Breach of Tenancy Agreement

[FASATRIX]

Hi there,
I am looking for an advice re how to proceed in regards to a possible breach of Tenancy Agreement. I have a property that has been rent contractually to only two people and and have a clause in the contract that states no more than 2 people (including the tenants) are allowed without written approval of the landlords. We self manage the property.
Following the inspection (and talking to neighbors too) I have good reasons to believe that at lest two more people are living there without our approvals (the third bedroom has mattress on the floor and there are clothes and luggage in the wardrobe + neighbors also confirmed seeing the same ppl and cars around the house very often).

The question is what additional steps can I legally take (private investigator?) to prove the breach of the contract and force the tenants to either leave or agree to pay additional rent?

Thanks

[Keys]

1) Fixed term or periodic?
2) issue a 14 day notice.
3) this is almost impossible to enforce unless you have specific clauses in your tenancy agreement.

[FASATRIX]

Hi Keys
thanks for your reply. the tenancy is one year lenght and so far we are 3 months in and yes I do have a specific clause in the contract that states no more than 2 people (including tenants in this agreement) are allowed in the property at any time.
I am looking at things that I could possibly leverage legally to prove that they are breaching the contract (it is obvious that they are) all within the current legislation and the privacy rules. For instance(it's just an example and I don't want to actually do this) can I go there at random time and take pictures etc. ? Or do I have to hire a professional e.g a private investigator to prove it?
I want them either out or paying a fair share as it was made clear since the beginning (also reflected in the contract) that the house is for two people. I hope this help clarifying

[Bob Kane]

The question is what additional steps can I legally take (private investigator?) to prove the breach of the contract and force the tenants to either leave or agree to pay additional rent?
Thanks

Why should the rent change if there are more tenants?
If one of the two tenants left today, would you reduce the rent for the remaining tenant?
It sounds like you are greedy.

[Keys]

inspections four weekly. Take photos of any bedding if it exceeds the number for two people. Are they allowed visitors? If so, for how long?

[Castlerose]

My first stop when not sure what to do is to ring Tenancy Services and ask their advice. I agree with stipulating the number of tenants and do so myself; extra tenants equals extra wear and tear, and in your case it's double the wear and tear so you have every right to increase rent. If the tenants don't like it, let them move - sounds like they're untrustworthy anyway. I take photos of everything at every inspection, including the cars so I have a record of wear & tear or any damage etc - and its also a history of how long the mattress etc has been there. You are allowed to look in cupboards, wardrobes etc as long as you have a valid reason - I asked TS that myself.

I would first get statements from the neighbours that extra people are there on a daily/weekly basis. On that basis, I would then send a 14 notice to the tenants stating you have concerns AND evidence there may be extra people living there and that they are breaching clause ? of your agreement. Ask for written confirmation only 2 tenants are permanently residing at the property, if they have 'visitors' how long have they been there (I'd argue any longer than 3 weeks is not a 'visit') and to permanently remove all mattresses from the floor as (hopefully the room is carpeted) they are a health hazard and may cause mould in, or rot the carpet. (This happened to me, moisture in the mattress rotted the carpet & I had to replace the entire room with different unmatching carpet which I was very annoyed about I might add.)

Put a (reasonable) time limit on the request for written response from tenants and make sure they are aware the entire time what your aim is otherwise it may backfire on you if you have to got to Tribunal. Once they've put in writing how many there are you are half way there. Then if there are still extra cars regularly at the property, take photos of number plates and if the tenants claim the cars belong to them, ask their permission to look this up at https://thatcar.nz/owner-check - and tell them why!

If you end up at tenancy tribunal - you will need a heap of evidence as in my experience the adjudicators seem to favour the tenants rights over the landlords rights so as long as you advise your tenants what you're doing is necessary in order to ascertain if they're breaching their agreement, hopefully any adjudicator will understand that you have gone the correct way and been fair in proving the breach. If they refuse to allow you to do your check you have your answer although any adjudicator will just say that is the tenant's right to refuse.

If they continue to deny any breach apply to T/Services for a mediation or hearing so you have it all on record and if they lie after that - put their rent up anyway!! I'm fairly sure you can also apply to increase the rent sooner than usual if the adjudicator finds they have been or are breaching the contract.

