About the Residential Tenancies Act 1986
The Residential Tenancies Act 1986 (RTA) sets out the basic protections for tenants renting houses and flats, and also tenants in boarding houses. The law applies in most situations where there is a tenancy (where rent is being paid in exchange for occupation) of residential premises (a place to live, rather than a place to do business) (s 4 RTA). Rent is usually the payment of money, but can include the exchange of goods and services for a place to stay (s 2 RTA).
The RTA:
- covers the relationship between landlords and tenants
- defines the rights and responsibilities of landlords and tenants
- provides a system for helping resolve tenancy disputes.
The RTA protects tenants, not flatmates
The RTA covers the landlord-tenant relationship. A tenant is someone who rents a property from a landlord for the purposes of living in it. They are granted the right to occupy the property under a tenancy agreement. See s 2 RTA for legal definitions.
Sometimes a number of people will rent a place and live together. In some of these situations each of the people will sign the tenancy agreement and so they will all become tenants together. This means they’re all responsible for the tenancy and for meeting their responsibilities under the Act.
If a person lives at the property, but isn’t named on the tenancy agreement, then they will likely be a flatmate and are not covered by the RTA. There are times where there may not be a written tenancy agreement (which is unlawful), but in these cases the person should seek advice as they may in fact be a tenant.
In situations where there are multiple tenants, the landlord may sometimes take the approach of treating one person as the head tenant. They are likely to be the communication point between the tenants and landlord. It is important to note that that tenant doesn't have any greater powers or responsibilities than the other tenants. They don’t have any greater right to determine how the property operates. This is something the tenants should work out collectively.
The RTA covers boarding houses
Boarding houses are covered by the Act, but some special rules apply. See Boarding house tenancies for details.
The RTA doesn’t cover some types of living arrangements
Some types of living arrangements, like student accommodation, are not covered by the Act (s 5 - 5B RTA). For an outline of these exclusions, see Who’s not covered.
If the living arrangement is unusual, the RTA may apply
The Court of Appeal has said that the Residential Tenancies Act 1986 is “consumer protection legislation” (Holler & Rouse v Osaki [2016] NZCA 130). It is designed to give people access to the remedies the Tenancy Tribunal can provide. For this reason, the Tribunal has said that it is willing to take a broad view and accept unclear or unusual living arrangements as falling under the umbrella of the Act. This is so that those people can get the help they need.
If one party makes an application to the Tenancy Tribunal and the other party argues that the RTA does not apply to the specific living arrangement, it’s the ones arguing against inclusion that have to prove their case (s 10 RTA).
Case study
A person lived in a room at a B&B and had an extended stay agreement with the owner. The landlord argued the RTA didn’t apply because her brother, who acted as manager, lived on site. However, the Tribunal found that he typically lived in a caravan on the property where he could manage the B&B. It didn’t accept that the exclusion relating to a member of the landlord’s family living at the property should apply.
The landlord also argued that the premises were excluded as they were for temporary or transient accommodation (such as provided by hotels and motels). The Tribunal found that while a stay at a B&B might typically fall under this exclusion provision, the actual agreement in this situation was different. It was an extended stay agreement for a six-month fixed term, with provisions more typical of longer term stays (eg, separate utilities charges, guests had to provide their own linen and do their own cleaning).
However, if the living arrangement clearly falls into one of the exclusions listed in s 5 - 5B RTA, the RTA will not apply. For an outline of these exclusions, see Who’s not covered.
Parties can agree that the RTA applies
If a living arrangement is excluded from the RTA, the parties can still make an agreement that all or part of the RTA will apply to their situation. For example, a homeowner and private boarder could agree that the RTA applies to their boarding arrangement. This kind of agreement must be in writing (s 8 RTA) and should clearly describe which sections of the Act will apply.
Everyone involved must sign and date the written agreement and keep a copy of it. The Tenancy Services tenancy agreement template can be used for this. If a dispute arises the parties involved will be able to apply to the Tenancy Tribunal.
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