20 Strategies for Guarding Your Rights as a tenant
 

Tenancy Tribunal’s enforcement of tenants’ rights is at a low ebb, whereas there are increasing instances of landlords manipulating their way around rent regulation laws, and further eroding tenant protections. Tenancy Support Services has noticed a disturbing recent trend: Tenants are victimised by landlords at an alarmingly accelerated rate. Powerful market forces in the form of skyrocketing rents and astounding property prices fuel landlord greed.

The Tenancy Tribunal system has always been stacked in favour of landlords in many ways. Cases are subject to a much faster resolution processes than other Tribunals. This too often steam-rolls tenants. Landlords have the deepest pockets and the strongest influence. There are continual efforts to weaken or at least hold the current tenancy, and building and housing laws so that the Landlords and Tenancy Agents do not lose their current position.

The following is a collection of strategies that reveal what it takes to win in a Tenancy Tribunal, what to do if you lose in there, and how to stay out of Tenancy Tribunal’s to begin with.

Tenancy Support Services Ltd needs you to understand that none of what follows is intended to be legal advice for your specific situation or to replace the services of a competent lawyer.

The smartest and safest thing you can do is hire a lawyer who practices in regards to Tenancy and Property laws that may apply. These are a general series of principles to keep in mind so you can have a more productive discussion with your lawyer, and understand your case more clearly.

The idea is to build a wall of protection around yourself to the greatest extent possible. This is easiest and most effective with the help of the right lawyer. With that in mind, read on to learn about how to guard yourself against the many traps and pitfalls a tenant can face in dealing with a problem-landlord.

1 — To protect your rights you have to know your rights. It’s critical to spend some time learning what rights and remedies the law gives you. You’ll find a lot of helpful information in this report, and you can learn a great deal online. In the Resources section of our site at www.tenancysupport.co.nz, you’ll find a number of informative sites to visit. There are also hand-outs available from the DHB ( Department of Building & Housing) website that are very useful, and HIGHLY recommended reading.

Most tenants don’t know their rights. Don’t be one of them. However, being an informed tenant is not a substitute for hiring an experienced lawyer to protect your interests, and negotiate on your behalf.

2 — If a Ladndlord hires a lawyer, think seriously about having a laywer represent you. If landlords have a lawyer with them, you are entitled to seek legal support too. How can you expect to fare well in defending yourself against an adversary who has retained a seasoned, knowledgeable expert to defeat you? The answer is you’re very unlikely to win. Law is very complex. There are hundreds of rules and regulations which only an experienced lawyer will have sufficient working knowledge of, to help navigate conflicts with your landlord.

As you’ll see, it’s easy to get pushed around in a Tenancy Tribunal. Even if you know your rights, you may waive certain protections without realising it, and damage your case.

For example, the law requires Tenancy, and Tribunal documents to be delivered to you, or "served" in a very specific way. You must receive the papers, and receive them properly. But in some instances landlords will cut corners and attempt to serve notices incorrectly. This is illegal.

And that’s just one example. There are dozens of other traps that can ensnare you into giving up your valuable rights. You’re at real risk when you try to be your own lawyer.

So get a lawyer if you can afford one. When your home is at stake, especially if it’s rent-regulated, its money well invested. Consider borrowing if you have to. If you lose your case and your home because you tried to represent yourself, the expense of finding a new home may be significantly more than what it would have cost you for a lawyer.

There is also the risk of homelessness, and property loss or damage, if you are unable to find a new home before a Landlord, or Tenancy Agent, evicts you.

3 — Only hire a Tenants’ lawyer, for a Landlord Tenant case. A lawyer who doesn’t practice Landlord Tenant law can hurt you more than help you. So don’t hire a criminal lawyer, a divorce lawyer, or a corporate lawyer to represent you in Tenancy Tribunal. Tenants make this error all the time. The problem is these lawyers don’t understand the detailed, technical practice of Tenancy law.

They may know how to butt heads and haggle with the landlord’s lawyer, but they don’t know what your rights are.

Even lawyers who practice real estate law are often unfamiliar with the intricacies of Landlord Tenant law. Real estate lawyers generally handle the purchase and sale of residential and commercial property, which is completely different from what goes on in Tenancy Tribunal’s. Tenancy law really is a distinct practice area.

