Question from Mubarak updated on 20th April 2012:
Our expert Megan Martin responded:
Subletting under the Residential Tenancies Act generally involves the tenant parting with possession of the premises by renting the premises to a new tenant (in which case the tenant becomes a sub-landlord and the new tenant is a sub-tenant). If the tenant is still residing in the premises then it may not be considered to be sublet. However, if your tenancy agreement with the tenant specifies a maximum number of people that may reside in the premises, and the tenant has people move in to the premises with her and exceeds the maximum specified on the tenancy agreement, then the tenant will be in breach of the tenancy agreement. If a tenant breaches their tenancy agreement by exceeding the maximum number of people to reside in the premises, then you (as landlord) may issue the tenant with 14 days’ written notice to remedy that breach. If the tenant does not comply with the notice, you can apply to the Tenancy Tribunal to have the matter resolved. Any variation to a tenancy agreement (such as increasing the maximum permitted occupants, and increasing the rent) needs to be agreed by you and the tenant, and should be recorded in writing, and signed by both parties. Fixed-term tenancies cannot be ended by notice, irrespective of any breach by the tenant. Landlords may give 90 days written notice to terminate a periodic tenancy (or 42 days written notice in certain circumstances specified in the Residential Tenancies Act). The notice period cannot be shortened because the tenant has breached the tenancy agreement. Any notice which does not comply with the requirements of the Residential Tenancies Act will not be valid and will not be enforceable. Any tenancy agreement may be ended earlier if both parties mutually consent - any such agreement should be recorded in writing and signed by both parties. If a tenant does not vacate the premises at the end of a tenancy (upon expiry of a fixed term tenancy, where correct notice has been given to terminate a periodic tenancy, or where parties have mutually agreed to end the tenancy) the landlord may make an application to the Tenancy Tribunal for an order returning possession of the property to the landlord. As notices requiring a breach to be remedied and notices to terminate a tenancy must be in writing, service time must be allowed for and the party giving notice should keep a copy for themselves. A template for 14 days notice to remedy a breach, and information about service times, can be found on the Department’s website www.dbh.govt.nz
To discuss your situation further or for information about applying to the Tenancy Tribunal, you can visit the Department of Building and Housing website (www.dbh.govt.nz), or call 0800 TENANCY (0800 836 262).
The Department of Building and Housing provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.
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.