Subletting a Room on Airbnb: Is it Legal in New Zealand?
Navigating the rules around subletting a room on platforms like Airbnb while you are a tenant in New Zealand involves understanding your obligations under the Residential Tenancies Act 1986 (RTA 1986) and the specific terms of your tenancy agreement. The core issue often revolves around whether your actions constitute a breach of your existing tenancy agreement with your landlord.
Understanding Your Tenancy Agreement
Your tenancy agreement is a legally binding contract between you (the tenant) and your landlord [Source: Residential Tenancies Act 1986, s 13]. This agreement outlines your rights and obligations, as well as those of your landlord. It is crucial to review your specific tenancy agreement for clauses related to:
- Subletting or Assignment: Whether you are permitted to allow other people to occupy the premises.
- Occupancy Limits: The maximum number of people allowed to reside at the property.
- Commercial Use: Whether the property can be used for business or commercial activities.
- Nuisance or Annoyance: Prohibitions against activities that may disturb neighbours or other tenants.
Subletting and the Residential Tenancies Act 1986
Under the Residential Tenancies Act 1986, a tenancy agreement is defined as an agreement under which any person, for value, has a right to occupy residential premises as a place of residence [Source: Residential Tenancies Act 1986, s 2(1)].
Subletting or Assigning Your Tenancy
Subletting occurs when a tenant (the original tenant) grants a tenancy agreement over all or part of the premises to another person (the subtenant). In such a situation, the original tenant becomes the landlord to the subtenant, while remaining the tenant of the head landlord. Assigning a tenancy, on the other hand, means transferring all rights and obligations of the tenancy agreement to a new tenant, who then becomes directly responsible to the original landlord.
Generally, a tenant cannot assign or sublet the tenancy without the prior written consent of the landlord [Source: Residential Tenancies Act 1986, s 43(1)(a)]. Landlords cannot unreasonably withhold consent to an assignment or subletting [Source: Residential Tenancies Act 1986, s 43(1)(c)]. If a landlord does not respond to a request for consent within 21 days, consent is deemed to have been given (for requests made after 11 February 2021) [Source: Residential Tenancies Act 1986, s 43(3)]. If consent is unreasonably withheld, a tenant may apply to the Tenancy Tribunal for a determination [Source: Residential Tenancies Act 1986, s 43A].
Airbnb Guests and RTA Exclusions
It is important to note that the Residential Tenancies Act 1986 does not apply to premises that are ordinarily used for holiday or temporary accommodation, or where accommodation is provided for value in such premises [Source: Residential Tenancies Act 1986, s 5(1)(g)]. This exclusion typically means that short-term stays facilitated by platforms like Airbnb are not considered "tenancies" under the RTA, and the Airbnb guest is generally not a "tenant" under the Act. Therefore, providing a room for short-term Airbnb guests would usually not create a "subtenancy" that is governed by the RTA.
Potential Breaches of Your Tenancy Agreement
Even if an Airbnb guest is not considered a subtenant under the RTA, offering a room for short-term stays can still breach your original tenancy agreement with your landlord in several ways:
- Lack of Consent: You may breach your agreement if it requires landlord consent for anyone other than those named in the agreement to occupy the premises, regardless of whether they are an RTA-governed subtenant or not.
- Prohibition on Commercial Activity: Many tenancy agreements prohibit using the residential premises for commercial purposes. Operating an Airbnb could be deemed a commercial activity.
- Occupancy Limits: Allowing multiple short-term guests might exceed the occupancy limits specified in your tenancy agreement or implied by the property's design.
- Insurance Implications: Short-term commercial letting might invalidate your landlord's property insurance, which could be a serious breach of your obligations to the landlord.
- Nuisance: Frequent turnover of guests, noise, or other disturbances could be considered a nuisance, breaching your obligation not to disturb neighbours or the landlord.
If you breach your tenancy agreement, your landlord can issue a 14-day notice to remedy the breach [Source: Residential Tenancies Act 1986, s 50]. If you do not remedy the breach within this period, the landlord may apply to the Tenancy Tribunal to terminate your tenancy [Source: Residential Tenancies Act 1986, s 51].
Body Corporate Rules and Other Regulations
If you reside in an apartment or unit title property, body corporate rules may restrict or prohibit short-term letting. These rules are legally binding on owners and occupiers [Source: Unit Titles Act 2010, s 80]. Breaching body corporate rules could, in turn, lead to a breach of your tenancy agreement with your landlord. Additionally, some local councils may have bylaws or require specific consents for short-term visitor accommodation, and while these are not directly part of the RTA, non-compliance could also impact your tenancy.
Seeking Consent from Your Landlord
The most prudent approach is to always seek written consent from your landlord before offering a room on Airbnb. Open communication can prevent misunderstandings and potential breaches. Your landlord may agree to your request, possibly with reasonable conditions, such as:
- An increase in rent to cover additional wear and tear or utility costs.
- Requiring you to obtain specific insurance.
- Limiting the number of guests or nights per year.
When to Seek Independent Legal Advice
Individuals seeking to understand their specific rights and obligations regarding their tenancy agreement or who are facing issues with their landlord concerning subletting or short-term accommodation should seek independent legal advice. Information on residential tenancy law can be obtained from Tenancy Services, and free legal assistance is available from Community Law Centres across New Zealand.