Hiring the wrong lawyer can be the costliest decision of all. If your lawyer doesn’t understand the complexities of Landlord Tenant law, you’re at greater risk of losing your case. And you might end up paying legal fees for both your lawyer and your landlord’s lawyer.

4 — Don’t depend on Tribunal personnel to protect your rights. If you represent yourself in Tenancy Tribunal, you are supposed to receive assistance from the Tribunal clerks. Keep in mind that sometimes these people are impatient, overworked, and rushed. You have not hired them as you would a lawyer, and depending on them can injure your rights.

For example, most Judges require their clerks to ask tenants if there are conditions in their homes needing repair. However, it’s quicker for clerks if they don’t ask about or document all complaints. So they don’t always inquire about the full spectrum of issues, or record them completely on Tribunal forms.

Similarly, in dealing with the Tribunal Clerk, if you do explain what the problems are or how you were served papers, he or she may not include everything when filling out documents.

Frustrated tenants have retained lawyers after the Tribunal Clerk failed to write down complaints about their homes or homes on pre-printed Tribunal forms. Tenants should not have to hire a lawyer to ensure Tribunal acceptance of documents that correctly and completely describe complaints. Yet it happened. So be aware that even in a Tribunal, things may not always proceed as they’re supposed to.

Pre-printed Tribunal forms leave out many details that are vital to preserving your rights. In the first place, if the form doesn’t ask you a question related to a certain right, you might easily overlook it. Here’s an example. A question asks if you were served papers correctly, but it doesn’t tell you what correct service would be. It’s easy to be trapped by the form’s lack of explicit information.

The sad fact of life in Tenancy Tribunal is that improper things can happen, and when you represent yourself, you can be a victim.

5 — You can’t be evicted without Tribunal process. If your landlord evicts you without any Tribunal process, it’s illegal. The legal name for these actions is "self help." Using self help to evict a tenant is a crime. A self-help eviction without going to Tribunal can make your landlord liable to reimburse you for any costs you sustain.

For example, let’s say the landlord changes your locks, and you can’t get into your home. If over the next few days you stay in a hotel, keep track of all your expenses. Save receipts for your room, meals, travel, phone, and whatever else you pay for as a result of being locked out. At Tenancy Tribunal, you or your lawyer can assert that your landlord used self-help to evict you, and show proof of expenses you incurred as a result. While it’s never a certainty, the Tribunal has the power to award you the amount of your total costs.

So don’t panic if your landlord tells you that you have to move out. Reply that only the Tribunal can order you to leave. Only the Court has the legal right to take possession of your home without your permission, and can only do so by Tribunal order. And they’re required to give you written notice, so that if you have grounds you can go to Tribunal and get an "order to show cause" to stop it. Usually you’ll get at least six business days advance notice.

6 — If you’ve been illegally evicted, call the police. Examples of illegal eviction include locking you out of your home, using or threatening to use violence to get you to leave, cutting off essential services such as electricity, water or heat, or removing your property. If you’ve been illegally evicted, the first thing to do is call the police.

The police sometimes don’t like to get involved, and if there’s a way they can avoid doing so, they won’t intervene. They may say, "It’s a civil matter." However, trespass to illegally evict you, and illegal eviction itself are crimes. So it’s not just a civil matter.

Here’s what to say if they refuse to help you: "Officer, the law says that illegal eviction is a crime. Police are required to assist tenants in circumstances of illegal eviction, which is why I’m calling. I would like a police officer to come to my property, and write up a police report."

If you do not get cooperation, ask for the name of the sergeant or supervisor in charge at the 111 call centre, and speak with that person. If you still have difficulty, call your local Police station and repeat these steps. Write down the names and numbers of all police personnel you have contact with.

At other times, the police do exactly what they’re supposed to. Tenancy Support Services has heard of both very good and very bad experiences with police helping tenants who’ve been illegally locked out.

Whether the police come to your home, or if you have to go directly to the Police station, it’s important to get a police report substantiating the incident. You want a written record of your illegal eviction, and any other relevant documents, which your lawyer can then show in a Tribunal. Your landlord may even be arrested.

If neighbours can back up your story, and the police can take statements from them that can also help. If you have to call the utilities to get services restored, explain the circumstances of illegal eviction, and find out what options are available.

Keep a log of everything that happens, along with a list names, addresses and phone numbers of everyone you talk to, and the date and time of each conversation. Winning against your landlord requires evidence to support your position.

