What was the outcome of Tenancy Tribunal case 5196153?

The tribunal order states: Montrose Foundry Limited is granted possession of the premises at 7D

How much money was awarded in case 5196153?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5196153?

The dispute type was not classified.

Where can I read the official tribunal order for case 5196153?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11724293-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5196153?

The tribunal order states: Montrose Foundry Limited is granted possession of the premises at 7D

How much money was awarded in case 5196153?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5196153?

The dispute type was not classified.

Where can I read the official tribunal order for case 5196153?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11724293-Tenancy_Tribunal_Order.pdf.

7D Southdown Lane, Penrose, Auckland 1061 Tenancy Tribunal Case 5196153 — Tenancy dispute

Order

Montrose Foundry Limited is granted possession of the premises at 7D Southdown Lane, Penrose, Auckland 1061 at 5pm on Sunday 27 April 2025.

Reasons

Both parties attended the telephone hearing with John Abbott, the director of the applicant company and his son Mike Abbott representing the applicant company.
The applicant has applied for possession of the premises pursuant to section 65 Residential Tenancies Act 1986 (RTA).
Section 65 RTA provides: (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......... (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
The applicant has applied for a possession order under s65(1) on the basis that: a. The premises are residential premises; b. The applicant is entitled to possession of the premises as lessee pursuant to an Agreement As To Lease End Works. The agreement records that the lease of the property at 7 Southdown Road (which includes the premises at 7D Southdown Road and other units known as 7A, B and C Southdown Road) has been renewed for a further 21-year term from 30 November 2021; c. The respondent, Ms Garland, is in possession of the premises other than pursuant to any right of occupation granted by the applicant. Background facts
The applicant explained the history of Ms Garland residing at first 7A and then 7D Southdown Road. She was associated with a former commercial sub-tenant of Unit 7A and unbeknown to the applicant their sub-tenant at the time had allowed Ms Garland to reside at Unit 7A. When the commercial sub-tenant was evicted in or about July 2020, Ms Garland remained in occupation of Unit 7A.
For humanitarian reasons, John Abbott gave Ms Garland verbal permission to stay at Unit 7A temporarily to give her time to find alternative accommodation. No rent was requested or paid. This was intended to be a short-term arrangement. However, the arrangement continued for another 2 years.
In August 2022, John Abbott wrote to Ms Garland requesting that she vacate the premises as the applicant wished to sublet the premises to another company. Before the lease could start, the applicant needed to tidy up and renovate Unit 7A. Ms Garland refused to leave, and a trespass notice was issued. However, she still refused to leave.
In January 2023, John Abbott offered Ms Garland Unit 7D to store her possessions only on a temporary basis. He advised her that she was not to reside at Unit 7D. Ms Garland agreed to leave 7A on that basis. However, in breach of the agreement, she began living at Unit 7D.
In August 2023, after being repeatedly asked to leave Unit 7D and remove her dogs and possessions, a new trespass notice was served. Ms Garland left but did not remove her possessions.
In March 2024, Ms Garland contacted John Abbott seeking permission to retrieve her belongings from Unit 7D. He agreed that she could do so, but expressly told her that she was not to bring her dogs onto the property and she was not to remain on the property other than for the purpose of removing her belongings. Ms Garland agreed to those conditions and access was allowed. However, she breached the agreement and again took up residence in Unit 7D with her dogs.
The applicant made further repeated requests for Ms Garland to leave and issued another trespass notice dated 6 December 2024, served on Mrs Garland personally by Mike Abbott on 9 December 2024. Ms Garland has not vacated the premises resulting in the present application to the Tribunal.
The parties accept that there is no residential tenancy agreement in place between the parties; Ms Garland does not and has never paid rent in exchange for a right to occupy the premises; and she acknowledged during the hearing that Mr Abbott had told her that she could stay/use the premises temporarily. Discussion and findings
Notwithstanding the absence of a residential tenancy agreement between the parties, s65(3) makes clear that the Tenancy Tribunal has jurisdiction to grant a possession order in favour of the applicant provided that the requirements of s65(1) are met.
Section 65(1) confers jurisdiction on the Tribunal in relation to “residential premises”. The applicant noted that these premises are commercial and while occupation by workers might be permissible, the applicant understands from the leaseholder that residential use is not permitted.
However, I accept that the definition of “residential premises” in section 2 RTA is broad and would cover the premises in this case. Section 2 says: “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”
Ms Garland is using the premises as a place of residence, albeit the occupation for residential purposes may be unlawful.
I am satisfied that the applicant as the legal lessee of the premises is prima facie entitled to possession of the premises. To defend the applicant’s right to a possession order under s65(1), the onus shifts to the respondent, Ms Garland, to satisfy the Tribunal that she is in possession of the premises pursuant to a right of occupation granted by the applicant.
As director of the applicant company, John Abbott has previously granted Ms Garland a licence to occupy Unit 7A and a licence to use Unit 7D for storage purposes only. Any licence has since been revoked by service of the trespass notice served on Ms Garland on 9 December 2024.
Ms Garland was unable to establish any right of occupation granted by the applicant other than a temporary licence which has now been revoked.
I am satisfied that the prerequisites under s65 RTA have been met. Therefore, the granting of a possession order in favour of the applicant is mandatory.
As to the timing of the possession order, it is acknowledged that Ms Garland will need some time to pack her belongings and vacate. Therefore, I give her until 5pm on Sunday 27 April 2025 to vacate the premises under s65 RTA.

