Early exit notice for individually leased room?

Gordon asks:
(updated on Thursday, August 22nd 2013)

We have four rooms in a residential premises that are leased separately, each tenant occupying a room has a lease agreement. Communal areas are bathroom, kitchen and lounge. Maximum of two tenants allowed in some rooms otherwise single occupants only. Tenants that have a fixed-term lease have given 48-hours notice although the tenancy only ends soon. They say they can give this notice as the premises is a boarding house. Owners have occupied vacant rooms for about four weeks in the year. As far as we are concerned, under no circumstances was this intended to be a boarding house hence individual fixed-term leases and that they are still liable to pay rent until the lease expires. We intend relaying this information to Tenancy Tribunal. Are we in our rights to demand recover? They have also decided to leave the keys at the premises they are vacating.

Our Experts Answer:

Under the Residential Tenancies Act 1986 (the Act), it is the Tenancy Tribunal that has the authority to rule on disputes between parties to a tenancy agreement. The Act defines a boarding house as a residential premises containing one or more boarding rooms with communal facilities and occupied (or intended to be occupied) by at least six tenants at any one time. A boarding house tenancy is defined as a residential tenancy in a boarding house that lasts, or is intended to last for 28 days or more and where the tenant has exclusive rights to occupy sleeping quarters and shared use of facilities. Under the Act, a fixed term tenancy cannot be ended by either party giving notice to terminate the contract before the agreed end date. Fixed term tenancies can only be ended early: • By mutual agreement between the landlord and the tenant(s) • If the property undergoes a mortgagee sale, or • In certain circumstances, by the Tenancy Tribunal. The Act, however, does not make specific reference to fixed term agreements in relation to Boarding House tenancies. If you feel that your premises do not fit the definition of a boarding house tenancy and you are unable to reach an agreement directly with your tenant(s) as to what type of tenancy arrangement exists, you may wish to apply to the Tenancy Tribunal to have the matter resolved. To discuss your situation further, or for further information regarding fixed term tenancy agreements, you can visit the Ministry of Business, Innovation and Employment’s website at www.dbh.govt.nz, or call 0800 TENANCY (0800 836 262).

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