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Tenancy Tribunal can evict squatter despite the lack of a tenancy agreement

21 Jun 2024

| Author: Sally Lindsay

The Tenancy Tribunal has been able to evict a Whangarei squatter, even though the woman had no tenancy agreement with the property owner who was also her former partner.

Raewyn Saul had been living rent-free at the Riverside, Whangarei, property under a licence to occupy from the owner, Riverside 2016 director Allan Inglis.

The licence to occupy was revoked by the company’s solicitors and Saul was handed a trespass notice in February this year, giving her two weeks to leave. She had earlier filed a case in the Family Court under the Property (Relationships) Act (PRA).

Saul refused to budge, saying she retains a right to continue to occupy the premises because she had a beneficial or equitable interest in the property as a “family home” and “relationship property” under the PRA because of her previous relationship with Inglis.

The tribunal heard there were extant proceedings at the Family Court in Whangarei, where Saul has applied for orders dividing relationship property, including the Riverside premises. She lodged a notice of claim of interest under s 42(2) PRA against the property’s title in October last year.

As she was refusing to leave the property, Riverside 2016 applied to the tribunal for a possession order on the basis that the premises was residential and the company was entitled to possession. It claimed Saul was in possession of the property without a right of occupation.

Saul told the tribunal it was not a matter the tribunal could address by making a determination under s 65 of the Residential Tenancies Act (RTA). This section says on an application by any person entitled to possession of any residential premises, and if the tribunal is satisfied that any other person in possession of the premises is a squatter or trespasser and does not have any right of occupation granted by the property owner, the tribunal shall make an order granting possession of the premises to the applicant.

 

Not relevant

Tribunal adjudicator J Tam said to avoid doubt, the tribunal has jurisdiction under this section, even though the premises is not subject to a tenancy agreement.

Tam cited a 2019 case Sergeant v Nigro [2019] NZHC 328, in which Justice Christine Gordon laid out the circumstances in which an order can be made. She said undetermined claims in separate proceedings challenging an applicant’s entitlement to possession and asserting a right to occupation or other interest in the property are not relevant to the Tenancy Tribunal in considering an application for an order under s 65 RTA.

There was evidence before the tribunal that the trustees of Sergeant’s former partner’s estate had not given him any right to occupy and had told him he had to vacate the property.

After tribunal and District Court hearings, Sergeant filed an appeal in the High Court against the executors/trustees of his former partner’s estate, challenging the validity of a 2001 Relationship Property Agreement.

He argued if the agreement was invalid, then the transfer of the property to the trust was equally invalid and the trustees had no right to demand possession of the property. Sergeant said he had an interest in the property under a constructive trust and wanted orders setting aside the Relationship Property Agreement, transferring the property from the trust to his deceased partner’s estate and declaring the trustees hold an equal share of the property as trustees on his behalf.

He also filed an amended claim, saying he had a reasonable expectation of a right to occupy the property for the remainder of his life or until his health failed. He tried to resist eviction by registering a caveat to protect his interest in the property.

In her decision, Justice Gordon said it was not open to the tribunal to consider the fact of a claim or the contents of the claim in another court when deciding if the trustees were entitled to possession and/or if Sergeant was in possession as a squatter or trespasser or otherwise pursuant to any right of occupation granted to him.

“Once the statutory pre-requisites under s 65 are satisfied, it is mandatory for the tribunal to make an order. The existence of alternative remedies is irrelevant.”

Tam said similarly, the tribunal could not inquire into the Family Court proceedings filed by Saul in this case, even if ultimately she was successful in obtaining an order for possession or occupation, or an order confirming her legal and beneficial interest in the property.

As with Sergeant, who was given 10 days to leave the property after the High Court dismissed his appeal, Tam gave Saul 10 days to vacate the Riverside site. ■

 

Read the case here

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