Unlawful Premise and the Tenancy Tribunal

Opinion Piece in Response to article in Stuff – 30 August 2018 – G Roper

https://www.stuff.co.nz/business/property/106599187/split-on-legal-fallout-for-landlords-and-tenants-of-irregular-properties

The recent High court outcome resulting from an appeal to both a Tenancy tribunal and district court ruling does not exempt the tribunal from ruling on unlawful premise and issuing fines and or compensation.

Justice Cook refers to a technical breach as a reason for over turning this particular appeal.

What Justice Cook didn’t state was this meant all unlawful premises could remain or in fact continue.

A Landlords view that the decision was inspired merely reflects the disrespect many landlords and some Property Management companies have of the Law.

Landlords are very apt at gaining Tribunal rulings in their favor based on ‘technical points’.

What is clear is that there is a legislative requirement for landlords to adhere to, as it is for tenants.

 

Focusing on the landlord’s legislative requirements.

As a person in business (renting of a residential premise) they are a PCBU (Person conducting a Business or Undertaking) and therefore must adhere to the Health and Safety at Work Act 2015. They must also adhere to the Residential Tenancy Amendment Act 2016.

When combined, as they clearly should be, a Landlord who does not have an implemented Health and Safety program is in serious breach of both pieces of legislation.

Its important to remember a landlord cannot contract out of their obligations under either of these ACT’s.

We know that Rental Property Management companies state that they will do Health and Safety for the landlord, in the same way they manage the tenants.

The outcome is, when things go wrong that it is the Landlord who has to pay up . The Rental property manager doesn’t pay anything. The same applies to the provisions of the HSWA 2015. The property manager saying they will take care of Health and Safety is no defense and the landlord would find himself or herself ultimately culpable if something was to go wrong when a contractor or other worker was at the premise.

 

An example:

A landlord chooses to use a Rental Property Management Company to manage the premise and they do not set or provide any documents related to expectations of the Rental Property Management Company (as a Contractor) or their sub-contractors.

The Rental Property Management Company has a Health and Safety system that they say is OK.

The tenant reports to the Property Manager that the wood burner in the premise isn’t working properly when they first went to light it:

“Flames came out by the chimney and filled the house with smoke, please check it before winter.”

The Property Manager says “don’t use it we will send someone to have a look”.

3 weeks later, no one has come to check.

The tenants call again and state the fire is dangerous. A week later a person checks wood burner and sates:

“The Flue has collapsed, it’s very dangerous, don’t use it”.

Another 4 weeks later they contact both the Property Manager and Landlord; no action, so the tenants apply a 14-day notice.

Wood burner finally fixed, winter is almost over.

Points

  • Landlord does not have and rejected having a Health and Safety system process.
    1. Unlawful landlord RTA 16 section 25 – 78 (2AA (d))
    2. Unlawful section 35 HSWA 15
    3. HHGA 2017 7 schedule 7 45 (1A)
  • No Health and Safety processes meant the tenants were put at serious risk of harm or death by failing to action the risk immediately (failing to ‘lockout wood burner to prevent accidental use.) HSWA Part 2 S 42 43
  • The Property Manager knowingly renting an unlawful premise. (Property Manager knew of H and S requirement)
    1. Property Manager failed in duties to manage risk therefore putting the tenants at risk of serious harm or death

If a fire did occur, causing a death or serious harm, there would be an investigation.

Was the failure to act on a known risk, that should have be managed by either PCBU involved, a WorkSafe NZ or criminal act.

It could be argued either way I guess.

The Health and Safety at Work Act 2015 makes it clear that a PCBU must take all reasonably practicable steps to ensure the safety of workers or the public. Nothing they have influence over should be ignored, and the landlord cannot contract out or transfer duties.

As a PCBU they provide a premise for people (tenants/public) that must be fit for purpose. Health and Safety at Work Act 2015 P2 S 42/43.

The Residential Tenancies Amendment 86/2016 also require Landlords to comply with all enactments including health and safety.

The failure to ensure the log burner was fit for purpose and safe may be seen as manslaughter under the crimes act. www.legislation.govt.nz/act/public/1961/0043/137.0/DLM329311.html

Back to the Justice Cook ruling.

An unlawful premise is not a technical issue. The fact is, an unlawful landlord/premise can and has serious consequences, to the safety and health of members of the public (tenants, friends, visitors) if not met.

A Landlord is a PCBU and as such has a duty of care to fulfill directly related to the Residential Tenancies Amendment 86/2016

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