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Can your tenant trespass you from your rental property?

Tuesday, February 12, 2019

IMG CREDIT: UNSPLASH

This week's question comes from Barry (paraphrased): 

 

An impending termination has gone sour; the tenant is now threatening to issue me with a trespass notice barring me from entering onto the rental property. Can he do that?

Our response:

The short answer is yes.

In general, the rules of trespass is covered by the Trespass Act 1980 ("the Act"). The Act itself protects anyone who lawfully occupies a piece of land or a particular place as well as any other person occupying under his/her authority (e.g. employees, guests). Not only can your tenant trespass you from your rental, so can his sub-tenants, employees and guests.

That said, your rights to enter onto the property under s48 of the Residential Tenancies Act ("RTA") are absolute, a trespass notice cannot take that away from you. For example, you will still be able to enter onto the property to inspect and carry out maintenance so long as the requirements of s48 are satisfied (with proper notice, stand down period etc.). In general, we recommend landlords to err on the side of caution. Happy tenants don't issue trespass notices. If there is a trespass notice, chances are the situation is already pretty dire. We suggest that you give pause to weigh up the cost-benefit of exercising your s48 rights as not to aggravate the relationship any further. It is harder the predict the behaviours of an angry person. If termination is already on the cards, it may be wise to focus on smooth transitioning of tenancies rather than the acknowledgement of being right all along.

Now, it is worthwhile to examine the mechanisms of a trespass notice. The Police website gives a fairly good overview of how a trespass notice works. The particulars to note:

  1. There is no requirement of form, a trespass notice can be issued in writing or verbally (though the onus would be in the issuer to prove that a verbal notice was given);
  2. With respect to a verbal notice, there is, again, no requirement of form; the Act is silent on whether particular words must be used for the statement to constitute a trespass notice. Though sections 3 and 4 of the Act would suggest the likely acceptable words to include 'warn', 'leave', and 'stay off';
  3. With respect to a written notice, the issuer will have to either hand-deliver the notice or send it by registered mail to your home. The notice is considered served even if you refuse to accept it or drop it to the ground;
  4. Once issued, the issuer is required to give you a reasonable amount of time to leave the property (i.e. they cannot issue the notice and then ring the police immediately to remove you);
  5. A trespass notice is valid for two years or until such time that the tenancy ceases to exist; and
  6. You have a defence for defying the notice if you can prove that it was necessary for you to stay for your protection, the protection of someone else, that there is an emergency involving your property or of the property of someone else (for example, if you have reason to believe that your rental will be burnt down if you were to leave).

These are technical aspects of how a trespass notice works. Issues of trespass and access to property are human problems and best solved by human solutions. We encourage all landlords and tenants when faced with a trespass notice, to consider the bigger picture and work out the best solution to overcome current challenges so that you can all move on with your lives.

 

Do you have any tenancy related questions? Write to us at admin@apia.org.nz or hit us up on our social channels here and here

 

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