Tenants' overstaying friends

Question from Neil updated on 7th June 2013:

We are having an issue with tenants who have friends staying at the property on a regular basis. I was wondering if there was a rule of thumb for Section 40 (3) of the RTA? If we have limited the number of occupants then how regularly does someone have to stay at the property before we can say that the tenants are breaching this section?

Our expert Alan Bruce responded:

Under the Residential Tenancies Act 1986 (the Act) a landlord can specify a maximum number of occupants that can ordinarily reside in the premises during the term of a tenancy. This must be recorded in the tenancy agreement. However, the Act does not specify what differentiates a visitor from someone that ordinarily resides in the premises, and in some cases it can be difficult determining whether a person is considered a visitor or an occupant. If you believe that your tenant is breaching the tenancy agreement by exceeding the maximum permitted occupants residing in the premises, you should discuss your concerns with your tenant in the first instance with a view to coming to an agreement (recording any agreement in writing). If you are unable to reach an agreement but you believe the tenant is exceeding the maximum permitted occupants, you may give the tenant 14 days’ written notice to remedy the breach. As the notice must be in writing, service time must be allowed for, and a copy of the notice should be retained. A template for a 14 days’ notice letter along with information about service times can be found on the Ministry of Business, Innovation, and Employment - Building and Housing Group’s website (http://www.dbh.govt.nz/pub-sorting-out-problems). If the tenant does not comply with the notice, you could apply to the Tenancy Tribunal to have the matter resolved. To discuss your situation further, or for information about applying to the Tenancy Tribunal, you can visit the Building and Housing Group’s 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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