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What are the rules for hosting open homes under traffic lights?

This question is from Alan (paraphrased to suit this format):

What are the rules for hosting open homes under the traffic lights? What can I ask tenants to do? Can I ask them to leave the premises during the viewing?

Our answer is in two steps:

Step 1: What does the law say about hosting open homes during a tenancy?

It says that the landlord can enter the property for the purpose of hosting open homes (for prospective buyers or tenants) at a reasonable time with the tenant’s prior permission (see s48(3) of the Residential Tenancies Act). While the tenant can attach reasonable conditions with his consent, it would be unlawful for him to unreasonably withhold his consent (maximum fine $1,500). It is important to note that, strictly speaking, it is the tenant, not the landlord, who sets reasonable conditions for access. So is there a legal basis for the landlord to ask the tenant to vacate the property during open homes? We think not.

The Tenancy Tribunal has previously found it reasonable for a tenant to refuse his landlord access under Level 3 citing COVID related risks. It will be up to the Tribunal to determine whether that is still the case under the traffic lights system.

Operationally, under the traffic light system, government, REA, REINZ (red and orange) guidances state:

  • At all levels, tenant’s prior consent must be sought for unvaccinated people (including prospective buyers and open home faciliators) to come onto the property as part of the sales process or whether all onsite activities must be subject to My Vaccine Pass verification;
  • At red: Owners and agents can hold open homes for up to the lesser of either 100 people or the maximum capacity based on the 1-meter distancing rule (i.e. roughly divide total sqm area by 3.14) with My Vaccine Pass requirement or up to 25 people without;¬†
  • At orange: Open homes can take place with no capacity limits but on-site physical distancing is encouraged¬†
  • At green: Open homes can take place with no capacity limits.

See full guidance documents for more information on vaccination requirements for workers, staff, contractors and volunteers.

Step 2: What is reasonable?

Relationships are not law books; they do not exist in black and white. Within the parameters set out above, it would be prudent for both parties to discuss reasonable terms for access.

Though the tenant cannot be compelled to agree to certain terms, given the ongoing risks of COVID, we all have a social obligation to act reasonably to keep each other safe. In general, the landlord’s objective is expedience (i.e. to host the open home within the landlord’s business timeframe), the tenant’s is likely to be that of safety (i.e. assurance that the open home will not materially increase their exposure to the virus).

It is simply common sense for both parties to discuss and agree on (or, at least, have a shared understanding of) issues such as:

  • whether the property should be vacated during the open home;
  • social distancing during the open home;
  • sanitisation before and after;
  • contingency/alternative access dates if one party is experiencing COVID symptoms

Any common understandings stemming from this process could form the basis of the tenant’s conditions. To avoid further disputes, we encourage both parties to clearly document these conditions before the landlord accesses the property.

Do you have any tenancy related questions? Write to us at [email protected] or hit us up on our social channels here and here.

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