Tenants subletting

Question from Dave updated on 27th June 2015:

I've discovered my tenants are subletting through a well-known, short term rental website. This is against the tenancy agreement as there is to be no subletting and there are also more people staying at the property on some nights than the tenancy agreement allows for. What can I do? What are my rights? I want to evict them but can I?

Our expert Alan Bruce responded:

Under the Residential Tenancies Act 1986 (the Act) there is a difference between a tenant subletting and a tenant having flatmates or allowing visitors. Subletting is where tenants who rent a property move out, and enter into a subsequent tenancy agreement with other people to rent the property. In effect, they become sub-landlords and their tenants are sub-tenants. Tenants who have not moved out of the property and have people living with them who are not listed on the tenancy agreement are not in a subletting arrangement, this would normally be a flatting arrangement. If they do not ordinarily reside in the property they would be a visitor or guest. If the tenants have more people ordinarily residing in the property than is allowed under the tenancy agreement then the Act provides a process you can follow to remedy this breach. Under the Act, the tenants listed on the tenancy agreement can be held liable for the actions (for example damage to the property) caused by any other person they allow on the property (for example subtenants, flatmates or visitors). If the number of people ordinarily residing in the property exceeds the maximum number allowed on the tenancy agreement (maximum number of occupants), you should raise your concerns with the tenants in the first instance in an attempt to resolve the issue.  Where this does not resolve the matter, you can give the tenants a “14 day” notice to remedy the breach, and if not complied with, you can make an application to the Tenancy Tribunal to have the matter resolved, or the tenancy terminated. 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. You can also visit our website: www.tenancy.govt.nz/tenancy-index.

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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