Although rarely a major part of any solicitor’s business, the issues relating to residential tenancies do occasionally arise.
The legislation relating to residential tenancies changed with the introduction of the Residential Tenancies and Rooming Accommodation Act 2008 (the “Act”), which came into effect on 1 July 2009.
The provisions of the Act do not greatly change the law as it was previously, and some issues are summarised below.
Tenants’ use of the premises
The lessor or its agent are required to allow the tenants to enjoy quiet enjoyment of the rented premises, and they must not interfere with the tenants’ use of the premises, allowing them reasonable peace, comfort and privacy.
Tenants for their part must make sure that they and their guests do not:
- Use the premises for any illegal purposes
- Cause or permit a nuisance
- Interfere with the peace, comfort and privacy of any neighbour.
Condition of the premises
At the start of a tenancy, the lessor or agent must ensure the premises and inclusions are clean, fit to live in and are in good repair. They must then maintain the premises and inclusions in good repair throughout the tenancy.
The premises must comply with health and safety regulations at the commencement and at all times throughout the tenancy. The tenants are to ensure the premises are kept clean, and that they and their guests do not damage the premises.
At the end of the tenancy, the tenant is required to leave the premises in a state similar to that set out in the entry condition report, which should reflect the condition of the premises at the start of the tenancy, excepting fair wear and tear.
Installation of fixtures
Tenants are only allowed to install fixtures or fittings or make alterations to the premises once they have the written consent of the lessor or agent. The nature of the approved changes needs to be agreed, as well as the conditions of any consent to the alterations.
If the tenant is allowed to remove the fixture or fitting at the endof the lease, any damage caused by its removal must be repaired by the tenant, or the lessor will be entitled to compensation.
A lessor or agent should not unreasonably refuse to provide consent to alterations or installations. If, however, a tenant installs fixtures or fittings or makes alterations without consent, the lessor or agent has the following options:
- To treat it as a breach and try to resolve the dispute
- To accept the changes as improvements, or
- To remove the fixture and charge the tenant for the cost of doing so.
Locks and locking devices
The lessor or agent must supply and maintain all locks and locking devices to ensure the premises are reasonably secure, and if at any stage either party wants to change the locks, both parties must agree without unreasonably withholding their consent.
Each party must be provided with a new key or access device, unless the Residential Tenancies Tribunal orders otherwise or a party agrees not to receive a key. Emergency changes of locks are allowed.
Maintenance and Repair
A question that is commonly asked is in relation to who is responsible for routine repairs and maintenance.
In the Act, the lessor or its agent is responsible for maintaining the premises in such a way that they remain fit for the tenant to live in, and maintaining the premises and inclusions in good repair (in a good working condition) having regard to their condition at the start of the tenancy.
It is the responsibility of the tenant to inform the lessor or agent of any maintenance that may be required, and this is best done in writing. Ideally, a Notice to Remedy Breach in Form 11 should be used, and the lessor or agent is then responsible for arranging for the repairs to be carried out within a reasonable time.
Emergency Repairs
Emergency repairs are defined in the Act to include a burst water service or serious leak, broken or blocked lavatory system or fittings, a serious roof leak or gas leak, a dangerous electrical fault, storm damage and the like.
The lessor or agent must organise and pay for any emergency repairs, and the tenant should try to contact them or their nominated repairer.
If that is not possible, the tenant can get a suitably qualified person to carry out emergency repairs to a maximum value of two weeks rent, or alternatively apply to the Tribunal for an order regarding the repairs.
Disputes
In the event of a dispute, the Act encourages the parties to attempt to resolve the disagreement themselves, however if that is not possible, the Residential Tenancies Authority does provide a dispute resolution service.
Lessor or Agent’s right to enter premises
Under the Act, the lessor or its agent has rights to enter a rental premises for several reasons, but to notify the tenant of the impending entry, the tenant is required to be given an Entry Notice.
The amount of notice required depends on the reason for entering the premises and most grounds require 24 hours notice for things such as repairs or maintenance.
Exceptions to this include a period of 7 days notice which must be given if the purpose of the entry is to inspect the premises, and there must be at least 3 months between these inspections.
Any entry must be at a reasonable time and is not allowed to be on a Sunday, Public Holiday or between 6:00pm – 8:00am unless the tenant agrees. If the lessor or agent is entering by themselves, they must also nominate a 2 hour window in which they will enter, which restriction does not apply to others such as trades people.
The tenant cannot refuse entry if the entry is for a lawful purpose, the correct notice has been given, and the entry is at a reasonable time. The lessor or agent must also ensure they maintain the tenant’s right to privacy and quiet enjoyment.
Most people will see the common sense in the rights and obligations placed on each of the parties to a residential tenancy, however in the event of a dispute, common sense does not appear to be very common, and thus the dispute resolution provisions of the Act are required.
Parties would be well advised to make sure they understand their rights and obligations before entering into the Tenancy Agreement.
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