Understanding how to handle this situation correctly ensures the tenancy remains compliant under the Residential Tenancies Act (RTA).
Can a tenant appoint an agent?
Yes. Just as a landlord can appoint a property manager or other third party to act on their behalf, a tenant can also appoint an agent under section 2 of the RTA.
If a tenant is imprisoned, they can authorise someone - often a next of kin or trusted representative - to manage their tenancy. This appointment must be made in writing and signed by the tenant.
Once an agent is appointed:
- The landlord can lawfully communicate with and take instructions from that agent.
- The agent can provide consent or notice on behalf of the tenant.
- The tenancy can continue, end, or be managed according to the usual legal processes.
If the tenant cannot appoint an agent
If the tenant is the sole tenant and cannot be contacted - or there is no next of kin or representative available - the landlord may need to apply to the Tenancy Tribunal to end the tenancy.
The application can be made on the grounds of:
-
Abandonment (if the property is clearly vacated), or
- Rent arrears (if rent has not been paid for 21 days or more).
The Tribunal can then formally terminate the tenancy, allowing the landlord to regain possession of the property lawfully.
Ending the tenancy
If an agent has been appointed, either party can still give notice as usual:
- The tenant (through their agent) may give 21 days’ notice to end a periodic tenancy.
- The landlord may serve a 90-day notice without reason to end a periodic tenancy.
If it’s a fixed-term tenancy, the usual fixed-term rules apply unless both parties agree to a variation or early termination.
What If the landlord is incarcerated?
The same principles apply in reverse. If a landlord (or owner) is incarcerated, they must appoint an agent to manage their property. This is especially important for self-managing landlords, as tenants and property managers must have someone authorised to:
- Make decisions about maintenance and repairs.
- Access and manage rental income.
- Communicate about tenancy matters.
The agent’s contact details should be provided to both the tenant and Tenancy Services. The appointment should also be documented and kept with the tenancy agreement for future reference.
The information contained in this article is exclusively for promotional purposes. It does not in any way constitute legal advice and should not be relied upon as the basis for any legal action or contractual dealings. The information is not and does not attempt to be, a comprehensive account of the relevant law in New Zealand. If you require legal advice, you should seek independent legal counsel. myRent.co.nz does not accept any liability that may arise from the use of this information.
