Rent is a key pillar to support a claim of a residential tenancy. 

It is never super nice to see family disputes play out in the public domain. The venerable Miss Manners will likely scold us for even taking a second look.
In saying that, a second look is exactly what is warranted for Wallath v Wallath [2021] NZTT 4272191 on this platform seeing that it explores the meaning of a (residential) tenancy in the context of an owner granting a loved one permission to occupy.

 

The parties 

This matter involves three generations of Wallaths:

  • James Wallath: the ‘tenant’ applicant who was granted the permission to occupy an Mt Eden flat by his grandfather, Robert, in September 2011;
  • Alan Wallath: the ‘landlord’ respondent, father of James, a trustee of a trust that owns the Mt Eden flat and owner of a property management company
    that manages a number of rental properties owned by the trust;
  • Robert Wallath: grandfather of James, settlor and trustee of the trust that owns the Mt Eden flat who, in September 2011, allowed James to live at
    the flat rent-free.

 

The facts
  • In September 2011, Robert, wishing to support James through his studies, allowed his grandson to move into the Mt Eden flat rent-free;
  • The agreement was never recorded in writing;
  • Throughout his occupancy, James paid no rent (nor any form of valuable consideration) nor was he expected to;
  • Alan had, at least on some occasions issued James with notices in accordance with the Residential Tenancies Act (RTA);
  • Sometime in 2020, Alan issued James with a 90-day notice to terminate.

 

The application

James applied to the Tribunal for the following orders:

  • to set aside...