Tenancy conditions and how CLWHV can help

In recent news there have been calls for all rental properties to meet a set of minimum standards. This was highlighted because of a coroner’s finding that the poor condition of a state house had attributed to a toddler’s illness and subsequent death. Moe mai rā e te puawai purotu.

In April this year, the Māori Development Minister Te Ururoa Flavell voiced his concerns about the substandard state of some rental homes in Ōtautahi during his visit to the quake stricken region. The Minister spent time with different whānau who are putting up with unacceptable housing situations because they feel fortunate to have a home during a time where rental properties are in high demand and don’t want to rock the boat.

Community Law Wellington and Hutt Valley (Community Law) was interviewed by Māori Television to provide our view on the Minister’s comments. We emphasised the importance of tenant’s raising their concerns with their landlord directly and then visiting their nearest Community Law Centre if the issues remain unresolved[1]. Community Law are able to help by informing tenants of their rights and advising on the best avenue to pursue, whether that be meeting with the landlord kanohi-ki-te-kanohi, writing to the landlord or by making an application to the Tenancy Tribunal.

Many Community Law clients are vulnerable members of our community who find it difficult to communicate with their landlords, let alone complain to or about them. At Community Law, we advise clients of their rights under the Residential Tenancies Act 1986 (the Act). Common areas we advise on include: ending a fixed-term tenancy agreement early, rent arrears, bond disputes, breaches of quite enjoyment, lack of reasonable repair and/or cleanliness of a property and how to prepare for Tenancy Tribunal proceedings. Community Law has advised and assisted clients who are Housing New Zealand tenants, Wellington City Council tenants, tenants of private landlords and boarding house tenants, however we do not provide legal advice or assistance to landlords.

Damage and repairs

The Act provides legal protections for tenants and places legal obligations on both tenants (when damage is caused) and landlords (when repairs are needed). The tenant is responsible for repairing any damage they have caused (or caused by another person whom the tenant allowed in the property)[2] if the damage was caused intentionally or through carelessness[3].  However, the tenant cannot be held liable for damage that arises because of normal “wear and tear”[4].

The landlord must keep the property in a reasonable state of repair[5] and comply with all building and health and safety requirements[6]. If any repairs are required, the tenant must first contact the landlord, and if no action is taken by the landlord a 14 day notice should be issued[7]. If it is an urgent repair for something the tenant did not cause (for example, if the plumbing fails), and the tenant made a reasonable attempt to contact the landlord, the tenant can get it fixed and the landlord must reimburse the tenant[8]. The majority of clients Community Law advises do not have the income to fund these repairs and have to put up with the situation until the landlord voluntarily takes action or is required to by the Tenancy Tribunal.

The Minister also acknowledged that due to the housing shortage in Christchurch, tenants have become reluctant to enforce their legal rights as they do not want to inflame the situation and risk losing their rental home. If a landlord reacts to the tenant enforcing their legal rights by issuing notice to terminate the tenancy, the tenant may apply to the Tenancy Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated by the tenant exercising their rights under the tenancy agreement or the Act.[9] This is referred to as retaliatory notice.[10]

Uninhabitable properties

If a property has been so seriously damaged that it is unfit to live in, the rules for ending the tenancy are the same whether the tenancy is for an indefinite period (referred to as a periodic tenancy) or for a fixed-term (where there is a specific end date to the tenancy). After a property has become uninhabitable[11], either the landlord[12] or the tenant[13] can give notice to end the tenancy[14].

If the property is partially uninhabitable, the landlord or the tenant can apply to the Tenancy Tribunal for an order ending the tenancy. If it is considered by Tenancy Tribunal that it is reasonable for the landlord to fix the property or for the tenant to stay at the property at a lowered rent rate, the Tribunal may not make an order ending the tenancy.[15] This could potentially cover situations where tenants would like to stay at the property at a lowered rent rate to make up for living in a property that requires repairs.

How Community Law can help

Many problems arise because tenants and landlords are unaware of their legal rights and obligations under the Act. We encourage tenants to contact their nearest Community Law Centre so that they are informed of their legal rights and supported in making the best decision for themselves and their whānau.

Community Law will be interested to see what the Government will unveil next month to implement a minimum standards scheme for all rented properties and what that will mean for Community Law’s clients.

[1] Find your local community law centre at www.communitylaw.org.nz.
[2] Residential Tenancies Act 1986, s 41 (2).
[3] Ibid, s 40 (2)(a).
[4] Ibid, s 40 (4).
[5] Ibid, s 45 (1)(b).
[6] Ibid, s 45(1)(c).
[7] A template 14 day notice is available at www.tenancy.govt.nz.
[8] Residential Tenancies Act 1986, s 45(1)(d).
[9] Ibid, s 54(1).
[10] Ibid, s 54.
[11] The term uninhabitable is not defined in the Act. See Watkin v Brazier Property Investments Ltd [2012] DCR 186.
[12] When a landlord gives notice of termination under this section, the period of notice is not less than 7 days, 59A (4).
[13] When a tenant gives notice of termination under this section, the period of notice is not less than 2 days, 59A (5).
[14] Residential Tenancies Act 1986, s 59 (1)(b).
[15] Ibid, s 59 (4)(b).

By Kahureremoa Aki, Rōia Hapori

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