Smoking problem

Question from Carolyn updated on 16th July 2018:

We own a house with a flat underneath. We are currently renovating the house and plan to re-let it. While we heve been upstairs working, we have smelt a strong smell of marijuana coming from the flat below on several occasions. Our tenancy agreement with the people in the flat does not specify that they cannot smoke in the flat. What options do we have to deal with this issue?

Our expert Jennifer Sykes responded:

Section 40 of the Residential Tenancies Act prohibits tenants from using the premises, or permitting the premises to be used for any unlawful purpose. While your tenancy agreement does not prohibit smoking in the property, you may wish to discuss your concerns about the suspected use of marijuana directly with your tenant, and ask them to stop or if needed issue the tenants with a notice to remedy. Tenants must ensure that they do not interfere with the reasonable peace, comfort, and privacy of their neighbours. If the activity would interfere with any new tenant’s enjoyment and use of the upstairs flat then this this may also be a breach that would need to be remedied.

Where a tenant is in breach of their obligations and it is something that cannot be remedied, or where a landlord issues a tenant with a 14 day notice to remedy a breach (such as ending any activity that is considered illegal) and the notice is not complied with, then the landlord can make an application to the Tenancy Tribunal to have the matter resolved. They would need to provide evidence as part of their application.

Information on the application process can be viewed on our website by visiting https://www.tenancy.govt.nz/disputes/disputes-process/. You may also wish to notify the Police of your concerns if you are unable to resolve the matter with the tenant. For more on the rights and responsibilities of landlords and tenants, go to www.tenancy.govt.nz or subscribe to our e-newsletter Tenancy Matters here.

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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