In Tenancy Tribunal, you’ll have to prove you actually live in your property to get back in. So make sure you keep your Driver’s License or Passport up-to-date, in terms of reflecting your current address accurately. Mail sent to you at that address is also evidence of residence, especially utility bills and rent receipts.

It’s best if you have a copy of your tenancy agreement and written documentation of any difficulties with your landlord to show the police.

As discussed elsewhere in this Report, it’s a good idea to keep copies of these documents in a safe place outside of your home, such as with a relative, friend or your lawyer. Also, make sure you give the name, address and phone number of your landlord, home superintendent or managing agent to the officers.

If you are already engaged in a legal action against your landlord and are illegally evicted, speak with your lawyer about filing a claim for contempt of Tribunal.

Be very clear that if you’ve been evicted with legal Tribunal process and you attempt to break into your home, then you become the criminal: you can be arrested and convicted of a crime. If you’ve been suddenly evicted for any reason, you are safest staying temporarily with a relative, friend or at a hotel, and hiring a Tenants’ lawyer to represent you. Maximum certainty as to your rights is only available through the Tribunals, and with a Tribunal order you have a legally guaranteed right to re-enter your home.

Especially if relations with your landlord are hostile, you need to consider in advance what can happen, and have a plan for dealing with any contingency. In sudden emergency circumstances when you’ve been evicted, there’s no guarantee you’ll be able to get back into your home right away, or possibly at all. Whatever you decide to do, just remember that in any allegedly illegal eviction situation, your first call is to the police.

7 — If you’re locked out or find an eviction notice on your door, go to Tenancy Tribunal immediately to assert your rights. If you are properly prepared, going to Tribunal is always the safest approach to preserving your rights. It’s important to act quickly, as soon as you know there’s a problem. If possible, the first thing to do is call your lawyer, but don’t delay going to Tribunal if you can’t reach one. However, be clear that if you aren’t knowledgeable about your rights and Tribunal procedures, whatever you say or do may later be used against you. Your mistakes can work to your detriment.

You or your lawyer can apply to the Tribunal for an "order to show cause," based on an affidavit claiming you’ve either been, or are in the process of being wrongly evicted. An affidavit is a written statement sworn or affirmed to be true. If you don’t have a lawyer, ask the Tribunal Clerk how to proceed. With your affidavit and evidence that you live at the premises, the Tribunal will issue the order to show cause. In most cases, an order to show cause is an emergency Tribunal Order. After an eviction, it can require your landlord to appear and "show cause" why you should not be granted access to your home immediately, and then be restored to possession.

Even if you’ve received a notice of eviction, further action can be put on hold until the order to show cause is decided.

8 — Keep a copy of your tenancy agreement and related documents off premises, in a safe place you have access to any time. If you’re illegally evicted, or lose access to your home for any reason, certain critical documents will help to secure your rights in Tribunal. You never want to be in a position where important papers are in your home, and you can’t get them because you’re locked out.

Make a point of keeping a copy of your tenancy agreement, last tax return with your current address, and the last few phone and utility bills in a safe deposit box, with a relative or friend, or with your lawyer. This is a good idea even if you don’t have problems with your landlord. What if there’s a flood or fire, and all your records are destroyed? If you keep these documents in a secure location, in any emergency you’ll still be able to prove your identity and that you are the legal occupant at that address.

9 — Describe conditions that need repair or correction in written detail. It’s best to prepare a written list of complaints, with a specific description of each problem or condition for the Tribunal and your lawyer. That way nothing important will be missing from your Tribunal papers. Also, take colour pictures or video of any defective conditions, to provide further proof of your claims. Take several photos, from various angles. Include the cover of that day’s newspaper in the photo or video to establish the date.

Always notify your landlord when there’s a defective condition to correct. It’s best to do it in writing, but at least keep a written record of any verbal requests you make. Include the date and time, and the person you spoke to.

10 — Don’t expect your landlord to be fair, reasonable or just. Landlords have an interest in blaming tenants, rather than taking responsibility for the cost of repairs. Almost every time a tenant with problems in a home the landlord says, "The tenant caused it, and I’m not responsible." So you need to be precise about the nature of the difficulty, how long it’s existed, the circumstance or conditions that led to it, and your attempts to seek correction from your landlord.

