Rabu, 03 Agustus 2011

When landlords sell: part 2

So your landlord wants to sell and you've decided to stay put. Good for you – it's your home, after all.

But now, unfortunately, you will have to share it occasionally with your landlord, their agent, and prospective purchasers who want to have a look at the place. Let's consider your position, legally and practically.

As a starting point, the Residential Tenancies Act 2010 says that you and the landlord (or their agent) should negotiate and try to come up with a mutually acceptable schedule of access for the purpose of showing the property. Section 53 inserts the following terms into every tenancy agreement:

(2) A landlord or the agent of the landlord for the sale of the residential premises must make all reasonable efforts to agree with the tenant as to the days and times when the residential premises are to be periodically available for inspection by prospective purchasers.
(3) A tenant must not unreasonably refuse to agree to days and times when the residential premises are to be periodically available for inspection by prospective purchasers.
(4) A tenant is not required to agree to the residential premises being available for inspection by prospective purchasers more than twice a week.
If you and the landlord cannot come to an agreement about access, the Act also provides a fallback position. Section 55(2)(f) provides that in the absence of agreement, the landlord can have access to show the premises no more than twice a week, and they must give you 48 hours' notice each time. Note that if you have no agreed schedule of access and you are given a valid notice of this kind, the landlord or agent can access without your consent, and regardless of whether you will be there at the premises or not. You can also apply to the Tribunal for an order specifying or limiting the days and times when the landlord may access to show the premises.

In our view, access twice a week probably isn't too bad: from our experience, most tenants can tolerate this level of intrusion, and agents can work with it too.

It is a bit of a pity, however, that the Act provides for it as the fallback position, because it may let landlords and agents off the hook in relation to their obligation to negotiate about a schedule of access. Had the Act instead provided for a bare minimum amount of access (say, once a week, or once a fortnight) as the fallback – or indeed, no guaranteed access at all – that really would have gotten landlords and agents negotiating, and possibly bringing rent reductions to the table as well.

Nonetheless, you shouldn't give the game away in your negotiations. When they show premises to prospective purchasers, landlords and agents don't rely just on their legal right of access; they also rely – more than they realise – on the good will and co-operation of tenants. You should make them aware of this.

And if your landlord misses the point when you're negotiating, they may need to be shown how much they rely on your good will when they actually start showing prospective purchasers around. We'd never counsel you to do anything that's a breach of your tenancy agreement, but you might consider, for example, the following entirely legitimate actions:

(1) Taking a photo of every person who attends the premises (for security purposes, of course);

(2) Throwing a party for a dozen or two of your closest friends;

Or (3) Going nude.

Or, indeed, (4) All of the above.


Next: 'for sale' signs, auctions and the dreaded 'open house'.