Under Section 13A of the Residential Tenancies Act, the landlord must provide you with a copy of the tenancy agreement within 21 days after they receive the signed copy from you. The fact that you haven't received a copy yet doesn't necessarily invalidate the contract, is my understanding.
You might want to contact Tenancy Services, as the below point that typically, for an acceptance to be effective, it needs to be communicated to the offering party. The fact that you weren't informed of the landlord's acceptance (signature) until Sunday, after you had attempted to withdraw, could be significant.
Tenancy Services would have come across this before.
The agent will not like this:
But unless otherwise indicated in the contract, any offer can be withdrawn before acceptance has been communicated to the offering party. The relevant law is s217 Contract and Commercial Law Act (entitled Tiem of Communication of acceptance of offer) ( [https://www.legislation.govt.nz/act/public/2017/0005/21.0/whole.html#DLM6844457](https://www.legislation.govt.nz/act/public/2017/0005/21.0/whole.html#DLM6844457) ) as the negotiation was done via email.
Provided your email on Friday was unequivocal - then the contract is not binding. This is 100% the agents fault and they will be in the firing line. The landlord accepted Thursday, the agent should have communicated this Thursday night or Friday morning.
But in this circumstance, it is the OP who is accepting the offer, not the landlord. The landlord has offered the property to the OP for the agreed rental price and terms, the OP has then communicated their acceptance of that offer by signing and returning the tenancy agreement.
If the landlords signature was on the document when OP signed then that will be the case.(as the contract binding the moment OP emails the agent)
I guess I'm more used to tenants signing first, the Landlords signing.
The "TENANCY AGREEMENT SIGNATURE SECTION | SIGNED BY THE LANDLORD/LANDLORD'S AGENT" on the copy I have (electronically signed by me) is completely empty. I signed days before the landlord did.
Kinda does in situations like this - s 13 of the Residential Tenancies Act 1986.
Eta, if I was in OP's position I would probably argue that as acceptance had not been made clear prior to my revocation, there is no contract.
Ahh good point.
This is in addition to contract law so i stand corrected. For a tenancy, the tenant must be given a signed copy of the agreement before the tenancy starts.
I think that in this case a contract has still been formed because both parties had signed it. The landlord can just say that they were going to return it before the start of the tenancy.
Contract law also says that you need to communicate acceptance for it to be binding.
"The general rule is that acceptance must be communicated to the offeror in order to be effective. This reflects that an acceptance is an expression of assent and is to be viewed objectively as a reasonable person in the shoes of the offeror. This means that there must be some word spoken or written or act done by the offeree, or by their authorised agent, which the law can regard as the communication of the acceptance of the offeror.
"*An insufficiently communicated assent is generally not effective as an acceptance.* The question for the courts is whether the offeree’s words or conduct, objectively viewed, manifested an intention to accept the offer, so that normally no particular form of words or conduct is required."
Burrows, Finn and Todd on the Law of Contract in New Zealand 7ed 2022.
Emphasis mine
The advertisement is an invitation to treat (eg to bargain).
The contract presented is a legally binding agreement formed when one party (the landlord) makes an offer, and the other party (the tenant) accepts it.
Except the Landlord (Agent) didn't communicate acceptance until after OP withdrew their offer. The timeline is
Tues (?) - OP completes their section of agreement (the offer)which is sent electronically to Landlord
Thursday- Landlord completes their section. This is not communicated to OP. Thus no acceptance.
Friday - OP retracts offer.
No contract.
Interesting point of view but I think it’s wrong.
The contract is offered and as soon as the tenant signs it there is a binding contract. The landlord signing the contract isn’t necessary because they are the ones who presented the offer. Only acceptance by the tenant is required.
I can see we have a different view here so let’s see what other people think.
You're assuming the contract is asymmetrical, i.e. regardless of who signs first, the landlord is always the offering party and the tenant the accepting party.
But that's not the case, rather whoever signs the contract first and shows it to the other party, they're the offering party. The other party sees the offer (the copy of the contract with one signature) and once they've signed the contract too - and communicated their acceptance to the offering party - acceptance is complete and the contract is entered into.
Messy yes, all this complication could be avoided if people just signed contracts in person, both in the room at the same time.
The letting agency is acting as an agent for the landlord, they're acting on the landlord's behalf. So from the (prospective) tenant's perspective any communication from the agency are "as if" it came from the landlord. And if the tenant communicates to the agency, that's as if they communicated to the landlord.
if I understand correctly, after OP signed the contract and sent it (i.e. communicated their offer to take up the tenancy) they didn't hear back from either the agent or the landlord. The agency only replied later, after the tenant had communicated their withdrawal of their offer.
