High Court rules co-owners cannot be removed from shared Rotorua property

The High Court declined to remove occupants from a co-owned Rotorua home, ruling a co-owner cannot be deemed unlawful and the others may have valid defences based on consent and potential inheritance rights.

Firdaussi Khan requested to court to remove his brother Quentin Khan, Quentin’s partner Norma Baumfield, and her two sons from a co-owned family home in Rotorua. The property, inherited by the siblings following their father’s death, is co-owned by Firdaussi and his four siblings, each holding a one-fifth share.

Firdaussi initiated proceedings under the High Court Rules, claiming that Quentin and others were unlawfully occupying the property. He argued that the family home, previously well-maintained under an agreement with his late brother Aubrey Khan, had deteriorated significantly, accruing substantial rates arrears. Following Aubrey’s death in 2022, Firdaussi sought the removal of the occupants, citing health concerns and the property’s risk of condemnation.

Despite serving the defendants, no statement of defence was filed. Firdaussi applied for judgment without notice, seeking their removal as unlawful occupiers. However, the High Court ruled that Quentin, as a registered co-owner, could not be classified as an unlawful occupier.

The court noted that co-owners have equal rights to possession of the property, barring one owner from excluding another. Consequently, Quentin’s occupancy is lawful under property law principles. The court emphasised that the legal definition of “unlawful occupier” does not extend to a co-owner, even without the consent of other co-owners.

While the court acknowledged that Norma and her sons were not co-owners, it found that their occupation was likely permitted by Quentin as a co-owner. The court also raised the possibility that Aubrey’s share in the property may have passed to Norma or her sons, potentially complicating their status as occupants. Given these factors, the court concluded that the defendants had at least an arguable defence against eviction.

The court also expressed discomfort with granting the order on a without-notice basis, particularly given the lengthy period of occupation and the lack of supporting evidence, such as photographs of the property’s condition or official confirmation of unpaid rates.

The court suggested that Firdaussi and his siblings, Dion and Miriama, explore alternative legal remedies, such as claims for occupation rent or contributions to expenses. However, those matters would require further legal advice and separate proceedings. Ultimately, the High Court declined Firdaussi’s application for the removal of the defendants.