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Family Violence in Rental Properties

By Katrina Green

The definition of family violence (as described by the ministry of justice), is violence by nature which can be physical, sexual or psychological abuse.

A tenant who experiences family violence during a tenancy is entitled to remove themselves from the tenancy by giving the landlord a minimum of 2 days’ written notice in the approved form (with qualifying evidence of family violence) without financial penalty or the need for agreement from the landlord. This applies to both fixed-term and periodic tenancy agreements, and there is no need to apply to the Tenancy Tribunal.

While this part all seems reasonably straight forward, what is not as well known is that the tenant experiencing the violence and the perpetrator do not actually have to be living in the same property in invoke this notice.  While initially this may seem unusual, when you give it more thought, it is as an allowance to ensure the tenants safety should the perpetrator know where they live and pose a threat.

Another interesting point is that although this part of the act is titled ‘Family Violence’, this also incudes any previous spouse or partner or even a flat mate.

The definition under sections 9-14 of the Family Violence Act 2018 says : “It is ‘violence’ inflicted within a ‘family or close personal relationship’, i.e. with another person who is a spouse or partner (or former spouse or partner), a family member, flat mate or within any close personal relationship”.

So in a scenario where one of the flat mates is experiencing ‘family violence’ from another flat mate, they can give 2 days’ written notice to the landlord that they will be vacating the rental property.  While they are required to provide the landlord with evidence of the violence, this could be in the form of a written statutory declaration (under the Oaths and Declarations Act 1957) which must be completed in front of an authorised witness. This includes a barrister and solicitor of the High Court, a Justice of the Peace, a notary public, the Registrar or Deputy Registrar of the High Court or of any District Court and a Member of Parliament.  They can also make their own statutory declaration in some circumstances.

The legislation does state that the withdrawing tenant should advise the remaining tenants of their withdrawal, however if they do not wish to they are not legally obliged to.  Again initially this seems odd, however as it could of course create more conflict there will be situations where this is not possible.

The landlord must keep the notice confidential and can only disclose in very limited circumstances. A landlord may not challenge whether the family violence did or did not take place. If the documents are not completed properly or are not completed by a prescribed person, the landlord can challenge the notice by filing an application in the Tenancy Tribunal.  This means that if the remaining tenants are not notified and ask the landlord why they have left, they are not permitted under the Privacy Act to pass this information on to them.

In the described scenario there were four tenants on the tenancy agreement, and three remain.  This means that the day after the two days notice expires, for a 14 day period the rent is reduced to reflect the portion of rent which was paid by the departed tenant, in this case ¼.  If the rent was originally $800 per week, the rent payable for the period of 14 days is $600.

After the 14 days the rent will return to the original $800 per week, as this is deemed the necessary time for arrangements to be made.

Following the withdrawal, the remaining tenants can consider the following options:

  • Remain in the tenancy with a reduced number of tenants.
  • Seek agreement from the landlord to add a new tenant (to replace the departing tenant).
  • Try to find a flat mate (if not prohibited by the tenancy agreement).
  • Apply to the Tenancy Tribunal to end the tenancy due to hardship, for example financial hardship. (An application to end the tenancy for financial hardship must be made within 60 days after the withdrawal).
  • Issue a 28-day notice to end the tenancy (if the tenancy is a periodic tenancy agreement).

As you can see it is quite a complex process, and while I have used a ‘flat mate’ situation as an example, where one of a couple moves out of the property this will create a different situation which will need to be looked at individually.

If the perpetrator moves out, does the remaining party feel safe to continue the tenancy?  If the perpetrator remains in the property does the landlord feel safe to visit to inspect the property?

In summary, while there are specific rules surrounding this legislation, each situation does need to be handled individually, and I recommend seeking professional advice.

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