Article: Speak Easy

I’m Tidying Up A Rental For Sale. Can I…  with Michael BoturI’m Tidying Up A Rental For Sale. Can I…  with Michael Botur

I’m Tidying Up A Rental For Sale. Can I Make The Tenants’  Beds?

In May, a landlord was ordered by the Tenancy Tribunal to give compensatory damages to two tenants over interference with the tenants’ right to reasonable peace, comfort, and privacy.

In the months leading up to the Tenancy Tribunal order, the landlord had got a real estate agent to enter the house without permission. The real estate agent made the tenants’ beds, made the tenants’ children’s beds, and moved personal belongings around, then had the photographer take photos of it all – all to help sell the place.

The Tribunal adjudicator described the incident as “particularly disturbing” – but the agent didn’t have to pay damages.

Here’s what went down:

1. On 23 January 2018 a landlord (home owner) informed her tenants she was putting
the property on the market. A real estate agent acted as agent for the landlord for
the sale of the property.

2. On Tuesday 23 January the agent – acting for the landlord –  sent one tenant a
text message asking whether a photographer could come and do his thing (prompt
property photos for a prompt sale). After a text message exchange, the agent said
his photographer was available on Weds Jan 31; the agent confirmed he had
a key… but the tenant seems not to have received the message advising her that
the agent was coming. The two tenants returned from work on January 31 to find
the agent’s business card on the kitchen bench. Their bed and both their children’s
beds had been made. Some of their personal belongings had been moved around (the Tribunal eventually determined that because consent had not been granted,
the agent’s entry was ‘unlawful’).

3. At an open home viewing around February 10/11, the agent asked the tenants
whether he could show the property to “a few investors.” Numerous people were
shown through the property in just 30 minutes.

4. After a second open home on February 18, the tenants asked the landlord for a
break on the rent, which the landlord considered. 

5. Between 21-24 February the landlord told the tenants an inspection was happening
– but this turned out to be another hands-on viewing by the purchasers. By this
stage the tenants were reeeally hoping for a rent reduction as compensation.

6. After more back and forth and an April 6 hearing, the Tribunal determined while
there is “no legal duty on landlords to offer a rent reduction during the ‘disruptive’
marketing and sale of a property,” a reduction in rent for tenants is common
practice because the marketing and sale process “impinge on the tenants’ peace
comfort and privacy.”

7. Ultimately the tenants accepted the landlord’s (rather late?) offer of a rent reduction.
The Tribunal was unimpressed, though, at the following:

• The agent’s “disturbing” entry to the property with a photographer? Yeah, nah: not
legal, but no damages awarded on that.

• Showing more people than expected around the property: The tribunal found this
“over-enthusiastic but certainly not malicious.” No damages awarded.

• The tribunal found the tenants had already received some compensation in the
form of the rent reduction which came at the very end (the landlord agreed to waive
remaining rent payments due after 22 February; the agent personally reimbursed
three weeks’ rent to the landlord.)

All in all, the tenants were entitled to compensation amounting to one week of rent, in addition to the compensation already received by way of rent waiver.

Yeesh. While Section 48 of the Residential Tenancies Act 1986 provides that the landlord may enter the premises at any reasonable time for the purpose of showing it to prospective purchasers “with the consent of the tenant,” couldn’t the landlord have just waited patiently until the tenants’ lease expired?

Ah well, you know what they say: If you make your tenants’ beds, you lie in it.

Michael Botur has published journalism in NZ Herald, Herald on Sunday, Sunday Star-Times and Mana and he writes a lot of fiction. He moved to Whangarei in 2015 and was ecstatic to be able to afford a house here.

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