Right to vacant possession

At the start of the tenancy, the landlord must make sure the property doesn’t have people, furniture or other items in it that aren’t part of the tenancy agreement.
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The property must be physically empty

A landlord must ensure the tenant has “vacant possession” of the house or flat when the tenancy begins (s 36 and 37 RTA). This means the tenant has the right to move into the property without the landlord, their family and friends or any other unwanted person being there.

Quick tip

If a former tenant or other person is still living in the property, it is the landlord’s responsibility to get rid of them — not the tenant’s.

The property must be free of unwanted furniture and goods

“Vacant possession” also means that chattels (ie, furniture and items) that aren’t included in the tenancy agreement have been removed from the property. This includes things belonging to the landlord, or previous tenants, either in the house or in areas that are part of the tenancy (eg, shed, garage). If there are so many items left behind that the tenant can’t really move their own things in, this will be a breach of the rule on providing vacant possession.

If things have been left in the property, It’s important that the tenant doesn’t just dump or destroy belongings. They have to follow the same process as a landlord would regarding abandoned goods.

  Case study

The tenants claimed the landlord was in breach of the requirements around vacant possession because the landlord had stored a considerable amount of their own belongings in the garden shed and in part of the garage. The garden shed was so full of the landlord’s belongings that the tenants could not use it.
 
The adjudicator agreed and said that “all of the landlord’s belongings must be removed from the premises unless they are a chattel provided as part of the tenancy and for the tenant’s use”. Even though the tenants had been provided an inventory list saying what items were in the property, it was not clear from the inventory list how much this would interfere with the tenant’s use and enjoyment of the property, and did not override their right to vacant possession of the property. The tenants were awarded $1,100 in damages as compensation.
 
Tenancy Tribunal Order 4250952 paras [14]-[28].

Vacant possession doesn’t include shared facilities

If there are facilities on the property that are to be shared among several tenants (eg, stairways, areas for drying laundry, driveways and common parking areas, rubbish disposal and storage areas), the tenant should not expect that they will get vacant possession of these (see s 2 RTA for a longer list of facilities).

Next steps

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