Dealing with Unwanted Occupants: Legal Remedies for Property Owners in New Zealand

Introduction

Property ownership comes with rights and responsibilities.  When you find your property occupied by someone who refuses to leave, whether they’re squatters, trespassers, or tenants who won’t vacate, it can be frustrating and concerning.  Similarly, purchasing a property only to discover that the previous occupants won’t leave creates unique challenges.  This article outlines the legal remedies available to property owners in New Zealand facing these situations.

Understanding Your Rights as a Property Owner

As a registered proprietor of land in New Zealand, you have the fundamental right to exclude others from your property. The law firmly establishes that property owners are entitled to obtain possession orders against anyone occupying their property without consent. This principle has been consistently upheld by New Zealand courts.

Legal Remedies for Removing Unwanted Occupants

1. Tenancy Tribunal Applications

The Residential Tenancies Act 1986 provides one of the most straightforward remedies for property owners. Section 65 specifically addresses situations involving squatters or trespassers.

When to use this remedy: When dealing with squatters or unauthorised occupants in residential premises.

Process: Apply to the Tenancy Tribunal for a possession order. The Tribunal has jurisdiction even when no tenancy agreement exists.

Effectiveness: Generally efficient, with possession orders typically being granted when the Tribunal is satisfied the occupants have no legal right to be there.

2. Trespass Notices Under the Trespass Act 1980

The Trespass Act provides another avenue for dealing with unwanted occupants.

When to use this remedy: Suitable for situations where you need to formally warn trespassers to leave your property.

Process: Issue a formal trespass notice to the occupant. If they refuse to leave after being warned, they commit an offense under section 3 of the Act.

Next steps: If the trespasser remains after receiving a notice, you may need to involve the police or pursue further legal action.

3. Court Orders for Possession

For more complex situations, applying directly to the courts can be effective.

When to use this remedy: When dealing with particularly resistant occupants or when other remedies have failed.

Process: Apply to the High Court for an order for possession.  For Māori freehold land, applications should be made to the Māori Land Court.

Enforcement: Court orders can be executed by officials such as sheriffs to enforce the removal of illegal occupants.

4. Additional Enforcement Mechanisms

In cases of significant resistance, the courts can provide additional support.  Available mechanisms include:

• Authorisation for the use of force to remove occupants
• Arrest warrants for non-compliance
• Penalties for contempt of court
• Prohibitions against returning to the property

5. Claiming Damages

Beyond regaining possession, property owners may seek compensation.  You can claim for either:

• The actual loss suffered through being out of possession, or
• The market rental value of the property during the period of unlawful occupation

Special Considerations for Properties Purchased Without Vacant Possession

Purchasing a property without vacant possession can create unexpected complications for new owners. You may find that tenants or other occupants remain in the property after settlement, making it difficult to take control of your investment. Fortunately, New Zealand law provides clear remedies depending on whether the occupants are legal tenants or not.

Terminating Existing Tenancies

If the property is subject to a periodic tenancy and your unconditional sale agreement requires vacant possession, the Residential Tenancies Amendment Act 2024 offers a specific solution. As the new owner, you may terminate the existing periodic tenancy by giving at least 42 days’ notice. This statutory process is designed to help purchasers secure vacant possession in a timely and lawful manner.

Addressing Non-Tenant Occupants

If the people remaining in the property are not legal tenants, such as squatters or unauthorised occupants, you have the right to apply for possession orders under section 65 of the Residential Tenancies Act 1986.  As the new legal owner, you can seek an order requiring the occupants to leave.

Challenges and Considerations

When dealing with unwanted occupants, keep these important considerations in mind:

1. Distinguishing Between Tenants and Trespassers

It is crucial to determine whether occupants have any legal right to be on the property. Different legal remedies apply depending on whether someone is a tenant with rights or a trespasser with none.

2. Limitations on Self-Help

While property owners have the right to “re-enter the land peaceably” under the Property Law Act 2007, you must avoid committing forcible entry under section 91 of the Crimes Act 1961. This means:

• No use of force to remove occupants
• No breaking and entering
• No actions that might breach the peace

3. Special Considerations for Māori Land

Māori freehold land is subject to specific legal frameworks under the Te Ture Whenua Māori Act 1993, which may affect the available remedies and procedures.

 

Conclusion

While dealing with unwanted occupants can be stressful, New Zealand law provides property owners with several effective legal remedies. Whether you are facing squatters, trespassers, or issues with vacant possession after purchase, understanding your legal options is the first step toward resolving the situation.

Our team have expertise in enforcing possession rights in the Tenancy Tribunal, District Court, High Court and the Māori Land Court.  Please contact a member of our Litigation Team for advice.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.