The system the law has set up now unbelievably favours tenants, the new precedent requiring landlords to claim insurance if damage is covered (even it it is intentional) is soo bloody wrong - it gives tenants free reign to do what ever they want and get away with it, they don't even have to cover your costs of excess or lost no claims bonuses. I've just been through this myself and I am a very good landlady and I go the extra mile for my tenants but sometimes you end up with not so nice people who are happy to take every advantage they can - as your tenants are with you.

All the best - I'll be interested to hear how you get on

[Keys]

Ive just been through this myself and I am a very good landlady .......

I would suggest that you are a very nice landlady. I would also suggest that you have a wee bit to learn. There are a few procedural inaccuracies in your post but you seem to be doing well. Good luck.

[FASATRIX]

@Bob I am not greedy I wish a lot of people in the world were greedy as I am things will be much fairer. It is about two things 1) Trust. We have an agreement and people should respect the agreement they have signed as things were discussed and then subscribed 2) The house is brand new and the idea was to have max number of ppl and minimise the wear and tear. I received many offers including some from potential tenants that were keen to look after the house and rent the room one by one on by behalf but I kindly declined. If I wanted to be in the room by room business I would have done that by myself or put the house on airbnb. The current tenants know the house rules as we have discussed them before the agreement and agreed on have them in writing including no subletting and the max number of occupants. S at this point if they want to leave in there with four people and breach the agreement the minimum is that they pay the extra wear and tears, but I deally I'd like them to go back to the rules or leave

[FASATRIX]

Hi Castlerose, thanks for taking some time to answer so accurately I really appreciated it.
No visitors are allowed theoretically as the clause in the contract states:
No more than 2 occupants (including tenants in this agreement) may reside in the residence at any time.
Also yesterday I got the following message from one of the tenants. Can this be considered a strong evidence?

Fair enough man. Thank you, I understand your concerns but I assure you that we are not breaching the contract. "SecondTenantName" and I are living here, my partner comes and goes and "SecondTenantName" 's cousin visits often. Apart from us 4, we dont really have any visitors. I just wanted to inform you to prevent further confusion. Is that okay with you?

[Castlerose]

Hello, Thanks for getting back to me and your compliment What the tenancy act outlines is basically that tenants are allowed to live their life within fair reason and without interference from the landlord (quiet enjoyment) - you cannot legally restrict them from having visitors or people stay overnight etc. Your clause (as you've written it above) only requires up to 2 occupants - thats all; it in no way forbids visitors or people staying over - if that was your intention then that is certainly not clear by any means, and probably just as well because forbidding visitors (I believe) would be an illegal clause. If you want to clarify that area of the tenancy you need to be a lot more specific about the amount of days per week or month etc anyone else can stay over before that person then becomes another tenant (whether named on the contract or not.) The tricky part is you cannot have an illegal clause in the tenancy agreement - you cannot contract out of the law; if you add your own clauses they must still be legal under the Tenancies Act or you will get a very big telling off by T/services or even fined. Going by what your tenant has written they are not breaching the contract or the Tenancies Act I'm sorry; they have people stay over as opposed to living there which you cannot prevent and his words are evidence in support of having visitors - not in support of your claims. You also MUST respond to the tenants' question "is that ok with you?" - with either a yes or a no and you need to outline the reasons why. Any adjudicator needs to see that you've been fair and kept your tenant informed. If you do nothing, it could be seen that you have accepted his explanation and therefore you accept the visitor situation as he has outlined it to you and once you're deemed to have accepted something you usually cannot go back and 'change your mind' - the courts work very differently to how we think... If you don't accept his explanation you can apply to Tenancy services stating your concerns and to have your contract amended to include a maximum amount of nights extra people can stay before they become a tenant or similar - I'd ask if that was possible - its always best to defer to the adjudicator if you want your request to be considered favourably... I have no idea how you would get on as you have no rights in stipulating visitors etc (as far as I'm aware) and would need to word your application that you're unsure if they're being honest and you are therefore seeking guidance/help from TS to add a stipulation to your contract to clarify the situation for both parties sakes. Proving they may be lying would be very difficult - again, just put the rent up... There is a book called the Conveyancing Law Handbook by Drake, Lay, Varnham & Thomas, published by CCH New Zealand which has an excellent overview chapter on Tenancy law, landlord and tenant obligations etc. I refer to it all the time and it is a very handy book for any landlord to have; available from any polytech or university bookstore or maybe even online. Make sure you get the latest edition as some laws have changed since the earlier publications. All else fails - read the legislation. All the best.

