Published tribunal order
Tenancy Tribunal case 4824684 — Rent arrears at 43 Glasgow Street, Whanganui 4500
Decided 26 Mar 2024 · Published 26 Mar 2024 · Application 4824684
Mixed / unclear
- Rent arrears
- Boarding House
Order
- Samuditha Woodhead as agent for the estate of Patrick Todd is granted possession of the premises at 43 Glasgow Street, Whanganui 4500 immediately.
- Ashlee Bourke and Jacob Jeffries must pay Samuditha Woodhead as agent for the estate of Patrick Todd the sum of $20.44 immediately.
Reasons
- Both parties attended the hearing.
- The landlord has applied for termination of the tenancy on the basis that he tenant is 21 days in arrears. A rent summary was produced.
- Ms Woodhead is the lawyer representing the estate of Patrick Todd. She produced evidence of probate, with a copy of the will attached, showing that Mr Todd died on or about 22 October 2023 and the executors and trustees of the estate are Peter and Stephen Todd.
- The Tribunal had granted their application for Ms Woodhead to be appointed as their representative in the Tenancy Tribunal. Neither of them lives locally.
- Ms Woodhead produced copies of letters dated 15 February 2024 addressed to each of the tenants in which they had been given a copy of the probate and asked to vacate the property by 1pm 29 February 2024. They remain in the property.
- There is no written tenancy agreement, although Ms Bourke produced a “Flat/house sharing agreement” dated 21 March 2022 in the name of Patrick Todd as Head Tenant, with Ashlee Bourke as Flatmate. Ms Bourke confirmed that Patrick Todd had not lived at the premises with her. Rather, she and her partner, Jacob Jeffries lived there. Therefore, it is incorrect to refer to the arrangement as a flat or house share.
- The late Patrick Todd was Ms Bourke’s grandfather. The parties were given an opportunity to comment on section 5 of the Residential Tenancies Act 1989 which sets out the situations that are excluded under the Act, specifically section 5(1)(n): where the premises, not being a boarding house, 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
- The parties had no submissions to make on this issue.
- I find that because Ms Bourke is a member of Mr Todd’s family, the Residential Tenancies Act does not apply. Therefore this Tribunal has no jurisdiction to order rent arrears.
- However, Ms Woodhead had also applied for a possession order and section 65 the Act does give the Tribunal jurisdiction to grant possession orders even though the premises are not subject to the Act in other respects: 65 Eviction of squatters (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. (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises. (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
- Under the will, the house at 43 Glasgow Street is given to the trustees (who are also the executors) with a life interest to another person not named in these proceedings. I am satisfied that the executors of the estate are entitled to possession of the premises at 43 Glasgow Street and accordingly make an order granting possession to Samuditha Woodhead as agent for the executors and the estate of Patrick Segrave Todd.
- The parties’ attention is drawn to section 60 of the Act, the effect of which is that the landlord has up to 90 days from today to enforce the possession order.
- Because Samuditha Woodhead has substantially succeeded with the claim I have reimbursed the filing fee.