What was the outcome of Tenancy Tribunal case 5015469?

The tribunal order states: Under section 78 of the Residential Tenancies Act 1986, the Tribunal declares

How much money was awarded in case 5015469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5015469?

The dispute type was not classified.

Where can I read the official tribunal order for case 5015469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11042230-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5015469?

The tribunal order states: Under section 78 of the Residential Tenancies Act 1986, the Tribunal declares

How much money was awarded in case 5015469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5015469?

The dispute type was not classified.

Where can I read the official tribunal order for case 5015469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11042230-Tribunal_Order.pdf.

74 Fox Street, Featherston, Featherston 5710 Tenancy Tribunal Case 5015469 — Tenancy dispute

Order

Under section 78 of the Residential Tenancies Act 1986, the Tribunal declares that the premises at 74 Fox Street, Featherston were not the subject of a residential tenancy agreement between the parties and this Tribunal has no jurisdiction over any rights and obligations arising from the lease between the parties over those premises.

Reasons

Both parties attended the hearing on 17 October 2024 which was to determine whether the tenancy agreement between the parties was a residential tenancy.
The applicant had a commercial lease over the building since 2020. She operated a vintage goods business from the front of the premises and was living at the back of the premises, where there is a lounge, bathroom and kitchen.
In July 2024 the respondent bought the premises. He says that he did not know that the applicant was living at the premises. He was told that she was not.
He took possession on or about 17 July 2024 and in an email to the applicant, he confirmed the weekly rent of $225 + GST, that she had paid up to 19 July, and that it was a month-to-month tenancy. He provided the new bank account details.
The applicant continued to pay rent to the respondent.
The respondent said that a couple of days after he purchased the premises, he saw that the applicant’s car always seemed to be there. He asked her if she was living there, and she said that she was.
The applicant says that she told him this before he took over the premises. The respondent denies this.
In September 2024 the landlord wanted to move the applicant to a different property, but she did not want to because there was nowhere for her to live at the new premises.
The respondent gave the applicant 30 days’ notice on the basis that this was a month-to-month tenancy and so that was the notice period required.
The applicant agreed to vacate the shop but asked for 90 days to find a further home. The respondent did not agree to this.
The applicant filed an application with the Tenancy Tribunal. In the meantime, on 6 October she vacated the premises because the respondent told her that he would change the locks if she did not leave.
The respondent said that he was told in writing that the applicant was not living at the premises, but during the hearing he was unable to locate the email.
The applicant said that the respondent’s business partner knew beforehand that she was living there, and she can provide affidavit evidence of that.
The parties were given a further opportunity to file evidence to support their respective positions. Decision
The onus is on the applicant to provide the evidence to prove that she had a residential tenancy agreement, verbal or written, with the respondent. The standard of proof is on the balance of probabilities.
Although there was no written residential tenancy agreement between the parties, that does not preclude there being such a tenancy. The applicant says that she was renting the premises for both commercial and residential purposes. The applicant believed she had a dual lease. The respondent said he had no knowledge of that and was only leasing the premises under a commercial lease.
The respondent filed copies of some emails between the real estate agent and himself since the hearing on 17 October. The estate agent said he had searched his emails and could not find any reference that Mathew (the previous owner) had told him that the applicant was living at the premises. He also did not believe that Mathew knew she was living there. He added that he was happy to swear this in court.
The estate agent also said that he remembered the respondent asking if the applicant was living at the premises and he had told the respondent that to the best of his knowledge, she was not, but that he had not actually been inside because she would not allow access.
The respondent also provided a signed letter dated 25 October 2024 addressed to the Tribunal from the law firm who had acted for the respondent in the purchase of the premises. It was noted that if the sale of a property includes a residential tenancy component, it is usual practice: a. That the provisions of the residential tenancy would have been reflected in the agreement for sale and purchase; b. The settlement statement from the vendor’s solicitor would have included an apportionment of rent for the residential tenancy component; c. Change of landlord and bond transfer forms would have been provided.
The solicitors said that none of this occurred.
The GST addendum provided by the vendor’s solicitor before settlement included the following: This property has been and continues to be leased as per lease provided by Mathew Maich to Andy Scott, Real Estate Salesperson PGG Wrightson. Tenant: Di Dickson, Monsieur Fox, 2 nd Hand Shop. The shop is fully tenanted and sold as a going concern.
The applicant did not provide an affidavit. Instead, she provided a further statement about the history of her lease of the premises before the respondent became the owner. She said that everyone knew, including the real estate agents and the respondent that she was living there.
Section 5 of the Residential Tenancies Act 1986 contains the following definitions: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
The applicant used the premises as a place of residence. However, she has not established that she had right to occupy the premises for that purpose or that there was an express or implied tenancy agreement between the applicant and respondent.
It is possible there was such an agreement between her and the previous owner, but that is not for the Tribunal to determine. If there was an oral residential tenancy agreement between the previous owner and the applicant, the email evidence of the real estate agent and the letter from the respondent’s solicitor confirms that any such agreement was not passed on to the respondent when he purchased the premises. He was not party to any residential tenancy agreement with the applicant.
The only evidence that might suggest there was residential tenancy agreement between the parties is the applicant’s evidence that she told the respondent she was living there before he took over the premises. The respondent denies this. In any event there is no evidence that he agreed to her living there.
The tenant has not provided sufficient evidence to show that there was a residential tenancy agreement between herself and the respondent or that she had any right to occupy the premises beyond the commercial lease.
The application is dismissed.

