Unhappy tenants should be sure they know their rights

Tenant advocates frequently claim that when a tenant makes a request for their landlord to fix something on the property that they are entitled to have fixed, the landlord either ignores them or terminates the tenancy in retaliation.

These claims exist, I believe, because of widespread ignorance about actual tenancy law and the relative powers of both landlord and tenant.

All residential tenancies within New Zealand are governed by the Residential Tenancies Act, with very few exceptions. Neither landlord nor tenant are able to contract out of this 1986 act.

Within this act, there is laid out a specific and workable sequence for the resolution of tenancy disputes.

Obviously, the first step in any resolution would be to contact the other party to discuss the problem. This may solve the issue quickly without any further action being required.

If there is no acceptable outcome then the tenant, rather than just grumbling and complaining, should serve a 14-day notice on the landlord. This is a legal notice to comply, and a tenant can issue a 14-day notice to the landlord or property manager if they think these people are not keeping their obligations under either the act or the tenancy agreement.

This notice is a legal demand, and is an essential step in the process, yet I have found very few tenants are aware of its existence. There is a template for the 14 day notice on the Tenancy Services website.

If the landlord does not comply within that 14-day time, the tenant can move on to a claim at the Tenancy Tribunal.

The Tenancy Tribunal is a specialist court which can award compensation or order repairs up to a value of $50,000. It’s faster than going to a normal court. It’s also a lot cheaper — the application fee is $20.44.

Orders may include the requirement to repair, maintain or upgrade the rental property, and possibly requiring the landlord to pay restitution or damages.

When I lay out this sequence in front of tenants I normally get one of two reactions. Either they say “if I do that the landlord will evict me” or “If I demand this then the landlord will put the rent up”.

However, it is an unlawful act for a landlord to end a tenancy in retaliation for a tenant exercising a right under the tenancy agreement, the relevant law, or by making a complaint relating to the tenancy. This is called a “retaliatory notice” under the Residential Tenancies Act.

Tenants who take direct action against landlords are able to challenge an alleged retaliatory notice up to 28 working days after it has been issued.

On the tenant’s application, the tribunal can overturn a landlord’s notice to end a tenancy if it believes the landlord gave the notice as a consequence of actions taken by the tenant in exercising their rights.

Thus, there is no reason to fear termination of the tenancy when asking for the property to be maintained in good condition.

In many cases I see, the tenant admits they are paying a rent well below market levels. In this case, their fear that improvements to the property will result in a rent increase may be well founded.

However, if they decide not to pursue their claim on these grounds, what they are really saying is “I’d sooner have cheap and nasty rather than good at reasonable cost”. That may be their choice, but then they actually have no grounds for complaint. By paying cheap they get cheap.

Thus when we hear calls for strengthening the laws around tenancy issues and for imposing increasingly draconian requirements on landlords, perhaps the real question we should be asking is: “How do we educate our tenants about the powers they already have and how to use them?”