An additional change to the Residential Tenancies Act covers termination when dwellings are unlawful residential tenancies.
Such rental properties are in breach of landlord obligations in the Residential Tenancies Act, namely that landlords must:
- comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and
- take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Types of unlawful dwellings:
- Dwelling constructed without a building consent of any kind
- Dwelling had a building consent but not approved for human residence e.g. garage
- Dwelling has a building consent for permanent human residence but does not have code of compliance for being rented separately e.g. granny flat
- Building consent for permanant human habitation but owner has added facilities such as a kitchenette
- Dwelling has consent but the owner has added extra rooms so part of dwelling is unlawful e.g. House that had an outside deck that has been closed in by adding walls.
Where a property has a major and minor dwelling and the minor dwelling has consent but is not compliant it can’t be rented separately to the main dwelling. In this case the property would need to be rented as a single Tenancy Agreement.
Where a dwelling is unlawful, tenants can give 48 hours’ notice or apply to the Tribunal to end a tenancy. The tenant does not have to pay rent in unlawful premises. Court cases in relation to minor dwellings have seen rent repaid in full for the period of the tenancy.
However, the new amendment means that should the Tribunal determine a property to be unlawful it shall not make any rent or rent arrears award.
Under the new amendment, awarding compensation for damages is also prohibited. This could be up to the $50k limit of the Tribunal.