Court backs bankrupt's right to occupy
A bankrupt former retirement home operator is vowing to live in his former business premises until he dies following a significant High Court decision in his battle against bankers who want him evicted.
Ian and Norma Anderson operated the troubled Culverden Retirement Home in East Mangere in Auckland, but in April 2011 it defaulted on debts and was placed into liquidation owing more than $4 million.
But the Andersons, living in the manager's cottage of the retirement complex, have steadfastly refused to budge despite mortgagee FM Custodians selling the property in June last year and taking legal action accusing the couple of squatting.
The Tenancy Tribunal ordered the couple to vacate the premises to allow the new owners to take possession, a decision upheld on appeal to the District Court.
But the Andersons then appealed to the High Court in Auckland.
In an interim judgment delivered on September 17 Justice Ailsa Duffy said the lower courts had not considered a claimed deed of life interest in the property or resource consents over the property requiring all residents to be aged over 55.
Such a resource consent restriction would remove jurisdiction from the Tenancy Tribunal as the property would no longer be classified as "residential premises".
Duffy ordered submissions to be filed by parties as to the next step in the saga - either quashing the eviction action entirely, or ordering the Tenancy Tribunal to reconsider its jurisdiction in light of the resource consent issue.
Anderson, contacted by the Sunday Star-Times, described his victory as one for all retirement home residents who could now rest assured they were immune from eviction action by mortgagees.
"If they'd won on this, everyone in a retirement village would have been under the threat of being removed," he said.
"The retirement village industry is based on capital investment - and that capital investment is in the occupation right, not the property," he said.
Anderson said he had been given advice his position was legally unassailable and he should stay in the property for the remainder of his life.
"And that's the plan," he said, adding that he, 71, and his wife Norma, 68, expected to live long lives.
Anderson is a colourful character, having been a former Methodist minister before opening the Culverden rest home in 1981. In 2000 the complex expanded to include a hospital.
In 2006 Anderson and his Culverden companies were fined $30,000 by the Manukau City Council for unconsented building work at the complex, including part-removal of the sprinkler system. The same year the Health Ministry ordered the hospital closed due to poor patient care, with Pacificare and Guardian Trust stepping in to keep the facility operating.
That reprieve was short-lived with the Counties-Manukau District Health Board in 2010 ordering the facility closed, again citing poor patient care.
According to the insolvency register, Ian Anderson was bankrupted in May 2011, shortly after Culverden Retirement Village entered liquidation.
Sunday Star Times