Legalities on house sharing

Question from Rachael updated on 24th April 2012:

My partner and I have just purchased a property and we are getting tenants in to help with the mortgage as well as living in the property ourselves. We want to make the tenancy official for legal and other reasons but none of the regular tenancy agreements forms or the boarding house tenancy agreement forms fit our situation. Can we make our own agreement up (with a section saying that the landlords will be living in the house too)? If we do then would it still be legal?

Our expert Megan Martin responded:

The Residential Tenancies Act 1986 (the Act) generally applies to all residential tenancies. However, certain situations are excluded from the Act such as where the premises are used principally as a place of residence by the landlord or the owner of the premises (e.g. where the owner lives in the property with the tenant). Where a situation is excluded from the Act, the parties can agree that the Act (or certain parts of the Act) will apply to their agreement. If you and your tenant agree that the Act will apply then this should be clearly recorded on your tenancy agreement. If you decide that only certain parts of the Act will apply then you should clearly record on your tenancy agreement which parts of the Act apply to the tenancy. Parties may draft their own tenancy agreement rather than using the template provided by the Department of Building and Housing. However, keep in mind that if you write your own agreement and if you decide that the Act will apply as a whole then the tenancy agreement must comply with the Act and any part of your agreement that removes the rights of your tenants may be unenforceable. If you decide not to contract back in to the Act then your arrangement with the tenant will not be covered by the Act. However, it is still a good idea to record your agreement in writing. You may wish to use the sample flat/house sharing agreement available on the Department of Building and Housing’s website. I suggest you seek independent legal advice from a solicitor or your local community law centre regarding whether you wish all or any parts of the Act to apply to your agreement or for assistance with a flat/house sharing agreement if you decide not to contract in to the Act. To discuss your situation further or for advice and information about contracting into the Act, you can visit the Department of Building and Housing website www.dbh.govt.nz or call 0800 TENANCY (0800 836 262).

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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