Addressing a tenancy breach

Question from tomas updated on 13th July 2016:

We signed a tenancy agreement for six months and paid two weeks bond as deposit. We didn't have access into the property before signing the tenancy agreement and we didn't fill in the property inspection report in the agreement until we gained access for inspection prior to moving in.

The interior of the house was in a very poor state - with mould on the ceiling and walls, paint coming off the walls and ceiling, cracked walls and frames, carpet in poor condition.

Can we cancel our tenancy agreement before moving in and get a full refund of the two weeks bond back? The landlord only did touch ups and it looks terrible. That was three days before the moving in date and eight days after singning the incomplete tenancy agreement.

Our expert Allan Galloway responded:

Under the Residential Tenancies Act, options for terminating a tenancy once an agreement has been entered into (regardless of whether the tenancy has commenced) will depend on the type of tenancy in place.

It appears from your query that you may have entered into a fixed term tenancy, which cannot be terminated by notice, but can be ended early by mutual agreement between the parties, or by the Tenancy Tribunal in certain circumstances.

Landlords have an obligation under the Act to provide the premises in a reasonably clean and tidy condition at the start of the tenancy, to provide and maintain the premises in a reasonable state of repair (while having regarding to the age and character of the premises and the period the premises are likely to remain habitable), and also to ensure the premises complies with all of the relevant health, safety, and building regulations that apply to the premises.

Where a landlord has not complied with their obligations under the Act the tenant should notify the landlord in the first instance of their concerns.  If this does not resolve the matter, the tenant may give the landlord 14 days’ written notice to fix the problem. 

If the notice is not complied with, the tenant may make an application to the Tenancy Tribunal to have the matter resolved.  Such an application may include an order seeking termination of the tenancy, compensation for any loss incurred as a result of the landlord not complying with their obligations, exemplary damages if it is deemed that the landlord has committed an unlawful act, or a work order requiring the landlord to carry out the necessary work.

In the first instance, it is recommended that you discuss your concerns with the landlord to try and have the matter resolved, including whether they are happy to end the tenancy earlier, and return any monies paid. If you are unable to resolve the matter directly with the landlord, you may wish to initiate the above steps by giving the landlord 14 days’ written notice to conduct the required work.

Information regarding a notice to remedy a breach and applicable service times can be viewed on our website by visiting: http://www.tenancy.govt.nz/maintenance-and-inspections/repairs-and-damages/.

For further information regarding landlord and tenant rights and responsibilities, you can visit our website (www.tenancy.govt.nz), or subscribe to the tenancy landlord newsletter also found on our website under ‘Quick Links’.

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.

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