Trust unable to give 42 days notice s.51(1)(a)

[Fritz]

Just read with interest the latest Property Mag the tribunal decision Wheeler v. Davis TT290/00 that a trust is not able to give a 42 days notice for the landlords family to occupy.

This means they are interpreting 'family' as next of kin literally as there is nothing under definitions to define it otherwise in the act.

One of the dictionary definitions of family is: 'group of objects or people distinguished by common stock' (oxford) which I would have thought either a trustee or beneficiary would be.

Anyone out there if a similar ruling applies to limited liability ccompanies with a TT number ?

Any thought to the interpretation of family ?

Thanks. Fritz.

[BlamBlam]

My understanding is that there is an interpretation of what constitutes a member of the landlord's family within the RTA so it is not a question of what a family is but more to the point whether an 'artifical person' can have a family.

Common law recognises you and I as natural persons and legal identities such as companies; trusts; associations etc as 'artifical persons' so the question is really whether or not an artifical person can have a family as per the definition of family under the RTA.

My suggestion would be that they can not. Though the simple way around it would be to issue a notice to the tenant that the family trust has disposed of their interest as landlord of the property to joe bloggs (usually one of the trust executors) and joe bloggs can have family as he is a natural person and he can issue the 42 day notice.

You will also see in the RTA interpretations that a landlord isn't just the owner of the property but can also be simply the person that assigned the lease. So the trust disposing their interest as a landlord to a beneficiary has no impact on the ownership of the property by the trust.

[Keys]

You will also see in the RTA interpretations that a landlord isn't just the owner of the property but can also be simply the person that assigned the lease. So the trust disposing their interest as a landlord to a beneficiary has no impact on the ownership of the property by the trust.

Don't see the word owner there, can you point me to it?

I believe that the owner of the property is not relivant. The RTA deals with the Landlord. Therefore the landlord's family is relivant. That would be my arguement.

Should the LAQC own the property. What of it?

Who is the landlord?

That's the point. That's who is referred to in the RTA.


Keys

[BlamBlam]

Don't see the word owner there, can you point me to it?

I was actually using layman's terms. The RTA calls it the lawful successor in title of a landlord to the premises.

[Fritz]

Was in a hurry this morning, looked up 'Interpretation' under the RTA now, and it clearly defines 'Member of family'. Reason I missed it first was I looked up 'family'.

The whole thing hinges on the definition of 'grantor' and 'landlord' AND 'member of family'.

Does the grantor of the tenancy have to be the 'owner' ? Neither grantor nor owner is defined in the act. Could the grantor be you personally and not the owner?

The only way out would be if you signed up the TA in joint names of you personally as an agent for your Trust. This way you (as agent) would be defined as a 'landlord' under the act and could make use of s51 for your 'member of your family'.

Which means if your company or trust is on the TA, you are the grantor, hence the landlord, hence there is no 'member of family' as per the interpretation. Which means in this case they got it right.

Anybody out there any other ideas ?

If you used managers, can you have more then 1 agent ?

Ie Keys Property Managers & me personally as agents for me personally trust ???

Hmmm...

Anyway, that was a bit of news that had me surprised. I have seen a few s51 over my time and wonder now if they would all trip up under this case and would allow for 'fines' to be applied by TT.

Keys, you seem up with this. Any ideas ?

Fritz.

RTA Interpretations:
Landlord: in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes—


(a)A prospective landlord; and


(b)A former landlord; and


(c)A lawful successor in title of a landlord to the premises; and


(d)The personal representative of a deceased landlord; and


(e)An agent of a landlord:


Member of the landlord's family means any of the following:


[(a)the landlord's spouse or civil union partner:]


[(b)the landlord's de facto partner:]


(c)Any child of the landlord or of any person referred to in paragraph (a) or paragraph (b) of this definition:


(d)Any other child who is being, or is to be, cared for on a continuous basis by the landlord or any person referred to in paragraph (a) or paragraph (b) of this definition:


(e)Any parent of the landlord or of any person referred to in paragraph (a) or paragraph (b) of this definition:


(f)Any other person who is related (whether by blood or marriage) to the landlord or to any person referred to in paragraph (a) or paragraph (b) of this definition and is residing, or is to reside, in the landlord's premises in accordance with an arrangement between that person and the landlord of a predominantly domestic or family nature rather than a predominantly commercial nature:

[xris]

Just read with interest the latest Property Mag the tribunal decision Wheeler v. Davis TT290/00 that a trust is not able to give a 42 days notice for the landlords family to occupy.

This means they are interpreting 'family' as next of kin literally as there is nothing under definitions to define it otherwise in the act.

One of the dictionary definitions of family is: 'group of objects or people distinguished by common stock' (oxford) which I would have thought either a trustee or beneficiary would be.

Anyone out there if a similar ruling applies to limited liability ccompanies with a TT number ?

Any thought to the interpretation of family ?

Thanks. Fritz.

Like a lot of other articles in the latest mag, this is old news. The subject came to public attention a while ago and was discussed the, and on this site from memory.

The reason is quite obvious I would have thought. A trust cannot have a family, neither can a company. To discuss what a family actually is is nothing more than a barely interesting academic exercise. There is no doubt what the intended meaning is here.

Anyway, read definitions of what the RTA thinkss a family member is on page6 and you will find your answer.

xris

[Fritz]

Anyway, read definitions of what the RTA thinkss a family member is on page6 and you will find your answer.

xris

Yes, you are right. 'Member of family' no doubt is defined clearly.

