Page updated on: Friday April 23, 2010
Almost all residential tenancies are governed by the provisions of the Residential Tenancies Act 1986. A residential tenancy is one "intended for occupation by any person as a place of residence".
Where the parties to an agreement intend that an occupier live at the premises, there is a legal presumption that this "tenancy" will be covered by the Residential Tenancies Act and the rights and obligations imposed on the "tenant" and the "landlord" by the Act will form part of the agreement. Disputes between the tenant and the landlord will be determined by the Tenancy Tribunal if resolution is not possible at mediation. Important tenancy decisions can be downloaded by clicking "Decisions of Interest".
There are a number of exceptions to the protection generally given by the Act. These excluded tenancies can be found in s.5 of the Act and include:-
Where the Act does apply to the tenancy the following rights and obligations are imposed on the landlord and tenant. The tenant must:-
The tenant must not-
The landlord must –
The landlord must not-
The parties may enter into either a fixed term tenancy (for a defined period of time) or a periodic tenancy. Different rules apply to termination of a fixed term tenancy than identified above and parties should consult Tenancy Services on 0800 83 62 62 for detailed information on the issues.
Where any dispute arises between the parties to a tenancy agreement it can be referred to the Tenancy Tribunal for resolution. The Tribunal will first ask a mediator to try and resolve the problem but if this is unsuccessful, the matter will be decided by the Tribunal.
Before referring the matter to the Tribunal it is common for parties to serve a "10 day written notice" on the other requiring any breach to be remedied. In cases where the tenant is 21 days behind in rent, the landlord may apply directly to the Tenancy Tribunal for an eviction order. A tenant cannot be evicted from a tenancy other than by an order of the Tenancy Tribunal.
Detailed information on tenancy issues can be accessed at www.tenancy.govt.nz
Q: I am currently living at a boarding house. The landlord has told me that he can kick me out any time and that he does not have to give me any notice. Is that correct?
A: Yes, that’s correct. Hostels, dormitories, short-term boarding houses and lodging houses are not covered by the Residential Tenancies Act. The occupant of these kind of premises has not ‘exclusive possession’ as required under a residential tenancy agreement. They can therefore be evicted at short notice; the Act does not apply.
Q: I am sharing a flat together with two other people. However, only one of us is on the lease and has signed the tenancy agreement with the landlord. I am paying my rent directly to my flatmate, who is on the lease. What are my rights?
A: The flatmate, who has signed the lease with the landlord, is the main tenant and as such protected and covered by the Residential Tenancies Act. However, the other flatmates are not considered as tenants and are not covered by the Act. This applies especially in situations where the other flatmates pay the rent directly to the main tenant, and not to the landlord. The situation can be different if the main tenant was regarded and understood as the representative of the other tenants, but this is rare and requires special circumstances.
Q: We have not signed a tenancy agreement when we moved into the place. What is relevant notice period when we want to move out?
A: If there is no written agreement , or there is a written agreement, but it does not say when the tenancy will end, the tenancy will be for indefinite period and will last until it is terminated. The tenants need to give at least 21 days notice; the landlord’s minimum notice period is 42 days if the landlord, for example, requires the premises for their own occupation (Section 51 Residential Tenancies Act 1986). If the special conditions of Section 51 don’t apply, the landlord has to give 90 days notice.
Q: We have not signed a tenancy agreement. Which conditions do apply in regards to our tenancy now?
A: The Residential Tenancies Act provides in Section 13 that every tenancy agreement must be in writing and signed by both landlord and tenant. However, Section 13C also provides that an agreement which is not in writing shall be enforceable. In other words, a verbal tenancy agreement is also valid and enforceable. By default, if there has not been any written document, the conditons of the Residential Tenancies Act will apply. For the remainder conditions, which are not regulated in the Act (rent, duration, termination etc.), the party enforcing the contract would need to provide evidence for their relevant claims.
Q: I am renting a flat and would like to rent one of the rooms out to a friend of mine. Can I do that?
A: Not without the landlord’s consent. The Residential Tenancies Act requires the tenant to get the landlord’s written consent before assigning or sub-letting the tenancy (Section 44 Residential Tenancies Act).
Q: We have just moved into a new flat and paid the bond to the landlord. The landlord advised us that he is going to put the bond into one of his accounts, but refused to give us a receipt. Is that legal?
A: No. The bond is defined as any sum of money paid as security to the landlord to cover, for example, damages to the property caused by the tenant or unpaid rent at the end of the tenancy. The bond must be paid within 23 days to the Ministry of Housing (Section 19 Residential Tenancies Act). The landlord must provide the tenant with a written receipt. Landlords who don’t comply with these requirements commit an unlawful act and may be liable to pay exemplary damages.
Q: Our landlord has asked us to pay one month rent as bond. We think that this is too much.
A: A landlord is entitled to require the tenant to pay up to 4 weeks rent by way of bond (Section 18 Residential Tenancies Act). The tenant has no right to claim for a lesser bond, as long as the landlord does not charge more than 4 weeks rent as bond. However, the landlord is not obliged to ask for any bond at all – tenant and landlord can agree on alternative ways to provide security to the tenancy.
Q: Our landlord comes around to our place every Saturday to check if everything is ok. He sometimes appears very early in the morning and does little repairs at the fence or the garage. We have a good relationship with him, but get the impression he controls us and are irritated by his behaviour. What can we do?
A: Under Section 38 Residential Tenancies Act a tenant is entitled to have 'quiet enjoyment' of the premises without interruption. This includes the landlord and imposes a duty on the landlord not to do anything to interrupt the tenant’s use of the premises. The landlord has the right to enter the premises in emergencies or for the purpose of carrying out urgent repairs (Details: Section 48 Residential Tenancies Act), however, as this is not the case here, you can ask the landlord to leave the premises.
Q: I have signed up for a fixed term tenancy for 2 years and am 1 year into the tenancy. I have now been offered a new job somewhere else and need to move. Can I get out of the agreement?
A: The tenancy tribunal can reduce a term of a fixed term tenancy where unforeseen changes in the circumstances of landlord or tenant would result in severe hardship (Section 66 Residential Tenancies Act). The requirements to establish severe hardship are quite narrow, but decisions from the Tribunal indicate that the situation above can be considered as hardship. If the landlord does not agree to terminate the lease prematurely, you will need to take the matter to the Tenancy Tribunal.
Q: I am living together with my 14 year old son, who recently created a fire while being alone at home when he was cooking in the kitchen. The landlord now wants to terminate the lease. Can he do that?
A: The Residential Tenancies Act provides that the tenant is responsible for anything done by any person who is on the premises with the tenant’s permission. That means, that you are liable for your son’s actions as if they were done by yourself. However, very much depends on the individual circumstances and this area of 'vicarious liability' is quite contentious. You should get individual legal advise before you making a decision or to going to the Tenancy Tribunal.