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  • Interesting case for you to solve.

    Hey ladies and gents,

    so here is an interest situation. I own a house that I'm living in. I also have two flatmates (not boarders). One of the flatmate is decided to go overseas in July.

    I have signed one year fixed tenancy with both of them. But I just realised that “Situations where the landlord lives in the property are excluded from all requirements of the Residential Tenancies Act". So I am not really protected by the ACT.

    Because we have signed a written document, would it still be legally binding under the contract law? Or is it actually useless piece of paper?

    Can she leave without fulfilling the duties stated by the agreement (i.e. paying till the lease ends). OR can I ask her to leave before this agreement? Obvious if a mutual agreement is arrived then it's end of the story. But it’s usually not that simple.

    Please don’t refer me to the tenants tribunal, Citizens Advice Bureau or community law centre.
    I have contacted them all. CAB told me to ask TT and CLC. CLC told me to check with TT. TT says they don’t know, ask CLC.

    Wow…..I was speechless. Surely someone here knows !!!

  • #2
    IMHO

    Because the act doesn't apply, you would have needed agree beforehand that the Act or parts of the Act would apply. This would have needed to have been made clear in the TA.

    I assume it wasn't .....thus the act doesn't apply. EOS

    You do however have a written agreement and as long as nothing in it is against the Act or other laws (in which case of course it would be unenforceable) then it should be a legally binding contract.

    Cheers
    Spaceman

    Comment


    • #3
      The front of the standard tenancy agreement provides that "The rights and obligations set out in the Residential Tenancies Act 1986 are implied in every residential tenancy agreement (see the back of this agreement for a brief outline of some key provisions of the Residential Tenancies Act)."

      Assuming you signed an agreement on that form, then I think that the only two likely outcomes are:
      1. That is treated as consent for the purposes of section 8, meaning the RTA applies; or
      2. That is not treated as consent but nevertheless implies all of the rights and obligations set out in the RTA into the agreement.

      These are largely the same but in the later case any dispute would be resolved through Court (or the Disputes Tribunal) rather than the Tenancy Tribunal.

      Any other outcome defeats the intention of the parties when entering into the agreement and is, in my opinion, unlikely for that reason.

      Comment


      • #4
        Thanks guys,
        Xav,
        So you saying even though RTA doesn't really apply in this situation but because we have a written agreement, we should follow whatever the agreement set out to be. And because the agreement basically follows the RTA rules, so RTA applies?

        Spaceman,
        No I didn't write it down as "RTA would apply even though it doesn't really apply in our case" as a clause, because I didn't know at the time! Too young and too much to learn =)

        I have a reasonable relationship with the tenant, we both want to solve this as civil as possible. I said to her that I would agree she leave subject to the condition that I found a replacement. I just want to know if I have the right to do such request.
        Other option is that I would prefer she leave now rather than July, so I can find a tenant now. I am not going to be in NZ in July. But then if the RTA applies I wouldn’t really be able to ask her to leave because of the fixed contract.
        Last edited by SleepyTiger; 25-05-2012, 06:46 PM.

        Comment


        • #5
          On what did the agreement get written upon?
          www.3888444.co.nz
          Facebook Page

          Comment


          • #6
            Keys,
            Standard tenancy agreement form you get from dhb, with room checklist etc, dated and signed. its exactly like a rental property lease.

            I am sure landlord having flatmates is not extremely uncommon, it's frustrating try to find rules to follow when there is none. Lesson learnt, I will write an agreement next time so it's covered by contract law.
            Last edited by SleepyTiger; 25-05-2012, 09:09 PM.

            Comment


            • #7
              I have a reasonable relationship with the tenant, we both want to solve this as civil as possible.
              Drive her to the airport.
              Get a new tenant.
              DFTBA

              Comment


              • #8
                Read your tenancy agreement again. It strongly implies that this tenancy is covered by the Residential Tenancies Act. See part 4 and 5 (especially number 5) of this link. While it does not specifically state that the RTA applies. The implication is clear. I would wager that a tenant could enforce it and a landlord may have trouble. Do you want to go down that track though?
                www.3888444.co.nz
                Facebook Page

                Comment


                • #9
                  Cube
                  i can't really ask her to leave if the contract is binding now can I.

                  keys,
                  Agreed, I can't really ask her to leave , but at end of the day as long as rent is coming i dont care, lets say she pays rent while overseas, but we all know that is not going to happen. And what can I do then? Nothing.

