Tribunal Grants Premises Possession to Deceased Tenant's Administrator
📌 In brief
The Tenancy Tribunal granted possession of the premises to the administrator of the deceased tenant. The occupier claimed a right of occupation through a potential testamentary promise claim but failed to provide a filed claim, leading the Tribunal to grant possession to the administrator.
⚖️ Legal holding
A tenant is entitled to possession of premises under section 65 of the Residential Tenancies Act 1986 if they have a lawful right to possession.
📖 What the law says
This rule allows the Tenancy Tribunal to order someone to leave a property if they are living there without permission, like a squatter or trespasser. The Tribunal will grant possession to the person who has a legal right to the property.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tribunal granted possession of the premises to the administrator of the deceased tenant.
📜 Headnote Official document
The Tenancy Tribunal granted possession of the premises to the administrator of the deceased tenant, rejecting the occupier's claim based on testamentary promises. The occupier claimed a right of occupation through a potential testamentary promise claim but failed to provide a filed claim.
📚 Full judgment Official document
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[2025] NZTT 5185654
TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA
APPLICANT: [redacted]
Owner
RESPONDENT: [redacted]
Occupier
TENANCY ADDRESS: [ADDRESS], Kaeo, RD 2, Kaeo 0479
ORDER
1. [NAME] as administrator of [NAME] is granted possession of the premises at [ADDRESS], Kaeo, RD 2, Kaeo 0479 at 11.59pm on Sunday 18 May 2025.
2. [NAME] is to pay [NAME] as administrator of [NAME] $27.00 immediately being the filing fee paid by the applicant.
Reasons:
1. Both parties attended the hearing which I conducted by phone today. [NAME] attended as counsel for the applicant. [NAME] attended as well supported by [NAME] who provided a written statement shortly before the hearing.
2. The landlord has applied for possession of the premises under section 65 of the Residential Tenancies Act 1986 (RTA). That section requires the Tribunal to make a possession order granting possession of the premises to any person
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entitled to possession, in this case [NAME] as the administrator of [NAME].
3. I need not canvas the background in any detail as it is set out in the Tribunal’s decision dated 22 August 20231 and in the decision by His Honour Judge de Ridder dated 4 March 20242 on an appeal against the Tribunal’s refusal to grant a rehearing.
4. Nothing has changed factually since the decisions I have referred to. I simply need quote from the previous Tribunal decision:
16. Section 65 RTA provides that the Tribunal must grant a possession order in favour of a person entitled to possession, against a person in possession of the premises as a squatter, trespasser or otherwise under right of occupation granted to that person by any person having lawful authority to do so.
17.The premises must, for the Tribunal to have jurisdiction, be “residential premises”. I did not understand either party to suggest that the premises were anything other than residential premises and I find that they are residential premises.
18.Having made that finding, the remaining issue is whether jurisdiction occurs as a result of s.65 RTA which provides the Tribunal with the power to evict any person who does not have any lawful right to occupation.
19.[NAME] accepted that the right of occupation on which his client relies is that of a potential beneficiary under a testamentary promises claim.
20. The authors of Westlaw’s commentary on Residential Tenancies in reference to s.65 RTA, note that “In addition to evicting actual squatters, the section has been used to evict occupants where beneficiaries of an estate have taken possession without lawful authority ([NAME] v [NAME] DC Tauranga TT 418/03 , 21 October 2003).
21.I find for the reasons set out above that the Tribunal does have jurisdiction in this matter.
22.Having made that finding, I move onto the issue of the application for eviction pursuant to s.65 RTA.
23.These are residential premises.
24.The occupier is not in possession pursuant to any right of occupation granted by any person with lawful authority to grant that right. The occupier is at best a potential beneficiary. A claim pursuant to the Law Reform (Testamentary Promises) Act 1949 has not been filed by the occupier as of the date of this hearing.
5. The present application has been made because the timeframe for enforcing the Tribunal’s previous possession order passed due to the rehearing and
1 [2023] NZTT 4612032 2 [2024] NZDC 4123
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appeal proceedings and an attempt at a negotiated settlement. In that sense, this application is procedural, seeking a fresh possession order for enforcement purposes.
6. The occupier has no lawful right of possession of the premises. She said today that proceedings under the Law Reform (Testamentary Promises) Act 1949 are ‘in the process of being filed’ but that is not a barrier to the applicant seeking a possession order.
7. As Judge de Ridder observed when considering the appeal against the Tribunal’s decision not to grant a rehearing:
As there was no tenancy in this case, the Tribunal’s powers were confined solely to s 65 of the Act. As at the date of the Tribunal hearing there was no finding made by any Court of competent jurisdiction that [NAME] had a right to occupy the property either pursuant to a testamentary promise, or a constructive trust. …
The Tribunal decision of course does not affect [NAME]’ rights to pursue a claim based on a testamentary promise, or on a constructive trust, but she is not able to pursue such claims in the Tenancy Tribunal.
8. There is no basis on which the Tribunal could reach any other decision than that reached by the Tribunal in its decision on the applicant’s first application. Nothing has changed since. The occupier remains unlawfully in possession.
9. The wording of section 65 RTA requires the Tribunal to be satisfied that the applicant is entitled to possession. It is satisfied of that. The fact that there is or will be a claim challenging that entitlement does not change the factual position as confirmed by the High Court in Sergeant v Nigro3.
10. Possession is granted to the applicant at 11.59pm on Sunday 18 May 2025.
11. The occupier must pay the applicant’s filing fee on the successful application.
[NAME]
07 May 2025
3 [2019] NZHC 328
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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 premises were confirmed to be residential, which is necessary for the Tribunal to have jurisdiction.
- The occupier did not have a lawful right to possession granted by someone with authority.
- The occupier's claim as a potential beneficiary under a testamentary promises claim does not grant a right of occupation.
- The Tribunal was satisfied that the applicant was entitled to possession of the premises.
- The fact that a claim challenging entitlement is being filed does not change the current factual position regarding possession.
❌ Tends to be rejected
- The occupier's ongoing process of filing a claim under the Law Reform (Testamentary Promises) Act 1949 was not a barrier to the applicant seeking a possession order.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal granted possession of the premises to the administrator of the deceased tenant.
What was the dispute about?
The dispute was over the right of possession of the premises between the administrator of the deceased tenant and the occupier.
How did the court decide, and why?
The court decided in favour of the administrator of the deceased tenant because the occupier did not have a lawful right of possession and had not filed a claim under the Law Reform (Testamentary Promises) Act 1949.
Which laws or rules were applied?
Section 65 of the Residential Tenancies Act 1986 was applied.
What was the argument that mattered most?
The argument that mattered most was that the occupier did not have a lawful right of possession and had not filed a claim under the Law Reform (Testamentary Promises) Act 1949.
Was the decision for or against the person who brought the case?
The decision was for the person who brought the case, the administrator of the deceased tenant.
What does this mean for someone in a similar situation?
For someone in a similar situation, if they are the administrator of a deceased tenant and the occupier does not have a lawful right of possession, they may be entitled to a possession order.
What evidence or documents mattered?
The judgment does not specify the evidence or documents that mattered.