Sick of over-regulation (part 2): restrictions against additional kids and other occupants

We've always said that the prohibition on keeping a pet without the landlord's consent is the most bothersome term commonly seen in tenancy agreements (even more so than the term requiring you to inform your landlord of any infectious disease you might contract).

But there's another contender: the term that sets the maximum number of persons who may live at the premises. 

Fair enough that landlords don't want their premises being let in lodgings to sundry others and becoming overcrowded. But the term for a maximum number of residents is misused, and unreasonably restricts tenants when they're making personal decisions about their households.

First, most landlords and agents set the maximum at the same number of persons in your application for the tenancy – without regard to the size of the premises, and without regard to whether a household might reasonably grow. There's nothing in the Residential Tenancies Act 2010 that says the maximum number must be reasonable, and nothing that allows a tenant to get an unreasonable restrictive maximum varied.

If a tenant wants it varied – say, to accommodate an additional child – they must ask the landlord's consent.

We're aware of a case where a couple wanted to foster two kids. They asked the landlord – because they were two persons in a five-bedroom house, and the maximum number of occupants allowed was – yes you guessed it – two. The landlord refused consent.

And if a tenant goes forth and multiplies without their landlord's consent, the landlord can serve a termination notice, and go to the Tribunal for a termination order, on the grounds that the tenant is in breach.

We're aware of a case where a tenant (initially with two kids, in a three-bedroom house: maximum three occupants allowed) came to an arrangement with her ex-partner for shared care of her third child, a kid with a disability – both stayed a few nights each week. During an inspection the landlord was disconcerted to discover the third child, and a bed made up in the lounge room (the tenant asks: 'do you expect me to share a bed with my ex-partner?'). The landlord gave a termination notice and applied to the Tribunal, where the tenant – humiliated – was questioned as to who she has to visit her and for how long.

In the end the Tribunal declined to terminate the tenancy, and said it was okay for the ex-partner and the additional child to be at the premises – provided it was temporary. It then made a specific performance order that the tenant not allow persons in excess of the maximum to live at the premises.

Most landlords aren't interested in interposing in tenants' private, personal household arrangements – but where it happens, it is grossly offensive. Our position is:

• let landlords have their term for a maximum number of residents – provided the number is reasonable, considering the size of the premises and number of bedrooms; and
• let tenants go to the Tribunal for an order varying the maximum number if it is unreasonable, or if it restricts a child from joining the tenant's household.