Law expert explains if your landlord can take fruit off trees in your yard

One Kiwi said they were "frustrated" after their landlord entered their rented property and took avocados off a tree.
One Kiwi said they were "frustrated" after their landlord entered their rented property and took avocados off a tree. Photo credit: Getty

A law expert is urging tenants to make their expectations clear after one Kiwi said their landlord took fruit from a tree in their garden.

In a post shared to social media on Thursday, a Kiwi renter said they were "frustrated" by their landlord entering their rented property and taking avocados off a tree.

"Can landlords help themselves to our fruit trees?" they asked on Reddit.

Professor David Grinlinton from Auckland University's Faculty of Law told Newshub there is not a straightforward answer.

"With most of these sorts of cases, it's very complex. It's not a simple answer. It depends on the lease and the expectations of the parties and so on. In some cases it might be [acceptable], in some cases, it might not be."

He said it would likely depend on the type of tenancy. For example, there are differences between renting a block of units with a common yard, versus a townhouse with a private garden.

"If you have a tenancy of a unit, which is in a block of units owned by a landlord and the units share a common yard, it's highly likely the tenant is only renting the unit itself, the actual flat. In that case, it may be legal [for the landlord] to take fruit off the trees," he explained.

"But if it is a townhouse or flat with a separate yard area, unless there is something in the lease on the contrary, the parties, I think... would intend that the tenant has the right to exclusive possession of both the premises of that townhouse or flat and yard. 

"In that case, it would probably be a breach of the obligation of the landlord to guarantee quiet enjoyment."

He said the same would likely apply if the tenant was renting a house on a single piece of land.

"As again, it may be a breach of quiet enjoyment for the landlord to go into that yard around the house and pick fruit."

He noted that landlords are allowed to go on to tenants' properties, with due notice, to fix faults, for maintenance, and in some other circumstances.

But if the landlord does go on to a property in a way that breaches the tenant's right of quiet enjoyment, it can have legal consequences, he said.

"The tenant could take them to the Tenancy Tribunal and claim the landlord has breached the obligation of quiet enjoyment and seek an order from the Tenancy Tribunal, or even damages. In fact, if coming on to the property is a persistent action of the landlord, [that] could in some circumstances amount to harassment."

Prof Grinlinton is urging landlords and renters to have an upfront discussion about their expectations - such as the acceptability of fruit-picking - at the beginning of any tenancy.

"If the harvesting of fruit is something that is important to the landlord or the tenant, then they should think about that at the start of the lease term," he said.

"They should make sure there is something in the lease or the actual tenancy agreement that covers that issue and says who has the right to harvest the fruit."