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What you need to know before Auckland goes Digital?

Monday, November 18, 2013

Auckland is counting down the days until television signal goes digital.  Once the clock strikes midnight on the 1st of December and analogue television is no more, what new obligations, if any, would you have to serve your tenant's viewing pleasure?  If your rental property does not already have digital aerial, are you required to put it in?  More importantly perhaps, who foots the bill? 

The starting point to this enquiry must be an examination of whether television signal is essential service and therefore the responsibility of the landlord.  Surely not.  No one actually needs to watch television in order to survive. 

That brings us to our second point, which can be an argument potentially advanced by tenants: that any chattel equipped by the landlord at the start of the tenancy should be repaired, maintained, and replaced by the landlord at the landlord's cost.  As existing analogue television aerials are due to fail on the 1st of December, it logically follows that replacements should be at the landlord's cost.  

Existing authorities would beg to differ.  The issue hinges on foreseeability.  The Department Of Building And Housing (now Ministry Of Business, Innovation, and Employment) clarified, as early as 2012, that if the tenant knew about the absence of a digital aerial at the start of a tenancy, then it is unlikely that the landlord would be required to upgrade the existing hardware post 1st December.  Although not responsible for the administration of residential tenancies, during the course of their public education campaign for the upcoming digital switch, the Ministry Of Cultural And Heritage concludes that 'landlords aren't required to provide TV equipment...'.  Leading Residential Tenancies Act ("RTA") expert, Scotney Williams, cautiously anticipates that a definitive ruling by the Tenancy Tribunal will clarify this issue once and for all.  At this stage it would appear that the landlord's duty is to maintain the existing aerial, not to provide tenants with uninterrupted television coverage.  However, it is worth mentioning that although you may not be legally required to upgrade the existing aerials, market forces may still compel you to do so.  

If your tenant wants to install digital television equipments, they must obtain your permission first under s42(1) of the RTA.  You cannot unreasonably withhold that permission (s42(2)).  It is prudent, before the installation, for both parties to agree on who owns (i.e. pays for) the hardware and installation.  Do so in writing to avoid future disputes.  Be mindful that under s42(3), the tenant is entitled to remove any of their fixtures at the end of the tenancy so long as the removal does not cause irreparable damage to the property.  If you do decide the upgrade the hardware at your cost during a tenancy then make sure you enter the property only after your tenant has given you permission to do so.  

If you are at an impasse, make sure you remind your tenants that some television programmes can be watched online these days.  C'mon, it is not called the 21st century for nothing you know.  

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