Claimant Wins Possession Order Against Respondent
📌 In brief
The Tenancy Tribunal granted the claimant possession of their property, finding that the respondent was occupying the property as a squatter without a valid right of occupation.
⚖️ Legal holding
A tenant is entitled to possession of a property if they prove that the occupier is a squatter without a valid right of occupation.
📖 What the law says
This section allows the Tenancy Tribunal to order someone to leave a property if they are living there without permission, like a squatter or trespasser. If the Tribunal is convinced that someone is occupying a home without a legal right granted by the owner, it must issue an order for the owner to get the property back.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tenancy Tribunal granted possession of the property to the claimant, ruling that the respondent occupied the property as a squatter.
📜 Headnote Official document
The Tenancy Tribunal granted a possession order to the claimant for their property, ruling that the respondent was occupying the property as a squatter without a valid right of occupation.
📚 Full judgment Official document
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[2025] NZTT 5117148
TENANCY TRIBUNAL - Whanganui
APPLICANT: [redacted]
Applicant
RESPONDENT: [redacted]
Respondent
TENANCY ADDRESS: [ADDRESS], [ADDRESS], [POSTCODE]
ORDER
1. No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
2. The applicant is granted possession of the property at [ADDRESS], Saint John’s Hill, Whanganui 4501 today Monday 17 February 2025 at 5.00 pm.
Reasons:
1. Both parties attended the hearing by telephone.
2. The applicant has applied under section 65 Residential Tenancies Act 1986 (“RTA”) for a possession order for the property owned by it at [ADDRESS], Saint John’s Hill, Whanganui 4501 (“the property”).
3. While this decision has not referred to all the evidence presented, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to the applicant’s claim has been omitted.
4. By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the
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Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
5. The applicant provided the following evidence in support of its application:
a. The parties entered into an agreement for sale and purchase of the property dated 10 June 2019 (“the contract”) which provided for the respondent as purchaser to:
i. Pay a deposit of $18,000.00
ii. Pay $2,325.20 per month from 28 June 2019.
iii. Pay the balance on a settlement date to be determined under the terms of the contract.
iv. Clause 34.0 provides that if “the purchaser fails to perform any covenant or condition contained in the contract”, the [NAME] will give the purchaser 14 days’ notice to remedy. If the default is not remedied, “the agreement will be cancelled”.
b. As the purchaser had not completed settlement within the timeframe contained in the contract, the applicant offered the respondent two options by email of 23 June 2022:
i. A new contract for a period of two years; or
ii. A tenancy.
c. By email on 12 July 2022 the respondent accepted the first option and so rejected a tenancy of the property.
d. A Deed of Variation of the contract (“the Deed”) was prepared by the [NAME]. The applicant claimed that it had been signed by both parties but only an unsigned copy was supplied in evidence. An email from the [NAME] dated 21 October 2024 advised the applicant that the respondent had not signed the Deed of Variation.
e. The [NAME] issued a Settlement Notice to the purchaser on 3 December 2024 giving the purchaser 12 working days to settle the purchase.
f. The purchaser has not settled the purchase and has not made any monthly payments since 28 June 2024.
g. The applicant confirmed that it had not agreed to a residential tenancy with the respondent and that he had not given the respondent any right to occupy the property other than as contained in the contract.
h. In summary, the applicant’s position is that because the respondent has failed to settle the purchase and the contract is at an end, the respondent occupies the property as a squatter and the applicant needs to obtain a
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possession order to cancel the contract pursuant to section 28(4)(a) of the Property Law Act 2007.
6. The respondent gave evidence at the hearing as follows:
a. He was unable to obtain finance to purchase the property and could not proceed to settlement.
b. Upon the expiry of the contract in 2022, the applicant granted the respondent a residential tenancy of the property and that all payments made since have been for rent.
c. He has not made any payments since June 2024 as he believes the deposit he paid of $18,000.00 can be applied to rent due.
d. He believes that there is an email exchange between the parties confirming this but has not produced a copy.
e. He confirmed that he has not signed the Deed.
f. In summary, the respondent’s position is that he occupies the property as a tenant.
7. Section 65 RTA was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. [ADDRESS] held that there are three conditions which must be met before an order can be made:
a. The premises must be residential premises.
b. The applicant is entitled to possession.
c. Another person or persons are in possession as squatters, trespassers or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
8. If these three elements are established then the Tribunal must make a possession order.
9. The premises are clearly residential. It remains to consider whether the applicant is entitled to possession and whether the respondent has been granted a right of occupation.
10. The respondent is in default under the contract and has been served a Settlement Notice that has not been complied with by the purchaser. Pursuant to clause 11 of the contract, the applicant is entitled to cancel the contract once it has taken possession of the property. There is nothing in the evidence before the Tribunal that suggests that the applicant as [NAME] under the contract does not have a right to cancel the contract once it has possession.
11. The fact that the Deed has not been signed does not alter the nature of the parties’ contractual relationship: it remains that of [NAME] and purchaser under the contract. There is no evidence before the Tribunal that the relationship
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changed to that of landlord and tenant. Indeed, the landlord’s email evidence is that the respondent rejected an offer of that relationship.
12. The respondent has failed to provide any documentary evidence in support of his claim that the applicant agreed to a residential tenancy. On the contrary, the applicant has provided clear documentary evidence that the respondent rejected the offer of a tenancy and accepted an extension of the contract.
13. On the evidence before the Tribunal, the applicant has proven on the balance of probabilities that the applicant as the owner is entitled to possession and the respondent does not have a right of occupation granted by the owner/applicant. The applicant is entitled to a possession order so that the contract can be cancelled.
[NAME]
17 February 2025
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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.
Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.
You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf
Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals
Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.
Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.
Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.
If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].
Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.
https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/
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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].
Reasons:
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The property owner is entitled to cancel the contract once it takes possession of the property.
- The property owner provided clear evidence that the occupier rejected an offer of a tenancy.
- The occupier failed to provide any evidence to support their claim of a residential tenancy.
- The occupier is in default under the contract and did not comply with the Settlement Notice.
- The occupier has not made any monthly payments since June 2024.
❌ Tends to be rejected
- The occupier's belief that their deposit could be applied to rent due was not accepted.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal granted the claimant possession of the property, ruling that the respondent was occupying the property as a squatter without a valid right of occupation.
What was the dispute about?
The dispute was about whether the respondent was occupying the property as a tenant or as a squatter without a valid right of occupation.
How did the court decide, and why?
The court decided in favour of the claimant, ruling that the respondent was occupying the property as a squatter without a valid right of occupation, based on the evidence presented.
Which laws or rules were applied?
The Residential Tenancies Act 1986, specifically section 65, was applied.
What was the argument that mattered most?
The argument that mattered most was that the respondent had failed to complete the purchase of the property and had not made any monthly payments since June 2024.
Was the decision for or against the person who brought the case?
The decision was for the claimant who brought the case.
What does this mean for someone in a similar situation?
For someone in a similar situation, if they can prove that the occupier is a squatter without a valid right of occupation, they may be able to obtain a possession order.
What evidence or documents mattered?
The evidence that mattered included the original contract, emails exchanged between the parties, and the failure to complete the purchase and make monthly payments.