Tribunal Grants Possession Order Following Tenancy Termination

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[2025] NZTT 5175153

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.

2. [[NAME]] is granted possession of the premises at [Tenancy address suppressed] at 5pm on Friday, 28 March 2025.

3. [NAME] must pay [[NAME]] $27.00 being the filing fee on this application.

Reasons:

1. Both parties attended the hearing.

2. [[NAME]] has applied for possession of the premises following termination of a tenancy.

3. [NAME] opposed the application on the basis that there is no tenancy, he has an interest in the property and this Tribunal does not have jurisdiction to determine the issues.

Background

4. [[NAME]] is the legal owner of the premises. She purchased the property in 2015 and has been the sole registered owner since then.

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5. [NAME] says that the property was bought as a joint venture investment between him and [[NAME]]. He referred me to an unsigned Declaration of Trust Deed which he claims records the parties’ arrangements. He also says that the parties have acted consistent with that unsigned Deed.

6. [NAME] also claims to have a beneficial interest in the property because of work (particularly landscaping) carried out at the property.

7. [[NAME]] disputes [NAME]’s characterisation of their relationship. She does not agree that the unsigned Declaration of Trust Deed records their agreement or the beneficial ownership of the premises. She does acknowledge that she and [NAME] agreed to share any profit made on the property. She says that is because [NAME] identified it as a sound investment and handled the negotiations. She also said that [NAME] owed her other money at the time, and the profit-sharing arrangement gave her comfort that she would be repaid.

8. [[NAME]] says that [NAME] has possession of the premises pursuant to a tenancy arrangement. She says that the initial arrangement was that [NAME] would pay $335.00 per week rent. [NAME]’s written submission to the Tribunal records that that amount was “market rent” at the time. [NAME] also claims that the amount was calculated (by [[NAME]] to reflect his contributions to the outgoings as set out in the unsigned Declaration of Trust. [[NAME]] disputes that.

9. [[NAME]] gave notice of rent increases in 2016 and 2024. In both instances, [[NAME]] provided 60 days written notice as required by the RTA. [NAME] acted on those notices of rent increase. [[NAME]] also sent other notices under the RTA when rent was late.

10. In 2019 or 2020 the parties entered into a written tenancy agreement. The agreement was backdated to 2015. Curiously it records the rental as $340 per week, even though [NAME] was paying $500 per week by the time the Tenancy Agreement was signed. [NAME] says that the Tenancy Agreement does not accurately record the parties’ relationship and the sole purpose for the written agreement was so that he could try to obtain an accommodation benefit from the Ministry of Social Development.

11. On 22 November 2024 [[NAME]] issued a Notice to Terminate the Tenancy. She provided 90 days’ notice and said that she intended to sell the property. See s51(2)(a) RTA. The date stated for termination was 22 February 2025.

12. [NAME] did not respond to the Notice or numerous follow up messages [[NAME]] until he sent a text message on 20 February 2025, stating: “We have no intention of moving out of a property I own 50% of.”

13. [[NAME]] then applied to the Tribunal for a possession Order.

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The Law

14. Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies.

15. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.

16. Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as:

residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful

tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy

tenancy agreement, in relation to any residential premises, 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; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement

17. Section 64 RTA provides that the Tribunal must grant a possession order to any person entitled to possession of the premises following the termination of a tenancy. Except that, a possession order cannot be made more than 90 days after the termination of the tenancy.

18. Section 65 RTA provides that where 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. The Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.

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19. It is well established that any claim for a resulting trust is for the High Court to consider before it would be relevant for a defence to a possession order in Tribunal. See Willigers v Churchill Fishing International Limited [2020] NZHC 2212 (Paragraph 14).

20. The [NAME] decision has been consistently applied by the Tribunal. See Owner v Occupier [2022] NZTT 4325433 which was an application for a possession order. The Respondent argued that there was a constructive trust claim they could make against the owner. A possession order was granted, because all the defence amounted to was a potential future claim.

21. Similarly, in Owner v Occupier [2022] NZTT 4317845 The Tribunal confirmed that it does not have jurisdiction to determine merits of matters that would fall within the jurisdiction of another judical body (High Court in this case), so the possession order was granted.

Discussion & Findings

22. [NAME] submitted that this was not an “arms length” tenancy. The RTA does not draw any such distinction. [NAME] did not argue that any of the specific exclusions in the RTA applied to this situation, rather his defence was solely that he is a 50% beneficial owner of the premises and as such the Tribunal has no jurisdiction to hear [[NAME]] application.

23. On its face, this is a tenancy arrangement. The legal owner, [[NAME]] granted [NAME] the right to occupy residential premises in return for rent. A tenancy agreement is not enforceable just because it was not recorded in writing.

24. The notice of termination dated 22 November 2025 complies with the requirements of s51(2) RTA. The tenancy ended on 22 February 2025, which is less than 90 days ago. The requirements of section 64(1) of the Residential Tenancies Act 1986 are satisfied. I grant a possession order accordingly.

25. If I am wrong, and there is no tenancy, I grant a possession order under s65 RTA because [NAME] has possession of the premises otherwise than pursuant to a right of occupation granted by [[NAME]] (the legal owner of the premises).

26. Throughout the hearing, I raised with [NAME] that if there was no tenancy, I would have to grant a possession order because [[NAME]] (as the legal owner of the premises) has revoked permission for him to have possession of the premises. I provided the parties with a copy of the [NAME] decision and granted an adjournment for [NAME] to consider his position.

27. [NAME] said that [NAME] is distinguishable because in that case the occupier had not made improvements to the property or made payments to the owner.

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Those points might be relevant to whether [NAME] has an interest in the premises but does not address the point that any claim for a resulting trust (or any beneficial interest in the premises) is for the High Court to consider before it would be relevant for a defence to a possession order in Tribunal.

28. [NAME] also claimed that he has an ongoing right to occupy the premises by virtue of the unsigned Declaration of Trust Deed. I accept that clause 4 of the Appendix to the document records that [NAME] will reside in the premises. I am not persuaded that that document gives [NAME] an irrevocable right to occupy the premises. [[NAME]] disputes the contents of that document. Further, it is apparent that the parties have not acted consistently with the clauses of that appendix – for example there was no evidence that [NAME] made payments of $362,500 to the mortgage.

29. I agree with [NAME], that this Tribunal cannot and should not attempt to resolve an underlying dispute regarding the beneficial ownership of the premises.

30. [NAME] has not made an application to the High Court for his (claimed) interested in the property to be recognised. I cannot look behind the legal ownership of the premises for the purposes of this application. See Owner v Occupier [2022] NZTT 4317845. [NAME] does not have consent or permission from the legal owner to occupy or have possession of the premises, so I must grant a possession order.

31. As [[NAME]] was the successful party, I also grant reimbursement of the Tribunal application fee.

[NAME] 25 March 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: