1. Subletting and the Residential Tenancies Act
2. Methamphetamine (‘P’) testing
3. Persons or pets exceeding those allowed under the Tenancy Agreement
4. The difference between careless damage and intentional damage
5. Mould in rental properties
6. The 90 days’ notice period proposed as part of a targeted reform of the Residential Tenancies Act
7. Insulation certificates
8. Replacing smoke alarm batteries
9. Insulating apartments
10. Tenant liability for careless damage

1: Subletting and the Residential Tenancies Act

Under the Residential Tenancies Act, a tenancy agreement can include a clause that prohibits the tenant from subletting. If the clause is not in the agreement, then the tenant can sublet the premises only if they have the landlord’s prior written consent.

Even if a tenancy agreement includes a clause about subletting, if the landlord doesn’t want any part of the premises to be used for Airbnb or similar temporary rental, they should include a clause which expressly prohibits use of the property for holiday and other rental agreements.

Subletting is where the tenant lets out all or part of the house they are renting to someone else for exclusive use by that person. If the tenant vacates the premises and then advertises the property for rent on Airbnb or other temporary rental platforms, this would also be considered subletting. If the tenant is still living in the premises when they let out the property on Airbnb or similar, this is not considered subletting.

The best way for landlords to ensure they have recourse if tenants let out the rental premises, is to specify in their rental agreements that any kind of subletting or temporary rental arrangements, including Airbnb or other temporary rental platforms, are prohibited. Alternatively, they should state that this is only allowed with written consent from the landlord. It is not enough to assume that the Tenancy Tribunal will treat a prohibition on “subletting” as a prohibition on situations like Airbnb.

A tenancy agreement is a legally binding contract between the landlord and tenant, which sets out the rights and responsibilities of both parties. The Tenancy Services residential tenancy agreement form [PDF, 551 KB] includes a clause prohibiting subletting, and this can be amended to cover holiday rentals as well.

The landlord can issue a notice to remedy immediately to the tenant if they suspect part or all of their property is being advertised and let out through Airbnb or similar in breach of their tenancy agreement. If the situation is not resolved, the landlord may apply to the Tenancy Tribunal to have the matter resolved.

2: Methamphetamine (‘P’) testing

Tenancy Services encourages landlords and tenants to check for any signs of ‘P’ at the property after each tenancy ends and before a new tenancy begins.

Auckland Regional Public Health Services has identified warning signs that will help, although this information is based on common sense and only a qualified inspector can provide a professional opinion. Those warning signs can be found here under ‘Landlords should check for any signs of ‘P’ during and between tenancies’.

A professional test for methamphetamine before every new tenancy is not a legal requirement. However, we do encourage you to check with your insurer what meth inspection requirements they have in order for you to claim against your policy.

The contamination of premises, including methamphetamine contamination, is one of the areas being addressed by the Residential Tenancies Amendment Bill (No. 2) which is currently going through the Parliamentary process. Under the proposed changes, landlords would be able to enter rental premises during tenancies to test for contaminants (which include methamphetamine) after a specified notice period. They would have to tell tenants what they are testing for and share the results of any testing within seven days of receiving the results. Where contamination is established, shorter termination notice periods may be given by landlords and tenants to end the tenancy.  The government would be able to set regulatory requirements for testing and decontamination and prescribe maximum acceptable levels for contaminants.

The Prime Minister’s Chief Science Advisor Professor Sir Peter Gluckman has recently released a report: Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards.(external link)

3:  Persons or pets exceeding those allowed under the Tenancy Agreement

If there are obvious signs that more people are residing at the property than are allowed or a pet is on the property, despite your Tenancy Agreement stipulating otherwise, landlords and property managers have options to address the problem.

The best way to solve problems is for landlords and tenants to talk to each other and to try to sort them out together. If this does not work then each party can give a written ‘Notice to remedy’ letter to the other. We have a template version of this letter on the website. Each party should provide the other with a reasonable timeframe to fix the situation before taking any further action. Once the timeframe has expired 48 hours’ notice can be given to inspect the property and check the issue has been resolved.

If landlords wish to consider ending the tenancy through an application to the Tenancy Tribunal because of the issue, no less than 14 consecutive days must be provided to the tenant to fix the problem.

Notice to remedy templates

4: The difference between careless damage and intentional damage

Tenants must tell the landlord straight away if they are aware of something that needs to be repaired or maintained, no matter how it happened or who caused the damage.

Damage is likely to be viewed as ‘intentional’ if the outcome was desired or if it was known by the tenant that damage was highly likely to result from the action taken. Damage is likely to be viewed as ‘careless’ if it was not intentional, but was not at the level of reasonable and responsible care expected of a tenant in the circumstances.

Fair wear and tear refers to the gradual deterioration of things that are used regularly in a property when people live in it.

A tenant is not responsible for normal fair wear and tear to the property or any chattels provided by the landlord when they use them normally. The tenant is responsible for any intentional or illegal actions causing damage. The tenant would generally be liable for damage caused carelessly if there is no insurance policy held by the landlord that would cover the damage.

