Property Management

Tenancy jurisdiction spat: No comfort from tribunal

Living in a caravan at Nelson’s Spirit of Nature commune has been cold comfort for a man embroiled in a spat with his landlord over whether a tenancy agreement exists.

Wednesday, May 26th 2021

In fact, a commune dwelling Joseph Angelo has been living in recently with his pregnant partner has been described by the Tenancy Tribunal as of “dubious quality”.

It has a value of only $10,000 in the property’s $460,000 capital valuation and would be “facilities” only, said the Tenancy Tribunal. 

The Tenancy Tribunal has declined jurisdiction to rule on both Angelo’s and landlord Bioversity SoNNoS Trust’s claims.

Angelo was served with a 90-day eviction notice and asked the tribunal to rule if it was valid and whether it was retaliatory. He also wanted a written tenancy agreement.

Bioversity SoNNoS Trust, asked the tribunal to rule if any tenancy agreement existed and regardless of that wants Angelo gone under the trespass order it served on him in December last year.

Angelo has been at the property on Takaka-Collingwood Highway at Parapara since 2013 when at the Luminate Festival he was shown a brochure about the commune.

The brochure indicated people could “stay for ever”. Angelo was told the commune’s philosophy was “to contribute what one is ethically able to do, whether it be work, money, or some other expertise”.

He visited not long after the festival and, when not busy in Nelson, began staying there off and on until 2014.

At Christmas that year he began moving his belongings from a farm in Richmond where he had been staying. These included a campervan, trailer, some animals and a caravan.

Angelo said he was made to believe he could stay there as long as he liked as a charitable trust was in place and one of the trustees Ursus Schwarz had donated all of the land he owned to the trust.

He lived in his caravan and Schwarz resided at the dwelling on the property apart from extended periods of up to six months when he was overseas or in nursing care. When he was away Angelo would stay in the dwelling.

Over the years many volunteers came and went and caravans on the property were used as intermittent accommodation. Angelo became the longest serving member of the community.

Examples of tenancy agreements signed by other volunteers were provided to the tribunal for the “use of land” and “sublease of two caravans”.

In 2020 Angelo began a relationship with Ms Liu, a volunteer occupant in the dwelling, and moved in with her in October last year. Liu is now Angelo’s partner and is expecting a baby.

The tribunal was not shown any authority for Angelo to move into the dwelling, apart from the invitation from Liu. The tribunal said Angelo’s move into the dwelling does not alter the fact the caravan is his primary occupancy.  

During Angelo’s time at the commune there was no definitive written agreement between him and Schwarz and the tribunal said it found it difficult to infer that a tenancy agreement had been concluded. 

Initial payments made by Angelo were referenced as “donations” and the amounts varied.

Bank statements provided to the tribunal by the trust from November 2021 record payments of $50 a week from Angelo, who noted them as “rent for caravan”.

Angelo and Liu also made other payments for goods or services consumed by the commune. But there was no formal documentation or process for refunds from the trust.

The tribunal said the Spirit of Nature appears more akin to a community with members or visitors sharing facilities or undertaking a range of unpaid tasks, under the guise of a commune.

By November 2020, the trust told Angelo he was no longer permitted to live at the commune.

He was served with a trespass notice on December 16 and on January 27 the trust’s lawyer wrote to Takaka Police saying Angelo was trespassing on the property.

The lawyer claimed although Angelo had previously stayed in a caravan at the property with the trust’s permission, it did not constitute a residential tenancy because the part of the property he was on was bare land and was excluded by section 53(5) (t) of the RTA.

Police were asked to enforce the trespass notice.

The tribunal heard Angelo and the trust have a different opinion on the ownership of the caravan.

Angelo believed ownership was previously transferred to the trust to offset rental arrears. Schwarz denied that, saying it was Angelo’s caravan and it should leave with him.

It is not warranted or registered.

The tribunal said the periods of time when Angelo lived in the dwelling appear to be by invitation and did not imply a change in any agreement regarding the caravan as his principal place of occupancy.

In deciding it had no jurisdiction in both Angelo’s and the trust’s claims, the tribunal sided with the trust saying the property was not a residential premise under section 53(5) (t) which provides an exclusion “where the premises comprise bare land (with or without facilities) on which the tenant has the right under the tenancy agreement to place or erect a mobile home, caravan, or other means of shelter”.

It said there may well have also been another basis to consider an exclusion under section 53(5) (n) “where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord”.

The tribunal dismissed both Angelo’s and the trust’s claims.

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