How can we kick out a flatmate whose name is on the flat lease?

Question Details: I live in a flat of three and one of our flatmate is unpleasant to live with. After a flat meeting, not involving the flatmate in issue, we now want to kick him out of the flat. His name is currently on the flat lease. Under such circumstances, can we kick him out of the flat? And if so, does he still have the obligation to pay for his share of the rental fee until a suitable replacement can be found?

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Community Law Wellington & Hutt Valley

Generally, you can’t kick another tenant out. If someone’s name is on the tenancy agreement, then they are a tenant, and they have a right to live in the house until the tenancy ends. (Of course it is different if your flatmate is making you unsafe, but from what you’ve told us we assume it’s just not working.)
From a legal point of view, the easiest thing to do will be to get him to agree to leave, and to get the landlord to agree to take his name off the tenancy agreement. If that happens, he will only have to pay the rent until his name is taken off the agreement.

If you can’t agree, you might need to end the tenancy and make a new tenancy agreement without him named as a tenant. Whether you can end the tenancy or not will depend on whether you are in a fixed-term tenancy (that is, a tenancy with a fixed end date) or a periodic tenancy (one with no fixed end date).
If your tenancy has no fixed end date (so it’s a periodic tenancy), any one of the tenants can end the tenancy by giving the landlord 21 days’ notice (or less if the landlord agrees). But be careful doing this, because the flatmate you’re trying to get rid of might not enjoy having nowhere to live, so he might have a legitimate complaint against you for ending his right to be in the house.
If you have a fixed term tenancy (that is, you’re locked in until a certain end date), then it’s hard to end the agreement if not all the tenants agree. You need an order from the Tenancy Tribunal. So in practice there may be no way to terminate the tenancy agreement and evict the troublesome flatmate before the tenancy expires.

Even if you end the tenancy agreement, the next risk is that your landlord might not agree to a new tenancy. It is important that you get your landlord to commit to a new tenancy before you terminate the old one.

If a new tenancy agreement is signed and the unpleasant flatmate refuses to leave the house, you could apply to the Tenancy Tribunal to gain a possession order and have them evicted as a trespasser. You would also have rights under the Trespass Act (which creates criminal offences for trespassing).

All tenants are required to pay rent until the end of a tenancy. And everyone on the tenancy agreement is liable for ALL the rent. So if the whole rent isn’t being paid, your landlord can choose to take you ALL to the Tenancy Tribunal, and get unpaid rent from you (or from the bond money), even if you have been paying your share. It’s up to the flatmates to sort out between them who owes what to whom. And if you’ve kicked your flatmate out, it’s unlikely to be easy to get any rent out of him.

Learn more about tenancy law – including the requirements for giving notice on a flat – at www.communitylaw.org.nz and at www.dbh.govt.nz.

Answered 30 May 2012. The IMPORTANT NOTICE below is part of this answer.

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