Correct procedures for issuing termination notices

Question from michelle updated on 18th November 2010:

Is there a correct way to ask my ex-partner to move out of my house? She has now been living in my house for close-on 2 years and I want to formally send her a termination of tenancy with the correct guidelines and time-frame she would have to leave by. Thank you

Our expert Jeff Montgomery responded:

The Residential Tenancies Act 1986 (the Act) applies to residential tenancies. However it does not cover certain situations, including where the premises continues to be used during the tenancy principally as a place of residence by the landlord (or member of the landlord's family).

Where a residential tenancy is excluded from the Act, both parties can agree that the Act (or certain parts of the Act) applies. Where both parties agree that certain parts of the Act will apply to their situation (e.g. both parties agree to contract back into the Act), the details of that agreement should be clearly recorded on the tenancy agreement.

If the Act does not apply to your situation you can contact your local community law centre for further advice.

Where the Act applies, landlords and tenants can give notice to terminate a periodic tenancy (i.e. where the tenancy is not for a fixed term). Landlords are required to give a minimum of 90 days' notice in writing, but may give 42 days' notice if:

  • the landlord has an agreement to sell the premises with vacant possession; or
  • the premises are required for occupation by the landlord or a member of the landlord's family; or
  • the premises are required for an employee of the landlord and this has been agreed at the start of the tenancy

Service time needs to be allowed for delivering the notice to the tenant. If you hand the letter to the tenant, the notice takes effect immediately. However, if you drop it in the tenant's letterbox you  must allow an extra two working days, and if posted to the tenant you must allow an extra four working days. You should keep a copy of the notice for your records.

In the case of a fixed term agreement, neither the landlord or tenant can give notice to terminate the tenancy, however both parties can mutually agree to end the tenancy earlier.

If you are unsure if your tenancy is covered under the Act, you can apply to the Tenancy Tribunal to have this determined.

For further information about your situation or applying to the Tenancy Tribunal, you can visit the Department of Building and Housing website (www.dbh.govt.nz), or call 0800 TENANCY (0800 836 262).

The Department of Building and Housing provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.

 

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