What was the outcome of Tenancy Tribunal case 4889402?

The tribunal order states: Leanne Frances Murray is granted possession of the premises at 33 Vogel

How much money was awarded in case 4889402?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4889402?

The primary dispute was Rent arrears. Related themes: 14-day notice, Boarding House.

Where can I read the official tribunal order for case 4889402?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10471994-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4889402?

The tribunal order states: Leanne Frances Murray is granted possession of the premises at 33 Vogel

How much money was awarded in case 4889402?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4889402?

The primary dispute was Rent arrears. Related themes: 14-day notice, Boarding House.

Where can I read the official tribunal order for case 4889402?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10471994-Tenancy_Tribunal_Order.pdf.

33 Vogel Street, Hawera, Hawera 4610 Tenancy Tribunal Case 4889402 — Rent arrears

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Reasons

Ms Murray has applied to the Tribunal for termination of Mr Te Ngahue’s tenancy and payment of rent arrears under the Residential Tenancies Act 1986 (“RTA”) and/or possession on alternative grounds.

The hearing was held by teleconference. Ms Murray attended the hearing. The Tribunal was unable to contact Mr Te Ngahue on the contact number provided in the application. Several attempts were made but on all occasions the call went straight to voice mail. Mr Te Ngahue however could be heard in the background indicating that he was still waiting for a call from the Tribunal. Further attempts were made to contact Mr Te Ngahue on the contact number provided in the application but again without success. Mr Te Ngahue has not provided the Tribunal with an alternative contact number to use. In the circumstances, given the nature of the application I have elected to proceed with the hearing today in the absence of Mr Te Ngahue.

There are two potential ways in which the Tenancy Tribunal may grant a possession order. The Tribunal can grant an Order for possession following termination of a tenancy due to rent arrears being in excess of 21 days at the date of filing this application (sections 55 and 64 RTA). The Tribunal can also grant an Order for possession in the absence of a residential tenancy, if the Tribunal is satisfied that “any other person is in possession of the premises as a squatter or trespasser” (section 65 RTA)

Therefore, the first issue to determine is whether Mr Te Ngahue occupies the premises as a tenant pursuant to a residential tenancy agreement, or as a trespasser/squatter.

Does Mr Te Ngahue occupy the premises as a tenant?

Ms Murray gave evidence about the background and the circumstances of Mr Te Ngahue’s occupation of the premises in question.

Ms Murray is the owner of the premises at 33 Vogel Street, Hawera, Hawera 4610. Mr Te Ngahue has been living at her property for approximately 8-10 years. She says they had a verbal agreement about the amount of rent to be paid which included power, food, hot water and internet. However, she claims over the last 2 – 2 ½ years Mr Te Ngahue has breached his obligation to pay rent when it fell due. She sought advice from Tenancy Services and decided to get the rental agreement in writing, but Mr Te Ngahue had refused to sign it. She says since 10 April 2024 Mr Te Ngahue has not paid any rent. She is concerned as Mr Te Ngahue has given no explanation for not paying rent and shows no remorse. She has also expressed concerns that he has been “terrifying to live with” and she has approached the NZ Police. She requests urgent assistance from the Tribunal for Mr Te Ngahue to be evicted.

The Tenancy Tribunal only has jurisdiction to hear disputes between landlords and tenants provided the dispute is in relation to a tenancy that comes under the RTA. The starting point in answering the question of whether the tenancy comes under the RTA is section 4 which provides that the Act applies to all tenancies of residential premises unless specifically excluded. Tenancy is defined in section 2 as “the right to occupy the premises (whether exclusively or otherwise) in consideration for rent...” Residential premises are also defined in section 2 to mean “any premises used or intended for occupation by any person as a place of residence.”

However, section 5 RTA sets out tenancies which are excluded from the Act. The relevant section in this case is 5(1)(n) which excludes from the Act premises (other than boarding houses under Part 2A of the Act) which continue to be used principally as a place of residence by the landlord or owner of the premises or any member of the landlord’s or owner’s family.

