CAB: When landlords and tenants can't see eye to eye

A CAB volunteer helps a client with a tenancy issue.

Most of us familiar with being either a landlord or a tenant will know about tenancy agreements.

This is a written contract between the landlord and tenant. The idea is that this agreement acts as a safeguard for both the tenant and the landlord. However, even in good faith, there can be certain things written that are not clear or are ambiguous. And, sometimes, when there is a misunderstanding, these unclear parts can cause frustration or friction.

When there is a dispute between a landlord and a tenant that cannot be resolved through talking together, either party can apply to the Tenancy Tribunal to help resolve it.

A Tenancy Tribunal hearing takes place before an adjudicator (a person whose role is to hear both sides and make a final decision about your case).

A tenancy agreement must include certain minimum information as well as certain statements about the property and recently landlords now have to include statements under the healthy homes standards. Then there are other things that can be included but are not mandatory.

For example, a landlord can add a condition about smoking in the property, the maximum amount of people that can live in a house, or keeping pets on the property.

These statements or conditions are called clauses but this is where problems can begin. Some clauses written are not enforceable. So why is this?

The Residency Tenancies Act provides the guidelines for agreements but some of the rules are so broad it opens up a gateway of uncertainty. The following are examples of when clauses written in agreements can't be enforced because they are either unreasonable or they are in conflict with the Residential Tenancies Act.

My tenancy agreement has a clause that states there will be an automatic $250 deduction from the bond for cleaning at the end of the tenancy. Is this legal?

This is a great example of an unenforceable clause because your landlord cannot require professional cleaning at the end of the tenancy, nor make a deduction from the bond to pay for it. This is because the Residential Tenancies Act states that at the end of your tenancy, you have to leave the property in a reasonably clean and tidy state – and it is only if you fail to do this that the landlord can deduct bond money for cleaning.

My tenancy agreement says that I will be charged a late fee if I don't pay my rent on time – can they do this?

Even if your tenancy agreement has a clause that says you will be charged interest or late fees for late payment this would not be enforceable in the Tenancy Tribunal. Your landlord has to follow a process which may be making a repayment plan that you can afford. However, not paying rent on time does make you in breach of the Residential Tenancies Act and your tenancy agreement so it does need to be sorted somehow.

My landlord disapproves of some of my friends and says I cannot invite them around. Can they do that?

A tenancy agreement clause saying you cannot have visitors without the landlord's permission would not be enforceable because it would be in breach of your right to quiet enjoyment of the property.

What does 'quiet enjoyment' really mean? It means that tenants can enjoy living in a property and enjoy it without any interference or harassment by the landlord. However, it's important to remember that it works both ways. Tenants must also make sure they don't interfere with the peace, quiet and privacy of their neighbours and other tenants. This doesn't mean they can't make any noise, but it's about being reasonable.

When problems do arise it's a good idea to try and address these as soon as possible. Identifying issues early can make it easier to sort out and resolve.

The best approach is to have a productive working relationship between both tenant and landlord. Tenants and landlords want the best and neither generally want problems. They can often resolve problems themselves without having to go to mediation or the Tenancy Tribunal. This approach will also be less stressful and less time-consuming.

If you want to find out more, the Citizens Advice Bureau has lots of information on its website cab.org.nz or pop in for a chat with a volunteer or give us a call. There is lots of other really good information on the internet too such as on the Tenancy Services website or aratohu tenant advocacy website. Anyone who wants to ask for advice can contact the Napier Citizens Advice Bureau in Bower House, Bower St, Monday to Friday 9am to 4pm on 06 835 9664 or 0800 367 222 or send an email on napier@cab.org.nz. Confidentiality is always assured.