Question from Lara updated on 27th September 2019:
Could you please advise on the best action to take regarding the following situation: Our tenants requested to exit a fixed term tenancy early. (They have no unforseen circumstances or financial hardship). We (landlords) did not agree to end the tenancy as re- renting would be too hard for the remaining three months of the term and we need the property back after this time.
The tenants then advised they were moving out anyway, stopped paying rent soon after and have abandoned the property. With regards to sections 61(3b) and 61(4) of the Tenancy Act - ideally we would like to bring a claim for payment of rent up to the end of the tenancy - as we do not believe it would be in our best interests if the Tenancy Tribunal ruled to end the tenancy early - so what is the best way to proceed?
Our expert Jennifer Sykes responded:
Tenants and landlords cannot end a fixed-term tenancy early without both parties agreeing in writing. A tenancy is considered to be abandoned if both these things are true:
- The rent is overdue.
- You have reasonable grounds to think that the tenants aren’t coming back.
It is an unlawful act for a tenant to abandon a tenancy without reasonable excuse. You will need to apply to the Tenancy Tribunal to return possession of the property to you.
There are two types of application. If the tenants have not returned possession of the rental back to you it is recommended using the expedited abandonment application process first to get possession back of the premises sooner. A further standard application for any outstanding claims such as rent arrears can then be filed. Make sure you attach any required documents to show rent arrears or abandonment.
The Tenancy Tribunal may make an order terminating a tenancy where it is satisfied that the tenant has abandoned the premises and the rent is in arrears. The tenants who abandon the premises shall be liable to pay the rent for any period up to the date of the expiry of the fixed term tenancy or an earlier date if it is rented. The Tenancy Tribunal could also order a tenant who abandons without reasonable excuse to pay the landlord damages of up to $1,000 and compensation.
For more information on ending a fixed term tenancy early, go to www.tenancy.govt.nz. To apply to the Tenancy Tribunal, go to www.tenancy.govt.nz/disputes/tribunal/making-an-application/. You can also subscribe to our e-newsletter Tenancy Matters here.The Ministry of Business, Innovation and Employment provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.