When you are involved in a tenancy, either as the tenants or the landlord, both parties have rights and responsibilities. Being a student doesn’t remove the protection you have under the Residential Tenancies Act, and you also have to make sure you are meeting your obligations too.
This section is a brief guide to some of the legal stuff involved in flatting. It’s a little dry, but it’s important, and don’t forget OUSA Student Support is your on-campus support hub for anything to do with flatting and tenancy.
Tenancy Agreements
When you sign up for a flat you enter into a legal contract with the landlord or property manager. This is called a tenancy agreement. Under this agreement both tenants and the landlord have rights and responsibilities; this is governed by the Residential Tenancies Act of 1986. There are several common tenancy agreements that are listed below. Pay close attention to the “joint fixed term tenancy agreement” because it’s the most common student tenancy.
Fixed Term Tenancy: This tenancy lasts for a fixed amount of time (usually 12 months). A fixed term tenancy can’t be ended during the fixed term, but if something goes wrong get in touch with OUSA Student Support to see what can be done. Fixed term tenancies will automatically become periodic at the end of the initial fixed term unless BOTH the landlord and the tenant agree otherwise, the tenant gives notice or the landlord gives notice for an approved reason. Fixed term lease agreements can also be “joint” (see jointly and severally liable below).
Periodic Tenancy: There is no fixed term and the tenancy can be ended by giving notice. The tenant can give 28 days’ notice. The landlord can only give notice for reasons specified in the Tenancy Act, and must give the appropriate amount of notice for that reason.
Boarding House: Here, the tenant rents one room independently and shares common facilities with other tenants. If your accommodation meets the definition of a boarding house then you can end the tenancy with 48 hours’ notice even if you signed up for a fixed term. A ‘studio room’ will often legally be classed as a boarding house. If you want to check if your studio room is actually classed as a boarding house have a chat with OUSA Student Support.
Unenforceable clauses in a tenancy agreement: All clauses in a tenancy agreement must be consistent with the Residential Tenancies Act 1986. Landlords can’t just put whatever clauses they want in a tenancy agreement. A common example of this is tenants being required to professionally clean carpets when they move out. The Act requires tenants to leave the property reasonably clean and tidy (not professionally) so your property manager can’t charge you for carpet cleaning unless you have left stains. You can always get OUSA Student Support to read over your tenancy agreement before you sign it so you know where you stand.
Jointly and Severally Liable: This is a legal term that means all the flatmates are responsible for everything that happens in the flat. This means if one of your flatmates kicks a hole in a wall you can all be made to pay for it, and if one of your flatmates disappears and stops paying their rent you will all be taken to the Tenancy Tribunal. This is one of the reasons a flatmate agreement is really important. If you find yourself in a tricky situation, always talk to OUSA Student Support. They can help you deal with the landlord and the problematic flatmate.
Living with the owner or their family member: If the owner or a close family member is living in the property then it is not covered by the Residential Tenancies Act 1986, unless there is a clause in the tenancy agreement explicitly saying that you agree to contract into the Act. This kind of situation can go very wrong, talk to OUSA Student Support if you are considering doing this to make sure things are set for a good year and not the end of your friendship.
Some other need to know legally type stuff
Rent in Advance: Landlords can ask for up to two weeks rent in advance. It is unlawful for the landlord/property manager to require any further rent payments until the rent paid in advance has been used up.
Rent Increases: Rent can’t be increased during a fixed-term tenancy, unless there is a clause in the tenancy agreement permitting it. For a periodic tenancy (or fixed-term that allows rent increases) the rent can be increased once every 12 months, any rent increase must be inline with market rates.
When can the landlord come into the flat? Your landlord is able to enter the outside of the property and/or common areas (of a boarding house) but they are not allowed to go inside personal flats and/or rooms without giving notice.
- Inspections: 48 hours – 14 days notice
- For necessary repairs or maintenance: 24 hours notice
- Open homes or flat viewings: There is no notice period for this, the landlord/property manager needs to discuss this with the tenants and you all need to reach a reasonable agreement.
- Without notice: In an emergency or with your consent.
Quiet enjoyment: Your flat is your home, you are entitled to reasonable peace, comfort, and privacy. The landlord/property manager can’t interfere with this, and you can’t interfere with other people’s quiet enjoyment either. Yes, that includes your massive new speakers.
Changing Tenants
If you really need to move out of your flat you can ‘assign’ the tenancy, basically meaning someone else takes over your tenancy. The landlord/property manager needs to agree and your flatmates need to approve of any potential replacements. There is also paperwork to do, which needs to be done correctly or you might still be liable for the flat. You can be charged reasonable costs for “assigning” but be wary of being overcharged! There are some key points to cover so it’s a good idea to come and talk things through with OUSA Student Support before you do this.
Healthy Homes Standards: From the first of July 2021 all private landlords have been required to comply with the Healthy Homes Standards within 90 days of a new or renewed tenancy. In Otago this means:
- Insulation: Check for “ceiling R3.3” and “underfloor R1.3”. This should have been in place since July 2019.
- Fixed heat source in the living room that meets the required standard.
- Extractor fans in the kitchen and bathroom, opening windows in the kitchen, bathroom, living room, and bedrooms.
- Effective drainage.
- A ground moisture barrier in the sub-floor area.
- No unreasonable gaps or holes.
Occasionally, a property might be given an exemption from some of these standards. You can talk to OUSA Student Support for more info. Don’t forget the Healthy Homes Standards are the minimum requirments, a landlord can go above the required standard (this would generally be a good landlord) and there is a lot that tenants can do themselves to make the flat warmer, dryer, and healthier.
Disputes
If you’re having issues with your landlord or flatmates there are different pathways you can use to resolve the situation. We recommend that you come in and talk to OUSA Student Support for all the options available to you for your particular situation as these types of situations can be complex.
If you have questions about tenancy matters, just visit the friendly team at OUSA Student Support.
*OUSA Student Support has extensive experience in flatting and tenancy related matters, gained from decades of supporting students who are flatting and navigating tenancy laws. All advice is given in good faith and is as accurate as possible at the time of publishing, however this article does not constitute formal legal advice.