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tenancy

What is an "unlawful residential premises"?

Key Takeaway

Unlawful residential premises are properties that cannot be lawfully occupied for residential purposes, often due to lacking building consent or failing to meet health and safety standards. Landlords who rent such premises commit an unlawful act. Tenants can apply to the Tenancy Tribunal, which may order tenancy termination, rent repayment, and financial compensation to the tenant.

Understanding Unlawful Residential Premises

In New Zealand, a landlord is obligated to provide premises that are lawful for residential occupation. An unlawful residential premises refers to residential premises that cannot be lawfully occupied for residential purposes [Source: Residential Tenancies Act 1986, s 66I(1)].

Residential premises are defined as any premises used principally for human habitation [Source: Residential Tenancies Act 1986, s 2]. A tenancy agreement is an agreement between a landlord and a tenant for the tenancy of residential premises [Source: Residential Tenancies Act 1986, s 2].

Premises are considered unlawful if they cannot be lawfully occupied for residential purposes for reasons including, but not limited to:

  • The premises not being consented under the Building Act 2004 [Source: Residential Tenancies Act 1986, s 66I(1)(a)].
  • The premises not complying with health and safety requirements under any enactment [Source: Residential Tenancies Act 1986, s 66I(1)(b)].
  • The premises not having adequate means of escape from fire under any enactment [Source: Residential Tenancies Act 1986, s 66I(1)(c)].
  • Any other reason that prevents the premises from being lawfully occupied for residential purposes [Source: Residential Tenancies Act 1986, s 66I(1)(d)].

Landlord Obligations

Landlords have a general responsibility to ensure that residential premises comply with all building, health, and safety requirements that apply to the premises [Source: Residential Tenancies Act 1986, s 45(1)(c)]. It is an unlawful act for a landlord to grant a tenancy of unlawful residential premises [Source: Residential Tenancies Act 1986, s 66I(4)]. An unlawful act is a breach of a duty or obligation under the Residential Tenancies Act 1986 for which the Tenancy Tribunal may impose a pecuniary penalty [Source: Residential Tenancies Act 1986, s 2].

Tenant Rights and Remedies

If a tenant believes they are living in unlawful residential premises, they can apply to the Tenancy Tribunal for various orders [Source: Residential Tenancies Act 1986, s 66J(1)]. The Tenancy Tribunal is a judicial body that resolves disputes between landlords and tenants in New Zealand [Source: Residential Tenancies Act 1986, Part 4].

If the Tribunal determines that the premises are unlawful, it may make one or more of the following orders:

  • Declare that the premises are unlawful residential premises [Source: Residential Tenancies Act 1986, s 66K(1)(a)].
  • Terminate the tenancy agreement [Source: Residential Tenancies Act 1986, s 66K(1)(b)].
  • Order the landlord to pay the tenant's actual and reasonable financial loss [Source: Residential Tenancies Act 1986, s 66K(1)(c)].
  • Order the landlord to pay the tenant's actual and reasonable costs for relocating [Source: Residential Tenancies Act 1986, s 66K(1)(d)].
  • Order the landlord to refund any bond paid in relation to the tenancy [Source: Residential Tenancies Act 1986, s 66K(1)(e)].
  • Order the landlord to carry out work to make the premises lawful, if applicable [Source: Residential Tenancies Act 1986, s 66K(1)(f)].

Payment for Use and Occupation

Crucially, the Tribunal may order the landlord to pay a sum of money to the tenant for the tenant's use and occupation of the unlawful residential premises [Source: Residential Tenancies Act 1986, s 66M(1)]. This payment can be up to 100% of the rent paid by the tenant [Source: Residential Tenancies Act 1986, s 66M(2)]. When deciding the amount, the Tribunal must consider factors such as:

  • Whether the tenant knew the premises were unlawful when the tenancy started [Source: Residential Tenancies Act 1986, s 66M(3)(a)].
  • The degree of culpability of the landlord [Source: Residential Tenancies Act 1986, s 66M(3)(b)].
  • The condition of the premises and the extent to which they were unfit for habitation [Source: Residential Tenancies Act 1986, s 66M(3)(c)].
  • The period for which the premises were unlawful [Source: Residential Tenancies Act 1986, s 66M(3)(d)].
  • The level of rent paid [Source: Residential Tenancies Act 1986, s 66M(3)(e)].

Pecuniary Penalties

Because granting a tenancy of unlawful residential premises is an unlawful act, the Tenancy Tribunal can also order the landlord to pay a pecuniary penalty [Source: Residential Tenancies Act 1986, s 66I(4), s 109(3)(c)]. As of current legislation, the maximum pecuniary penalty for an unlawful act committed by a landlord is $7,500 for an individual and $15,000 for a body corporate [Source: Residential Tenancies Act 1986, s 109(3)].

Relationship with Building Act 2004

The provisions in the Residential Tenancies Act 1986 regarding unlawful residential premises operate in addition to, and do not limit, the Building Act 2004 [Source: Residential Tenancies Act 1986, s 66N]. This means local authorities can still take enforcement action under the Building Act 2004 if premises do not comply with building standards, independent of any action taken under the Residential Tenancies Act 1986.

When to Seek Independent Legal Advice

Individuals seeking to understand their specific rights and obligations regarding unlawful residential premises should consult with a qualified legal professional. Further assistance and free legal advice may also be available from Community Law Centres throughout New Zealand.

Key Resources