Order

Under section 78 of the Residential Tenancies Act 1986, the Tribunal declares that the premises at 74 Fox Street, Featherston were not the subject of a residential tenancy agreement between the parties and this Tribunal has no jurisdiction over any rights and obligations arising from the lease between the parties over those premises.

Reasons

Both parties attended the hearing on 17 October 2024 which was to determine whether the tenancy agreement between the parties was a residential tenancy.
The applicant had a commercial lease over the building since 2020. She operated a vintage goods business from the front of the premises and was living at the back of the premises, where there is a lounge, bathroom and kitchen.
In July 2024 the respondent bought the premises. He says that he did not know that the applicant was living at the premises. He was told that she was not.
He took possession on or about 17 July 2024 and in an email to the applicant, he confirmed the weekly rent of $225 + GST, that she had paid up to 19 July, and that it was a month-to-month tenancy. He provided the new bank account details.
The applicant continued to pay rent to the respondent.
The respondent said that a couple of days after he purchased the premises, he saw that the applicant’s car always seemed to be there. He asked her if she was living there, and she said that she was.
The applicant says that she told him this before he took over the premises. The respondent denies this.
In September 2024 the landlord wanted to move the applicant to a different property, but she did not want to because there was nowhere for her to live at the new premises.
The respondent gave the applicant 30 days’ notice on the basis that this was a month-to-month tenancy and so that was the notice period required.
The applicant agreed to vacate the shop but asked for 90 days to find a further home. The respondent did not agree to this.
The applicant filed an application with the Tenancy Tribunal. In the meantime, on 6 October she vacated the premises because the respondent told her that he would change the locks if she did not leave.
The respondent said that he was told in writing that the applicant was not living at the premises, but during the hearing he was unable to locate the email.
The applicant said that the respondent’s business partner knew beforehand that she was living there, and she can provide affidavit evidence of that.
The parties were given a further opportunity to file evidence to support their respective positions. Decision
The onus is on the applicant to provide the evidence to prove that she had a residential tenancy agreement, verbal or written, with the respondent. The standard of proof is on the balance of probabilities.
Although there was no written residential tenancy agreement between the parties, that does not preclude there being such a tenancy. The applicant says that she was renting the premises for both commercial and residential purposes. The applicant believed she had a dual lease. The respondent said he had no knowledge of that and was only leasing the premises under a commercial lease.
The respondent filed copies of some emails between the real estate agent and himself since the hearing on 17 October. The estate agent said he had searched his emails and could not find any reference that Mathew (the previous owner) had told him that the applicant was living at the premises. He also did not believe that Mathew knew she was living there. He added that he was happy to swear this in court.
The estate agent also said that he remembered the respondent asking if the applicant was living at the premises and he had told the respondent that to the best of his knowledge, she was not, but that he had not actually been inside because she would not allow access.
The respondent also provided a signed letter dated 25 October 2024 addressed to the Tribunal from the law firm who had acted for the respondent in the purchase of the premises. It was noted that if the sale of a property includes a residential tenancy component, it is usual practice: a. That the provisions of the residential tenancy would have been reflected in the agreement for sale and purchase; b. The settlement statement from the vendor’s solicitor would have included an apportionment of rent for the residential tenancy component; c. Change of landlord and bond transfer forms would have been provided.
The solicitors said that none of this occurred.
The GST addendum provided by the vendor’s solicitor before settlement included the following: This property has been and continues to be leased as per lease provided by Mathew Maich to Andy Scott, Real Estate Salesperson PGG Wrightson. Tenant: Di Dickson, Monsieur Fox, 2 nd Hand Shop. The shop is fully tenanted and sold as a going concern.
The applicant did not provide an affidavit. Instead, she provided a further statement about the history of her lease of the premises before the respondent became the owner. She said that everyone knew, including the real estate agents and the respondent that she was living there.
Section 5 of the Residential Tenancies Act 1986 contains the following definitions: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
The applicant used the premises as a place of residence. However, she has not established that she had right to occupy the premises for that purpose or that there was an express or implied tenancy agreement between the applicant and respondent.
It is possible there was such an agreement between her and the previous owner, but that is not for the Tribunal to determine. If there was an oral residential tenancy agreement between the previous owner and the applicant, the email evidence of the real estate agent and the letter from the respondent’s solicitor confirms that any such agreement was not passed on to the respondent when he purchased the premises. He was not party to any residential tenancy agreement with the applicant.
The only evidence that might suggest there was residential tenancy agreement between the parties is the applicant’s evidence that she told the respondent she was living there before he took over the premises. The respondent denies this. In any event there is no evidence that he agreed to her living there.
The tenant has not provided sufficient evidence to show that there was a residential tenancy agreement between herself and the respondent or that she had any right to occupy the premises beyond the commercial lease.
The application is dismissed.

Tenancy Tribunal case 5015469 — Tenancy dispute at 74 Fox Street, Featherston, Featherston 5710

At a glance

Claims & awards

Tenancy Tribunal case 5015469 — Tenancy dispute at 74 Fox Street, Featherston, Featherston 5710

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions