When a tenant or landlord breaches the Residential Tenancies Act, it’s important for the person who’s affected to understand what can be done to put it right.

What is a breach

The Residential Tenancies Act 1986 (the Act) sets outs the rights and responsibilities of people who enter into tenancy agreements. When someone doesn’t follow the rules, this is called a breach of the Act. Someone can breach the Act by not doing what they’re supposed to do, or by doing something they’re not allowed to do.

What is an unlawful act

Some breaches of the Act are serious enough to be considered unlawful acts. For example, a landlord interfering with a tenant’s quiet enjoyment of their home is a breach of the Act. But if this continues to such a degree that it’s considered harassment, it’s an unlawful act.

If the breach is serious enough, and is also an unlawful act, the Tenancy Tribunal has the ability to award 'exemplary damages' (a financial penalty) that the person who breached the Act must pay to the other person.

Exemplary damages can be awarded for unlawful acts

When someone commits an unlawful act, the affected person can apply to the Tenancy Tribunal for ‘exemplary damages’. This means that the person who committed the act pays a fine to the affected person. Exemplary damages can’t be awarded for ‘ordinary’ breaches.

The Tenancy Tribunal considers how serious the unlawful act is and what impact it’s had on the affected person before awarding exemplary damages.

Schedule 1A of the Act lists the maximum amounts that can be awarded by the Tenancy Tribunal for certain unlawful acts.

Decisions the Tribunal can make has more about the type of orders the Tribunal can issue.

Remedying a breach of the Act

What you do to fix a breach of the Act is called a remedy. Some breaches can be remedied, but others cannot.

The Act says what needs to happen when someone doesn’t follow the rules, and the remedy for this will depend on what the problem or breach is:

  1. breaches that can be remedied – where the tenancy may be ended
  2. breaches that can be remedied – where you don’t want the tenancy to be ended
  3. breaches that can’t be remedied
  4. ongoing or repeat breaches of the Act

There may also be clauses in an agreement that are unenforceable.

You should always try self-resolution as the first step in dealing with any issues that come up in a tenancy.

Breaches that can be remedied

Where the tenancy may be ended

When a breach occurs, you can send the person who is in breach a 14-day notice to remedy. The notice tells them what they’ve done to breach the agreement, what they need to do to fix it, and how long they have to fix it. 

The 3 most commons types of 14-day notice to remedy are:

  • tenant to landlord for any breaches
  • landlord to tenant for rent arrears
  • landlord to tenant for any other breaches.

14-day notice to remedy templates can be downloaded below.

If you send a 14-day notice to remedy and the person does not fix the problem within the time allowed, you can apply to the Tenancy Tribunal to sort the matter out. As part of your application you can seek to end the tenancy, and you can require the person to do something such as fixing a leaking roof or paying the rent. You may also be able to seek exemplary damages if the Tribunal decides that’s appropriate.

The 14 days are calendar days, not working days. You need to allow for service time when you calculate the time you’re giving the other person to fix the problem.

Giving notice to end a tenancy has more about service times.

One example of when a 14-day notice to remedy could be used is where a tenant has asked their landlord to fix issues with the property and the work has not been done. Other examples are a tenant owing their landlord less than 21 days’ worth of rent, or a tenant having a dog or horse on the property without the landlord allowing it.

The landlord may also apply for termination of the tenancy on a date when the rent is 21 days or more in arrears, in this situation the landlord does not need to give the tenant a 14-day notice to remedy.

This type of application might be scheduled for mediation if we think that the parties might be able to agree on a solution. If not, a Tenancy Tribunal hearing would be scheduled. The Tenancy Tribunal has the power to end the tenancy agreement if the situation warrants it.

Where you don’t want the tenancy to be ended

There may be times where a person has breached the agreement, and the other person just wants the issue fixed but doesn’t want the tenancy to end. These may be less serious breaches of the Act, or breaches that don’t affect you as much.

Examples of this include a tenant who just wants their oven fixed, or a landlord who wants people who are not allowed to live in the house to leave.

You can still send a 14-day notice to remedy the problem, but instead of giving them a minimum of 14 days you can decide what you think is a reasonable time to fix the issue. If you are not sure what a reasonable amount of time is, you can still use the 14-day notice to remedy. If you have not given the tenant 14-day notice to remedy you may not be able to seek termination of the tenancy, but can still apply for the problem to be sorted out.

Breaches that cannot be remedied

When a breach occurs that can’t be fixed or undone, the affected person can apply to the Tenancy Tribunal for an order to have the tenancy ended. Examples of this could include:

  • breaches involving illegal activities, such as a tenant dealing in prohibited substances from the property (house, garage, or even a car parked in the driveway)
  • breaches where the tenant has either threatened to do, allowed to happen, or actually done, any of the following:
    • assaulted the landlord, their family or their agent
    • assaulted a neighbour or other tenant of the landlord
    • caused substantial damage to the property.

Clauses in the agreement that are 'unenforceable'

The Act does not allow any clauses to be written into tenancy agreements that conflict with the Act. The Tenancy Tribunal may consider such clauses to be unenforceable – meaning they have no effect.

Clauses in an agreement that ask a tenant to do more than the Act requires them to do, or that try to remove their rights, are also likely to be unenforceable.

Examples of this are:

Clauses likely to be deemed 'unenforceable'Reason why
Carpets must be professionally cleaned at the end of the tenancy A tenant already has a responsibility to leave the house in a reasonably clean and tidy condition. This could be seen as asking a tenant to do more than required.
Tenants must replace stove elements, fuses and tap washers as they wear out. A landlord is responsible for ensuring the premises is maintained in a reasonable state of repair
Tenants must give 60 days’ notice to end a periodic (on-going) agreement The Act only requires the tenant to give notice of not less than 21 days to end this type of agreement.
A tenant must pay 4 weeks bond plus 2 weeks extra bond for the landlord allowing a dog The law only allows a maximum of 4 weeks rent as a bond
The landlord can raise the rent with 1 weeks’ notice The Act states the process for raising the rent

Any attempts to evade the responsibilities a person has under the Act can be deemed an unlawful act by the Tenancy Tribunal.

The Residential Tenancies Act can be viewed on the New Zealand Legislation website.(external link)

If you think there are clauses in your tenancy agreement that are unenforceable, you should discuss these with the other person. You can also contact Tenancy Services for advice.

If the clause or request cannot be agreed on, you can apply to the Tenancy Tribunal to have the disagreement resolved.

Making an application has more about applying to the Tenancy Tribunal.

Serious Ongoing or Repeat breaches of the Act

Tenancy Services Compliance and Investigation officers monitor and enforce compliance with the Residential Tenancies Act 1986 (the Act).

If you are concerned about serious or ongoing breaches of the Act that affect vulnerable people, read about what they do and how to contact the team.

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