What was the outcome of Tenancy Tribunal case 4888982?

The tribunal order states: Jackson Smith is granted possession of the premises at 39 Elizabeth Avenue,

How much money was awarded in case 4888982?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4888982?

The dispute type was not classified.

Where can I read the official tribunal order for case 4888982?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10441328-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4888982?

The tribunal order states: Jackson Smith is granted possession of the premises at 39 Elizabeth Avenue,

How much money was awarded in case 4888982?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4888982?

The dispute type was not classified.

Where can I read the official tribunal order for case 4888982?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10441328-Tenancy_Tribunal_Order.pdf.

39 Elizabeth Avenue, Rakaia, Rakaia 7710 Tenancy Tribunal Case 4888982 — Tenancy dispute

Order

Jackson Smith is granted possession of the premises at 39 Elizabeth Avenue, Rakaia, Rakaia 7710 at 7am Saturday 22 June 2024.

Reasons

Both parties attended the hearing, conducted via teleconference.
The owner has applied for possession of the premises.
Section 65 Residential Tenancies Act 1986 deal with possession orders where no tenancy agreement exists. It reads (emphasis mine): 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. Background
The owner purchased the property with some financial assistance from his mother. They both lived there initially, as well as the current occupant, until the owner left some four months after moving in. After that date, the remaining two occupants resided there until sadly the owner’s mother passed away, earlier this year. Mr Barton has remained in occupancy despite being requested to leave and the owner lodge this application for a possession order on 15 May 2024.

Should a possession order be made?

Both parties accepted at the hearing there was no tenancy agreement in place.
A caveat against the title was filed by Mr Barton previously. That has since lapsed. It appears his motivation in remaining at the property to preserve what he perceives to be a partial ownership right to the property for the Mr Smith’s sister. Mr Barton indicated her intention to lodge a caveat of her own. That mechanism may preserve the ownership status position pending any resolution regarding ownership, but continued occupation has no legal bearing. Possession and ownership are separate issues.
I do not claim jurisdiction to determine the ownership dispute. My position as advised to the parties was that any such a right or claim of others regarding ownership is not material in my making a determination regarding possession under s 65 RTA. A determination regarding possession should not be delayed while any such property claims be filed and determined in the appropriate jurisdiction.
In adopting this position, I refer to Chou v Chou [2016] NZDC 15768. This appeal related to a decision of the Tribunal to refuse possession pending a relationship property claim. The Tribunal decision was overturned on appeal, finding that where a person was in possession of premises as a squatter or trespasser, it is mandatory for the Tenancy Tribunal to order possession on application by a person entitled to possession of the premises. The Tribunal therefore could not refuse possession pending a claim on the estate.
I believe I heard sufficient from both parties, with supporting written submissions or evidence, to establish that: a. Jackson Dean Smith, at this time, has a right to the property. The Record of Title confirms him as the owner. b. No caveat is in place but, regardless, any caveat on the title would not establish a right to possession of the property. c. The continued possession of the premise by Kevin Barton is without any current right to occupy granted by Jackson Dean Smith. Any previous right, if granted or implied, has been clearly revoked. d. The current owner has lost at least some beneficial use of the property due to the continued occupation and has expressed concerns regarding access to the property and his own possessions there. e. That this is a residential premise has not been disputed by either party.
The requirements of section 65(1) of the Residential Tenancies Act 1986 are satisfied and a possession order must follow.
The possession date has been extended from that sought by the owner to allow Mr Barton time to remove his possessions. He indicated at the hearing an understanding of the requirement for him to have left the property and remove all of his possession by Friday, 21 June 2024.

Order

Jackson Smith is granted possession of the premises at 39 Elizabeth Avenue, Rakaia, Rakaia 7710 at 7am Saturday 22 June 2024.

Reasons

Both parties attended the hearing, conducted via teleconference.
The owner has applied for possession of the premises.
Section 65 Residential Tenancies Act 1986 deal with possession orders where no tenancy agreement exists. It reads (emphasis mine): 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. Background
The owner purchased the property with some financial assistance from his mother. They both lived there initially, as well as the current occupant, until the owner left some four months after moving in. After that date, the remaining two occupants resided there until sadly the owner’s mother passed away, earlier this year. Mr Barton has remained in occupancy despite being requested to leave and the owner lodge this application for a possession order on 15 May 2024.

Should a possession order be made?

Both parties accepted at the hearing there was no tenancy agreement in place.
A caveat against the title was filed by Mr Barton previously. That has since lapsed. It appears his motivation in remaining at the property to preserve what he perceives to be a partial ownership right to the property for the Mr Smith’s sister. Mr Barton indicated her intention to lodge a caveat of her own. That mechanism may preserve the ownership status position pending any resolution regarding ownership, but continued occupation has no legal bearing. Possession and ownership are separate issues.
I do not claim jurisdiction to determine the ownership dispute. My position as advised to the parties was that any such a right or claim of others regarding ownership is not material in my making a determination regarding possession under s 65 RTA. A determination regarding possession should not be delayed while any such property claims be filed and determined in the appropriate jurisdiction.
In adopting this position, I refer to Chou v Chou [2016] NZDC 15768. This appeal related to a decision of the Tribunal to refuse possession pending a relationship property claim. The Tribunal decision was overturned on appeal, finding that where a person was in possession of premises as a squatter or trespasser, it is mandatory for the Tenancy Tribunal to order possession on application by a person entitled to possession of the premises. The Tribunal therefore could not refuse possession pending a claim on the estate.
I believe I heard sufficient from both parties, with supporting written submissions or evidence, to establish that: a. Jackson Dean Smith, at this time, has a right to the property. The Record of Title confirms him as the owner. b. No caveat is in place but, regardless, any caveat on the title would not establish a right to possession of the property. c. The continued possession of the premise by Kevin Barton is without any current right to occupy granted by Jackson Dean Smith. Any previous right, if granted or implied, has been clearly revoked. d. The current owner has lost at least some beneficial use of the property due to the continued occupation and has expressed concerns regarding access to the property and his own possessions there. e. That this is a residential premise has not been disputed by either party.
The requirements of section 65(1) of the Residential Tenancies Act 1986 are satisfied and a possession order must follow.
The possession date has been extended from that sought by the owner to allow Mr Barton time to remove his possessions. He indicated at the hearing an understanding of the requirement for him to have left the property and remove all of his possession by Friday, 21 June 2024.

Tenancy Tribunal case 4888982 — Tenancy dispute at 39 Elizabeth Avenue, Rakaia, Rakaia 7710

At a glance

Claims & awards

Tenancy Tribunal case 4888982 — Tenancy dispute at 39 Elizabeth Avenue, Rakaia, Rakaia 7710

At a glance

Claims & awards

Order

Reasons

Should a possession order be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Should a possession order be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions