The default rule for Maori freehold land is that multiple owners hold their ownership interest as tenant in common, without rights of survivorship. A dispute over ownership of nearly six hectares of land overlooking Kawhia Harbour reached the Court of Appeal, part of a wider dispute between whanau over a purchase made nearly thirty years ago.
Rori Moke died in 1988. His widow, as administrator of his estate, agreed to sell his interest in the Kawhia land to Niki Tuwhangai for $11,500. As the legal steps progressed, he agreed to relative June Ormsby joining him in the purchase. While not in fact siblings (she was Niki’s first cousin’s daughter), she was treated as a sister. She paid half the purchase price.
The Court of Appeal was told June’s express wish was that she would eventually build a house on the land. She never did so. Niki took up sole occupation, farming the property.
After June Ormsby died, adopted daughter Christine took issue with Niki Tuwhangai’s family claims over ownership of the Kawhia land.
At heart was a dispute whether Christine’s mother’s part ownership of Kawhia was held as tenant in common or joint tenant; an important legal point of difference familiar to lawyers but not widely known in the general community.
The general rule, based on English law, is that property owned by multiple owners is presumed to be held as ‘joint tenants.’ The death of one owner means that person’s interest is then shared between surviving owners; known as rights of survivorship.
If multiple owners explicitly describe their ownership interests as being held as ‘tenants in common,’ then their part interest passes to their estate on death; there is no right of survivorship.
This general rule is reversed in relation to Maori land. The Te Ture Whenua Maori Act records as a default rule that multiple owners of Maori land take ownership as tenants in common, unless owners agree otherwise. A presumption of ownership as joint tenants has never existed in Maori land law.
This reversal of the English-based assumption of joint ownership flows from Maori custom that land is a cultural asset reflecting mana and personal standing; land is not an economic asset to be traded.
As a consequence, ownership of Maori land has become splintered amongst multiple generations over time.
Christine Ormsby said the default Maori land law rule meant her late mother’s estate now held title to her mother’s half share of the Kawhia land.
Mr Tuwhangai said there had been clear agreement that their joint purchase at Kawhia was on the basis that June Ormsby would ‘never be able to sell.’ In other words, they were agreeing to ownership as joint tenants, he said.
The Maori Land Appeal Court ruled the land was held as joint tenants. It overturned an earlier decision by the Chief Judge of the Maori Land Court who had revised the title, on Christine Ormsby’s application, to state her late mother held a half interest as tenant in common.
A challenge to this Maori appellate court ruling was dismissed in the Court of Appeal.
Mr Tuwhangai died in 2022. His direct descendants assume ownership of all six hectares of the Kawhia land.
Boon v. Estate of Niki Tuwhangai – Court of Appeal (12.04.24)
24.091