Who’s covered by the minimum tenancy protections
What kinds of renting arrangements are covered?
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?
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
- with the 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.
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?”.
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 (explained later in this chapter under “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?
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.