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  Reply # 764179 18-Feb-2013 14:29 Send private message

ajobbins:
trig42: I think the difference between a squatter and a trespasser is that the squatter has gained 'lawful' possession of the property (ie., they were a tenant, but their tenancy expired, or they did not break and enter). A trespasser (who the Police can arrest) gains unlawful possession.


I suppose you could argue that when he was let in originally by the former tenant, he lawfully gained possession at that point, however if he now leaves the property at any time and returns, he is illegally entering the property. I would guess that as the locks have been changed unlawfully, he is using an illegal means to enter the property - he might as well smash a window to get it. Thoughts?


That's what I would of thought. If there was a sub-tenancy then someone must have some paperwork for it... and if there isn't then he must be there unlawfully.  (IANAL)



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  Reply # 764183 18-Feb-2013 14:31 Send private message

itxtme: Why a new thread?


A new situation.




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  Reply # 764184 18-Feb-2013 14:34 Send private message

ajobbins:
Klipspringer: Don't think so. But as far as I know there is nothing stopping the owner from moving back into his own house and makin the squatters life a misery.


But the squatter has no legal right to be there. Isn't think  just like me walking into your house, unpacking my stuff and refusing to leave?

A quick calls to the cops and I am sure I would be promptly removed. You wouldn't have to take me to the tenancy tribunal.


You're right, Klipspringer. I finally spoke to a lawyer and he explained I need to go the Trespass Notice route, followed by the police...and changing the locks.  It is an offence to trespass. 

I've let the guy know he needs to go by tomorrow evening - or he will receive a Trespass Notice then....and the next day the police will be called and the locks changed. 




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  Reply # 764185 18-Feb-2013 14:36 Send private message

keewee01:
ajobbins:
trig42: I think the difference between a squatter and a trespasser is that the squatter has gained 'lawful' possession of the property (ie., they were a tenant, but their tenancy expired, or they did not break and enter). A trespasser (who the Police can arrest) gains unlawful possession.


I suppose you could argue that when he was let in originally by the former tenant, he lawfully gained possession at that point, however if he now leaves the property at any time and returns, he is illegally entering the property. I would guess that as the locks have been changed unlawfully, he is using an illegal means to enter the property - he might as well smash a window to get it. Thoughts?


That's what I would of thought. If there was a sub-tenancy then someone must have some paperwork for it... and if there isn't then he must be there unlawfully.  (IANAL)


You're right. There was no documented sub-tenancy. My tenancy agreement also ruled them out anyway.

But that's over. The tenant is gone. Now there is nothing......except a guy living in my flat with no  right to be there.   




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  Reply # 764186 18-Feb-2013 14:37 Send private message

Linuxluver: I've let the guy know he needs to go by tomorrow evening - or he will receive a Trespass Notice then....and the next day the police will be called and the locks changed. 


Why wait? That just gives him more chance to do damage etc. As dratsab said, why not go and give me verbal notice of tresspass. Give him 30 minutes to be gone, then calls the cops to remove him if he doesn't go willingly.




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  Reply # 764188 18-Feb-2013 14:39 Send private message

You could possibly also argue that there is nothing to prove the previous tenant allowed them access. Who is to say the last guy didn't gap it, and this guy has stumbled across an abandoned place, kicked the door in and changed the locks?




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  Reply # 764197 18-Feb-2013 14:47 Send private message

ajobbins: I suppose you could argue that when he was let in originally by the former tenant, he lawfully gained possession at that point, (snip)


I wouldn't think so. He's gained lawful entry, which is an entirely different kettle of fish to possession.

ajobbins: Why wait? That just gives him more chance to do damage etc. As dratsab said, why not go and give me verbal notice of tresspass. Give him 30 minutes to be gone, then calls the cops to remove him if he doesn't go willingly.


From the description in the previous thread, it may be hard for this guy to actually do any more damage :-)
Short of burning it down of course...if he thinks he's got nothing to lose, you never know, he may end up going down this track, so yeah - why wait?

ajobbins: You could possibly also argue that there is nothing to prove the previous tenant allowed them access. Who is to say the last guy didn't gap it, and this guy has stumbled across an abandoned place, kicked the door in and changed the locks?


Moot point now though.





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  Reply # 764199 18-Feb-2013 14:52 Send private message

Dratsab:

From the description in the previous thread, it may be hard for this guy to actually do any more damage :-)
Short of burning it down of course...if he thinks he's got nothing to lose, you never know, he may end up going down this track, so yeah - why wait?



If he has done damage then surely that’s a criminal offence? Why let him just move on? I would file charges with the police anyway for damage of property.

Dont let them get away with it.

