Abandoned premises

Sometimes tenants leave a property with rent owing and without notice having been given. When this happens the tenancy is considered to have been abandoned.

Normally the landlord wants to get into the property as soon as possible and relet it. While this is understandable, the law, in the interest of protecting both the tenant and landlord, sets out a procedure that must be followed.

What to do

If you think your tenant has abandoned the tenancy, the first thing to do is to try and contact them. If you know where they work or who any of their family and friends are, give them a call or go round and visit.

If the tenant hasn’t abandoned the property, they will appreciate you checking before taking any other steps. If they have abandoned the property, then getting them to sign over possession will make things a lot simpler as you will be able to get into the property straight away.

Can’t find the tenants?

Remember there are two conditions that must be satisfied for a property to be considered abandoned. Firstly, the rent must be in arrears. It is not enough that the rent is not in advance as much as it should be.

Secondly, there must be reasonable grounds to think that the tenants have gone and are not intending to come back. If it is clear that the tenants have gone, then you can secure the property if it has been left open.

If you don't have the keys, or for some other valid reason, need to get the locks changed, leave a note on the door telling the tenants how to contact you. If food or other perishables have been left in the property, and are likely to cause damage, you can remove them.

Don’t touch or remove any of the tenant’s goods unless it is absolutely necessary to do so in order to protect them. Make an application to the Tenancy Tribunal straight away to have the tenancy terminated.

Making the application

You can make an application online at www.dbh.govt.nz and pay the $20 application fee with your Visa or Mastercard.

You can also complete a paper form and send by mail to PO box 50546 Porirua, fax to 04 237 1058, or email to ttapplications@dbh.govt.nz. You must pay the $20 application fee at Westpac bank or by purchasing pre-paid stickers from the Department of Building and Housing before submitting your application.

Forms and information are available from the Department of Building and Housing free phone 0800 TENANCY (0800 83 62 62) or from your local Citizens Advice Bureau.

The application form is fairly simple but as it is a court document, you must make sure that you supply all the details that are asked for. It is particularly important that you supply an address for service for the tenant. This should be in the tenancy agreement and, even if it is the tenancy address, you need to indicate that it is.

If it seems that contact can be made with the tenant, the application will be referred to a mediator to try and help sort it out. If not, or if despite the mediator's help, no solution is found, your application wll be set for a hearing in the Tenancy Tribunal. It is important that you have clear, accurate rent records to show the rent is in arrears.

Why do I need a Tribunal Order?

To protect tenants' rights, it is an offence for a landlord to take possession of a property without the tenant's consent or a court order. The penalty for this is up to $1000 fine or 3 months in prison. The Tribunal Order will also protect you if the tenants were intending to come back.

What about other claims?

At this stage, the most important thing is to get possession of the property so you can relet it. If you have other claims, such as rent arrears or damage and you know the exact amounts involved, you can include these in your application.

Often it is not possible to know what all your claims are going to be until after you have the property back. You may not know how long it will take you to relet the property, what repairs or cleaning may be required or what goods the tenant has left behind in the property.

I have an Order, now what?

Once the Tribunal has terminated the tenancy and given you possession, you can enter the property and relet it.

If you are going to be making any other claims, it is important to gather evidence at this stage to support those claims, such as receipts for cleaning or repairs.

If the tenant has left goods in the property, you should list these, remove them to safe storage and apply to the Tribunal for an order to dispose of them. Any money received from the sale of the goods following an order for disposal can be ordered to be paid to you to offset your claims against the tenant.