This question is from Mark (paraphrased to suit this format):
The Ministry of Justice has advised that its bailiffs will not be enforcing my possession order during level 3. Meanwhile, the tenant remains at the property and continues to not pay rent. How can I preserve my position?
In answering Mark’s question, we assume the following:
- That the order does not account for the lockdown and any impediments to enforcement caused by the lockdown;
- That the possession order was obtained within 90 days of termination; and
- The matter of the bond had been settled by the original order.
Given that the COVID-19 Response (Management Measures) Legislation Bill is not yet law and there is no Covid-19 tenancies order in place, the parties rights and obligations to each other are outlined in s60 of the Residential Tenancies Act. In brief, the tenant continues to be obligated to the landlord per the original tenancy (e.g. make rent payments, keep the property in good order etc) and if the landlord does not obtain a possession order within 90 days of termination or continues to permit the tenant to remain at the property for more than 90 days after the possession order then a new periodic tenancy (mirroring the original tenancy) is created. The section is silent on the landlord’s obligations to the tenant before the creation of the new periodic tenancy. How a landlord chooses to act in this instance should be determined on a case-by-case basis. We suggest that Mark (and landlords who find themselves in this position) weighs up principles of good citizenship against that of inferred intention from his actions. He shouldn’t want to make life unnecessarily difficult for the tenant but he also wouldn’t want to act as if he is permitting or is acquiescing to the tenant’s defiance of the termination order.
Front foot the issues of enforcement, further rent arrears and potential new periodic tenancy
What Mark needs to look out for (and possibly seek clarity from MOJ) is whether the bailiff will enforce the possession order within 90 days of that order having been made.
If it is under then once the tenant vacates, Mark can make another Tribunal order to address any additional arrears and damages to the property (not accounted for by the original Tribunal order). If it is (or is likely to be) over 90 days then we suggest Mark do the following:
- Go back to MOJ ASAP to ascertain whether the valid period of the possession order will be extended to account for the stand down period (especially given the precarious position he finds himselve in through no fault of his own);
- Write to the tenant to advise that he does not permit the tenant to remain in occupation but is nevertheless unable to enforce the possession order because of MOJ level 3 protocols. This will not automatically stop the creation of a new periodic tenancy but will at least demonstrate to a Tribunal adjudicator that Mark’s effort to regain possession of the property is being frustratedly entirely by the lockdown and MOJ protocols;
- Once he regains possession and if further rents are owing or if the property has been damaged then make another Tribunal application to recover.
Irrespective of whether enforcement takes place over or under 90 days from the date of the possession order, we also think it would be prudent for Mark to contact his insurer to discuss whether he is entitled to any loss of rent relief from his policy.
Stay calm, be kind
Given the unusual circumstances we Aucklanders find ourselves in under this protracted lockdown, we want to remind all landlords and tenants in this situation to act calmly, rationally and with kindness towards each other.