Vesna Wells – article courtesy realestate.co.nz
Before you enter into a Tenancy Agreement, irrespective of whether you’re the one renting out a property, or the one moving in, it’s important that you have a basic understanding of your responsibilities as a landlord or tenant.
The tenancy agreement is an important legal document that captures these responsibilities for both landlord and tenant. The tenancy agreement must reflect the Residential Tenancies Act 1986 and its amendments.
As a landlord, your property management professional will take the stress out of preparing the tenancy agreement, ensuring that it is kept up to date with compliance changes and manage the relationship with the tenant on your behalf (and at arm’s length).
Equally, as a tenant, there are certain obligations under the tenancy agreement and the renting relationship. The relationship between landlord and tenant is an important and hopefully, a long term one. If something is not feeling right, then it is important to have a conversation via your property manager to try and avoid a dispute from occurring.
As the landlord, the following are important to note (and not an exhaustive list of responsibilities under the Residential Tenancies Act 1986):
The premises need to be provided in a reasonable state of cleanliness. There are often differing perceptions (and at times disagreements) of what this actually means as one person’s “reasonable” may not be another’s.
As a tenant, if you do not think that the property is in a reasonably clean and tidy condition when you move in (and that doesn’t mean the property must be spotless), it is important to raise this with your property manager at the outset. It is important not to wait until it is time to move out to raise any concerns.
The landlord shall also maintain the property in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available as a residential property.
The landlord is responsible for ensuring that they comply with all requirements in respect of buildings, health, and safety.
If the property does not have a reticulated water supply, the landlord must supply adequate means for the collection and storage of water. This is particularly important in rural environments or in towns where water is not through a main supply.
If there is a maintenance issue, it is important that a tenant reports it in between inspections. This is particularly important if there is a health and safety element to the maintenance issue.
The landlord shall compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where such a state of disrepair has occurred otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious or urgent. In this situation, the tenant must give the landlord notice of the state of disrepair or have made a reasonable attempt to do so.
The landlord also has an obligation (particularly in a multiple unit property where the landlord owns more than one unit) that none of the landlord’s other tenants causes or permits to interfere with any reasonable peace, comfort or privacy of the tenant in the use of the premises.
Again, what may be reasonable noise or comfort to one person may not be to another and issues should be raised with your property manager if other tenants are perceived to be interfering with quiet enjoyment.
The landlord must also not interfere with the supply of any services to the property principally, gas, electricity, telephone or other services except where it is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
The landlord must provide and maintain locks or other similar devices that are necessary to ensure the premises are reasonably secure.
Both tenant and landlord must not alter any existing locks without the consent of the other and that reasonable notice is provided.
The landlord must also provide the tenant with notice if the property is going on the market. In this regard, it is important to maintain good communication between the investor, the real estate professional and the property manager so that there are no surprises.
The landlord is responsible for outgoings such as body corporate fees, rates and insurance premiums for the property.
The landlord must lodge the bond to Tenancy Services within 23 working days of receiving it. A bond equivalent of up to four weeks of rent may be required. The purpose of the bond is to cover any damage or loss to the landlord if the tenant’s obligations are not met.
The tenant is entitled to quiet enjoyment at the property but there are some instances when the landlord may enter the premises. The landlord may do so with the consent of the tenant, in the case of an emergency, for the purpose of inspecting the property between 8am in the morning and 7pm at night as long as 48 hours notice prior to entry has been provided.
The landlord may also show prospective tenants through the property or prospective purchasers, real estate professionals, valuers or other experts. It is very important to know that notice must be provided as otherwise entry to a property is considered to be an unlawful act, and can result in a conviction with a term of imprisonment for three months or a fine not exceeding $2,000.
Your property management professional is well aware of this provision and will assist with notification for any maintenance when a contractor must gain access to a property or if the property is going on the market. Managing the relationship for any viewings or open homes with the real estate professional is critical. Diplomacy and reasonableness is often the key.
The tenant shall not interfere with the operation of any smoke alarm/s. This shall include, but not be limited to, using the battery of the smoke alarm for another purpose. The tenant shall immediately report to the landlord if the tenant suspects that the smoke alarm is not working.
Smoke alarms installed at the premises must be qualifying smoke alarms. Qualifying smoke alarms are smoke alarms that meet the following requirements:
- the alarm is fully operational and otherwise in full working order, with no faults, defects or damage;
- the alarm is installed in a location that accords with the manufacturer’s instructions.
- The alarm’s recommended replacement date must not have passed.
- Unless the alarm is a hard-wired alarm:
- the alarm’s recommended replacement date must be displayed on the alarm.
