Sub-tenant eviction

Question from Rupert updated on 12th February 2013:

My tenant has sublet the unit in my rental property whilst living in the main part of the house with his family. He wants to evict the sub-tenant. Can you advise what to do if the sub-tenant refuses to go? Can he give two weeks notice to the sub-tenant? The sub-tenant has no contract.

Our expert Alan Bruce responded:

The Residential Tenancies Act 1986 (the Act) applies only to the relationship between a tenant and landlord (including a sub-tenant and a sub-landlord). It does not cover the relationship between tenants. It is unclear whether your tenant has a sub-let arrangement or a flat-share arrangement as both your tenant and the sub-tenant continue to reside in the premises. Typically, a sublet arrangement occurs where a tenant passes possession of the premises to a third party. It does not usually include an arrangement where the tenant continues to live in the premises or where the tenant/sub-landlord shares part of their dwelling with the sub-tenant. This type of arrangement may be considered to be a flat-share arrangement and would therefore not be covered under the Act. However, where the tenant remains at the premises and only a section of the premises has been rented (e.g. a completely self-contained unit) then this may be considered a sub-let if the sub-tenant does not have access to the sub-landlord’s dwelling. For situations that are covered under the Act, in most cases landlords (including sub-landlords) are required to give a minimum of 90 days’ notice to terminate a periodic tenancy. Fixed-term tenancies cannot be ended by notice but may be ended by mutual consent (or by the Tenancy Tribunal in limited circumstances). Notices to terminate a tenancy must contain certain information and service time must also be allowed for. If it is unclear whether your tenant has a sublet situation or a flat-share arrangement then either party may apply to the Tenancy Tribunal to have the matter resolved. Parties to a flat-share arrangement may wish to seek independent legal advice from their local community law centre regarding their situation. Visit the Ministry of Business, Innovation and Employment - Building and Housing Group’s website (www.dbh.govt.nz) or phone or call 0800 TENANCY (0800 836 262) for more information.

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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