Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to end a residential tenancy
In general, residential tenancies end in one of the following ways:
- by the landlord or the tenant giving notice
- by the period of the tenancy coming to an end if it is a fixed-term tenancy
- by the Tenancy Tribunal making a termination order
How much notice is the landlord required to give to end the tenancy?
Landlords must give tenants 90 days’ notice. However, the notice period is only 42 days if the landlord:
- requires the premises so that the landlord or his or her immediate family can live in them, or
- is selling the premises and requires vacant possession, or
- requires the premises so that one of his or her employees can live in them, provided the landlord customarily uses the premises, or acquired them, for this purpose and this fact was clearly stated in the tenancy agreement
The landlord is also under a duty to give written notice to the tenant if he or she puts the property on the market to be sold.
How much notice is the tenant required to give to end the tenancy?
The tenant must give at least 21 days’ notice to end the tenancy. The notice should be in writing, identify the premises to which it relates, specify the date which the tenant is to vacate the premises and be signed by the party giving the notice.
What information must be included in a notice to terminate?
A notice to terminate a tenancy must:
- be in writing
- identify the premises to which it relates
- specify the date by which the tenant must vacate the premises
- be signed by the party giving the notice (or his or her agent)
Can the parties agree between them that different notice requirements will apply?
Any term of the tenancy agreement that contravenes the RESIDENTIAL TENANCIES ACT 1986 will be invalid. However, this does not prevent a landlord from voluntarily waiving any rights and powers given by the Act nor from voluntarily taking on greater obligations than the Act imposes. By contrast, any waiver by a tenant of his or her rights or powers under the Act has no effect.
What are the tenant’s obligations when the tenancy ends?
When the tenancy come to an end, the tenant must:
- vacate the premises
- remove his or her property from the premises
- leave the premises in a reasonably clean and tidy condition, and remove all rubbish
- return all keys (and security cards or other devices) to the landlord
- leave all the chattels (such as furniture) that the landlord provided for the tenant’s use
Landlord can apply for termination order for non payment of rent, or damage or assault
The landlord can apply to the Tenancy Tribunal for a termination order to end the tenancy if the tenant:
- is 21 days behind in the rent, or
- has caused or threatened to cause, or allowed someone else to cause, substantial damage to the property, or
- has assaulted or threatened to assault the landlord, a member of the landlord’s family, the landlord’s agent, or the tenant’s neighbour
The Tribunal must make the order, unless it is satisfied:
- that the breach has been remedied and the landlord has been compensated for any loss, and
- that it is unlikely that the tenant will commit any further breaches of these kinds
Rather than making a final termination order for non-payment of rent, the Tribunal has the power to instead order the tenant to pay outstanding rent, provided the Tribunal is satisfied that the tenant can pay this and is unlikely to fall into rent arrears in the future. If the tenant fails to pay the outstanding rent, the tenancy terminates without the landlord having to go back to the Tribunal.
Landlord or tenant can apply for termination order for breach of the tenancy
Either the landlord or the tenant can apply to the Tribunal for a termination order if the other party has breached either the tenancy agreement or the RESIDENTIAL TENANCIES ACT 1986. The Tribunal can make the order if it is satisfied:
- that the breach was in fact committed, and
- if the breach was one that could be remedied, that the other party was given 10 working days’ notice to remedy the breach but failed to do so, and
- that it would be unfair to refuse to make a termination order
Tenancy Services, a division of the Department of Building and Housing, gives sample letters of 10-day notices on its website: see www.dbh.govt.nz (under Tenancy Forms).
When can a landlord evict a tenant?
If the tenant does not leave the premises after the tenancy has ended, the landlord can apply to the Tenancy Tribunal for a possession order. The landlord can get the District Court to enforce the possession order; this will be done by the court bailiff and the Police.
However, a landlord has no right to evict you himself or herself, and it is an offence for a landlord to do so.
Disputes are dealt with by the Tenancy Tribunal
The Tenancy Tribunal deals with all disputes arising out of residential tenancy agreements, including disputes about rent and bond: see The role and duties of the Tenancy Tribunal.
- With some exceptions, all residential tenancies are covered by the RESIDENTIAL TENANCIES ACT 1986 (for the exceptions, see How to enter into a residential tenancy). Whether or not a term in a tenancy agreement can successfully override the Act depends on whether it is the landlord or the tenant who is forgoing a right under the Act (see "Can the parties agree between them that different notice requirements will apply?", above). If you are in doubt about whether a particular provision in your tenancy agreement is legally binding, you should contact the Tenancy Tribunal or consult a lawyer.