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  Reply # 764211 18-Feb-2013 15:19 Send private message

Dratsab:
ajobbins: I suppose you could argue that when he was let in originally by the former tenant, he lawfully gained possession at that point, (snip)


I wouldn't think so. He's gained lawful entry, which is an entirely different kettle of fish to possession.



Ah, but it sounds like the sub-tenancy was only hearsay and may not have been a factual sub-tenancy - IMO: no paperwork, no legal contract, no tenancy!



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  Reply # 765222 18-Feb-2013 15:52 Send private message

In that case this guy and his loser mates can in theory stay in your place forever. 

Let say it takes 6 weeks on average to kick each one out --- then, they just move another loser in and you have to go through another 6 weeks of court proceedings. 

They can line up all of their other homeless mates and arrange a steady procession of squatters to live in your place . 

I'd personally think that this guy is trespassing.  But, commonsense and law do not go together.   

Glad it's not me, good luck. 



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  Reply # 765379 18-Feb-2013 20:30 Send private message

ajobbins:
Linuxluver: I've let the guy know he needs to go by tomorrow evening - or he will receive a Trespass Notice then....and the next day the police will be called and the locks changed. 


Why wait? That just gives him more chance to do damage etc. As dratsab said, why not go and give me verbal notice of tresspass. Give him 30 minutes to be gone, then calls the cops to remove him if he doesn't go willingly.


I could do that......but I prefer to give someone an honourable option first. If they aren't honourable...then we go down that road. These guys aren't hard core bad guys. They're just guys who drink too much, smoke too much dope...and don't think very clearly. But they will do the right thing eventually if you spell it out and make it clear its gonna happen anyway. 

I've given them no reason to dislike me. I just want my house...then I'm going after the arrears. 






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  Reply # 765381 18-Feb-2013 20:34 Send private message

keewee01:
Dratsab:
ajobbins: I suppose you could argue that when he was let in originally by the former tenant, he lawfully gained possession at that point, (snip)


I wouldn't think so. He's gained lawful entry, which is an entirely different kettle of fish to possession.



Ah, but it sounds like the sub-tenancy was only hearsay and may not have been a factual sub-tenancy - IMO: no paperwork, no legal contract, no tenancy!


You're right...and since the rpimary tenancy has ceased (date past, tenant departed) any sub-tenancy has also ceased. This is why I can now go for a Trespass Notice if I need to. While the primary tenant remained there - even if late in departing - this guy still had a a leg to stand on. But with the primary tenant gone (last Wednesday)....It's just squatting now. 

I went round the place and he's half shifted out. Looks like the steer I gave him around trespass and the police served as motivation. 




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  Reply # 765479 18-Feb-2013 22:20 Send private message

When he goes, change the locks pronto.

Otherwise, you will never know who (old tenant, current squatter, whoever they have let copy their keys etc) may turn up and re-enter the property or burgle it etc at any future date.

I wouldn't have given the warning he has had. You are running a huge risk that he is pissed off about being turfed and could trash the property in reprisal. Plus, from what you say, I doubt he has any money for reparations if he did trash it.

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  Reply # 765549 19-Feb-2013 08:05 Send private message

I thought I could help with some relevant information....

Section 44 of the Residential Tenancies Act relates to subletting:
http://www.legislation.govt.nz/act/public/1986/0120/latest/DLM95097.html
In a nutshell - no tenant may sublet without written authorisation from the landlord


Section 46 relates to unlawful changing of locks by either party:
http://www.legislation.govt.nz/act/public/1986/0120/latest/DLM95501.html
In a nutshell - it is unlawful for a tenant to change locks during a tenancy without the landlord's permission and vice versa.


Section 65 relates to squatters:
http://www.legislation.govt.nz/act/public/1986/0120/latest/DLM95541.html
In a nutshell - The Tenancy Tribunal has jurisdiction over the eviction of squatters even where there is no tenancy agreement, however this does not limit any provisions of the Tresspass Act 1980.

My interpretation of this is that you should issue a tresspass notice immediately, and enforce it if you can. If you or the Police cannot get the occupant to leave, you must file an application with the Tenancy Tribunal for a possession order as a last resort.


Tresspass Act
http://www.legislation.govt.nz/act/public/1980/0065/latest/DLM36927.html
Section 9 states that a tresspasser must supply their particulars on request of the owner or Police







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  Reply # 765622 19-Feb-2013 10:37 Send private message

Eviction of squatters
  • (1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant.
    (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises.
    (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
    Section 65(3): added, on 1 October 2010, by section 47 of the Residential Tenancies Amendment Act 2010 (2010 No 95).

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