Illegal sub-let

Michelle asks:
(updated on Wednesday, September 23rd 2020)

I have been renting and living in a unit for over two months now. But I just found out that it has been illegally sub-let to me and I've been given two weeks notice. What are my rights? I was lied to about this and I wouldn't have used my holiday pay to shift into the unit if I had known that the tenancy was illegal.

Our Experts Answer:

From the information you have provided it is not clear whether you are sharing the unit with the person you rented from or whether they moved out and you rented the whole unit. For the purpose of this response we have assumed you have rented the whole unit.

In order for a sub-letting situation to be lawful, the landlord must first agree in writing with the tenant listed on the tenancy agreement that they can sub-let the premise. If the tenancy agreement does not allow sub-letting, or consent has not been obtained, and the tenant has proceeded to sublet the unit anyway this is an unlawful act. Where the landlord lawfully terminates the tenancy, it will also terminate any sub-tenancy that was in place that was not consented to by the landlord on the same date.

When a tenant sublets a premises, they become a sub landlord, which also means they must meet their responsibilities as a sub-landlord under the Residential Tenancies Act. This includes ensuring there is no legal impediment to the premises being occupied by a sub-tenant. If they have breached this obligation you may be able apply to the Tenancy Tribunal for compensation: www.tenancy.govt.nz/disputes/tribunal/.

It’s important for any living arrangement where you pay rent that you are clear about what type of arrangement it is and that you have the agreement in writing, whether subletting or flat-sharing. For more information on tenancy agreements and agreements with flatmates see: www.tenancy.govt.nz/starting-a-tenancy/tenancy-agreements/. You can also subscribe to our e-newsletter Tenancy Matters here

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