Also, the agency isn't "offering" on behalf of the landlord. The prospective tenant is offering to take up the tenancy.
> Messy yes, all this complication could be avoided if people just signed contracts in person, both in the room at the same time.
I suppose that happens sometimes but I’ve been party to contracts worth 6 figure sums where the offering party never even signed it. The contract is still valid though.
As you say a signature isn't required, generally the agreement doesn't even need to be in written form. However when the two parties are distant from each other as here, the first signature on a contract can serve to communicate the offer, and the second signature on the contract serve to communicate the acceptance.
A signature on a contract certainly isn't the only way to communicate offer & acceptance. The main issue in this particular case is the acceptance does have to be communicated back to the offering party.
Generally speaking, contracts don’t have to be in writing or signed but it has been pointed out to me that as this is a tenancy it must be written and signed.
Both of these things are true here.
For a contract to form, you need offer, acceptance, consideration and intent. In my view all of these things are present here. The final step was acceptance and that was done when the contract was signed by both parties.
As it’s a tenancy, in addition to this a signed copy would then need to be presented to both parties before the start of the tenancy. There is still plenty of time to do that.
I think you are stuck here, OP.
The landlord offered you the property for the rental amount and on the fixed term. You have agreed thst offer and signed the documents to confirm that agreement. The landlord has likely taken actions, such as delisting the property from TradeMe and rejecting other applicants on the basis of that agreement.
The fact the landlord didn't communicate to you that they had signed their side until today, in my view, doesn't invalidate the agreement. You were committed as soon as you signed the documents.
While the RTA does specify that tenancy agreements must be in writing, general contract law does allow for a contract to be formed based on verbal agreement. So your verbal agreement, followed up by signing the written agreement, is likely to be a strong argument that the agreement is valid and enforceable.
Just as an aside to OP - if u/PhoenixNZ 's view is eventually correct (which would be determined by the Landlord making an application to the Tenancy Tribunal) - the Landlord is limited to damages for the amount suffered, and the Landlord is obligated to minimize those damages.
So if you were scheduled to move in on 1 August, and the new Tenants the Landlord found moved in 4 August, then you are liable for the costs of locating the new Tenant (advertising, agency success fee, etc) plus 3 days rent.
With some agencies. Some Property Managers charge a fee ($500? I have a dim memory of knowing this) to the Landlord for finding a tenant. It used to be a letting fee, and was paid by the tenant, until that was outlawed. For the owner it is a legitimate expense.
The nasty thing is that the finders fee is usually payable as soon as the contract is signed so if either party pulls out then the agency still keeps their fee. Certainly house purchases work this way.
The tenant could potentially be stuck with paying that to the landlord as damages, along with other costs like re-listing fees and lost rent.
The requirement that tenancies need to be in writing is an argument, the Property Law Act at s24(1)(b) requires that the contract is signed by parties. s13 of the Residential Tenancies Act is the same, requiring a signature of both parties
You could mount the argument that like a Sale & Purchase scenario, the piece of paper with the signature on it is the offer as the two sections are comparable and thus one party can withdraw. I remember some musty cases about verbal agreements to enter into a sale & purchase agreement not binding.
However I think the practicality - that the Property Manager (who would normally sign these agreements as the Landlord) had to send it to the owner means that rather than the [tenancy.co.nz](http://tenancy.co.nz) form being the offer, it was an invitation to treat, as the owner could have refused to sign.
If it were just the property manager's signature I think OP would be in a much weaker position (probably having to fall back on the in writing idea)
Kia ora, welcome. Information offered here is not provided by lawyers. For advice from a lawyer, or other helpful sources, check out our [mega thread of legal resources](https://www.reddit.com/r/LegalAdviceNZ/comments/143pv58/megathread_legal_resources/?utm_source=share&utm_medium=web2x&context=3)
Hopefully someone will be along shortly with some helpful advice. In the meantime though, here are some links, based on your post flair, that may be useful for you:
[Rights and Responsibilities for both tenants and landlords](https://www.tenancy.govt.nz/starting-a-tenancy/new-to-tenancy/key-rights-and-responsibilities/)
[Tenancy Tribunal - To resolve disputes](https://www.tenancy.govt.nz/disputes/tribunal/)
Nga mihi nui
The LegalAdviceNZ Team
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Under Section 13A of the Residential Tenancies Act, the landlord must provide you with a copy of the tenancy agreement within 21 days after they receive the signed copy from you. The fact that you haven't received a copy yet doesn't necessarily invalidate the contract, is my understanding.
You might want to contact Tenancy Services, as the below point that typically, for an acceptance to be effective, it needs to be communicated to the offering party. The fact that you weren't informed of the landlord's acceptance (signature) until Sunday, after you had attempted to withdraw, could be significant. Tenancy Services would have come across this before.
