What was the outcome of Tenancy Tribunal case 4985348?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4985348?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4985348?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4985348?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10832141-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4985348?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4985348?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4985348?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4985348?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10832141-Tenancy_Tribunal_Order.pdf.

11 Rata Place, Pukekohe, Pukekohe 2120 Tenancy Tribunal Case 4985348 — Boarding House

Order

The application is dismissed.

Reasons

The owner of the premises Clay Duncan-Buskermolen attended this remote hearing on 13 September 2024.
Telephone calls were made to the occupant of the premises, Frank Buskermolen on the number provided at the allocated hearing time. The calls went to voicemail. The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been given. I am satisfied that notice of the hearing was given and the matter proceeded in the absence of the occupant.
I record that following the conclusion of the hearing, I received a message that Mr Frank Buskermolen had arrived at the Pukekohe District Court . Mr Frank Buskermolen had apparently missed the telephone calls from the Tribunal and wished to be called back. I advised the Court that the hearing had been completed and that an order would be made on the basis of the evidence provided at that hearing.
Since completing the hearing, I have also been advised that Frank Buskermolen had filed further documents with Tenancy Services. The Notice of Hearing sent to the parties prior to the hearing states that any further documents must be filed no later than 72 hours prior to the hearing. The documents were filed outside that period. They were not seen by me at the time of the hearing, nor had they been sent to the owner. I have not considered those documents in coming to the decisions contained in this order.
I propose for ease of reference in this order to refer to the parties as the “owner” (Clay Duncan-Buskermolen) and the “occupant” (Frank Buskermolen).
The owner seeks an order for possession and eviction of the occupant as a squatter pursuant to s.65 Residential Tenancies Act 1986 (“RTA”). The term “squatter” is used in s.65 RTA as meaning a person in possession of premises without lawful authority.
The background is as follows;
The premises are at 11 Rata Street, Pukekohe (“the premises”).
In 2021, it appears that the owner of the premises was Dianne Buskermolen, in her capacity as administrator of the estate of Emily Buskermolen.
A document dated September 2023 was provided to the Tribunal. The document has been signed by the children of the deceased, including both the occupant and Diane Buskermolen. The document is drafted in such a manner that its intent is not clear, although it seems to be a document allowing the siblings to make an offer to purchase the share of the premises held by the other siblings.
The occupant says that he entered into a tenancy agreement with Dianne Buskermolen as estate administrator. A copy of the tenancy agreement dated 7 April 2021 was provided in evidence. The tenancy agreement is a periodic tenancy agreement and required the occupant to pay $490.00 per week as rent to an ANZ bank account.
In 2024, the owner entered into an agreement for sale and purchase to purchase the premises from the estate. A copy of the agreement was provided in evidence. The vendor in the agreement is noted as “Dianne Maria Buskermolen” although it would more appropriately have been recorded as “ Dianne Maria Buskermolen as administrator of the estate of Emily Buskermolen.”
The agreement was an unconditional sale agreement which records that settlement was to occur on 25 October 2024, or earlier by mutual agreement.
The owner said that the purchase of the premises settled on 31 July 2024, the parties having agreed to an earlier settlement date. No existing tenancies are recorded in the agreement and it was accordingly entered into on the basis of there being vacant possession.
Despite numerous requests to leave the premises following settlement of the purchase, the occupant remains in occupation at the date of the hearing.
A copy of the record of title to the premises dated 7 September 2024 was provided by the owner. That record shows that the settlement of the purchase of the premises took place on 31 July 2024.
Evidence provided to the Tribunal includes correspondence between the respective solicitors for the parties.
Correspondence from the occupant’s solicitor dated 23 August 2024, indicates that the occupant relies both on the tenancy agreement referred to above and “correspondence between my clients then solicitors and Inder Lynch who acted for the then owner, Dianne Buskermolen (my client’s sister and Clay’s mother) it was agreed that my client could occupy the Rata Street property on the basis that he paid all outgoings on the property ie. Mortgage payment, rates, insurance, R&M. The arrangement is a tenancy under the Residential Tenancies Act.”
By letter dated 26 August 2024, Inder Lynch on behalf of Dianne Buskermolen, advised the solicitors for the occupant that there was no tenancy agreement, informal or otherwise, and invited the occupant to provide a copy of the tenancy agreement relied upon.
A copy of the tenancy agreement was provided. The copy purports to be signed by Dianne Buskermolen.
By letter dated 30 August 2024, the solicitors for Dianne Buskermolen said that their client did not recall having ever seen or signing the agreement. The authenticity of the agreement has been brought into question by them. They say that on the date when the agreement was purported to be signed by Dianne Buskermolen, she was not in New Zealand and evidence of her being outside New Zealand on that date was provided.