- the alarm must be a photoelectric alarm.
- the manufacturer’s instructions for the alarm must include a certification, or other statement, to the effect that the alarm has been manufactured in accordance with –
- AS3786-1993; or
- an equivalent smoke alarm standard specified in the certification or other statement.
If the alarm requires batteries for any purpose (including back-up batteries if the alarm is hard-wired), the alarm must contain all necessary batteries, which must be all compliant batteries. If the alarm is a hard-wired alarm, the alarm must be connected to an electricity supply as necessary.
The landlord must ensure that there is at least one qualifying smoke alarm installed in the sleeping space or otherwise at the premises within three meters of the entrance (or main entrance) to the sleeping space.
This applies to every storey or level of the premises on which there is one or more habitable spaces. There must be at least one qualifying smoke alarm installed on the storey or level in the habitable space or in at least one of the habitable spaces as the case may be.
A sleeping space means a space that is for use, or can otherwise reasonably be expected to be used, as a bedroom or other sleeping space.
The landlord must also provide a statement on insulation at the premise.
The signed statement is provided via the property manager and is in accordance with the Residential Tenancies (Smoke Alarm and Insulation) Regulations 2016 that came into effect on 1 July 2016.
The statement is attached to and forms part of the Tenancy Agreement. The statement contains the following important information.
- Has insulation been installed in the ceilings? Yes/No.
- Has insulation been installed under the floors? Yes/No.
- Has insulation been installed in the walls? Yes/No.
The statement also explains the extent and location of the insulation at the premises as circled “Yes” above. The landlord certifies that they have checked and confirmed the following:
- Ceilings – type of insulation [insert] and R rating [if known or not applicable] and condition [describe].
- Floors – type of insulation [insert] and R rating [if known or not applicable] and condition [describe].
- Walls – type of insulation [insert] and R rating [if known or not applicable] and condition [describe].
In making the above statements, the landlord has endeavoured to obtain information about insulation as required. Where the landlord has not been able to obtain the necessary information, the landlord details why the information was not available.
The landlord must confirm that the information disclosed relating to insulation at the property (or absence of it) is true and correct. It is important to understand these compliance obligations as set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Again, your property management professional will help with all of these important requirements on your behalf.
As the tenant, the following are important to note (and not an exhaustive list of responsibilities):
The tenant shall pay the rent when it is due under the tenancy agreement. Typically, rent is paid either one or two weeks in advance.
The tenant shall ensure the property is occupied only for residential purposes.
The property shall be kept in a reasonably clean and reasonably tidy condition.
The tenant shall notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.
The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. This includes electricity, gas, telephone, internet, supply of water if the water supplier charges for water provided to the premises on the basis of consumption and any waste water charges incurred during the tenancy.
At the end of the tenancy, the tenant shall leave the premises and ensure that all their personal possessions and goods are removed. The property shall also be left in a reasonably clean and tidy condition which includes the removal of all rubbish. On vacating the property the tenant shall return all keys, pass cards, fobs etc to the landlord. Further, the tenant shall also leave any chattels that were supplied by the landlord on vacating the premises.
The tenant shall not intentionally or carelessly damage or permit others to damage the premises.
The tenant shall also not interfere with any means of escape from fire at the property.
The tenant shall also not cause or permit interference with the reasonable peace, comfort or privacy of any of the landlord’s other tenants, or with the reasonable peace, comfort or privacy of any other person residing in the neighbourhood.
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that number is not exceeded.
The tenant shall also not unreasonably withhold access (that is, without a reasonable excuse) to the premises when the landlord is entitled to enter the premises. This is particularly important to ensure tradespersons have access to the property to effect repairs, if the property is being re-let (and therefore prospective tenants need to view the property) or if the property has been listed for sale and buyers need to view the property. Again, your property management professional can manage the relationship with any real estate sales professional.
Tenants must replace worn-out smoke alarm batteries.
While the smoke alarm remains installed at the premises during the tenancy, the tenant must replace, with the compliant battery, any battery contained in the alarm would be a qualifying smoke alarm but for the battery being worn out or is designed to permit the replacement of the battery.
Where the tenant is required to replace the worn out battery, the landlord is not in breach of the Residential Tenancies (Smoke Alarm and Insulation) Regulations 2016 just because the battery is worn out or has not been replaced with a compliant battery.
Whether you’re the landlord or tenant of a residential rental property, it’s important to be aware of each other’s rights and obligations. Your property management professional is a key feature in this relationship and should ensure the protection of a large asset while providing an opportunity for tenants to have a great renting experience.