Common Residential Tenancy Questions

Sub-tenancies

The relationship of tenant and sub-tenant is the same as that of property owner and tenant. The sub-tenant pays rent to the tenant for the right to occupy exclusively part or all of those premises for which the tenant has been granted a similar right by the property owner. The sub-tenancy must be for a term less than the tenant’s own term or it will be regarded as an ‘assignment’ .

Many tenants of a house or flat have other people living on the premises. Often there is no express agreement about the terms on which they stay there, except for the amount of their contributions to rent and other expenses. Whether they are joint tenants or merely licensees or sub-tenants of another tenant depends on the circumstances.

Every tenant is entitled to sub-let provided permission is gained from the property owner. A property owner must not unreasonably refuse permission for a tenant to sub-let premises. If a tenant sub-lets premises, the tenant remains legally liable to the property owner for any liabilities incurred by the sub-tenant. In addition the sub-tenant has no recourse against the property owner; they may only look to the letting tenant for repairs or maintenance or any other needs which may arise during the sub-tenancy.

Visitors

Any person who enters the property on behalf of the owner is obliged to observe the provisions of the Act. Therefore, for example, the tenant is entitled to 24-hours notice if the owner wants repairs carried out on the tenant’s rooms. Owners are also required to provide a lock and any other security device necessary to secure the premises, and ensure that these are maintained throughout the tenancy. Alternatively, tenants are liable for the actions of any person visiting the tenant at the boarding premises.

Fixtures and chattels

A fixture is an object that is attached to the land or built into the premises so that it is part of the land or premises and no longer has any separate identity. Fixtures become part of the property to which they are attached. Chattels are items that are considered to be moveable, and not attached to the property itself – for example, the difference between a fixture and a chattel is the difference between a toilet and a chair, both of which the tenant provided.

Whether an object is a fixture or a chattel (a moveable object) depends on the degree of attachment i.e. whether it is stuck, nailed, screwed to the building or merely rests by its own weight. It can also depend on the purpose of the attachment and whether or not it was meant to be a permanent addition.

Tenants can remove the fixtures they installed, if after removal the premises are left in as good a condition as they were before the fixtures were attached. However, where a tenant agrees in an agreement to leave premises ‘with all additions, improvements and fixtures’ the tenant will not be able to remove these fixtures.

A tenant can only remove the ‘tenant’s fixtures’ during the tenancy or within a reasonable period thereafter. They cannot simply demand their return as an afterthought and may lose any right to them once they have finished vacating the property.

Therefore a tenant should consider all these issues before buying and installing fixtures that have to be attached to a wall or floor. Items such as awnings, shades and wall decorations may be chattels if there is no substantial attachment. Expensive partially built-in items such as gas space heaters and hot water services may well be fixtures in some circumstances.

Covenants

Tenancy agreements, especially in one of the standard printed forms, contain a long list of matters that the tenant promises to do or not to do. These promises are known as ‘covenants’. Some of the common covenants are: to pay the rent; to pay for damage caused by the tenant; and not to assign or sub-let without the property owner’s consent.

If a tenant fails to observe a covenant and the property owner suffers financial loss as a result, the owner may sue the tenant for breach of covenant. The property owner may claim compensation for any losses caused by the breach. Similarly the tenant may sue the property owner for any breach of covenant by the owner. Before suing, consideration should be given as to whether a loss has been incurred and the amount of the loss, since court action may not be worth taking if the loss is non-existent or small.

The Act and most covenants exempt the tenant from having to pay for ‘fair wear and tear’. Other covenants have similar exemptions. For example, a covenant by the tenant to ‘comply with all Acts of Parliament, Regulations and Council By-Laws’ should exempt the tenant from responsibility for compliance that involves structural alterations or expensive large-scale renewal.

Right of Entry

The tenant has exclusive possession of the premises. This means that a tenant may exclude anyone from entering the property, including the property owner or agent. Agreements should contain an express covenant to this effect as per the Act. Even if it is not expressly included in an agreement, this covenant will be legally enforceable.

The Act states that a tenant is entitled to quiet enjoyment of the premises and that the owner or agent is not to enter without the tenant’s permission (s55). The exceptions to this are as follows:

• if a tenant is unable to give permission due to illness or injury;
• if denial of permission is likely to result in damage or personal injury;
• if excessive damage has occurred;
• if the premises have been abandoned.

An owner or agent may enter the premises after giving 24 hours notice and between the hours of 8am and 6pm for the following reasons:

• to meet commitments under the lease and to ensure repairs have been properly carried out;
• if the tenant has breached the lease;
• to conduct routine monthly inspections of boarding premises and three-monthly inspections in any other case (s56).