Section 65 RTA provides as follows: 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 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.
In Sergeant v Nigro and Tapsell (2019) NZHC 328 the High Court held that there are three conditions which must be met before an order can be made under s.65 RTA. • The premises must be residential premises. • The applicant for possession is entitled to possession of those premises. • Another person or persons are in possession as squatters, trespassers or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
It seems clear that the premises are residential premises as defined in s.2 RTA. No evidence has been provided to suggest the contrary.
Is the owner entitled to possession of the premises?
The record of title for the premises provided to the Tribunal by the owner, shows the owner as the registered owner of the premises. There are no provisions in the RTA which would allow the Tribunal to conduct an enquiry as to the rights of the occupant to the premises as against the owner, due the sanctity of the doctrine of indefeasibility of title.
I find that the owner is entitled to possession of the premises as the registered owner.
Is the occupant in possession pursuant to any right of occupation granted by a person having lawful authority to do so?
The occupant is in possession and has occupied the premises for a number of years. At the time when the occupant moved into the premises, the person with the lawful authority to grant a right of occupation was Diane Buskermolen, as executor of the deceased’s estate.
Has Diane Buskermolen granted a right of occupation to the occupant?
The occupant firstly relies on the agreement allowing with Diane Buskermolen allowing him occupancy in return for paying the mortgage and outgoings on the premises.
“Tenancy” is defined in the RTA as being “....the right to occupy the premises ....in consideration for rent...”
“Rent” is defined in the RTA as being “...any money, goods, services, or tother valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by a tenant...”
I consider that the arrangement that the occupant would pay all mortgage payments and outgoings falls within the definition of a tenancy. The occupant has of more recent times paid rent directly to the owner.
The tenancy agreement relied on by the occupant dated April 2021, sets out the terms of a standard tenancy. If, as the owner submits, the tenancy agreement is not valid, then I am left with the terms of the original agreement with the occupant, which I have found amounts to a tenancy agreement. For the purposes of this decision, I am persuaded that it is more likely than not that there was a tenancy agreement between the occupant and Dianne Buskermolen.
In light of that finding , has a notice to terminate the tenancy, which complies with the RTA been served on the occupant by Diane Buskermolen, so as to render the continued occupation by the occupant other than pursuant to a right of occupation?
The requirements for a notice to terminate a tenancy are set out at s.51(3) RTA. The notice must; • Be in writing. • Identify the premises. • Specify the date on which the tenant must vacate. • Where the notice is from the landlord, set out the reasons for the termination. • Be signed by the party giving the notice or their agent.
No copy of a notice of termination which complies with these requirements and which has been served on the occupant, was provided in evidence. The burden of proof that a valid notice of termination has been served on the occupant is on the owner.
I find that the occupant remains in the property pursuant to a right of occupation granted by someone with authority to grant that right.
The application for possession is dismissed.
The owner applied for compensation for expenses incurred during the period where he has been unable to gain occupation of his house. The Tribunal has jurisdiction to consider disputes between landlords and tenants. The ability to consider “squatter applications” under s.65 RTA where the occupant may not be a tenant is an exception to that jurisdictional limitation. Having found that the occupant is a tenant, there is no jurisdiction for the Tribunal to consider compensation claims by the owner (who is not and has never been the landlord) and the tenant. The application for compensation is dismissed.
For the sake of completeness, I record that the occupant’s solicitor in his correspondence suggested that the Tribunal did not have jurisdiction to consider the claim by the owner and referred to s.5(1)(n) RTA. That section provides that the RTA will not apply 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.
In Voss v Voss [2022] NZDC 677 the District Court held that the section does not apply to a sole tenancy of a family member where there is no concurrent occupation by some other tenant. The court held ”The wording points to an intention by Parliament to exclude the Act in situations where a landlord, owner or their family continues to “use” the premises” principally as a place of residence” throughout and “during the tenancy” of an additional tenant or tenants. As such, the subsection is not intended to apply to a sole tenancy of a family member where there is no concurrent occupation.”
The Tribunal is bound by decisions of the District Court. For the reasons set out in Voss, the exception on s.5(1)(n) RTA would not apply in the circumstances of this matter.
The owner not having been wholly or substantially successful in this matter, I make no order for reimbursement of the filing fee.

Tenancy Tribunal case 4985348 — Boarding House at 11 Rata Place, Pukekohe, Pukekohe 2120

At a glance

Tenancy Tribunal case 4985348 — Boarding House at 11 Rata Place, Pukekohe, Pukekohe 2120

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions