Moving in: Signing a tenancy agreement with a landlord
When you move into a new place that you’re renting, the law says that the landlord has to provide you with a written tenancy agreement and that the agreement has to deal with certain issues.
The tenancy agreement is a legal contract between you and the landlord. If your landlord doesn’t do something they’ve agreed to in it, you can take them to the Tenancy Tribunal (see “Problems with your landlord: What you can do” later in this chapter).
Two kinds of tenancy agreements: Indefinite and fixed-term
Your agreement will be one of the following two kinds:
- Indefinite (“periodic”) tenancies – A “periodic tenancy” is one that just keeps going until either you or the landlord gives notice to the other that you want to end it. There’s no fixed end date. If your agreement says nothing at all about when it will end, it’s a periodic tenancy.
- Fixed-term tenancies – A fixed-term tenancy lasts for a set time, like six months or one year. It has a start date and an end date recorded in the agreement.
But a fixed-term tenancy automatically becomes an indefinite (periodic) tenancy when the end date is reached, unless you or the landlord gives notice to the other saying you don’t want the tenancy to continue or unless the two of you agree on something else, like another fixed-term tenancy.
Landlords have to provide a written agreement
Your tenancy agreement has to be in writing, and it needs to be signed by both you and the landlord. The landlord must give you a copy of the agreement before the tenancy starts. If you renew the tenancy or if there are any changes, those also have to be put in writing.
If your tenancy agreement isn’t in writing, or if it’s written but not signed, you still have all the same minimum rights that tenants have under the Residential Tenancies Act. The rule that the agreement has to be in writing is there to give a tenant more protection – it doesn’t allow landlords to get around their minimum obligations under this Act by avoiding having a written agreement.
If you do only have a spoken agreement, the terms of your agreement will be the rights and responsibilities set down in the Act, plus whatever you’ve agreed to verbally with your landlord.
Note: More than one person can sign the tenancy agreement. If several of you sign it, this means that the landlord can decide to hold all of you responsible, or just one of you, when a problem comes up. (The legal term for this is that you and the other tenants who sign are each “jointly and severally liable”.)
Information that has to be in your tenancy agreement
Your tenancy agreement has to have the following minimum information in it:
- About you and the landlord
- your full names and contact addresses, including mobile numbers and email addresses
- the “address for service” for you and for the landlord (this is the place where formal documents can be sent to, like a notice to end (“terminate”) the tenancy; this must be a physical street address, not just a PO Box number, email address or fax number – although those can be given as well)
- whether you, the tenant, are under 18
- About the flat or house
- the address of the flat or house
- any furniture, curtains or other fittings that go with the place
- Key dates
- the date the tenancy agreement is signed
- the date the tenancy starts
- if it’s a fixed-term tenancy, the date the tenancy ends
- Rent and bond
- the rent, how often it will be paid, and the bank account it will be paid into (or the place where it will be paid if it’s not going directly into an account)
- the amount of any bond.
That is just the minimum information that has to be in the agreement. Other things can be included as well, so long as they don’t try to take away rights that you have under the Residential Tenancies Act. (But if they do try to take them away, they don’t have any legal effect.)
What if my agreement says something different from what’s in the Residential Tenancies Act?
In that case the rules in the Act override the agreement – unless the difference is in your favour as the tenant.
For example, if the agreement says the landlord only has to give you one month’s notice to end the tenancy, instead of the 90 days required by the Act, then that clause in your agreement doesn’t have any legal effect – the landlord still has to give you 90 days’ notice, just the same as if it said 90 days in your agreement.
On the other hand, if your agreement says the landlord has to give you 120 days’ notice (four months), that does legally bind the landlord, because it’s better for you than the minimum 90-day period required by the Act.
Property inspection reports: Do one when you move in
Before you sign the tenancy agreement, it’s a good idea to go through the place with the landlord and fill out a property inspection report – sometimes also called a “condition report”. Write down the condition of each room and any furniture, appliances and so on provided by the landlord (called “chattels”). This will make sure you both agree on the state of the property before you move in. It will also help avoid arguments later on about, for example, whether something was already worn or damaged before you moved in.
Tenancy Services provide a standard tenancy agreement that also includes a property inspection form (see “Other resources” at the end of this chapter). Most landlords use this form, but if your landlord doesn’t, you should get a copy of the property inspection form from Tenancy Services and ask the landlord to complete it with you as part of the tenancy agreement.