[FASATRIX]

Hello, Thanks for getting back to me and your compliment What the tenancy act outlines is basically that tenants are allowed to live their life within fair reason and without interference from the landlord (quiet enjoyment) - you cannot legally restrict them from having visitors or people stay overnight etc. Your clause (as you've written it above) only requires up to 2 occupants - thats all; it in no way forbids visitors or people staying over - if that was your intention then that is certainly not clear by any means, and probably just as well because forbidding visitors (I believe) would be an illegal clause. If you want to clarify that area of the tenancy you need to be a lot more specific about the amount of days per week or month etc anyone else can stay over before that person then becomes another tenant (whether named on the contract or not.) The tricky part is you cannot have an illegal clause in the tenancy agreement - you cannot contract out of the law; if you add your own clauses they must still be legal under the Tenancies Act or you will get a very big telling off by T/services or even fined. Going by what your tenant has written they are not breaching the contract or the Tenancies Act I'm sorry; they have people stay over as opposed to living there which you cannot prevent and his words are evidence in support of having visitors - not in support of your claims. You also MUST respond to the tenants' question "is that ok with you?" - with either a yes or a no and you need to outline the reasons why. Any adjudicator needs to see that you've been fair and kept your tenant informed. If you do nothing, it could be seen that you have accepted his explanation and therefore you accept the visitor situation as he has outlined it to you and once you're deemed to have accepted something you usually cannot go back and 'change your mind' - the courts work very differently to how we think... If you don't accept his explanation you can apply to Tenancy services stating your concerns and to have your contract amended to include a maximum amount of nights extra people can stay before they become a tenant or similar - I'd ask if that was possible - its always best to defer to the adjudicator if you want your request to be considered favourably... I have no idea how you would get on as you have no rights in stipulating visitors etc (as far as I'm aware) and would need to word your application that you're unsure if they're being honest and you are therefore seeking guidance/help from TS to add a stipulation to your contract to clarify the situation for both parties sakes. Proving they may be lying would be very difficult - again, just put the rent up... There is a book called the Conveyancing Law Handbook by Drake, Lay, Varnham & Thomas, published by CCH New Zealand which has an excellent overview chapter on Tenancy law, landlord and tenant obligations etc. I refer to it all the time and it is a very handy book for any landlord to have; available from any polytech or university bookstore or maybe even online. Make sure you get the latest edition as some laws have changed since the earlier publications. All else fails - read the legislation. All the best.

Hi there thanks again for taking the time of answering such in details. by the sound of it it looks like I am unable to do anything and they will get away with it a part obviously of going there every 4 weeks and check. One more question. at the end of the term what will be the legal way to not renew their contract?

[Castlerose]

Hi again; You do still have options - as I've outlined, you don't have to accept the situation. Terminating a tenancy is outlined in s50 of the Tenancies act. If it is a fixed term contract the tenancy ends when the contract ends. You need to communicate with the tenant a few weeks before though as some may not realise they have to move. You'll need to advise them you will not be renewing their contract.
I'd be careful though, if they're good tenants otherwise & pay their rent on time etc you may want to weigh up the risk - the next tenants could be better - or a lot worse... If this is the only issue you have with them, renew the contract at a higher rent with a new clause stipulating no others to stay more often than 7, 10 days per month or whatever you want (can always ask T/services.) Plus you can also put a clause in allowing you to increase the rent as necessary within the period/term of the lease - following the legal requirements of the act of course.
The new lease is a new contract so you can put in further clauses if you want but you need to give them notice of any new clauses so they have time to make a decision on staying or going. If the fixed term lease comes to an end and nothing is done by either party (so no new contract is signed & you haven't told them to go) the fixed term contract rolls over to become a periodic tenancy and the tenants can stay on until such time as you give notice in line with periodic tenancy requirements.
As I suggested, read the legislation or get the book - as a landlord you have an obligation to know tenancy law - not knowing something is no excuse under the law. All the best.

