NOT " UNOCCUPIED."

Auckland Star, Volume LXV, Issue 228, 26 September 1934, Page 10

NOT " UNOCCUPIED."

APPEAL DISMISSED.

RATES ON OTAHUHU HOUSE.

CARETAKER IN RESIDENCE,

A decision of importance to local bodies in respect to the rating of properties under section 09 of the Rating Act, 192-j, lias been given in a judgment by Mr. Justice Fair on an appeal from the judgment given by Mr. F. H. Levien, S.M., at Otahuliu Magistrate's Court in October, 1932. The appellant was Mrs. Margaret 11. Brewer (Mr. Gould), and the respondent the Papatoctoe Town Board (Mr. Meredith). The question for decision on the appeal was whether the dwelling house situated on the land, in respect of which the rates sued for in the Magistrate's Court were levied, was "actually vacant and unoccupied" for a period of not less than six months of the rating year, within the meaning of section 09 (a) of the Rating Act. The appellant, the owner of the house, was, during the period in question," desirous of letting or selling the property, and pending disposal arranged that licr step-son ,should go Into the house as caretaker. He did not pay rent, nor make any payment to appellant. He lived there from March 24, 1930, to April 1, 1931, under an agreement with appellant to provide him with free food and firing. The appellant promised to give him £20 when the property was sold. It was not sold, but' in" February, 1031, appellant paid him £20 as caretaker's fees. His occupation was determinable at "the will of appellant. While living there he dug around some fruit trees, and kept the lawns in order, pending a sale. For one day a Avcek he was employed at his trade away from the property. His occupation, apart from its efl'ect on the continuance of an insurance policy on the house, minimised the risk of fire and vandalism. The house contained only sufficient furniture for his use and occupation. Except as stated, the house was not in use during the rating year, for which rates now in question were levied. The magistrate held that the -dwelling was not "actually vacant and unoccupied" for not less than six months during the rating year in question, and appeal was from his decision. Counsel for appellant, stated Mr. Justice Fair's judgment, had submitted that the words "vacant and unoccupied" should be construed as including a period during which the occupation was not •beneficial to the owner, as the occu t>ation was by a mere caretaker. Counsel had relied on a scries of English cases. After reviewing these the judgment stated there was a radical' difference between the basis of the 6ystcm of rating in England and that in New Zealand, and accordingly the decisions ill England were not applicable in the Dominion. The most cogent reason against applying the English decisions was, in his Honor's view, the plain language of the section of the Act. A house would not 'be said, to be eitner "vacant" or "unoccupied," in the natural and ordinary meaning of these words, if a caretaker was resident therein.

"When a caretaker is living in a house in the ordinary way in which a person so employed resides in the dwelling, which is for the time being his home, the house is neither vacant nor unoccupied in the ordinary meaning of cither of those words. . . . To use the words in the sense of including such a dwelling house the person so using them must have knowledge of the relations between the owner and the caretaker, which induces him to modify the ordinary meaning of the words. Even then the answer to the question 'Is that bouse occupied?' would, it appears, be 'Yes, but only by a cartakcr,'" continued the judgment. In dismissing the appeal, with costs £0 0/ and disbursements, his Honor said he had arrived at the same conclusion as the magistrate.