Your landlord may be aware of a dire condition in your home that needs to be addressed, yet refuse to treat it effectively as a way to get you to move out. Sometimes landlords allow dangerous conditions to exist so the tenants will move out.

If you have bad conditions in your home, always ask other tenants in your home if they have problems similar to yours

.

11 — Band together with other tenants. If other tenants in your home are also victims of landlord negligence, consider hiring a lawyer to represent you as a group, acting in unison. Multiple complaints from several tenants can save on lawyer’s fees, strengthen your case, and make landlord abuse clear to the Tribunal.

12 — Act quickly. Landlords know many people won’t fight hard to hold onto their homes when conditions are terrible. That’s why it’s vital to address bad conditions immediately, and take aggressive action to protect your rights. If you allow conditions to deteriorate, you expose yourself to more financial and emotional strain that ultimately wears you down, and makes you a victim. As the situation worsens, the costs of correcting it increases for the landlord. That means he or she’s likely to fight you harder, and you may have higher legal costs to get resolution.

13 — You have defences against a landlord who tries to evict you because you’ve complained, even if you live in an unregulated home. However, if your landlord refuses to renew your tenancy agreement because you complained about conditions in your home or the home, that’s called "retaliatory eviction." Under NZ Tenancy law, your landlord cannot evict you in retaliation for enforcing your rights.

Existing laws presume that if you’ve complained to a government agency about your landlord, and the landlord terminates your tenancy, it’s in retaliation. If you or your lawyer can prove retaliation, you can beat the eviction. But if your landlord can show there are other reasons why you aren’t being renewed, such as a bad payment record or wanting the home for a family member or personal use, your claim of retaliatory eviction can be defeated.

14 — Buy yourself time if you need to. You can delay eviction. Here are a couple of ways to try.

When you are first summoned to Tribunal, the law allows you to adjourn or postpone that appearance date to give you time to hire a lawyer. Once you have a lawyer, you can adjourn the next Tribunal date so that your lawyer has time to prepare your case. These two adjournments can easily delay your hearing by a month and a half. Next there has to be a hearing, and after that the issuance of a judgment, or decision against you. All of this takes additional time.

As a practical matter, the Tribunal will usually give you at least a month or two to move, but your lawyer can sometimes make this plea: "My client has been trying to find a new home. Here’s a list of all the homes where applications were made. My client still has nowhere to go, and is paying rent to the landlord. May we have another two months tenancy agreement?" The Tribunal may then give you an extension.

15  ---- Don’t get blacklisted. While all these strategies are helpful remember that the Landlord may be a member of a number of New Zealand run websites, that will blacklist Tenants involved in Tenancy Tribunals, or even if you have signed your acceptance, on the Tenancy Agreement form, to allow them to rate you. So its important, after a few months, to find and contact these sites, to see if they have listed you as a bad tenant, and if they have, its important to ask them what they have said about you, and correct them on any issues, so all evidence you keep, is going to help to get your name removed from there also.

And don’t forget, if your landlord signed a form, allowing you to rate them on our site…good or bad…its worth putting it up, so others know who’s behaved themselves, and who has not.

When a prospective tenant submits a rental application for a new home, landlords now routinely run a background check. They avoid renting to tenants they think may be a source of legal difficulties. This effectively "blacklists" and disqualifies tenants who’ve been to Tribunal with a Landlord Tenant case, even though there may have been an error, or the tenant won, or the suit was dismissed. If you’re on the blacklist, it can be much more difficult for you to rent a home in the future.

Although it may be unfair, blacklisting is in fact legal at the present time. There’s been litigation challenging the existence of the list, which has resulted in a requirement that the outcome of every suit be stated. However, as a practical matter once you’re on the blacklist, a landlord is unlikely to care about the reason. Many won’t accept you as a tenant.

Avoiding the blacklist is important for every tenant. If you get in a fight, you probably won’t be renewed and will ultimately have to find a new home.

If you’re blacklisted, you may have to pay substantial rent in advance, or give your new landlord a much higher deposit, to get into a new home.

Suing a landlord must always be a very carefully considered decision these days. Is the potential gain worth the risk of blacklisting? What are your chances of victory? Only an experienced Tenants’ lawyer can assist you in making intelligent, strategic decisions.

