Your Rights

Leaving the Flat

Different rules apply to the process of leaving your flat depending on what kind of tenancy agreement you have.  If you agreed at the start that you would stay until a certain date and then leave, then you have what’s called a ‘fixed term’ tenancy agreement. If there wasn’t any agreed end date, then it’s called a ‘periodic’ tenancy agreement. If you or your landlord is giving notice to end a tenancy, it has to be in writing and signed.

If you seriously break the conditions of your tenancy agreement, then your landlord might also be able to evict you. This means you get kicked out for doing something wrong instead of just because the landlord wants the house for something else. Your landlord has to go to the Tenancy Tribunal if they want to get you evicted.

This section has more information on the process on leaving your flat.

How do I end a fixed term tenancy?

A fixed term tenancy lasts until the date that the tenancy agreement says it ends. You can only get out of it earlier if your landlord agrees or if it is ordered by the Tenancy Tribunal because you’ll suffer severe hardship if the tenancy isn’t terminated. This means that if you move out early without your landlord’s agreement or without an order, you’ll have to keep paying rent until the end of the fixed term period whether you live there or not.

One way to get your landlord to agree to let you leave earlier is to find someone to take over your tenancy. If you find someone suitable, then the landlord has to be reasonable. They can’t refuse to let someone else take over your lease without good reasons.

How does my landlord end a fixed term tenancy?

Your landlord can’t end a fixed term tenancy before the end date unless you agree or the Tenancy Tribunal decides you can be evicted due to severe hardship or due to lack of payment. If the Tenancy Tribunal decides to end the tenancy, they can also require the party breaking the fixed term tenancy to pay compensation to the other to cover any loss or damage caused.

If you haven’t heard anything from the landlord, then a fixed term tenancy automatically becomes a periodic tenancy after the fixed term end date. If your landlord doesn’t want it to become a periodic tenancy, they have to notify you at least 28 days before the end date, or they’ll have to follow the notice rules for a periodic tenancy.

If my landlord sells the house, can I still live in the tenancy until the fixed term ends?

Yes, even if your landlord sells the house, the fixed-term tenancy continues and the new landlord has to keep you until the fixed-term ends. That is the condition the new landlord must accept when they’re buying a house with fixed term tenancy.

How do I end a periodic tenancy?

If you’re on a periodic tenancy, you have to give your landlord 28 days’ notice if you want to leave. You can only give less notice if your landlord agrees that you can.

How does my landlord end a periodic tenancy?

If your landlord wants to end your periodic tenancy, they usually have to give you 90 days’ notice.

In some cases, your landlord only has to give you 63 days’ notice. They will need to tell you the reason why they’re giving you less notice though. This could be if:

• Your landlord or a member of their family is going to move in; or
• They’re selling the property to someone who wants it to be empty; or
• The property is generally used for the landlord’s employees to live in and there is a new employee moving in after your resignation. If this is the case, it has to be clear in the tenancy/employment agreement that that’s what the property is generally used for.

You can also be evicted with lesser notice.

Can I move out before the notice period ends?

If the landlord gives you notice and you wish to move before then, you can give 28 days’ notice, or negotiate for an earlier end to the notice period.

Otherwise, unless the Tenancy Tribunal agrees there is severe hardship, otherwise, you will need to pay rent up until the end of the notice period. (You can move out before then, you’ll just need to keep paying the rent.)

I have to move out. Can I get someone else in to take over the tenancy?

Getting someone to take over your tenancy is called subletting or assignment. Assignment gives direct relationship between the new tenant and the landlord, whereas subletting means you’re on-letting your tenancy to someone else, however, you’re still the one directly responsible to the landlord.

If you have a periodic tenancy, you have to get your landlord’s permission before passing your tenancy onto anyone else. If you aren’t the only tenant, and some of the original tenants are staying then both you and the new tenant need to sign a Change of Tenant form.

If you have a fixed-term tenancy, you can only end your agreement early if there is severe hardship, but your landlord may agree to your subletting the property to someone else.

Can my landlord make us leave the house if there is no tenancy agreement?

Your landlord is legally required to give you a copy of the tenancy agreement in writing before the tenancy starts. But if you don’t have a tenancy agreement, the terms of your tenancy will be whatever you’ve agreed with your landlord verbally and the various rights and responsibilities you both have under the law. If nothing was discussed or agreed, generally it would be considered a periodic tenancy, and the law on ending a periodic tenancy would apply.

Can I end my fixed term tenancy early because of the condition of the premises?

Generally, you won’t be able to end your fixed term tenancy early unless your landlord agrees. However, if the property is uninhabitable and it is not your fault (for example the house is badly damaged in an accident), then you can apply to the Tenancy Tribunal for an order to end the tenancy early.

If the property is uninhabitable, you can leave the premises after giving your landlord 2 days’ notice and stop paying rent. If you do this, you should get proof to support your claim, e.g. if you want to leave because you discover the walls are riddled with black mould, you can get a council report as evidence.

What should I do if the tenancy needs repairs?

If the place is in need of repairs but is still habitable, this is not enough for the Tenancy Tribunal to order an early termination to your tenancy agreement. In this situation, you need to give your landlord the opportunity to have the repairs done by giving them a formal 14-day notice to repair. This gives the landlord 14 days in which to make the necessary repairs. If the landlord does not carry out the repairs within this time period, you can apply to the Tenancy Tribunal for help.

If you cannot agree with your landlord about whether the premises are uninhabitable or not, you can follow the Tenancy Tribunal disputes resolution process.

When can I be evicted?

There are some situations where your landlord might be able to evict you (kick you out). You could be evicted if:

• You’re at least 21 days behind in paying your rent;
• You’ve damaged or threatened to damage the property;
• You’ve assaulted or threatened to assault your landlord, their family or their neighbour;
• You’ve seriously breached your tenancy agreement or the Residential Tenancies Act.

If your landlord wants to evict you for one of these reasons, they have to go through the Tenancy Tribunal process first. They can only evict you if they get an order from the court saying that they can.

What do I need to do when my tenancy ends?

If you are preparing to move out there are a few simple things you should do:

• Make sure you have given notice to your landlord (or received notice from them) to terminate;
• Move out your possessions and clean the premises – you need to leave it in the same condition as when you moved in (except for fair wear and tear);
• It’s a good idea to take some photos when you move out in case there is a dispute about damage later on. Arrange a joint final inspection with the landlord and arrange to return the keys.
• Arrange with the landlord for the Bond Refund Form to be completed and signed. Don’t sign the Bond Refund Form unless you agree with how the bond is to be refunded.
• Make sure the landlord has your forwarding address and telephone number in case they need to contact you.

How do I leave a flat if I’m a flatmate?

You will need to give your head tenant the notice period agreed if you’re on a periodic tenancy. If you’re on a fixed term tenancy, you will need to negotiate with your head tenant about assigning or subletting the flat to a replacement flatmate, otherwise you may have to cover the rent even if you don’t live there. If there is no agreed notice period, you should at least give a reasonable notice period which is usually around 2 weeks. Any conditions in the flatting agreement must be followed.