Order

Montrose Foundry Limited is granted possession of the premises at 7D Southdown Lane, Penrose, Auckland 1061 at 5pm on Sunday 27 April 2025.

Reasons

Both parties attended the telephone hearing with John Abbott, the director of the applicant company and his son Mike Abbott representing the applicant company.
The applicant has applied for possession of the premises pursuant to section 65 Residential Tenancies Act 1986 (RTA).
Section 65 RTA provides: (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......... (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
The applicant has applied for a possession order under s65(1) on the basis that: a. The premises are residential premises; b. The applicant is entitled to possession of the premises as lessee pursuant to an Agreement As To Lease End Works. The agreement records that the lease of the property at 7 Southdown Road (which includes the premises at 7D Southdown Road and other units known as 7A, B and C Southdown Road) has been renewed for a further 21-year term from 30 November 2021; c. The respondent, Ms Garland, is in possession of the premises other than pursuant to any right of occupation granted by the applicant. Background facts
The applicant explained the history of Ms Garland residing at first 7A and then 7D Southdown Road. She was associated with a former commercial sub-tenant of Unit 7A and unbeknown to the applicant their sub-tenant at the time had allowed Ms Garland to reside at Unit 7A. When the commercial sub-tenant was evicted in or about July 2020, Ms Garland remained in occupation of Unit 7A.
For humanitarian reasons, John Abbott gave Ms Garland verbal permission to stay at Unit 7A temporarily to give her time to find alternative accommodation. No rent was requested or paid. This was intended to be a short-term arrangement. However, the arrangement continued for another 2 years.
In August 2022, John Abbott wrote to Ms Garland requesting that she vacate the premises as the applicant wished to sublet the premises to another company. Before the lease could start, the applicant needed to tidy up and renovate Unit 7A. Ms Garland refused to leave, and a trespass notice was issued. However, she still refused to leave.
In January 2023, John Abbott offered Ms Garland Unit 7D to store her possessions only on a temporary basis. He advised her that she was not to reside at Unit 7D. Ms Garland agreed to leave 7A on that basis. However, in breach of the agreement, she began living at Unit 7D.
In August 2023, after being repeatedly asked to leave Unit 7D and remove her dogs and possessions, a new trespass notice was served. Ms Garland left but did not remove her possessions.
In March 2024, Ms Garland contacted John Abbott seeking permission to retrieve her belongings from Unit 7D. He agreed that she could do so, but expressly told her that she was not to bring her dogs onto the property and she was not to remain on the property other than for the purpose of removing her belongings. Ms Garland agreed to those conditions and access was allowed. However, she breached the agreement and again took up residence in Unit 7D with her dogs.
The applicant made further repeated requests for Ms Garland to leave and issued another trespass notice dated 6 December 2024, served on Mrs Garland personally by Mike Abbott on 9 December 2024. Ms Garland has not vacated the premises resulting in the present application to the Tribunal.
The parties accept that there is no residential tenancy agreement in place between the parties; Ms Garland does not and has never paid rent in exchange for a right to occupy the premises; and she acknowledged during the hearing that Mr Abbott had told her that she could stay/use the premises temporarily. Discussion and findings
Notwithstanding the absence of a residential tenancy agreement between the parties, s65(3) makes clear that the Tenancy Tribunal has jurisdiction to grant a possession order in favour of the applicant provided that the requirements of s65(1) are met.
Section 65(1) confers jurisdiction on the Tribunal in relation to “residential premises”. The applicant noted that these premises are commercial and while occupation by workers might be permissible, the applicant understands from the leaseholder that residential use is not permitted.
However, I accept that the definition of “residential premises” in section 2 RTA is broad and would cover the premises in this case. Section 2 says: “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”
Ms Garland is using the premises as a place of residence, albeit the occupation for residential purposes may be unlawful.
I am satisfied that the applicant as the legal lessee of the premises is prima facie entitled to possession of the premises. To defend the applicant’s right to a possession order under s65(1), the onus shifts to the respondent, Ms Garland, to satisfy the Tribunal that she is in possession of the premises pursuant to a right of occupation granted by the applicant.
As director of the applicant company, John Abbott has previously granted Ms Garland a licence to occupy Unit 7A and a licence to use Unit 7D for storage purposes only. Any licence has since been revoked by service of the trespass notice served on Ms Garland on 9 December 2024.
Ms Garland was unable to establish any right of occupation granted by the applicant other than a temporary licence which has now been revoked.
I am satisfied that the prerequisites under s65 RTA have been met. Therefore, the granting of a possession order in favour of the applicant is mandatory.
As to the timing of the possession order, it is acknowledged that Ms Garland will need some time to pack her belongings and vacate. Therefore, I give her until 5pm on Sunday 27 April 2025 to vacate the premises under s65 RTA.

Tenancy Tribunal case 5196153 — Tenancy dispute at 7D Southdown Lane, Penrose, Auckland 1061

At a glance

Claims & awards

Tenancy Tribunal case 5196153 — Tenancy dispute at 7D Southdown Lane, Penrose, Auckland 1061

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