Auckland family whose house is being occupied by Black Power gang members will have to wait for court ruling

Black Power flags in the window of a rented property in Otahuhu that is allegedly being occupied illegally. Photo / Leon Menzies

An Auckland family whose rental property has been illegally occupied by gang members since May have little choice but to wait for their day in court, legal experts say.

Ravina Prasad and Neelesh Chandra have been trying for eight months to remove the squatters from their house on Albert Street, Otahuhu.

Police told them the person occupying the property is Abraham Wharewaka jnr, a prominent Black Power member who is claiming ownership because his father used to live in the house 30 years ago.

Prasad and Chandra, whose names are on the property's title, have taken action in both criminal and civil courts but are still waiting for a resolution to the dispute.

University of Auckland law professor Bill Hodge said the easiest and swiftest legal option was to trespass the squatters.

"Ordinarily police say this is a civil matter," he said.

"But if there's a breach of the peace, then the individual can call the police and they will generally attend if there's a threat of violence."

That has so far not solved the matter. Police have charged Wharewaka and his partner Shirlena Julian with wilful trespass, but the case was adjourned until March. In the meantime, they have warned Prasad not to visit the property or approach Wharewaka for safety reasons.

Faced with a long wait for the trespass case to be heard, Prasad began a civil case in August. Her family is seeking a judgement that they are the owners of the property. However, a first hearing date has not yet been scheduled.

Property law specialist Joanna Pidgeon said the homeowners were in a difficult position.

"There's property rights and then there's a general crime - two different regimes at play here. And the poor owner is caught in the middle.

"Here they actually need an order for occupation of the property. I realise this is quite onerous to have to apply for court for that, just to enforce your occupancy rights.

"But that is the process which unfortunately takes time and comes at a cost. One of the issues is our courts are clogged, it takes a long time to get a hearing date and that impacts on people who are using it."

Once the owners get a ruling from the court, a bailiff would be able to enforce it - probably with police support.

If a squatter breached a court order they could be jailed, Pidgeon said.

"We don't have squatters laws the way they do in England. We have a guaranteed title system here. So the poor owner is ... losing income and incurring costs.

"The occupiers should just move out. But if they won't, there's not much else they can do as owners."

New Zealand law includes a "adverse possession" provision, which is similar to squatters' rights but only applies if a person has occupied land for 20 years without objection from the owner.

Hodge said Prasad's lawyers should be seeking consequential damages or punitive damages from the squatters.

Prasad estimated that the dispute had cost them $25,000 in lost income and legal bills.

NZ Property Investors Federation chief executive Andrew King said the dispute over the Otahuhu property was highly unusual.

Most squatting cases involved tenants who did not want to leave a property, and were easily resolved in the Tenancy Tribunal. The typical wait to heard in the tribunal was seven weeks.

In Prasad's case, they cannot go to the tribunal because the gang members were never tenants.