A tenancy agreement is a legally binding contract and should be treated as such. Many tenancy problems come about through poorly documented or unfair tenancy agreements. Although these problems can sometimes be sorted out, it’s best to support tenants to avoid problems by starting the tenancy well.
Note
It’s very important for the tenant’s protection that the tenancy agreement is in writing. The law says that landlords must provide tenants with a written tenancy agreement to sign before the tenancy begins (s 13(1) RTA). The tenant must sign the tenancy agreement.
If the tenant loses their copy of the agreement, they can ask the landlord for a copy of theirs.
What if there is no signed tenancy agreement?
The Residential Tenancies Act still applies to a tenancy agreement that is not in writing (i.e. a verbal agreement) (s 13C RTA). This provides some protection for tenants who do not have a written agreement.
Note
Some landlords may try to argue that no tenancy agreement (verbal or written) ever existed, and that the tenant is not really a tenant according to the law. Proof that a tenancy actually existed might be necessary in these circumstances.
If there are no records of rent payments (eg, the tenant paid in cash), the tenant may still have some protection in the Tenancy Tribunal if they can prove that they lived at the property for an extended period. This indicates that the landlord consented to them living there, under a tenancy agreement. Proof of a tenancy could include:
- an electricity, phone or gas bill in the tenant’s name with the property address on it, or
- a letter addressed to the tenant eg, from WINZ, Inland Revenue, or the local council.
If a written agreement doesn’t exist, tenants should be encouraged to ask the landlord for one, explaining the requirement in s13 of the Residential Tenancies Act. A written agreement provides certainty to both parties about the terms and conditions of the tenancy. Here is a template letter to a landlord, requesting a written agreement.
Are all tenancy agreements the same?
The tenancy agreements set out the terms and conditions of a tenancy. Tenancy agreements can come in different forms:
- the approved Tenancy Services Residential Tenancy Agreement, with or without extra terms and conditions added by the landlord,
- an agreement drafted using the Tenancy Services Residential Tenancy Agreement Builder,
- a different template agreement (eg, one created by a property management company),
- a unique agreement prepared for the property by the landlord or agent.
Note
It’s important that the tenant is familiar with all the conditions in the agreement, especially if the landlord has written the terms and conditions themselves.
For more consideration of the types of conditions that may be included in the tenancy agreement see the {section on Additional conditions}.
The Tenancy Services Residential Tenancy Agreement, or an agreement generated using the Residential Tenancy Agreement Builder are generally the best agreements for tenants, because these only contain lawful conditions, are simple and easy to understand, and set out clearly what the landlord and tenant must do.
What needs to be covered?
The minimum requirements of a tenancy agreement are set out in section 13A of the RTA. These include the following:
- The full names and contact addresses of the tenant(s) and landlord and any email addresses and mobile phone numbers. Address can’t be a PO Box.
- The address of the rental property.
- The date the tenancy agreement is signed.
- The start date of the tenancy.
- An address for service for both the landlord and the tenant. This is the address that official documents such as legal notices should be sent. It must be a physical address, and does not have to be the tenancy. A PO Box can be added as an additional address.
- Whether the tenant is under the age of 18.
- The amount of any bond charged.
- The amount and frequency of rent payments.
- How the rent will be paid (eg, bank account number).
- A list of any chattels (like furniture, curtains and other fittings) provided by the landlord.
- If the tenancy is a fixed-term tenancy, the date the tenancy will end.
- Statements on insurance, insulation and healthy homes (see below)
The approved Tenancy Services Residential Tenancy Agreement also includes these further terms and conditions:
- An agreement for the tenant to pay for metered water (if there is a separate meter for each property).
- The rights of the tenant to assign (ie. transfer the tenancy) to another person.
- The maximum number of people who may occupy the house or flat at any one time.
- The keeping of pets or animals.
Statements on insurance, insulation and healthy homes
Landlords are required to provide three statements alongside the tenancy agreement.
These statements relate to:
- the landlord’s insurance cover over the property,
- the property’s insulation, and
- whether the property complies with the healthy homes standards.
Tenancy Services have provided approved statements for landlords to fill in, at pages 7 - 9 of the Tenancy Services Residential Tenancy Agreement. These templates have been approved by Tenancy Services, so tenants should be wary of alternative statements, as they may include unlawful clauses.
Note
From 1 December 2020, most new or renewed tenancies require a detailed statement about the property’s current level of compliance with the healthy homes standards. The Tenancy Services template for the healthy homes compliance statement can be found here https://www.tenancy.govt.nz/assets/Forms-templates/compliance-statement.pdf.
More information about these statements can be found on the Tenancy Services website.
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