02 Jan 2018

RTA Recently Amended The Form 9 - Entry Notice

The RTA recently amended the Form 9 Entry Notice, and some extra information as added to the form about entry being permitted without serving a Form 9 where it is either an emergency or is necessary to protect the property from damage. These particular grounds for entry have always been included in the RTRA Act, so this is not new legislation – the information simply wasn’t previously included on the form 9 itself. But this is a good prompt to revisit what the RTRA Act does allow in regards to entry during a tenancy.

 

What reasons can I enter the property during a tenancy and how much notice do I have to give?

 

• To inspect the premises, whether that is the lessor or the agent or both – 7 days’ notice.  It must be at least 3 months since the last inspection by the lessor or agent, unless the tenant has agreed to it being sooner.

 

• To make routine repairs to, or carry out maintenance of, the premises. – 24 hours’ notice.(also refer to the point regarding emergencies)

 

• If repairs or maintenance have been made or carried out, to inspect the repairs or maintenance. – 24 hours’ notice. Entry must occur within 14 days after the completion of the repairs.

 

• To comply with the Fire and Emergency Services Act in relation to smoke alarms, or the electrical Safety Act in relation to approved safety switches – 24 hour’s notice in both cases.

 

• To show the premises to a prospective buyer – 24 hour’s notice.  It must be a ‘reasonable’ time since the last time entry was gained for this same purpose, but the Act does not define what is reasonable. The tenant must be provided with an RTA Form 10 before, or when, the first Form 9 is served for this purpose. The selling agent must give the renting agent a copy of the Form 10 and any Form 9 served to the tenant. A prospective buyer cannot be allowed to enter the property without the lessor or agent being present, unless the tenant agrees to this happening.

 

• To show the premises to a prospective new tenant – 24 hours’ notice.It must be a ‘reasonable’ time since the last time entry was gained for this same purpose, but the Act does not define what is reasonable. The tenant must have already either been provided with an RTA Form 12, or have provided the agent with an RTA Form 13, either before or when the first Form 9 is served for this purpose. Essentially this means the current tenant is aware they are moving, and is not left to simply figure that out when the agent starts showing the property. A prospective tenant cannot be allowed to enter the property without the lessor or agent being present, unless the tenant agrees to this happening.

 

• To allow a valuation to be conducted – 24 hours’ notice.  If the lessor/agent believes on reasonable grounds that the tenant has abandoned the premises – 24 hours’ notice. Entering for this purpose is only to determine whether the property has been abandoned, not to terminate the tenancy. An RTA Form 15 would be required to terminate the tenancy in this circumstance.

 

• If the lessor/agent has served the tenant with an RTA Form 11 for a significant breach, then within 14 days of the end of the Form 11 the lessor/agent can enter to check whether the breach has been remedied – 24 hours’ notice.  Examples of a significant breach would be illegal use of the premises, pets, additional occupants, or damage that exceeds the value of one weeks rent.

 

• If the tenant agrees. If the tenant agrees to allowing an entry then there is no Form 9 required and no specified timeframe of notice, because the arrangement is purely based on the tenant having given their permission. The Act does not specify that this must be written agreement. The reason for entry can vary - whether it is for the purpose of an inspection, a repair, or showing a buyer through (excluding an ‘open house’), or to check a breach has been remedied – the key issue is that the tenant has agreed to it. So if an agent called a tenant and asked for permission to enter the premises in 10 minutes time, and if the tenant gave their consent, then this particular

entry would not breach the RTRA Act. Of course if the tenant said no, the agent would have to give appropriate notice on a Form 9 to suit the purpose of the entry. A tenant cannot be ‘required’ to agree - it’s their choice. We most commonly see ‘if the tenant agrees’ used with repairs, because many tenants prefer to arrange dates and times directly with repairers rather than be told on a Form 9 when the repairer is coming. There is no requirement under the Act to seek the tenant’s permission and serve a Form 9. ‘If the tenant agrees’ is sufficient grounds for entry.

 

• In an emergency, or if entry is necessary to prevent further or imminent damage – for these two, no Form 9 is required and entry can be immediate.  The tenant’s permission would not be needed. These provisions would cover a range of unpredictable situations - perhaps a report from a downstairs neighbour about water pouring through their ceiling, and the tenants upstairs are not home. Or to secure a property in a situation where the tenant appears to have abandoned the premises and has left all the doors and windows open, exposing the property to risks of weather damage or vandalism. In some cases, fears of imminent or further damage may

stem from circumstances where it is deemed more appropriate to contact police or emergency services. In all circumstances, a property manager should show appropriate regard for their own personal safety and that of colleagues or staff.   Does the tenant have to agree to entry as per the Form 9?

 

A Form 9 is a notice, not a request. If it is served for a permitted reason under the Act, and if the rules of entry are complied with, then the lessor/agent may enter as per the notice. If entry is being gained on the basis of ‘the tenant agrees’ then the tenant’s permission would be needed, and the Form 9 is not required.  Even though the tenant’s permission is not required when a valid Form 9 is served, for the sake of maintaining positive working relationships with tenants, agents would seek to be reasonable and respectful at all times with respect to their communications and negotiations with tenants.  

 

Open Houses One type of ‘entry’ that does absolutely require the tenant’s written permission is entry for the purpose of conducting an ‘open house’, whether it is for sales or rentals. An ‘open house’ cannot be done at all without written permission from the tenant - refer to section 204 of the RTRA Act. There is no prescribed form to use and the RTA Form 9 isn’t designed to serve this purpose, however a suitable consent form is available on Realworks. 

 

What other restrictions to entry apply?  The entry cannot occur on a Sunday, or a public holiday. On any other day, entry cannot be before 8am or after 6pm. An agent is allowed to enter the property outside of these timeframes only if the tenant agrees to it, but is not obliged to. For eg: if the agent wanted to enter the property at 7.00pm and the tenant agreed, that would be fine. If a tenant wanted the agent to conduct an inspection on a Sunday because it suits them better, the agent is not obliged to agree.   Sections 192 to 199 are the key sections of the RTRA Act regarding the rules of entry, and section 204 for ‘open houses’.

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