This question is from Mark (paraphrased to suit this format):

The Ministry of Justice has advised that its bailiffs will not be enforcing my possession order during level 3. Meanwhile, the tenant remains at the property and continues to not pay rent. How can I preserve my position?

In answering Mark’s question, we assume the following:

  1. That the order does not account for the lockdown and any impediments to enforcement caused by the lockdown;
  2. That the possession order was obtained within 90 days of termination; and
  3. The matter of the bond had been settled by the original order.

Given that the COVID-19 Response (Management Measures) Legislation Bill is not yet law and there is no Covid-19 tenancies order in place, the parties rights and obligations to each other are outlined in s60 of the Residential Tenancies Act. In brief, the tenant continues to be obligated to the landlord per the original tenancy (e.g. make rent payments, keep the property in good order etc) and if the landlord does not obtain a possession order within 90 days of termination or continues to permit the tenant to remain at the property for more than 90 days after the possession order then a new periodic tenancy (mirroring the original tenancy) is created. The section is silent on the landlord’s obligations to the tenant before the creation of the new periodic tenancy. How a landlord chooses to act in this instance should be determined on a case-by-case basis. We suggest that Mark (and landlords who find themselves in this position) weighs up principles of good citizenship against that of inferred intention from his actions. He shouldn’t want to make life unnecessarily difficult for the tenant but he also wouldn’t...