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Landlord terminations ahead of tenancy law change

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  • #16
    Originally posted by Keys View Post
    We have an "owner" who is in Britain and wanting to get back. I use the word "owner" loosely as the property is owned by a family trust.

    We have terminated a perfectly good, highly desirable tenant whom we feel for. The property will remain vacant for months (years?) until the owner gets back from their trip. They have had three/four plane bookings cancelled already.
    So they’re terminating the tenancy now through fear they can’t do so come 11 Feb? I thought they just needed to give 60 days for family.

    cheers

    Donna
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    • #17
      Originally posted by donna View Post

      So they’re terminating the tenancy now through fear they can’t do so come 11 Feb? I thought they just needed to give 60 days for family.
      cheers
      Donna
      63 days (plus delivery?) from 11 Feb, and with other rules as well about when family occupy. Unclear if a trust can have family members for rental termination purposes. APIA published a good post on this topic, link below, that points out it is not a good idea to commit on the basis of inconsistent Tenancy Tribunal decisions.

      Keys advice to the owners is quite right IMO, and because property managers at least should be aware of this it is quite possible some of the 90 day termination notices issued before 11 Feb will be for this reason..

      https://www.apia.org.nz/apia-blog/tr...-up-in-the-air


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      • #18
        Originally posted by artemis View Post
        I don't think threads are searchable, Could do an Advanced search in the thread on my name as I posted about assignments a few times and there were responses.
        There is a search box at the top of the thread. I put "assignment" in it and the result was the first 15 posts - all of which included the word assignment.

        Then, on the left hand side at the top, there was the word assignment and a x in a small circle. Clicking the x removed the search and re-ordered the thread by time / date of posting.

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        • #19
          Originally posted by artemis View Post
          Unclear if a trust can have family members for rental termination purposes. APIA published a good post on this topic that points out it is not a good idea to commit on the basis of inconsistent Tenancy Tribunal decisions.
          In that APIA item is something that does not get stressed sufficiently. I.e. I do not believe that the two determinations have been read thoughtfully. I see no inconsistency in them.

          As a trustee, Ms Lenniston is legally (if not beneficially) an owner of the property: her name will appear on the title to the property. On that basis, I am prepared to find that s.51(1)(a) can apply.
          a trust or a company cannot occupy the premises as its principal place of residence, and neither can they have family members who could occupy the premises.
          A Trust cannot occupy the premises. But any person whose name appears on the certificate of title is a legal owner for the purposes of NZ law, including the RTA. Ordinarily, all Trustees names will appear on the CoT. Beneficiaries' names (unless a Trustee) will not.

          If the intending occupant's name is on the certificate of title, then that person is ipso facto a legal owner and the s51(1)(a) matter becomes incontrovertible.
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          • #20
            Wouldn't that mean that the people in charge of the trust were also benefiting from the trust.
            Isn't a trust supposed to be for the benefit of a third party?

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            • #21
              Tenancy Services and the Housing Minister should be asked for a ruling. it is their day job and the Minister is responsible for the legislation. This issue (family, trust) should be incontrovertible, as Perry says, and how hard would that be to provide without having to go the the Tenancy Tribunal. Governments that make unclear law should be held to account.

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              • #22
                Originally posted by artemis View Post
                Tenancy Services and the Housing Minister should be asked for a ruling. it is their day job and the Minister is responsible for the legislation. This issue (family, trust) should be incontrovertible, as Perry says, and how hard would that be to provide without having to go the the Tenancy Tribunal. Governments that make unclear law should be held to account.

                Hang on, just calling something "incontrovertible" doesn't make it incontrovertible.

                What is incontrovertible is the legal objective for allowing a trust in the first place.

                ( And it ain't to benefit the trustees, beyond some agreed compensation for management.)


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                • #23
                  As the article points out the Tenancy Tribunal is the arbiter (but not the “ultimate arbiter”) and we will have to wait for more orders to be made for consistent interpretation to be made clear.

                  In fact the Tenancy Tribunal now has a mammoth job on its hands.