In this case, the parties did not sign a tenancy agreement nor otherwise record in writing the details of the arrangement between them and any terms agreed, nor was any bond paid.

While a landlord has an obligation to ensure there is a written tenancy agreement, a verbal one can still be enforced (section 13C RTA). The difficulty in this case is that there is no independent supporting evidence of the existence of a tenancy agreement.

After carefully reviewing the available evidence, I am not satisfied that Ms Murray’s arrangement with Mr Te Ngahue to occupy the premises is one covered by the RTA. Section 5(1)(n) is clear that where the premises (other than a boarding house) continue to be used “principally as a place of residence by the landlord or owner...” the premises are excluded from the operation of the RTA. I am satisfied that the premises were not operating as a boarding hose as defined under the RTA. I am also satisfied that Ms Murray continues to occupy the premises principally as a place of residence. On that basis, while the arrangement can be described as a licence to occupy, it is not a residential tenancy covered by the RTA.

There is provision for the parties to contract back into the RTA under section 8 which says: “Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree.”

However, the parties here did not sign a tenancy agreement and it appears that Mr Te Ngahue specifically rejected the idea of signing a tenancy agreement.

For the above reasons, the arrangement here is not covered by the RTA and therefore I find Mr Te Ngahue does not occupy the premises as a tenant. It follows that I do not have jurisdiction to hear and determine Ms Murray’s claim for termination due to rent arrears under the RTA (section 55 RTA). This also means in the absence of a valid tenancy the landlord cannot pursue rent from Mr Te Ngahue under the Act. At the hearing, Ms Murray said that she was prepared to forgo the rent claim to obtain possession of the premises. I therefore treat that as her withdrawal of the claim for rent arrears.

Does Mr Te Ngahue occupy the premises as a squatter?

In the absence of a valid tenancy, the Tribunal can still make a possession order under section 65 RTA. Section 65 RTA deals with “Eviction of squatters”. It states: 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.

Section 65(2) confirms that the Tribunal has jurisdiction to make such an order even though the premises are not subject to a tenancy agreement.

Ms Murray’s attempts to formalise Mr Te Ngahue’s occupation appear to have gone unheeded. So, I find there is no right of occupation or legal authority for Mr Te Ngahue occupying the premises, he is effectively a squatter.

Accordingly, the Tribunal orders that Mr Te Ngahue, and has no right to occupy the premises and is to remove himself and that possession passes to Ms Murray immediately.

Reasons

Therefore, the first issue to determine is whether Mr Te Ngahue occupies the premises as a tenant pursuant to a residential tenancy agreement, or as a trespasser/squatter.

Does Mr Te Ngahue occupy the premises as a tenant?

Ms Murray gave evidence about the background and the circumstances of Mr Te Ngahue’s occupation of the premises in question.

In this case, the parties did not sign a tenancy agreement nor otherwise record in writing the details of the arrangement between them and any terms agreed, nor was any bond paid.

However, the parties here did not sign a tenancy agreement and it appears that Mr Te Ngahue specifically rejected the idea of signing a tenancy agreement.

Does Mr Te Ngahue occupy the premises as a squatter?

Section 65(2) confirms that the Tribunal has jurisdiction to make such an order even though the premises are not subject to a tenancy agreement.

Accordingly, the Tribunal orders that Mr Te Ngahue, and has no right to occupy the premises and is to remove himself and that possession passes to Ms Murray immediately.

Tenancy Tribunal case 4889402 — Rent arrears at 33 Vogel Street, Hawera, Hawera 4610

At a glance

Tenancy Tribunal case 4889402 — Rent arrears at 33 Vogel Street, Hawera, Hawera 4610

At a glance

Claims & awards

Order

Reasons

Does Mr Te Ngahue occupy the premises as a tenant?

Does Mr Te Ngahue occupy the premises as a squatter?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does Mr Te Ngahue occupy the premises as a tenant?

Does Mr Te Ngahue occupy the premises as a squatter?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions