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WHAT TO DO AT THE START OF A TENANCY

Sign a Tenancy Agreement

All new tenancies must have a written Residential Tenancy Agreement. The landlord must provide a Tenancy Agreement that sets out the particular conditions that have been agreed to. Both landlord and tenant sign it and the landlord must give the tenant a copy before the tenancy begins.

Care should be taken by both landlord and tenant in the discussions leading up to an agreement. If a landlord tells a tenant they can have a property, or a tenant says they will take it, or money is paid, this may bind them, even if an agreement has not yet been signed.

What should be in the Tenancy Agreement?

If something has been written down in a Tenancy Agreement that is inconsistent with what the law says, it has no effect. A landlord cannot enforce what is outside the law and tenants cannot give away any of their rights. For example, even if the Tenancy Agreement says the tenant must leave on a month’s notice, the tenant is still entitled to 90 or 42 days’ notice, whichever is applicable under the Residential Tenancies Act.

A basic Tenancy Agreement must include the following:

• The names and contact addresses of the landlord and tenant
• The address of the property
• The date the Tenancy Agreement is signed
• The date the tenancy is to begin
• ‘Addresses for Service’ for both the landlord and the tenant
• Whether the tenant is under the age of 18
• The amount of any bond
• The rent amount and frequency of payments
• The place or bank account number where the rent is to be paid
• Any fees (real estate or solicitor’s) which are to be paid (if applicable)
• A statement (if applicable) that the tenant is to pay for metered water
• A list of any chattels (like furniture, curtains and other fittings) provided by the landlord
• The date the tenancy will end if it is a fixed term

Other things may be included which are specific to the particular tenancy. Examples of these are:

• How many people may reside in the house.
• Whether the tenants may sublet or not.
• Where cars may be parked.

Having a written Tenancy Agreement and a properly filled in Property Inspection form can be very useful evidence if problems or disputes arise later on, or if a Tenancy Tribunal decision is asked for.

A standard, easy to follow Tenancy Agreement is available from Tenancy Services (on the Tenancy Services website) or from major bookshops.

What is an ‘Address for Service’?

The landlord and tenant must provide each other with an ‘Address for Service’ on the Tenancy Agreement. For an address to be a legal ‘Address for Service’ it must be in writing and stated as being 'Address for Service'.

It is a physical street address where official notices will be accepted by, or on behalf of the person concerned. It is especially important where an application to the Tenancy Tribunal has been made. A post office box number is not adequate as an ‘Address for Service’, because legal documents cannot be served on a post office box.

If this address changes then it is very important that the other party (that is, the landlord or the tenant) is informed. If you have paid/lodged a bond, then it is important to inform the Tenancy Services Centre as well.

The tenancy address may not be a valid ‘Address for Service’ for the tenant after the end of the tenancy. An alternative may be for a tenant to supply a relative or friend’s permanent home address, or something similar, as an ‘Address for Service’.

There are two main kinds of tenancies: periodic and fixed term. (A third, less common type, is a service tenancy.) When deciding what sort of tenancy will best suit their needs, both landlord and tenant should be aware of what their obligations are under that tenancy.

A Periodic Tenancy - is any tenancy that is not for a specific term. This is the most common form of tenancy. It continues until the landlord or tenant gives the correct notice to end it.

A Fixed Term Tenancy - finishes on a specific date set down in the written Tenancy Agreement. There is no provision for either the landlord or the tenant to give notice to quit.

The Tenancy Tribunal may also order that either type of tenancy ends.

If a landlord plans to go overseas for a year and arranges a fixed term tenancy, and then finds circumstances have changed and they have to come home early, they may be unable to move back into their home until the end of the fixed term.

If tenants have a fixed term tenancy and their situation changes so they are unable to stay in that property, they may remain responsible for the tenancy and the rent payments until the landlord is able to find suitable replacement tenants, or until the end date of the tenancy.

If unexpected circumstances mean a landlord or tenant wishes to end a fixed term tenancy early, then they may apply to the Tenancy Tribunal to end the tenancy. The Tenancy Tribunal may shorten the tenancy if there has been an unforeseen change in the applicant’s circumstances and if the hardship caused to the applicant by the tenancy continuing would be greater than the hardship caused to the other person by the tenancy ending. The Tribunal can also order compensation to be paid.

Fixed term tenancies are fully covered by the Residential Tenancies Act. There are some small exceptions.

• Market rent and notice to quit provisions do not apply to short fixed-term tenancies of less than 120 days unless the tenancy is renewed. All other provisions of the Residential Tenancies Act apply.

• Tenancy Agreements for fixed term tenancies of five years or more may not apply if the Tenancy Agreement has clearly stated that the Residential Tenancies Act shall not apply.

There are also special rules for service tenancies which are covered later in this guide.

Do a property inspection

As well as listing the property’s chattels on the Tenancy Agreement, it is a very good idea for the landlord and tenant to record the property’s condition together, at the start of the tenancy. This can help avoid disputes when the tenancy ends.

This can be done using the Property Inspection Report form that is part of the standard Tenancy Agreement forms available from Tenancy Services (on www.dbh.govt.nz) or from major bookshops. Both landlord and tenant sign, date and keep a copy of this form.

The Property Inspection Report records what a property is like at the start of a tenancy, so that when it finishes the form can be used again to check the property has not been damaged. If damage is written down on an inspection form when a tenancy starts, then a tenant cannot be blamed for it at the tenancy’s end, and any new deliberate or careless damage is easily identified.