Unenforceable clauses in tenancy agreements
When a tenant or landlord breaches the Residential Tenancies Act 1986 (the Act), it is important to understand what you can do to put it right.
You cannot write conditions into tenancy agreements that conflict with the Act. The Tenancy Tribunal may consider these conditions to be unenforceable – meaning they have no effect and in some cases these conditions can be an unlawful act.
Generally conditions likely to be unenforceable are conditions that:
- ask a tenant to do more than the Act requires them to do
- try to remove or reduce the tenant’s rights or give the landlord more rights
- evade the requirements of the Act.
Below are some examples of conditions that would not be enforceable.
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CONDITIONS LIKELY TO BE DEEMED 'UNENFORCEABLE' |
REASON WHY |
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The landlord includes smoking tobacco products outside or in outbuildings is prohibited |
Smoking tobacco products outside or in outbuildings is allowed. An outbuilding is: a garage, shed, carport or something similar. |
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Carpets must be professionally cleaned at the end of the tenancy. |
A tenant should leave the premises in a reasonably clean and tidy condition and remove or arrange for the rubbish to be removed. Tenants do not have to have the carpets professionally cleaned. |
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Tenants must replace stove elements, fuses and tap washers as they wear out. |
A landlord is responsible for maintaining the premises to a reasonable state of repair. |
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Tenants must give more than 21 days' written notice to end a periodic (ongoing) agreement. |
Under the Act, the tenant only needs to give at least 21 days' written notice to end this type of agreement. |
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A tenant must pay 4 weeks' bond plus two weeks' extra bond for the landlord allowing a dog. |
The law only allows a maximum of 4 weeks' rent as a bond. |
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The landlord can raise the rent with 1 weeks’ notice. |
The Act states the process for raising the rent, which must be complied with. |
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The tenant cannot have visitors without the landlord's consent. |
The tenant is entitled to quiet enjoyment of the property while they are renting it. This clause would breach that entitlement. |
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The tenant can only have a party with the landlord's consent. |
This condition would also breach the tenant's right to quiet enjoyment of the property. |
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The tenant will pay for fixed water charges. |
The Act states that landlords are responsible for paying fixed water charges. |
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The tenant will install smoke alarms that meet the legal requirements. |
Landlords are responsible for installing smoke alarms and making sure they are in working order. |
If you think there are clauses in your tenancy agreement that are unenforceable, you should discuss these with your landlord. You can also contact us for advice.
If the condition(s) or request cannot be agreed on, you can apply to the Tenancy Tribunal to have the issue resolved.
Last updated: 20 Poutūterangi 2025
