Otago Property Investors Association Inc

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25-05-2009

Legal possession and abandoned goods

What to do when confronted with an empty flat and the tenant’s possessions are still on the premises? The first step is to gain legal possession.  In the case of a fixed term tenancy, this is either:

  • At the end of the fixed term
  • By order of the Tenancy Tribunal
  • By the tenant surrendering the tenancy (should be with the landlord’s written consent) to the landlord (sec 50 (a) (d) (f) ).

In the case of a periodic tenancy:

  • By giving notice as required by the Act.
  • Where the tenant surrenders the tenancy, or delivers up vacant possession of the premises to the landlord.
  • By order of the Tribunal (sec 50 (a) (d) (f) )

If the property appears to be abandoned and the rent is in arrears, do a property inspection (after giving 48 hours written notice). This is to see if the tenants are still living there – ie tenants’ possessions are still there. Has the electricity had a final reading done, and has mail been cleared from the letterbox? Ask neighbours and other tenants (if in a block of flats) if they have seen anyone coming or going.

If after the inspection it looks as if the tenants have left, in the case of a fixed term tenancy you need an order of the Tenancy Tribunal (if the tenant or their agent can’t be found) to gain legal possession. The application for this is on the grounds of abandonment (sec 61) or if the rent is more than 21 days in arrears (at the time of application) for non-payment of rent (sec 55). If the grounds of the application are abandonment, the tenant is liable for the rent until the end of the fixed lease or the date of commencement of a new tenancy, whichever is earlier. If you find the tenant, or their agent, come to an agreement to terminate the lease on a specific time and date. This should be in writing.

If it is a periodic tenancy, you can gain legal possession by the tenant returning the keys or by the tenant or their relation or agent advising you they no longer want the premises (preferably in writing). This still means that the tenant has to pay the rent 21 days after the landlord first became aware, or ought reasonably to have become aware, that the tenant had abandoned the premises, or if a new tenancy agreement is entered into, whichever is the earlier (sec 61 (2) (3a) ). If in doubt, seek legal advice but don’t touch anything in the premises until you have legal possession.  

Once you have legal possession, take someone else with you (as a witness) and make an inventory and take photographs before removing anything. You can dispose of foodstuffs and other perishable goods only, as you see fit. All other goods need to be stored in a safe, secure storage and apply to the Tribunal for disposal along with order for packing, storage, cleaning, rent arrears, damage etc. This storage may be on the landlord’s property or with a storage firm (but you will be liable initially for storage costs – sec 62 (1) (a) (b) (c) ).

Be wary of throwing out anything as tenants have been known to use any sort of container. By getting a disposal order, it indemnifies the landlord against any claim from any other person (including an ex-tenant) unless at the time of sale, the landlord had reason to believe the goods were not owned by the tenant (sec 62 (2) (a) ).

With student leases ending over the holidays, it pays to send them a letter before they leave, advising them that their possessions left after the end of the lease may be treated as abandoned unless they have permission from the incoming tenants to leave possessions there. This should be in writing with a copy to the landlord so that if there are any enquiries they can be satisfied.

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