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What does it take for your rental to be 'safe and healthy'?

Tuesday, January 09, 2018

CREDIT: nvtsi.org

Most of us are fully aware that one of the hallmark obligations of being a landlord is to provide our tenants with a safe and healthy home. However, there isn't a lot of instructive authority beyond the wordings of s45 of the Residential Tenancies Act.  Amongst other things, s45 requires landlords to: 

...

(b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and

...

(c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and

...

The general nature of the language used in subsections (b) and (c) can be problematic for landlords. What is reasonable for one can be entirely ludicrous to another.  'Any enactment' comes across like a cynical catch-all that overwhelms even the most experienced investor (especially in the post-Perry era). On top of which, health-and-safety has been de rigueur in New Zealand for quite some time, the scope of these obligations will only continue to grow.  

For the time being, at least, Tribunal decisions such as Bosley v ETB Realty Limited [2017] NZTT Rotorua 4099875 give landlords ample guidance as to what it takes to provide a safe and healthy rental. 

The tenants in Bosley applied for the Tribunal to consider three s45 infringements. Specifically, the complaint relates to dampness, lack of hot water, and leaky garage. The dampness claim collapsed due to insufficient proof and the evidence on hand suggesting the root cause to be the way of living rather than a defective building structure. The tenant, however, succeeded with the latter two claims relating to lack of hot water and leaky garage. 

It is worth point out, for the purpose of this discussion, that the adjudication sources building health and safety standards from the Housing Improvement Regulations of 1947.  The HIR sets minimum standards to ensure Kiwi houses are warm, safe, dry, and sanitary and are worthwhile for landlords to be aware of.

HIR standards

Functional elements of a property

  • a room that is used, intended or capable to be used as a living room; 
  • a kitchen/kitchenette with a sink and tap that is connected to usable water; 
  • a room that is used, intended or capable to be used as a bedroom;
  • a bathroom with a shower or bath that is connected to usable water that can be adequately heated; 
  • a toilet (indoor or out) for the exclusive use of the occupant(s) of the property; and 
  • adequate space for washing clothes if the house accommodates, intended or capable to accommodate 2 or more persons  

Minimum room sizes and heights

  • requirements vary depending on the nature of the property, click here for more details 
Structure 
  • The exterior of the house has to be waterproof; 
  • All walls and floors to be lined; 
  • All floors must be washable and durable; 
  • All staircases must facilitate safe access from one level to another and have handrail; 
  • Every habitable room must provide 1 or more windows situated in an external wall to admit adequate light; 
  • Non-habitable rooms should provide windows that the local authority considers necessary for adequate lighting and ventilation
Overcrowding 
  • requires vary depending on the nature of property, click here for more details 
Sewage and sanitation
  • Every toilet and sink must be connected to an adequate sewerage system or other means of disposal.
Heating
  • Every living room shall be fitted with a fireplace and chimney or other approved form of heating (note that the HHBA is likely to stipulate mandatory heating in rental properties before 2019 with mandatory compliance by 2024). 
Other laws captured by s45(c)

The HIR is by no means the only authority that informs health and safety building standards. Other laws and regulations to be aware of include: 

Based on published decisions such as Bosley, the Tenancy Tribunal has shown itself to be increasingly willing to intervene in cases where tenants are exposed to unhealthy, unsanitary, and dangerous living conditions. The environment is such that we advise all landlords to err on the side of caution. A full awareness of your specific obligations coupled with regular inspection and maintenance will go a long way to protect your interests in these changing times. 

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