Who should be named on the tenancy agreement and Tenancy Tribunal by lonyoo

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									                                                                                             T66 06/07

Who should be named on the tenancy
agreement and Tenancy Tribunal application?
This information sheet gives advice about naming people on tenancy mediated agreements and
Tenancy Tribunal applications. The information provided will assist Tenancy Tribunal
adjudicators when deciding who is to be named on a Tenancy Tribunal order.

The District Court, which includes the Collections Unit, has changed its practices so that agents
are generally no longer able to enforce Tenancy Tribunal orders on behalf of creditors. The new
practice is that creditors must apply for, and attend, civil enforcement proceedings personally
(unless represented by a lawyer), rather than be represented by agents. For corporations,
‘personally’ means by any officer of the corporation. An officer includes a director and the
secretary. It does not include general employees. This applies to both monetary orders and
possession orders.

The new practice means that who is named on a Tenancy Tribunal order becomes very
important because it affects who can apply to enforce the order.

Who is the landlord?
The landlord of any residential premises is the person or company that grants the tenancy under
the tenancy agreement. The term landlord can also include:

•   a prospective or former landlord
•   a successor in title of the landlord
•   the personal representative of a deceased landlord
•   the landlord’s agent – this must be a person acting in the owner’s or landlord’s capacity as
    the landlord during the tenancy in question.

Who is the tenant?
The tenant for any residential tenancy is the person to whom the tenancy of the premises has
been granted. Generally, the tenant is the person or people named as tenant(s) in the tenancy
agreement. The term tenant can also include:

•   a prospective or former tenant
•   the lawful successor in title of a tenant
•   the personal representative of a deceased tenant
•   the tenant’s agent – this must be a person acting in the tenant’s capacity as the tenant
•   someone occupying the premises with whom the landlord has a verbal or implied tenancy
    agreement.

Who should be named as landlord and tenant?
All tenancy agreements and Tenancy Tribunal applications should include the full legal names of
the landlord and the tenant(s). In particular:

•   if a landlord or tenant is a company, include the legal company name rather than the trading
    name or name of the franchise holder
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•   if the landlord or tenant is a trust, include the names of the trustee or trustees, together with
    the fact that they are acting as trustees for the trust, for example Jane and Mary Brown as
    trustees for the Brown Family Trust
•   if the landlord or tenant is an individual, include the full name, not just the initial and family
    names. Landlords should always ask for written verification of a tenant’s identity at the time
    of entering into a tenancy agreement and write the full name of the tenant(s).
•   if the tenancy is being arranged and managed by a property management company, it is
    preferable to include as landlord the names of both the owner and the property management
    company. The property manager’s contact details should be recorded as the landlord’s
    contact details.
•   if a property manager states, at the time of making the tenancy agreement, that they are
    acting on behalf of the owner (rather than in their own right), then the tenancy agreement is
    considered to be with the owner. The owner must be specified, or capable of being
    identified, by the tenant at the time the tenancy agreement is entered into. It is not usually
    sufficient that the property manager only indicates they are acting as an agent for the owner.
    If an agent or property manager makes no reference to their role and gives the appearance
    of contracting in their own right, then the agent is effectively the landlord.

Effect of property managers being named as landlord in the tenancy agreement
Where a property manager is named in the tenancy agreement as the grantor of the tenancy, the
property manager generally takes on all the rights and responsibilities of a landlord. The
consequences of this are that:
• the property manager could be held responsible for any work orders issued by the Tribunal in
   favour of the tenant
• the property manager could be held responsible for actions or non-actions of the owner
• the property manager and the owner will be unable to issue 42 days’ notice, if the owner or a
   member of the owner’s family wishes to live in the property, unless the owners is also named
• the owner will be unable to apply for enforcement, unless the owner is also named.

Who should the tenant name as the ‘other party’ in an application they bring to the
Tribunal?
In any tenant application to the Tribunal, the tenant should list as the ‘other party’:

•   the landlord named in the tenancy agreement, or
•   the owner of the property if the landlord named in the agreement was acting as an agent of
    the owner, and the subject matter of the complaint is due to the action or inaction of the
    owner, or
•   the property manager or agent of the named landlord if the application relates to the agent’s
    or property manager’s action or inaction.

Who should a landlord name as ‘other party’ in an application they bring to the
Tribunal?
In any landlord’s application to the Tenancy Tribunal, they should list as other parties:
•   all the tenants named in the tenancy agreement
•   any tenants with whom they have a verbal tenancy agreement, even if they are not named in
    the agreement.


T66 06/06

								
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