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New bylaw may mean more than just removing the fireplace

Friday, October 31, 2014

News of the Auckland Council's proposed air quality bylaw has understandably unsettled landlords who own properties that are heated by indoor wood/coal burners.  This week's Ask An Expert feature explores the possible legal implications this bylaw has within the framework of the Residential Tenancies Act: 

APIA Ask An Expert

Regarding the proposed bylaw to phase out pre-2005 indoor open fire burners, if it is passed would that introduce any RTA obligations for landlords for rent out properties with indoor open fire burners as the main heat source?  Would landlords be required to replace this 'amenity' for existing tenancies and if so, what with? 

APIA Ask An Expert

If the Council should require all pre-2005 fireplaces to be removed or permanently disabled, it is very likely that the Tenancy Tribunal would order a substitute appliance be installed. 

There have been some decisions of the Tenancy Tribunal in the South Island where the old "burners" were made illegal and had to be removed or replaced.  The Tenancy Tribunal has on occasion ordered that they be replaced.  This is likely to be where an old wood burner or similar was rendered legal and the tenant requested it be removed and a substitute wood burner be installed.  This does not necessarily mean that the Tenancy Tribunal would order a replacement "like for like" in every case but it certainly could do so if it felt it necessary.  There may be good reason for such a decision such as plentiful supply of free firewood.  

The Housing Improvement regulations 1947 are the authority for the minimum standards of fitness for houses.  Regulation 5(a) requires all houses to have a "living room" and Regulation 6 requires "[e]very living room shall be fitted with a fireplace and chimney or other approved form of heating"/ 

It follows that while the Tenancy Tribunal could order a heating device be installed where the tenant made application for one, it is just as likely that the landlord could offer an "approved" alternative which I am confident would be an acceptable solution.  The Tribunal would be mindful of the landlords cost of installation, the effectiveness of the unit, in the context of the house and the ongoing cost to the tenant.  

In today's world, heat pumps have proven a cost effective solution.  If the worst should happen, landlords would be wise to plan well in advance, to offer some other alternative rather than just hope for the best.  

Scotney Williams
Craeg is a principal of Tenancy Practice Service, a tenancy consulting firm which advises major property management brands.  Scotney and his team are also involved in providing support for private landlords by way of training seminars, best practice protocols, drafting applications, advice about re-hearing and appeals, tenancy debt collection as well as human rights and privacy issues.  

Do you have any property related questions for our panel of experts?  Comment below or email us at questions@apia.org.nz.  

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