                  So the best solution is find someone in now, but she doesn't want to leave now. She wants to stay till July when she leaves. Now, I m leaving nz at the end of June for two months.

                  Not the end of the world if I had to pay more to cover 2 months or so mortgage and find new tenant , but now I know what to add in the agreement in the future.

                  Comment


                  • #10
                    After you and your 1st boarder leave, can you get the remaining boarder to sign a new tenancy agreement and get them to "take over the tenancy". Get them to fill the other rooms and make them responsible for getting you rent on the entire property?

                    Comment


                    • #11
                      Originally posted by SleepyTiger View Post
                      Cube
                      i can't really ask her to leave if the contract is binding now can I.

                      keys,
                      Agreed, I can't really ask her to leave , but at end of the day as long as rent is coming i dont care, lets say she pays rent while overseas, but we all know that is not going to happen. And what can I do then? Nothing.

                      So the best solution is find someone in now, but she doesn't want to leave now. She wants to stay till July when she leaves. Now, I m leaving nz at the end of June for two months.

                      Not the end of the world if I had to pay more to cover 2 months or so mortgage and find new tenant , but now I know what to add in the agreement in the future.
                      Sorry, I thought she wanted to leave :
                      One of the flatmate is decided to go overseas in July.
                      but now I see that you want to get her out earlier, so you can find a new tenant before you go (leaving the property in the hands of a suitable agent, as required, of course).

                      However, your going overseas is your problem, not hers. Even if you had an enforceable tenany agreement, that would not stop her going; then what would you do.

                      I really think that it is time to accept that things didn't work out as planned, and put your efforts in to how to ensure the minimum time with an empty room once she has gone.
                      DFTBA

                      Comment


                      • #12
                        Originally posted by kyotolaw View Post
                        After you and your 1st boarder leave, can you get the remaining boarder to sign a new tenancy agreement and get them to "take over the tenancy". Get them to fill the other rooms and make them responsible for getting you rent on the entire property?
                        Kyotolaw,
                        I m only leaving for two months and coming back to nz.

                        that is my contingency plan, I m try to look for a new person to come in in July now, if by the time I m leaving in June and I still can't find a new person, then the remaining flatmate will take over and find a new person, however, problem occurs when we still fail to get a new person come in . so the leaving flatmate would still need to pay rent to cover vacant period because her fixed contract. But if she doesnt pay, what can I do to enforce her pay when she is overseas? Probably nothing. So worst scenario is I will just cover it myself and keep looking for new flatmate.

                        Comment


                        • #13
                          Cube, she wants to leave in July. I m going overseas for two months in June. I agree to end the fixed tenancy if i can get someone in. But there is no way I can agree to let a new person live with us without tenant screening. So we either have to find someone in now, or find someone later when I come back. Technically if I dont nod my head, the fixed contract is still binding, then she has to fulfill rent payment during vacant period etc.

                          Also as i said to kyotolaw, the contingency plan is to trust the remaining flat mate to find a new person if I fail to fill the room before I go.

                          BUT, Thats all on paper, as you said, if she wants to go, what can I do. I can't take her to the TT or dispute tribunal!

                          I totally agree with you about accepting things, and I am trying to work it out the best I can.

                          I was wondering if the fixed lease would be valid, and how the rules should be applied. That's why I started the forum. But, as we know, rules are rules, reality is different .

                          Comment


                          • #14
                            Originally posted by SleepyTiger View Post
                            So you saying even though RTA doesn't really apply in this situation but because we have a written agreement, we should follow whatever the agreement set out to be. And ... the agreement basically follows the RTA rules <snip>
                            Yes, either that or the RTA does apply (in my opinion of course). I can't see another logical outcome given the wording of the front page of the DBH agreement.

                            Comment


                            • #15
                              What I did when flatting overseas was sleep on a couch for a month or so untill current flatmate moved out and then I moved into her room. Maybe tennant who is moving could do this in the meantime? A little inconvenient but could save them money as the two could split rent or something similar?

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