Family matter grants landlord possession of property

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[2025] NZTT 5147591

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. This is a difficult family matter and the Tribunal orders suppression of the parties’ names and identifying details.

2. [The landlord/s] are granted possession of the premises at [Tenancy address suppressed] immediately.

Reasons:

1. Both parties attended the hearing. The Estate was represented by [The landlord’s representative]. [[NAME]] appeared for himself.

2. This matter has a significant history, some of which it is helpful to record.

Background

3. [[NAME]] is [[NAME]] mother. [[NAME]] lived with her at the property and cared for her until her death on 16 February 2023.

4. Probate was granted on 11 October 2023 appointing the applicants as administrators of [[NAME]]’s estate. Title to the property was transmitted to the applicants.

5. After [[NAME]]’s death [[NAME]] remained in occupation of the property. In February 2024 the applicant agreed that [[NAME]] could

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remain in occupation of the premises pending its sale, on the basis that he and his sister pay $250.00 per week to cover outgoings on the property. That agreement is not documented.

6. [[NAME]] and his sister brought a challenge to [[NAME]]’s will under the Family Protection Act and Testamentary Promises Act. Those proceedings were determined at a judicial settlement conference, by an Order of the High Court dated 21 November 2024, which increased the share in [[NAME]]’s residuary estate that [[NAME]] and his sister would each receive.

7. While it is not recorded in the Order itself, the consent memorandum filed by counsel for the parties dated 20 November 2024, upon with the Consent Order was made, states, “It was also agreed that [[NAME]] will vacate [[NAME]]’s house by 6 January 2025.”

8. The applicants say that the agreed vacate date has been extended on a couple of occasions to allow [[NAME]] time to present an offer to purchase the property but no offer has been forthcoming. They now seek possession of the property.

Analysis

9. [[NAME]] says that the Tribunal should not be considering this application as there are ongoing issues that need to be addressed by the High Court.

10. The Tribunal has jurisdiction to hear this application. A number of decisions have been made as to the application of s.65 Residential Tenancies Act 1986 (“RTA”) in similar circumstances. The fact that there have been other proceedings (now determined) in the High Court or that there are other claims that [[NAME]] may wish to pursue there, does not remove the Tribunal’s responsibility to hear a claim within its jurisdiction.

11. The Tribunal’s jurisdiction is limited to deciding whether a possession order should be made under s.65 RTA.

12. Section 65 RTA provides:

“(1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other 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……..

(3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.”

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13. The applicants’ position is that a licence to occupy the property was granted to [[NAME]] as a practical measure, until it was sold. They say that the license to occupy was revocable, has been revoked and [[NAME]] now has no legal basis to be occupying the property.

14. [[NAME]] claims a number of grounds for having a right to occupy the property. Those grounds are that:

a. That was what [[NAME]] intended. The Tribunal has no jurisdiction over the terms of [[NAME]]’s will or the administration of her estate. No doubt [[NAME]]’s wishes/ promises were grounds advanced in the High Court proceedings that have now been determined.

b. He was paying rent and is therefore a tenant. Even if that were the case, there is clear evidence that any prior arrangement was ended by agreement on 6 January 2025, as recorded in the consent memorandum referred to above. There is no evidence that [[NAME]] continued occupation of the property after that date has been other than at the discretion of the applicants.

c. He should not be held to the agreement recorded in the consent memorandum. [[NAME]] says he was suffering from a medical condition that impaired his judgement and that counsel representing him at the settlement conference did not adequately protect his interests. Again, those are not issues for the Tribunal to determine as they relate to proceedings in the High Court and need to be raised there. The agreement was reached in the context of a judicial settlement conference, at which both parties were represented and must be given weight according to its terms. [[NAME]] also says that his agreement to vacate on 6 January 2025 was to allow him to see whether he could raise finance to buy the property, the expectation being that he would not be able to. He says he then discovered that he can raise the necessary finance but there are issues that need to be considered again by the High Court before a fair purchase arrangement can be agreed. He says that because his agreement to move out on 6 January was to allow him opportunity to buy the property, he should be allowed to remain in occupation until that processes is worked through. That may be how [[NAME]] viewed matters when agreeing to the settlement, but no such conditions are recorded in the agreement or the Court Order.

d. He has rights of occupation due to his having an equitable interest in the property. [[NAME]] says that by virtue of his having paid outgoings on the property, including the mortgage, while occupying it, he has an interest in the property, through unjust enrichment and estoppel, giving him a right of occupation. I make no assessment of whether application of those doctrines might give [[NAME]] a claim against the estate. However,

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even it does, that would not amount to his having a, “…. right of occupation granted to [him] by any person having lawful authority to grant that right to [him]…”, in terms of s.65 RTA.

e. He has a cultural right of occupation. Essentially, I understand [[NAME]] to be saying that as he lived in the property with his mother and cared for her, it is fair and right that he be able to remain living there. I do not doubt the sense of injustice [[NAME]] feels at his situation. I suspect that other beneficiaries of the estate feel differently aggrieved. Simply, the Tribunal is required to apply the applicable law not any subjective viewpoint.

15. As registered proprietors, the applicants have unquestioned title to the property (see s.51 Land Transfer Act 2017). As such, they are entitled to an Order for possession of the property, unless [[NAME]] can show that he has been granted a right of occupation by [[NAME]] as prior owner, in circumstances binding on her executors, or by the applicants, as current owners.

16. For the reasons given I do not find that [[NAME]] has such a right of occupation and the Tribunal must therefore make an Order granting possession of the property to the applicants.

17. In the circumstances the applicants are entitled to immediate possession. The applicants acknowledge that it will be in the interests of all affected parties if [[NAME]] can acquire the property at a price that meets the entitlements of all beneficiaries of the estate. I record the assurance that they will allow a very brief period for [[NAME]] to put an offer forward before seeking enforcement of this Order.

[NAME] 12 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: