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Landlord & Tenant: Access to a tenanted property for open homes

27 September 2019

Large Modern House with Pool

  FOR SALE  

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I recently spoke to a client who is selling a rental property. The property had been tenanted by the same person for the last five years and the relationship between the parties had been excellent.

 

Unfortunately, the impending sale has strained the relationship between tenant and landlord. This isn't uncommon, given the uncertainty and inconvenience faced by the tenant and the competing need for the landlord to access to the property to prepare it for sale and to allow for open homes and other viewings.

Section 48 of the Residential Tenancies Act (the Act) sets out the circumstances in which a landlord may enter a tenanted property. Broadly speaking, a landlord may enter with the tenant’s consent, or in any of the circumstances prescribed in  section 48(2) and (3) of the Act.

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In order to inspect the premises, section 48(2) of the Act requires a landlord give their tenant at least 48 hours’ notice. To undertake necessary repairs, or where access is required to comply with the regulations concerning the presence and functionality of smoke alarms in the property, or to comply with healthy homes standards, a landlord must give a tenant at least 24 hours’ notice. A landlord can enter the premises at any time in the case of an emergency.

 

But what about a landlord’s right to enter the property when access is required for the purpose of an open home, or for private viewings? The Act is less prescriptive in these circumstances and  provides that such access only occurs with the prior consent of the tenant. While the tenant may not withhold that consent unreasonably, they can make it subject to 'reasonable conditions'. Reasonable conditions could be to limit access to certain times of day and days of the week, or to ask to be present during open homes.

 

Provided their doing so is 'reasonable', a tenant may even refuse to consent to grant access for open homes or on-site auctions and insist that the property is only shown to prospective buyers on a by-appointment basis. 

 

Our experience, and common sense, shows that open and honest communication between parties will resolve most issues that arise between landlord and tenant. When a landlord intends to sell a tenanted property, it pays to raise this with the tenant as early as possible. Depending on their tenant's views, landlords may consider whether open homes are a necessary part of a property sales strategy and, if so, whether their effect on the tenant can be mitigated to a point that both landlord and tenant are happy. One way of doing this could be to consider reducing the tenant’s rent for the duration of the marketing period as a gesture of goodwill. Once the parties agree on terms regarding access to the property, that agreement should be put in writing so that everyone is clear.

 

And if things go really badly? A quick call to a tenancy law expert like Waikanae Law will ensure that you know which side of the law you’re on, and what your options are.

 

We’re available to landlords and tenants anytime on 04 902 5088, or at info@waikanaelaw.co.nz.

 

 

This article is prepared as general information only and does not constitute legal advice. Waikanae Law is not responsible for any loss resulting from reliance on the information contained in this article.