includes the name of the respondent.