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Who’s covered by the minimum tenancy protections

Overview

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

The protections in the Residential Tenancies Act cover you unless your case comes under one of the specific exceptions that the Act sets out. We’ve summarised the main ones here.

The protections in this Act don’t cover you if you’re living with the:

  • owner of the house or flat, as a flatmate or boarder, or
  • tenant of the property (that is, the person who signed the tenancy agreement) as one of their flatmates.

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 below, “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.

Case: [2008] 3 NZLR 417

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?”.

Residential Tenancies Act 1986, s 10; Case: [2017] NZDC 26365

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 this to the Tribunal, on the balance of probabilities (which means it’s more likely than not to be true). It’s not up to you to prove that the tenancy protections do cover you. The Tribunal has to interpret the wording of those exceptions strictly, rather than loosely.

Tenants and flatmates: Who’s covered when you’re sharing the rent

You’re protected by the Residential Tenancies Act if you have a tenant/landlord relationship with the owner – that is, if you signed a tenancy agreement with them so that you’re responsible to them for paying the rent and looking after the property.

When people are sharing a house or flat and are all paying rent, it may be that all of them are legally “tenants”, or it may be that only one or some of them are tenants – it all depends on who signed the tenancy agreement. The people who aren’t tenants are often just referred to as “flatmates”. Flatmates don’t have any legal relationship with the landlord – instead they’re responsible to the tenants.

Your rights as a flatmate will depend on the agreement you have with the tenant or tenants. It’s a good idea to have a written flatmate agreement so that everyone knows what their responsibilities are. 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. Disputes between two or more tenants about things like bills can also go to the Disputes Tribunal. See the chapter “The Disputes Tribunal”.

Boarders and boarding houses: When you’re covered

Boarding houses are usually covered by the Residential Tenancies Act, which sets out special rules about things like how much notice to end the tenancy you have to be given, 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.

You’re protected by the boarding house rules in the Residential Tenancies Act 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.

Some situations that are also sometimes described as “boarding” aren’t covered by those protections. 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 covered by the Residential Tenancies Act. In those situations, you’re not covered by the standard tenancy protections in the Act because they don’t cover you if you’re living with the owners, and you’re also not covered by the boarding house protections in the Act because they only cover places intended for six or more boarders.

Short-term renting doesn’t come under the boarding house provisions or other provisions of the Residential Tenancies Act. If you’re renting a room, the Act makes a basic distinction between short-term (“temporary or transient”) accommodation, like that provided by hotels and motels, and longer-term accommodation provided by boarding houses.

Places that can’t legally be rented out: Am I still protected?

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.

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, there are special rules about what the Tribunal can do:

  • The Tribunal can order the landlord to do the things needed to make the property legal – for example, complying with fire safety requirements.
  • They can order the landlord to 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.
  • They can order the landlord to pay you a special penalty of up to $4,000 (this is called “exemplary damages”).
  • They can end the tenancy.

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Tenancy and housing

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and can help you make an application to the Tenancy Tribunal.

Tenancy Services – Ministry of Business, Innovation and Employment (MBIE)

www.tenancy.govt.nz 

MBIE‘s Tenancy Services section provides information to tenants and to landlords. It also provides dispute-resolution services.

Tenancy advice line

Phone: 0800 83 62 62 (0800 TENANCY). Free translation services are available.

Bond enquiries

Phone: 0800 737 666. Free translation services are available.

Information and forms

Tenancy Services provides information and various forms online or you can order forms by phoning 0800 83 62 62 (0800 TENANC)

Applying to the Tenancy Tribunal

You can apply online, or you can get a paper copy of the form from a Tenancy Services office. The application processes are explained at:
www.tenancy.govt.nz/disputes/Tribunal/making-an-application

Tenants Protection Associations

www.tpa.org.nz

Some cities have Tenants Protection Associations:

Christchurch – (03) 379 2297,

Auckland – (09) 360 1473

Renters United

www.rentersunited.org.nz (in Wellington only)

Renters United is an organisation for renters in Wellington. They focus on organising renters and campaigning to make renting better for everyone.

Manawatu Tenants Union

Manawatu Tenants Union provides advocacy and support for renters in the Manawatu region

Phone: 06 357 7435

Email: info@mtu.org.nz

Citizens Advice Bureau

www.cab.org.nz

Phone (0800 FOR CAB) 0800 367 222

Contact your local Citizens Advice Bureau for information about what local tenancy services are available to you.

Kāinga Ora (formerly Housing New Zealand)

www.kaingaora.govt.nz

Kāinga Ora, which manages the state housing stock in New Zealand, has a range of information on its website.

Phone: 0800 801 601

Ministry of Social Development

www.msd.govt.nz

The Ministry of Social Development assesses eligibility for the social housing provided by Housing New Zealand and registered community housing providers. MSD also calculates income-related rent for social housing and conducts tenancy reviews.

MSD‘s social housing staff can be contacted through Work and Income offices:

Phone Work and Income on 0800 559 009 or, if you’re 65 or older, contact Senior Services on 0800 552 002.

Community Housing Regulatory Authority

www.chra.hud.govt.nz

Phone: (04) 896 5908

Email: CHRA@hud.govt.nz

The Authority approves and registers community housing providers and monitors registered providers. You can read the register of approved providers on the Authority’s website.

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