                  The new RTA is riddled with terms like “reasonable” as in “reasonable excuse”, “reasonable conditions”, “reasonable period of time”, “unreasonably withholds consent”, “attaches unreasonable conditions” et.al. and we have no idea what that means.

                  For example, a Tenancy Tribunal may decide its unreasonable for a landlord to turn down the assignment of tenancy because the assignee had a blemish in their credit history, past instances of unpaid rent or a gang affiliation.

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                  • #24
                    Originally posted by McDuck View Post

                    Hang on, just calling something "incontrovertible" doesn't make it incontrovertible.

                    What is incontrovertible is the legal objective for allowing a trust in the first place.

                    ( And it ain't to benefit the trustees, beyond some agreed compensation for management.)
                    My point was that it is unclear what constitutes a family member in a trust situation. That seems easy enough to define so people can actually know the answer without placing themselves in a dispute situation. It does not need to be a 'balance of probabilities'. It can be black and white.

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                    • #25
                      Originally posted by Sanya View Post
                      As the article points out the Tenancy Tribunal is the arbiter (but not the “ultimate arbiter”) and we will have to wait for more orders to be made for consistent interpretation to be made clear.

                      In fact the Tenancy Tribunal now has a mammoth job on its hands.

                      The new RTA is riddled with terms like “reasonable” as in “reasonable excuse”, “reasonable conditions”, “reasonable period of time”, “unreasonably withholds consent”, “attaches unreasonable conditions” et.al. and we have no idea what that means.

                      For example, a Tenancy Tribunal may decide its unreasonable for a landlord to turn down the assignment of tenancy because the assignee had a blemish in their credit history, past instances of unpaid rent or a gang affiliation.
                      I asked Tenancy Services the following question -

                      Reasonable or unreasonable. The FAQ document has examples, but the status of examples does not offer clarity to affected parties and look like opinions. Is there further clarification available not based on opinions? Has a practice note been issued by the Tenancy Tribunal? If so please provide a copy. If not please enquire if one is to be issued and advise.

                      The response was as follows and if anyone can tell me what it means I will be surprised,

                      We do not define 'reasonable' or 'unreasonable', these are currently at the discretion of an individual.

                      I was told to ask the MoJ about the practice note. Might ask the Minister instead.

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                      • #26
                        First, it needs to be remembered that the TT Kangaroo Kourts are - to a significant extent - above the law.
                        Originally posted by RTA
                        85 Manner in which jurisdiction is to be exercised
                        (2) The Tribunal . . . shall not be bound to give effect to strict legal rights . . . .
                        Next, put aside the use of the word "family."

                        With that in mind . . .
                        Originally posted by RTA
                        51 Termination by notice
                        (1) Subject to sections 52, 53, 53A, 59, and 59A, the minimum period of notice required to be given by a landlord to terminate a tenancy shall be as follows:
                        (a) where the owner of the premises requires the premises as the principal place of residence for the owner . . .
                        The owner of the premises will be those persons named on the certificate of title. That is incontrovertible.
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                        • #27
                          What if you have an IP in a Trust that has a corporate trustee ie a LTD as the trustee?

                          Can you give tenants notice if the corporate trustee Director and shareholder wants to live in the property? I am assuming you can give 90 days if you’re renovating or selling.

                          I am sure there are other curly questions that should have definite clear responses and not be “at the discretion of an individual”.

                          cheers
                          Donna

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                          • #28
                            Given one of the TT determinations, a natural person whose name is on the CoT is an owner and, being a natural person, needs a PPOR.

                            A corporate Trustee does not need a PPOR.
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                            • #29
                              Originally posted by donna View Post
                              I thought they just needed to give 60 days for family.
                              Therein lies the problem. It is owned by a trust.
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                              • #30
                                An Interesting ponder.

                                For tax purposes -- no, no, no - I don't own this property, the Trust owns it.

                                For asset protection purposes -- no, no, no - I don't own this property, the Trust owns it.

                                For RTA purposes -- yes, yes, yes, I own this property as part of a Trust and I want to terminate a tenancy so a family member or I can move in.
                                Last edited by Sanya; 21-01-2021, 05:15 PM.

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