Subletting problem
Question from Michael updated on 24th August 2020:
The original tenant moved out of our property two years ago and left family members staying there. The original tenant did not get our written consent to sublet the property and at no stage prior to the original tenant moving out did they inform us they were doing so. We want to give notice to the current occupants. What is the best way to handle it?
Our expert Steve Watson responded:
Under section 44 of the Residential Tenancies Act, tenants may only sublet or assign a tenancy to someone else if there is no clause in the tenancy agreement that prohibits subletting, and they have permission from the landlord to do so. Tenants commit an unlawful act and may be liable for a financial penalty of up to $1,000 if they breach these requirements. Although there is no written agreement in place with the current occupants, the Act still applies.
It is not clear from your question what arrangements have been in place with either party over the last two years. There may be an implied tenancy in place given the current occupiers have been there for two years and you have likely been accepting rental payments from them and dealing with them as if they were the tenants when giving notices of inspections and similar.
Depending on what you agreed to, it may be prudent to serve notices to terminate the tenancy on both the original tenants and the current occupiers. This would ensure both are aware the tenancy is coming to an end. Additionally you should think about who the tenant is on the bond record and make sure you have the appropriate signature on any change of tenant or bond refund forms.
There is more information available on the Tenancy Services website about ending a tenancy or how to contact us for further information. For more general information on the rights and responsibilities of landlords and tenants, go to www.tenancy.govt.nz or subscribe to our e-newsletter Tenancy Matters here.
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