Unfair treatment: When you’re discriminated against because, for example, you’re Māori or transgender
It’s illegal for a landlord to treat you differently as a tenant or potential tenant because of, for example, your race, your gender (including if you’re transgender), or your religious beliefs (being Muslim for example), or because you’re gay, lesbian or bisexual, or because you have a disability , or because you’re on a benefit – or for any of the other illegal reasons listed in the Human Rights Act 1993.
This protects you when, for example, a landlord refuses to rent you a place on one of those grounds. It will also protect you if you’ve already moved in and your landlord then finds out something about you – for example, that you’re Muslim – and they give you notice to move out.
For more details about the different illegal grounds of discrimination, see the chapter “Discrimination”. For examples of disability discrimination by landlords, see the chapter “Disability rights”, under “Renting a flat: Access to housing and accommodation”.
Discrimination by landlords is one of those things that our tenancy law treats as particularly serious. Tenants can apply to the Tenancy Tribunal to be paid compensation by the landlord, but they can also ask the Tribunal to order the landlord pay an extra amount, called “exemplary damages”. In the case of discrimination, this extra amount can be up to $4,000.
“Exemplary damages” means that this money isn’t awarded to put right the wrong that the tenant has suffered (that’s what awarding compensation is for), but is instead ordered to punish the landlord and discourage them from doing something similar again.
Example: Discrimination because you’re on a benefit (“Employment status”)
The landlord ended the tenancy because she thought, mistakenly, that the tenant and her husband had lied about their work status and that in fact they were getting a benefit from Work and Income. The tenant took the landlord to the Tenancy Tribunal, claiming that her rights under the Human Rights Act had been breached – namely, the right to be free of discrimination on the grounds of her “employment status”.
What had triggered the dispute was that the tenant had asked the landlord to consider becoming a WINZ (Work and Income) provider, so that WINZ would advance the tenant the bond money and the tenant could then pay WINZ back over time. The Tenancy Tribunal concluded this was the reason why the landlord changed her mind about the tenant and gave notice to end the tenancy only a month and a half after it had started.
The tenant had told the landlord repeatedly that in fact she and her partner were both working. But the Tenancy Tribunal said that, under the law, “that is not the point”, and that landlords simply aren’t allowed to make decisions based on whether or not you’re working. The Tribunal said: “The Residential Tenancies Act 1986 and the Human Rights Act 1993 make it clear that whether or not someone is employed, or receives a benefit or ACC, is not relevant to tenancy decisions.”
The landlord had to pay the tenant compensation
In this case the tenant was applying for compensation for this discrimination. The Tribunal ordered the landlord to pay her $550 in compensation (as well as additional compensation for some other reasons), and said that the landlord’s notice to end the tenancy was legally invalid – which meant that the tenant was allowed to stay in the flat.
The Tenancy Tribunal noted that the tenant had only asked for compensation, and hadn’t asked the Tribunal to order the landlord to pay additional “exemplary damages”, which is a possibility in cases of discrimination by landlords. This was perhaps because the tenant didn’t know they could have asked for this. The Tribunal said that because the tenant hadn’t applied for exemplary damages, it had dealt with it only as a claim for compensation.
In this case the Tribunal decision-maker said that the tenant in this case had “described the frustration and humiliation of herself and her family in being treated in this way and her understandable strength of feeling was evident to me at the hearing.”
But the Tribunal also noted that the landlord had been inexperienced, wasn’t aware that what she had done was illegal, and that she’d been “open and frank” at the Tribunal hearing. Because of that, it’s possible that the Tribunal wouldn’t have awarded exemplary damages even if the tenant had asked for them, because exemplary damages are usually intended to punish landlords for particularly bad, deliberate behaviour.
If the landlord is an individual person or a private organisation (like a company or trust), you can choose whether to complain to the Human Rights Commission under the Human Rights Act or to the Tenancy Tribunal under the Residential Tenancies Act.
But if your landlord is a public body like Housing New Zealand or a city council, you can only complain to the Human Rights Commission.
What information can landlords collect from potential tenants?
If you’re looking at a place being offered for rent by a landlord, they can only collect information that’s needed to decide whether you’d be a suitable tenant. They can’t collect any other information. See the chapter “Privacy and information”, under “Rules for when people collect information about you”.
The Privacy Commissioner has produced a new set of guidelines for landlords on this issue: https://privacy.org.nz/assets/Uploads/Landlord-guidance-information-v2-29-April-2019.pdf