Who’s covered by the minimum tenancy protections
What kinds of renting arrangements are covered?
Residential Tenancies Act 1986, ss 3–11
As the name of the Act says, the special protections under the Residential Tenancies Act apply to:
- A tenancy – in other words, when you’re renting a place.
- For residential purposes– that is, it’s your home, it’s not for a business.
But there are some exceptions when the protections don’t apply, or when they apply only in limited ways – these are explained below.
Note: You can’t sign away your rights under the Residential Tenancies Act – or, as a lawyer would say, you can’t “contract out” of the Act. If your tenancy agreement says things that are inconsistent with, or not as good as, your rights under the Act, those parts of the agreement usually don’t have any legal effect. On the other hand, landlords can sign away their rights under this Act.
What kinds of renting arrangements aren’t covered by the tenancy protections?
Residential Tenancies Act 1986, s 5, s 10 Case: [2008] 3 NZLR 417 Case: [2017] NZDC 26365
The protections in the Residential Tenancies Act cover you unless your case comes under one of the specific exceptions that the Act sets out.
The protections in this Act don’t cover you if:
- you’re living with the owner of the house or flat as a boarder, or
- if you live in the house or flat, but you haven’t signed a tenancy agreement.
You’re also not covered if you’re staying in one of the following kinds of places:
- a student hostel run by a university, polytech or other tertiary education organisation
- a hotel or motel for temporary or emergency purposes (but stays of four weeks or more in boarding houses are covered – see: “Boarders and boarding houses: When you’re covered”)
- a retirement village
- a rest home, a hospital or any other place that cares for sick, disabled or older people.
If you don’t come under one of the set exceptions to the Act, then the Act’s protections will cover you.
In any of the situations where the Residential Tenancies Act doesn’t apply to you, you and the landlord can still agree that the Act will cover your tenancy.
For flatmates and their rights, see below, “Tenants and flatmates: Who’s covered when you’re sharing the rent?” below.
Note: If you take your landlord to the Tenancy Tribunal to enforce your rights, the landlord may try to argue that one of the exceptions puts you outside the tenancy laws. But they’ll have to prove to the Tribunal that this is more likely than not to be true (this is what “on the balance of probabilities” means). It’s not up to you to prove that the tenancy protections do cover you.
Tenants and flatmates: Who’s covered when you’re sharing the rent
You’re a tenant protected by the Residential Tenancies Act if you signed a tenancy agreement with the landlord. As part of that agreement, you’re responsible to the landlord for paying the rent and looking after the property.
If everyone who lives in your house or flat signed the tenancy agreement, you are all tenants and all have the same responsibilities to the landlord. If only some of you sign the agreement, the relationship is a bit different. The people who sign the agreement are tenants, while the people who didn’t sign are responsible to the tenants. These people are flatmates, but not tenants.
Your rights and responsibilities as a flatmate will depend on the agreement you have with the tenants. It’s a good idea to have a written flatmate agreement so that everyone knows what their responsibilities are. Even if you don’t have a formal written contract though, you still have an agreement, and you’ll need to stick to what was agreed.
If there’s a dispute between a tenant and a flatmate (for example, about rent payments or electricity or internet bills), this can be taken to the Disputes Tribunal. For more information about this process, see: “The Disputes Tribunal”.
Example: You move into a flat with 2 other people. The other 2 people sign the tenancy agreement, but because you only plan to stay at the house for 3 months, it is agreed that you will just be a flatmate. You agree pay a third of the rent and bills to the tenants each month for that time.
If you stopped paying rent before the 3 months was up, you would be breaching the agreement you had with the tenants, and they might take you to the Disputes Tribunal. They would have to continue paying the whole rent to the landlord, because they are the ones responsible on the tenancy agreement.
Boarders and boarding houses: When you’re covered
A boarding house is a different kind of renting situation, where you rent a room, rather than a whole house, for a short period of time. It is a boarding house if:
- you’re staying in a place that’s for six or more boarders, and
- you’re planning to stay there for four weeks (28 days) or more.
Boarding houses are usually covered by the Residential Tenancies Act, which sets out special rules about things like how much notice you have to give to end the tenancy, how often the landlord can raise your rent, and when they can come into your room (see: “Boarding houses: Renting a room”). These rules and protections are mostly different from those that cover house or flat tenancies.
This is different from other kinds of “boarding,” where you live with and pay rent to the person who owns the property. For example, if you’re living with family or friends in their spare room, and paying them “board” for rent and food, you’re not in a boarding house and you’re not covered by the Residential Tenancies Act. In those situations, you still have an agreement which could be enforced by the Disputes Tribunal, but it’s not a tenancy agreement.
Short-term renting, for less than four weeks, doesn’t come under the boarding house provisions or other provisions of the Residential Tenancies Act.
What if I’m renting a place that can’t legally be rented out?
Residential Tenancies Act 1986, s 2 (definition, “residential premises”), s 78A
You’ll still have all the minimum protections that tenants have even if you’re renting a place that the landlord isn’t legally allowed to rent out – for example, a garage or sleep-out that doesn’t meet building safety laws. The landlord can be fined for breaching the Act.
So, for example, the landlord will still have to provide the place in a reasonably clean and tidy condition, and give you the right amount of notice if they want to increase the rent or get you to leave.
On the other hand, if you want to leave, you only have to give the landlord two days’ notice – not the usual four weeks (28 days).
If you and the landlord have a dispute and go to the Tenancy Tribunal, the Tribunal can make an order:
- to make the landlord do the things needed to make the property legal – for example, complying with fire safety requirements
- to make the landlord repay you some or all of the rent you’ve paid. On the other hand, the Tribunal will only order you to pay unpaid rent if they think it would be unfair to the landlord if they didn’t make you pay
- to make the landlord pay you a special penalty of up to $4,000 (this is called “exemplary damages”)
- to end the tenancy.