Blacklisting can be especially treacherous when you’re dealing with a difficult landlord, so be wary. If you are having or even anticipate trouble with your landlord, the quicker you consult a Tenants’ lawyer, the safer you may be. In the case just mentioned, Tenancy Support Services later discovered that the landlord had previously put the tenant on the blacklist by suing him without notification. In this instance, had the client consulted their lawyer sooner, it might have been possible to negotiate with the landlord, and to have avoided the subsequent lawsuits and blacklisting.

The lesson: If at all possible, stay out of Tenancy Tribunal.

16 — Stay calm. While you may be rightly outraged by your landlord’s behaviour, your best strategy is to stay cool in all your dealings with him or her and the Tribunals. Calmly and carefully explain your circumstances.

If you get overly emotional, you may lose credibility and damage your position. People tend to say and do things they later regret under the influence of strong emotion. An unscrupulous landlord wants you to be angry, upset and frightened. You’re more likely to move out then, or make mistakes. Don’t give the landlord that advantage.

17 — Avoid revealing too much to your landlord, home management and neighbours.. If you intend to be living at any other location for an extended period of time, or if you have other real estate interests such as rental property, a holiday or second home, don’t let your landlord know it. You may expose yourself to a lawsuit on the grounds that your home is not really your primary residence

Even if the claim against you is baseless, landlords sometimes take the offensive with the hope of gain. From the landlord’s perspective, an attack may prevail in Tribunal. Even if he or she doesn’t win, subjecting you to the financial and emotional turmoil of a lawsuit may just be enough to get you to leave.

The law does not require you to reveal your whereabouts to your landlord, unless demanded by Tribunal Order. So don’t let others in your home know your personal business. Especially not your home manager or superintendent, or even neighbours, who may inadvertently tell a landlord. More likely than not you could end up with a legal problem.

If you’re on good terms with your landlord, bear in mind that even friendly relationships can turn hostile when financial interests are on the line. If your landlord wants or needs the profits that would come from you vacating the home, he or she’s likely to take a shot at you if an opportunity exists.

18 —Make sure any agreement you have with your current landlord is in writing, and complies with current laws. The deal you make with your existing landlord today may be attacked by your new landlord tomorrow. Most tenancy agreements have a clause that says they can only be modified or amended in writing. If your home is sold to another landlord, he or she may attempt to gain control of your home if the agreement you made with the former owner is unenforceable.

19 — If you sub-let a home, get the landlord’s approval well in advance. In New Zealand, tenants have a right to Sub-let their homes. But most tenancy agreements require the landlord’s written permission. If you do not carefully follow the procedures for obtaining permission to sub-let, your landlord may sue you for violating a substantial obligation of your tenancy agreement.

For the subtenant, the original tenancy agreement holder is called the over-tenant. The safest arrangement is to be sure that you have the landlord’s permission to sublet before you move in, and then to pay the rent directly to the landlord. If you pay the over-tenant faithfully every month, don’t assume the landlord is receiving the rent in a timely manner.

You may wake up one day to find an eviction notice taped to your door, and be in a crisis.

To gain maximum protection of your rights it’s best to negotiate for your name to be added to the tenancy agreement. However, this will make you a co-tenant, not a subtenant, and has certain implications. First, the primary tenant may not agree to this arrangement. But if the over-tenant or you are sued in Tenancy Tribunal, this may be the deciding factor in whether you are able to stay in the home.

So it can be worth negotiating this point, depending on your needs and the over-tenant’s situation.

Secondly, when you leave be sure to get your name off the tenancy agreement, before vacating. Otherwise you may still be sued for non-payment or eviction if the over-tenant doesn’t pay the rent, or violates other tenancy agreement obligations.

20 — Beware of buyout agreements. There are times when a landlord will agree to pay a tenant to move. It’s called a "buyout." These arrangements need careful consideration and handling, as potential dangers can result in you losing your home without being compensated.

The key to protecting your rights in buyout transactions is to make sure that the promises are enforceable. That can only be done with a properly drafted legal agreement.

Common sense requires landlords to place buyout money in a lawyers trust account, to protect tenant interests and ensure they are paid. This effectively takes the funds out of landlord hands, and safely delivers them to tenants when they move out. In almost every case, the firm has insisted that some of the money be made available in advance to the tenant, to cover moving expenses and broker’s fees in finding a new place live. Often deals are structured so that tenant simply shows a signed tenancy agreement offer beforehand, to get

Be vigilant about your rights...

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