[FASATRIX]

Hello, Thanks for getting back to me and your compliment What the tenancy act outlines is basically that tenants are allowed to live their life within fair reason and without interference from the landlord (quiet enjoyment) - you cannot legally restrict them from having visitors or people stay overnight etc. Your clause (as you've written it above) only requires up to 2 occupants - thats all; it in no way forbids visitors or people staying over - if that was your intention then that is certainly not clear by any means, and probably just as well because forbidding visitors (I believe) would be an illegal clause. If you want to clarify that area of the tenancy you need to be a lot more specific about the amount of days per week or month etc anyone else can stay over before that person then becomes another tenant (whether named on the contract or not.) The tricky part is you cannot have an illegal clause in the tenancy agreement - you cannot contract out of the law; if you add your own clauses they must still be legal under the Tenancies Act or you will get a very big telling off by T/services or even fined. Going by what your tenant has written they are not breaching the contract or the Tenancies Act I'm sorry; they have people stay over as opposed to living there which you cannot prevent and his words are evidence in support of having visitors - not in support of your claims. You also MUST respond to the tenants' question "is that ok with you?" - with either a yes or a no and you need to outline the reasons why. Any adjudicator needs to see that you've been fair and kept your tenant informed. If you do nothing, it could be seen that you have accepted his explanation and therefore you accept the visitor situation as he has outlined it to you and once you're deemed to have accepted something you usually cannot go back and 'change your mind' - the courts work very differently to how we think... If you don't accept his explanation you can apply to Tenancy services stating your concerns and to have your contract amended to include a maximum amount of nights extra people can stay before they become a tenant or similar - I'd ask if that was possible - its always best to defer to the adjudicator if you want your request to be considered favourably... I have no idea how you would get on as you have no rights in stipulating visitors etc (as far as I'm aware) and would need to word your application that you're unsure if they're being honest and you are therefore seeking guidance/help from TS to add a stipulation to your contract to clarify the situation for both parties sakes. Proving they may be lying would be very difficult - again, just put the rent up... There is a book called the Conveyancing Law Handbook by Drake, Lay, Varnham & Thomas, published by CCH New Zealand which has an excellent overview chapter on Tenancy law, landlord and tenant obligations etc. I refer to it all the time and it is a very handy book for any landlord to have; available from any polytech or university bookstore or maybe even online. Make sure you get the latest edition as some laws have changed since the earlier publications. All else fails - read the legislation. All the best.

Hi there, just writing as you wanted to know how the all story ended. I have managed to have them giving up in the end and ask for an early termination of the contract. Steps I followed were 1) 4 weeks thorough inspections and reports with photos of evidences etc. 2) Driving regularly in the area and stop to reguraly inspect the garden and patios area while they were at home (all in respect of the law, 1 hour before I was letting them know that I would be inspecting the outdoor and make a minimal impact of their peace an quite). I took alot of pictures including pictures of cars not belonging to the people registered in the contract etc. 3) Having honest and open conversations were I reminded them what they have signed for and all the evidences I was collecting that pointed to the direction of the them breaching the contract and the willingness I had to go all the way down to the bottom even if that meant going to court and lose. 3) When they finally realized how determined I was they admitted they had two more people living in the house and initially they asked to include them in the contract. I agreed with that with only conditions of underwriting a new contract and a weekly rent increase of $25 due to more wear and tear(4 people are not like 2)

At that point they decided that it wasn't viable for them and I now have a lovely family of three as new tenants and couldn't be happier.
Hope this will help someone else

[Castlerose]

Well done!! If you hadn't done all that you probably wouldn't have got anywhere so good on you!! Amazing how easy it seems for some people to lie these days... Difficult to prove but you got there - great news!!

[FASATRIX]

Thanks Castlerose, I know! All I wanted is a trustworthy relationship between landlords and tenants but quite happy with the end results (all is well that ends well!)