Want to move to "safe new house"

Question from Amy updated on 23rd September 2013:

My landlords recently told us that it would be good if we could move out earlier then our fixed term so that they could start renovating. They said we have until the end of the year and after the winter we should start looking. We have found a place with owners that would like us to move in as soon as we can. I spoke to my landlord about giving notice to leave and said that we cannot leave now until the end of the term as they have now budgeted until then. I have a young child and the house we are in now has mould all over the bathroom ceiling (it has been there ever since we moved in) and the floor behind the toilet has nearly sunken in from existing water damage. The new place is a more modern house with no problems. I was really looking forward to moving my family into this safe new house, they have recently raised our rent $100 between our the first and second term (without improvements or fixing proble they are aware of) and have never lodged our bond, what can we do to get out?

Our expert Alan Bruce responded:

Under the Residential Tenancies Act 1986 (the Act), a fixed term tenancy cannot be ended by either party giving notice to terminate the contract before the agreed end date. Fixed term tenancies can only be ended early:  By mutual agreement between the landlord and the tenant(s);  If the property undergoes a mortgagee sale;  Where the premises are destroyed, or so seriously damaged as to be uninhabitable; or in certain circumstances, by the Tenancy Tribunal. If all parties agree to terminate a fixed term tenancy early the details of that agreement should be recorded in writing, preferably on the tenancy agreement, noting all of the terms and conditions agreed to. Any variation to a tenancy agreement that is not in writing may still be enforceable, however, difficulties often arise if the parties dispute what was verbally agreed to. You may also wish to check the terms and conditions of your agreement to see if it allows the tenant to assign the tenancy. Assignment is where you may be able to be released from your fixed term tenancy if suitable replacement tenants can be found. Further information regarding this process can be found on our website by visiting: http://www.dbh.govt.nz/tenancy-ending-fixed-term-info. It can be difficult to determine who is at fault when mould appears in a property. This is largely due to the fact that there are many reasons why mould and dampness may be present in a property. For example, tenants may cause excess moisture in the property by using un-flued gas heaters, drying clothes inside and not ventilating the property. Landlords may be responsible where the problem has arisen due to a maintenance issue which could include, for example, leaking pipes, or blocked guttering etc. Where it is unclear what is causing the dampness, or where it is not through any fault of either the landlord or tenant (e.g. due to the location of the property or if the property does not get much sunlight) then the responsibility becomes a lot less certain. In these situations, landlords and tenants should try and negotiate an outcome they are both happy with (e.g. whether a dehumidifier will remedy the problem, who will be responsible for cleaning costs, or whether the tenancy will end. Landlords also have a responsibility under the Act to: Ensure the premises are maintained in a reasonable state of repair (while having regard to the age and character of the premises and the period the premises are likely to remain habitable; and ensure the premises comply with all the relevant health, safety and building regulations that apply to the premises; and lodge any bond payment received with the Ministry of Business, Innovation & Employment (the Ministry) within 23 working days of receipt (with the exception of bonds collected in respect of a boarding house tenancy which is less than 1 weeks’ rent). Where a landlord has not fulfilled these obligations, the tenant should notify them in the first instance and if not resolved, may give the landlord 14 days’ written notice to remedy the breach (e.g. to carry out the necessary work, or lodge the bond). As the notice must be in writing, you must allow for service time and should keep a copy of the notice. A template for 14 days’ notice and information about service times can be found on the Ministry’s website (www.dbh.govt.nz). If the landlord does not comply with the notice, the tenant may make an application to the Tenancy Tribunal to have the matter resolved, which may include seeking an order to terminate the tenancy. Whether the tenancy is terminated will depend on whether the Tribunal is satisfied that the breach is of such a nature or extent that it would be inequitable to refuse to terminate the tenancy. To discuss your situation further, or for information about ending a fixed term tenancy early, you can visit the Ministry of Business, Innovation & Employment’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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