If you are a budding investor and self manage there seems to be much to be gained and learned by filling in the TA as follows:

XRIS as agent for XRIS Trust (Xris ltd)

It gives you more options.

Already all our PM always use PM Name as agent for Fritz Trust. We insist on this as if our pm ever go bad (none ever have) we can fire them and pursue the case ourselves or appoint another PM and authorise by delegation.

It just got me intrigued and there are more important things to ponder: dinner !

Any PM with anything to add to this....

Fritz.

[xris]

Quote:
Originally Posted by Keys

Don't see the word owner there, can you point me to it?

By BlamBlam...

I was actually using layman's terms. The RTA calls it the lawful successor in title of a landlord to the premises.

Why not 'owner'?

My reading of that partially quoted definition from p.6 is different, and does not mean the 'owner'.

xris

[Keys]

Why not 'owner'?

My reading of that partially quoted definition from p.6 is different, and does not mean the 'owner'.
xris

One would assume (and I am) that the RTA was written before the explosion of family trusts, LAQCs and the like.

I don't care who owns the property. I am the landlord. I have been defined in the RTA. Nowhere does it say "owner" (that I can see)

I would submit, if challenged, that the owner is not relivant. It's the landlord who has the defination in the RTA.


Keys

[xris]

My understanding of

(c) A lawful successor in titke of a landlord to the premises

means

A person who has taken over the role of landlord from a previous landlord.

This does not necessarily mean an owner and has nothing to do with the title to the property.

Read the definition in full and you will see that it has to be a successor to a landlord. So, a new owner who has taken over a ownership of a property from a previous owner occupier, and has then used it as a rental property, would not be defined as a landlord because the previous owner was not a landlord.

Also, as fritz says, it is now quite common, following that trust and 42 days notice issue, for a pm to write on the TA 'Angela (pm) as agent for Superdad (owner)'. This makes the owner the landlord as defined by the RTA and also allows Angela to be classed as the LL as well, because as the agent she is so defined by the RTA (p.6) If the owner was automatically deemed to be the landlord then there would be no reason to do this.

I suspect that if you are managing one of your own properties that happens to be owned by your LAQC, and if you wantto have the right to give 42 days notice at some future date, then you must be careful to name yourself on the TA, preferably with 'as agent' attached, and not write down the name of the LAQC, because in that case the LAQC will be deemed to be the landlord, not you the property owner and the LAQC's major shareholder, and the person the tenant always deels with.

Just my opinion.

xris

[Keys]

My tenancy agreements have:

Owner - Xris of Propertytalk.com

Landlord - Keys of Try Me On Property Managers.

The Agreement has these listed as two seperate identities.

Where is the problem?

List your owner seperate to the landlord.

Night, night.


Keys

[Fritz]

My understanding of

(c) A lawful successor in titke of a landlord to the premises

means

A person who has taken over the role of landlord from a previous landlord.

I agree with Xris. It is either a new landlord when it was sold or say when the original landlord died the new landlord as its successor.

for a pm to write on the TA 'Angela (pm) as agent for Superdad (owner)'. This makes the owner the landlord as defined by the RTA and also allows Angela to be classed as the LL as well, because as the agent she is so defined by the RTA (p.6) If the owner was automatically deemed to be the landlord then there would be no reason to do this.

We have been tested in this case and at the time mediation and district court acknowledged both parties as landlords. We had down aa as agent for bb.

Reading interpretation again it talks about a grantor being a landlord, and grantor would spell out to me the 'person whom is lawfully entitled to' grant a tenancy, ie the owner. BUt it does not use the word 'owner'.

Going back in the case outlined had the trust appointed themselves as agent they would have gotten around this issue.

Again, all theoretical unless tested, and I suspect TT you might even get 2 different outcomes.

Anyway, dinner was great.

Fritz.

[xris]

Hello fritz,

My reading of 'grantor' is quite simply the person or entity that is giving/granting the tenancy to the tenant, namely the landlord in the commonly used meaning, ie pm company, hands on owner etc, ie the person signing the TA. It does not mean the owner necessarily, who may have 'granted' the right to act as LL to a management company but has no wish or ability to grant a tenancy to a tenant.

xris

[Cassandra]

Hi guys

Check out the DBH /Tenancy Services information sheet it explans who should be named as a landord for Tribunal Applications & Tenancy Agreements. The nominated parties to a Tenancy Agreement is still an oversight by landlords using a trust or agent & written up incorrectly (even by some Real Estate Agents)

http://www.dbh.govt.nz/pub-sorting-out-problems#map8

What it contains: This information sheet explains how and why particular people should be named in an application to the Tenancy Tribunal.

How to get it: Download it or call 0800 83 62 62 (0800 TENANCY)

[Keys]

Hi guys

Check out the DBH /Tenancy Services information sheet it explans who should be named as a landord for Tribunal Applications & Tenancy Agreements. The nominated parties to a Tenancy Agreement is still an oversight by landlords using a trust or agent & written up incorrectly (even by some Real Estate Agents)

http://www.dbh.govt.nz/pub-sorting-out-problems#map8

What it contains: This information sheet explains how and why particular people should be named in an application to the Tenancy Tribunal.

How to get it: Download it or call 0800 83 62 62 (0800 TENANCY)

You're making the assumption that the DBH website is accurate. An assumption which I would suggest is unwise.


Keys