Options if no vacant possession

If the property is not vacant at the start of a tenancy, the tenant can ask the landlord to sort this out or else they may be able to cancel the tenancy.
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If a tenant finds that the landlord hasn’t given them vacant possession at the start of a tenancy, they can ask the landlord to sort this out.

However, if it’s a clear breach of their right to vacant possession, the tenant may decide they want to end the tenancy instead.

Cancelling the tenancy agreement

If the tenant finds there are other people still living at the property, or it is filled with other people’s things, and they haven’t yet shifted in, the tenant may be able to cancel the tenancy immediately (ie, without giving any notice).

Tenants can do this in limited cases, because the landlord has not complied with a fundamental term of the tenancy agreement. When referring to the requirement of vacant possession in section 37 of the RTA, the Tenancy Tribunal has stated:

“I am satisfied that the clear words of this section means that a tenant is entitled to have vacant possession of the premises as stated in the tenancy agreement. If the tenancy cannot commence on that date, then the contract has been breached fundamentally. Because of this fundamental breach I find that the tenant had the right to cancel the contract.” Caldwell v TLC Property Management Limited TT Christchurch TT 1084/1, 7 June 2001.

  Case study 

The tenant signed a fixed-term tenancy agreement but when they went to the property, the landlord had left a significant amount of belongings in the garages and shed as well as rubbish and materials around the property. The Tribunal found that the tenant was entitled to not take possession. The lack of action by the landlord showed the tenant they didn’t intend to meet their contractual obligations, and meant that the tenant had the right to cancel the agreement.
 
Tenancy Tribunal Order 4268226, 4243792 paras [44] - [61].

If the tenant decides to cancel the agreement, this needs to be in writing, and done as soon as possible. The tenant should also ask for the refund of any rent and bond that has been paid.

Quick tip

If several days have passed since the tenancy began and the tenant hasn’t yet contacted the landlord about the problem, or the tenant has already shifted in, it’s best not to try to cancel the tenancy without notice.
 
The tenant should try to resolve the problem with the landlord directly, eg, ask for a rent reduction until things are sorted out, or explain that they would like to cancel the tenancy agreement and why. If this approach is unsuccessful, the tenant may need to go to the Tenancy Tribunal.

Recovering costs of breach

If the landlord’s failure to provide vacant possession has cost the tenant money (eg, because they had to find temporary accommodation or storage somewhere else), they could ask the landlord to pay this. If the landlord won’t do this, the tenant could seek an order from the Tenancy Tribunal (s 77(2)(n) RTA).

A restart may be possible

After the problem is sorted out, ie, the property is cleared of unwanted people and belongings, it may be possible for the tenant to negotiate a new tenancy. This is effectively about delaying the start date until vacant possession can be provided.

Next steps

flax
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