Subletting without permission

Question from Matthew updated on 15th November 2015:

My tenants are subletting my residential house to two commercial companies with out my permission. This has gone on for three years without my permission. Can I send those companies a rent bill?

Our expert Alan Bruce responded:

Under the Residential Tenancies Act, a tenant cannot sublet the premises without the agreement of the landlord, and this should be documented in writing in the tenancy agreement. A sub-tenancy is created when tenants who rent a property do not occupy the premises, and enter into a subsequent agreement with other people to rent the property. A tenant who sublets the premises also becomes known as a sub-landlord and their tenants are known as sub-tenants.

Where a tenant is in breach of their responsibilities under the tenancy agreement, landlords can serve tenants with 14 days’ written notice requiring the tenant to remedy the breach. If the tenant does not comply with the notice the landlord can apply to the Tenancy Tribunal to terminate the tenancy (which may include any sub-tenancies). A template for 14 days’ notice and information about service times can be found on the Ministry’s website at www.tenancy.govt.nz.

The Act states that subletting without the landlord’s permission is deemed an unlawful act and any application to the Tenancy Tribunal could include a claim for “exemplary damages” of up to $1000. Under the Act, your tenant is responsible for paying you the rent as per your tenancy agreement, and as such, you have no contractual relationship with the commercial companies (the sub-tenants).

To discuss your situation further you can call 0800 TENANCY (0800 836 262) between 8.00am-5.30pm Monday to Friday to speak with a member of our Tenancy Advice team.

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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