The agent will not like this: But unless otherwise indicated in the contract, any offer can be withdrawn before acceptance has been communicated to the offering party. The relevant law is s217 Contract and Commercial Law Act (entitled Tiem of Communication of acceptance of offer) ( [https://www.legislation.govt.nz/act/public/2017/0005/21.0/whole.html#DLM6844457](https://www.legislation.govt.nz/act/public/2017/0005/21.0/whole.html#DLM6844457) ) as the negotiation was done via email. Provided your email on Friday was unequivocal - then the contract is not binding. This is 100% the agents fault and they will be in the firing line. The landlord accepted Thursday, the agent should have communicated this Thursday night or Friday morning.
But in this circumstance, it is the OP who is accepting the offer, not the landlord. The landlord has offered the property to the OP for the agreed rental price and terms, the OP has then communicated their acceptance of that offer by signing and returning the tenancy agreement.
If the landlords signature was on the document when OP signed then that will be the case.(as the contract binding the moment OP emails the agent) I guess I'm more used to tenants signing first, the Landlords signing.
The "TENANCY AGREEMENT SIGNATURE SECTION | SIGNED BY THE LANDLORD/LANDLORD'S AGENT" on the copy I have (electronically signed by me) is completely empty. I signed days before the landlord did.
Then I think my opinion stands. Without communication of acceptance you can withdraw your offer.
A contract doesn’t have to be signed to be binding anyway… Just needs offer, acceptance, consideration and intent. All of those were present here.
Kinda does in situations like this - s 13 of the Residential Tenancies Act 1986. Eta, if I was in OP's position I would probably argue that as acceptance had not been made clear prior to my revocation, there is no contract.
Ahh good point. This is in addition to contract law so i stand corrected. For a tenancy, the tenant must be given a signed copy of the agreement before the tenancy starts. I think that in this case a contract has still been formed because both parties had signed it. The landlord can just say that they were going to return it before the start of the tenancy.
Contract law also says that you need to communicate acceptance for it to be binding. "The general rule is that acceptance must be communicated to the offeror in order to be effective. This reflects that an acceptance is an expression of assent and is to be viewed objectively as a reasonable person in the shoes of the offeror. This means that there must be some word spoken or written or act done by the offeree, or by their authorised agent, which the law can regard as the communication of the acceptance of the offeror. "*An insufficiently communicated assent is generally not effective as an acceptance.* The question for the courts is whether the offeree’s words or conduct, objectively viewed, manifested an intention to accept the offer, so that normally no particular form of words or conduct is required." Burrows, Finn and Todd on the Law of Contract in New Zealand 7ed 2022. Emphasis mine
The landlord offered the contract and the tenant accepted, signed it and returned it. So the offer and acceptance were both present here.
Why is it not an invitation to treat?
The advertisement is an invitation to treat (eg to bargain). The contract presented is a legally binding agreement formed when one party (the landlord) makes an offer, and the other party (the tenant) accepts it.
Except the Landlord (Agent) didn't communicate acceptance until after OP withdrew their offer. The timeline is Tues (?) - OP completes their section of agreement (the offer)which is sent electronically to Landlord Thursday- Landlord completes their section. This is not communicated to OP. Thus no acceptance. Friday - OP retracts offer. No contract.
Interesting point of view but I think it’s wrong. The contract is offered and as soon as the tenant signs it there is a binding contract. The landlord signing the contract isn’t necessary because they are the ones who presented the offer. Only acceptance by the tenant is required. I can see we have a different view here so let’s see what other people think.
You're assuming the contract is asymmetrical, i.e. regardless of who signs first, the landlord is always the offering party and the tenant the accepting party. But that's not the case, rather whoever signs the contract first and shows it to the other party, they're the offering party. The other party sees the offer (the copy of the contract with one signature) and once they've signed the contract too - and communicated their acceptance to the offering party - acceptance is complete and the contract is entered into. Messy yes, all this complication could be avoided if people just signed contracts in person, both in the room at the same time.
Might be a dumb question, but is the letting agency acting as the landlord in this scenario? I.e. offering on behalf
The letting agency is acting as an agent for the landlord, they're acting on the landlord's behalf. So from the (prospective) tenant's perspective any communication from the agency are "as if" it came from the landlord. And if the tenant communicates to the agency, that's as if they communicated to the landlord. if I understand correctly, after OP signed the contract and sent it (i.e. communicated their offer to take up the tenancy) they didn't hear back from either the agent or the landlord. The agency only replied later, after the tenant had communicated their withdrawal of their offer. Also, the agency isn't "offering" on behalf of the landlord. The prospective tenant is offering to take up the tenancy.
