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Tips on stepping around the minefield

When it comes to renting, you can act with all the common sense and good intentions in the world and still get it wrong, writes Sarina Gibbon of the Auckland Property Investors’ Association.

By: Joanna Mathers

10 April 2024

Here’s a recent IRL example to showcase how much of a minefield tenancy law can be.

The facts are relatively straightforward: a year after the Auckland floods, the council reclassified an otherwise resilient and occupied rental property under Risk Category 3, entitling the landlord to participate in a voluntary buy-out.

The landlord was agreeable and instructed his property manager to terminate the tenancy. The manager first gave a seven-day notice under s59 of the Residential Tenancies Act, given that the council now deemed the property to have met “the threshold for intolerable risk to life” and that its purchase was “required to reduce the risk of future weather events.”

The ensuing interactions with the tenants led the manager to re-initiate termination under s51(2)(a). Both notices caused the long-term tenants significant distress and anxiety.

The notices

Now, I want to stress here that there was no nefarious intent. Everyone did everything they thought to be right, but still did just about everything wrong. Sometimes, you can follow the North Star and still get lost in the wilderness.

So, what went wrong? The notices. Both put the landlord in breach of s60AA, which could result in a fine of up to $6,500.

The first notice was improper because the property had not sustained damage. The Tenancy Tribunal had been very clear in other cases that for a s59 notice to stand, there has to be actual damage to the property. No matter how imminent and accurate, potential or even predicted damage is not enough.

Grasp of the law

The second notice was equally flawed because Auckland Council had already been lined up to buy the property. S51(2)(a) requires the property to be listed on the open market; having a designated buyer puts the transaction outside the section’s parameters.

Not only did a lack of understanding of the intricacies of tenancy law lead to the misapplication of two termination provisions, but the property manager’s failure to explore alternative termination methods, such as mutual agreement or no-fault termination, compounded the situation.

While common sense and good intentions are valuable, they must be coupled with a thorough grasp of the law to successfully navigate the complexities of residential tenancy.

By investing in education and staying updated on legal requirements, landlords and property managers can avoid costly missteps and ensure smoother tenancy transitions for all parties.


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