Section 38 of the Residential Tenancies Act states that:
(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord.
(2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
So, what is Quiet Enjoyment?
Quiet enjoyment means being able to enjoy reasonable peace, comfort and privacy, and allowing others to enjoy the same. Tenants have the right to the ‘quiet enjoyment’ of the house they rent. This means the landlord cannot harass the tenant or interfere with their reasonable peace, comfort and privacy. Tenants also need to respect the peace, comfort and privacy of their neighbours or other tenants. The landlord should take any reasonable steps to make sure none of their tenants interfere with each other’s quiet enjoyment.
Preventing problems with quiet enjoyment
Landlords:
• Make sure all necessary maintenance, repairs and cleaning are done before the tenant moves in
• Remember it’s your tenant’s home – respect their peace and privacy
• Know how and when you can enter the tenant’s house
• Give proper notice before doing repairs and maintenance
• Talk to the tenant before starting repairs or maintenance that involve noise or fumes.
Tenants:
• Try not to make too much noise
• Don’t disturb other tenants or neighbours
• Remember that the landlord has the same right as anyone else to knock on the door and speak to you (unless this happens so often it becomes harassment)
• Allow access for necessary repairs, if the landlord gives the correct notice
• Allow reasonable access for viewings by potential tenants or buyers.
What else may come under the category of Quiet Enjoyment?
Landlord’s right of entry
To ensure that a landlord doesn’t interfere with a tenant’s quiet enjoyment or breach the RTA, a landlord must give the correct notice to access the property, and the reason. The unlawful entry of landlords, or a landlord not providing the correct notice is a breach of Section 48 of the RTA and is often the reason tenants complain that their quiet enjoyment has been breached.
This commonly occurs with regards to access for maintenance to be performed, often when a landlord assumes they have broad consent to enter the premises but have not specified a particular day or time. Whilst a landlord does not need to give notice to go onto the premises as per section 48 of the RTA, tenants can still agree to waive any notice periods, but landlords need to be careful that consent is given each time access is required.
A landlord does not have to give notice to go onto the property (the land), such as for times to mow the lawns or maintaining the outside of the rental property. But the landlord does have to avoid interfering with the tenant’s peace, comfort and privacy, and for this reason, Harcourts property managers do give tenants notice when anyone will be on the property for any reason, unless a prior arrangement is agreed.
Taking Photos (not during an inspection)
We mention above that a landlord must provide a reason to access a rental property, however what they do at the property must also align with their reason for being there. For example, if a landlord gives notice that they are performing maintenance at the premises, they can’t then inspect the rest of the property and take photographs as they would if they were there for the purpose of a routine inspection. Taking a photo of the repair would likely be permissible, and it is advisable to seek the tenant’s permission first if the photograph included any of the tenants belongings.
Cooking Smells
According to a recent tenancy tribunal order, an adjudicator defined “quiet” as being used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
The principle of quiet enjoyment means that by renting the premises. The tenant is entitled to live in the premises how they wish to live, and unless what they are doing is unlawful in some way, it is not for the landlord to interfere with that right.
In this tribunal hearing, the landlord was claiming costs to remove cooking smells from the premises, claiming that the tenants did not return the premises “reasonably clean” due to the cooking smells. The adjudicator disagreed and stated that the law only requires that tenants return the premises reasonably clean. That means that the premises do not need to be returned in an immaculate condition, or even precisely as the tenants received it, and that it can be accepted that cooking smells of various degrees arise from cooking in any premises:
“Ultimately, whatever food choices the tenants make is for them to decide and are ordinary incidences of them living in the premises. If any particular food leaves an odour, so be it, but that is not the same as saying the premises are unclean. Tenants are entitled to cook whatever food they wish to cook, and it would not be reasonable to expect that a tenant needed to modify how they cooked just to avoid cooking odours for the benefit of the landlord.”
With New Zealand boasting a proud multi-cultural society whilst also being extensive travelers, we are a country of diverse tastes. It is wrong to assume that any one nationality is likely to cook food with strong odours (or even to cook at all). Tenants, however, are strongly encouraged to use the exhaust fans in their kitchens and open windows. With the healthy homes standards coming into effect for all rental properties from 1 July 2025, most rental properties under Harcourts management already have kitchen exhaust fans that are ducted outside, that will assist to alleviate the possibility of cooking odours in future. If a landlord interferes with the privacy of the tenant that amounts to harassment, the landlord commits an unlawful act, and the tenant can be awarded exemplary damages of up to $3000.
However, whilst interfering with a tenant’s quiet enjoyment may occur (and often unintentionally), it may not cross the threshold into harassment, and therefore exemplary damages would not be awarded. An adjudicator may however award general damages (compensation) to a tenant if a landlord breaches the tenants right to quiet enjoyment.
If access is required to your rental property, speak to your Harcourts property manager who will uphold your tenants’ right to the Quiet Enjoyment of their home.