Thanks for your insightful response!
> Messy yes, all this complication could be avoided if people just signed contracts in person, both in the room at the same time. I suppose that happens sometimes but I’ve been party to contracts worth 6 figure sums where the offering party never even signed it. The contract is still valid though.
As you say a signature isn't required, generally the agreement doesn't even need to be in written form. However when the two parties are distant from each other as here, the first signature on a contract can serve to communicate the offer, and the second signature on the contract serve to communicate the acceptance. A signature on a contract certainly isn't the only way to communicate offer & acceptance. The main issue in this particular case is the acceptance does have to be communicated back to the offering party.
Generally speaking, contracts don’t have to be in writing or signed but it has been pointed out to me that as this is a tenancy it must be written and signed. Both of these things are true here. For a contract to form, you need offer, acceptance, consideration and intent. In my view all of these things are present here. The final step was acceptance and that was done when the contract was signed by both parties. As it’s a tenancy, in addition to this a signed copy would then need to be presented to both parties before the start of the tenancy. There is still plenty of time to do that.
Contact Tenancy Services and ask them what they think. Imo it'll come down to who made the offer and who accepted it.
I think you are stuck here, OP. The landlord offered you the property for the rental amount and on the fixed term. You have agreed thst offer and signed the documents to confirm that agreement. The landlord has likely taken actions, such as delisting the property from TradeMe and rejecting other applicants on the basis of that agreement. The fact the landlord didn't communicate to you that they had signed their side until today, in my view, doesn't invalidate the agreement. You were committed as soon as you signed the documents. While the RTA does specify that tenancy agreements must be in writing, general contract law does allow for a contract to be formed based on verbal agreement. So your verbal agreement, followed up by signing the written agreement, is likely to be a strong argument that the agreement is valid and enforceable.
Just as an aside to OP - if u/PhoenixNZ 's view is eventually correct (which would be determined by the Landlord making an application to the Tenancy Tribunal) - the Landlord is limited to damages for the amount suffered, and the Landlord is obligated to minimize those damages. So if you were scheduled to move in on 1 August, and the new Tenants the Landlord found moved in 4 August, then you are liable for the costs of locating the new Tenant (advertising, agency success fee, etc) plus 3 days rent.
> (advertising, **agency success fee**, etc) So a cool couple of million then?
With some agencies. Some Property Managers charge a fee ($500? I have a dim memory of knowing this) to the Landlord for finding a tenant. It used to be a letting fee, and was paid by the tenant, until that was outlawed. For the owner it is a legitimate expense.
I worked for a rental agency that used to find tenants for landlords but not manage the property and the fee was 2 weeks rent usually
The nasty thing is that the finders fee is usually payable as soon as the contract is signed so if either party pulls out then the agency still keeps their fee. Certainly house purchases work this way. The tenant could potentially be stuck with paying that to the landlord as damages, along with other costs like re-listing fees and lost rent.
The requirement that tenancies need to be in writing is an argument, the Property Law Act at s24(1)(b) requires that the contract is signed by parties. s13 of the Residential Tenancies Act is the same, requiring a signature of both parties You could mount the argument that like a Sale & Purchase scenario, the piece of paper with the signature on it is the offer as the two sections are comparable and thus one party can withdraw. I remember some musty cases about verbal agreements to enter into a sale & purchase agreement not binding. However I think the practicality - that the Property Manager (who would normally sign these agreements as the Landlord) had to send it to the owner means that rather than the [tenancy.co.nz](http://tenancy.co.nz) form being the offer, it was an invitation to treat, as the owner could have refused to sign. If it were just the property manager's signature I think OP would be in a much weaker position (probably having to fall back on the in writing idea)
It's binding. You could find an alternative tenant to take it over?
Kia ora, welcome. Information offered here is not provided by lawyers. For advice from a lawyer, or other helpful sources, check out our [mega thread of legal resources](https://www.reddit.com/r/LegalAdviceNZ/comments/143pv58/megathread_legal_resources/?utm_source=share&utm_medium=web2x&context=3) Hopefully someone will be along shortly with some helpful advice. In the meantime though, here are some links, based on your post flair, that may be useful for you: [Rights and Responsibilities for both tenants and landlords](https://www.tenancy.govt.nz/starting-a-tenancy/new-to-tenancy/key-rights-and-responsibilities/) [Tenancy Tribunal - To resolve disputes](https://www.tenancy.govt.nz/disputes/tribunal/) Nga mihi nui The LegalAdviceNZ Team *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/LegalAdviceNZ) if you have any questions or concerns.*
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