Evicting a Flatmate Not on the Lease in New Zealand
When a person shares a rental property with others but is not listed on the official tenancy agreement with the landlord, they are commonly referred to as a 'flatmate not on the lease'. The legal process for ending their occupancy differs significantly from evicting a tenant under a formal tenancy agreement, as the Residential Tenancies Act 1986 (the RTA) typically does not apply to this specific relationship.
Distinguishing Between a Flatmate (Licensee) and a Tenant
The RTA primarily governs the relationship between a landlord (a person who grants a tenancy of residential premises to another person) and a tenant (a person who rents a residential property from a landlord under a tenancy agreement) [Source: Residential Tenancies Act 1986, s 2(1)]. A tenancy agreement is defined as an agreement (whether express or implied, oral or written) under which a person grants to another person for value a right to occupy residential premises as a place of residence [Source: Residential Tenancies Act 1986, s 2(1)].
For a person to be considered a tenant under the RTA, they generally must have exclusive possession (the sole right to occupy and control a property, to the exclusion of others, including the owner) of a separate and self-contained dwelling.
A 'flatmate not on the lease' usually shares common areas (such as a kitchen, bathroom, and living room) with the head tenant (the person whose name is on the main tenancy agreement) and occupies a room within the property. In this common scenario, the flatmate is generally considered a licensee (a person who has permission to occupy premises without having the exclusive legal right to possess them, typically under an agreement with a resident), rather than a tenant under the RTA. Their agreement is a licence to occupy, not a tenancy agreement.
Why the Residential Tenancies Act 1986 May Not Apply
The RTA states that it applies to every tenancy agreement [Source: Residential Tenancies Act 1986, s 3]. However, certain types of occupancy are specifically excluded from the RTA's coverage. For example, the RTA does not apply to:
- any residential premises that are let for the occupant’s own occupation by the owner of the premises, where the premises form part of a building in which the owner of the premises also resides, and the premises are not separate and self-contained [Source: Residential Tenancies Act 1986, s 5(1)(l)].
In the context of a head tenant living with a flatmate who pays rent to the head tenant and shares facilities, the head tenant is considered the 'owner' for the purposes of granting the licence to occupy that part of the premises. Since the flatmate's occupied space is typically not separate and self-contained, the RTA's provisions for ending a tenancy and dispute resolution via the Tenancy Tribunal generally do not apply to the relationship between the head tenant and the flatmate.
Ending a Licence to Occupy (Evicting a Flatmate)
Since the RTA's formal eviction processes do not typically apply, the relationship between a head tenant (the licensor – the person who grants a licence to occupy) and a flatmate (licensee) is governed by their specific agreement and general legal principles.
1. The Agreement
If there is a written or verbal agreement between the head tenant and the flatmate, its terms concerning notice periods for ending the occupancy should be followed. A clear, written flatmate agreement can prevent disputes by setting out expectations regarding rent, notice periods, and house rules.
2. Reasonable Notice
If there is no specific agreement on notice periods, the head tenant must provide the flatmate with reasonable notice to vacate the premises. What constitutes 'reasonable notice' depends on the circumstances of the occupancy, such as:
- The frequency of rent payments (e.g., weekly rent might imply weekly notice).
- The length of time the flatmate has resided at the property.
- The specific reasons for ending the occupancy.
There is no fixed legal definition for 'reasonable notice' in this context, but it should allow the flatmate sufficient time to find alternative accommodation and move their belongings.
3. No Self-Help Eviction
Head tenants cannot forcibly remove a flatmate or lock them out. Such actions can constitute illegal harassment, assault, or unlawful eviction and may lead to criminal charges or civil claims for damages. Even without a formal tenancy under the RTA, a person living in a property has rights against unlawful eviction. All processes must be lawful and respect the flatmate's right to peaceful enjoyment until the notice period expires.
Dispute Resolution for Licence Agreements
If a flatmate refuses to leave after reasonable notice has been given, or if there is a dispute over the terms of their occupancy, the head tenant may need to consider further steps:
- Mediation: This involves a neutral third party helping the head tenant and flatmate reach a mutually acceptable solution. Community Law Centres may offer free mediation services for such disputes.
- District Court: In cases of significant disagreement or breach of contract (e.g., non-payment of agreed contributions), a head tenant may need to apply to the District Court to seek an order for possession or to recover unpaid monies. This is a more formal and costly process than applying to the Tenancy Tribunal.
Head Tenant's Responsibilities to the Landlord
It is important to remember that the head tenant remains fully responsible to their landlord under their own RTA tenancy agreement [Source: Residential Tenancies Act 1986, s 39]. Any actions or inactions of the flatmate that breach the main tenancy agreement (e.g., damage to the property, disturbing neighbours, non-payment of rent leading to the head tenant being unable to pay the landlord) could lead to the head tenant themselves facing action from their landlord via the Tenancy Tribunal.
Subtenancies and the RTA
In some less common situations, if a 'flatmate' has exclusive possession of a separate and self-contained part of the property and pays rent to the head tenant, this arrangement might actually constitute a subtenancy (a tenancy created by an existing tenant who lets all or part of their rented property to another person, with the head tenant acting as the sublandlord) under the RTA. In such a case, the head tenant would become a landlord to the subtenant and would be subject to the full obligations and processes of the RTA, including those related to ending tenancies and dispute resolution through the Tenancy Tribunal.
When to Seek Independent Legal Advice
If there is uncertainty about the legal status of an occupancy, if a flatmate refuses to leave, or if there are disputes over money or property, seeking independent legal advice is recommended. Community Law Centres offer free legal advice and can help clarify the specific legal position and available options. Citizens Advice Bureau can also provide guidance and referrals.