An example of this would be where a stove element wears out from normal cooking. This is fair wear and tear. However, if the stove was being used to heat the kitchen and stopped working properly, this would not be considered normal use.

Examples of what is usually considered fair wear and tear are:

• flooring getting worn
• taps and washers in the kitchen, bathroom or laundry wearing out or leaking

Examples of what is not normally considered fair wear and tear are:

• burn marks or drink stains on the carpet
• drawing on wallpaper

The landlord is responsible for remediating wear and tear, whereas the tenant is responsible for any intentional or illegal actions causing damage. The tenant is also responsible in most cases for careless damage where the landlord has no insurance cover. More information about working through repairs and damage.

5: Mould in rental properties

The property should be regularly inspected for existing damage, including mould, and this noted on the Tenancy Agreement. We encourage taking date-stamped photographs, but do not recommend taking photos of a tenant’s personal possessions. Inspections can be done every four weeks unless a longer period of time is specified in the Tenancy Agreement.

Once the tenant has moved in, it’s their responsibility to keep the place reasonably clean and tidy, including keeping the home in a condition that doesn’t encourage mould and dampness.

We have tips on the website about preventing mould and removing it as soon as it appears. More information about mould prevention and removal.

Note that dampness is often from external sources – landlords should check that gutters are clear, and that downpipes and drainage are working. Where the house has a suspended floor, check that the ground is dry and that there are no leaks.

6: The 90 days’ notice period proposed as part of a targeted reform of the Residential Tenancies Act

Our policy team has been asked to consider removing the ability for landlords to end a periodic tenancy for any reason with 90 days’ notice as part of the targeted reform of the Residential Tenancies Act. In addition, the reform will also consider whether the notice periods that apply to other grounds for ending a periodic tenancy should be extended from 42 to 90 days.

The reform will ask questions around how these proposals can be advanced while still ensuring that landlords can end tenancies when tenants are not doing their part.

Landlords and tenants will have a chance to have their say on these proposals before anything becomes law, and we encourage you to submit your opinions.

A public consultation period will run for eight weeks. You will be notified when this is happening and we will outline how you can provide a submission.

7: Insulation certificates

[Note, the following response was provided by the Energy Efficiency Conservation Authority (EECA)]

Installing insulation has become more technical, as today there is a better understanding on having it installed correctly. Plus there are a number of hazards in the ceiling spaces and the under floors of New Zealand homes that can make working in those areas dangerous. Tenancy Services and the Energy Efficiency Conservation Authority (EECA)(external link) always recommend the involvement of a professional in determining the status of the insulation in a property, particularly if there is any uncertainty or a dispute. You may wish to look at the landlord insulation video(external link) and contact one of the current Warm Up New Zealand service providers(external link) to speak to a professional in your area who will be able to advise on your next steps. Please note that government grants to insulate rental properties will not be available after 30 June 2018.

8: Replacing smoke alarm batteries

Working smoke alarms or detectors are compulsory in all rental homes. New smoke alarms must be photoelectric long-life (at least eight years), or be hard-wired. As a landlord, your liability is to ensure smoke alarms:

• Are in working order
• Are not expired
• Are replaced with photo-electric long life battery smoke alarms when they expire
• Are working at the start of each new tenancy
• Are installed in the correct areas of the property

Tenants must:

• Not damage, remove or disconnect a smoke alarm
• Replace expired batteries during the tenancy (if the alarm design allows this)
• Let the landlord know if there are any problems as soon as possible

Landlords have the right to enter a rental home to comply with smoke alarm requirements after 24 hours’ notice between 8.00am and 7.00pm.

In any Tribunal case involving smoke alarms, the above responsibilities will be considered and landlords could be ordered to pay a financial penalty of up to $4,000. Tenants could be ordered to pay up to $3,000 for not meeting their obligations. The Tenancy Compliance and Investigations team has a no tolerance policy when it comes to either party tampering with smoke alarms or removing the batteries, or the landlord not installing them in the first place.

More information on smoke alarms in rental properties.

9: Insulating apartments

Ceiling and underfloor insulation will be compulsory in all rental properties from 1 July 2019 where it is reasonably practicable to install. It must comply with the regulations and be safely installed.

Where an apartment is on the top level closest to the building roof or on the ground level closest to the building floor, insulation requirements will take effect for the ceiling and floors of those apartments. Central apartments are not required to insulate the ceiling and underfloor to the new required standard.

A Body Corporate is not responsible for the insulating of the apartment. This falls to the owner / landlord. Owners should discuss any installation requirements/installation with the Body Corporate prior to undertaking the work.

Insulation statements are compulsory in all new Tenancy Agreements from 1 July 2016 regardless of the location of the apartment. We have created a template insulation statement [PDF, 851 KB] to help you.

More information about compulsory insulation requirements.

More information about available insulation grants available through EECA Energywise until 30 June 2018.(external link)

10: Tenant liability for careless damage

The Residential Tenancies Amendment Bill (No 2), currently before Parliament, would make tenants liable for damage caused by carelessness up to the lesser of the value of their landlord’s insurance excess or up to the value of four weeks’ rent*. Information on the Bill can be found here(external link).

*NB: This is not currently law.