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Communtity Law Manual | Tenancy & housing | Living in your house or flat: Rights and obligations

Living in your house or flat: Rights and obligations

Overview

Your use and enjoyment of the house or flat

Your rights as the tenant: Use and enjoyment

Residential Tenancies Act 1986, ss 38, 45(1), 109

As the tenant, you have the right to the “quiet enjoyment” of the house or flat. The landlord (and people who work for or represent the landlord) can’t interfere with your reasonable peace, comfort and privacy in using the property. If your landlord interferes with these rights in a way that amounts to harassment, the Tenancy Tribunal can order them to pay you up to $2,000.

The landlord has to make sure none of their other tenants disturb you (from the flat next door, for example).

Residential Tenancies Act 1986, s 45(1); Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, reg 5

The landlord has to provide and maintain locks to keep the place secure, and they can’t change the locks without your permission. They have to provide smoke alarms (although you have to change the batteries), and they also have to provide an adequate water collection and storage system in areas where there’s no mains water supply.

Example: What amounts to interference with your quiet enjoyment?

    Case: [2017] NZHC 2661

    The tenant had one of four joined Housing NZ (now Kāinga Ora) units. There were four carparking spaces, with a sign saying: “Tenants parking only”, though the spaces weren’t allocated to any particular unit.

    The tenant complained to Housing NZ about tenants in other units taking more than one space and also allowing non-tenants to park in these spaces. This meant the tenant couldn’t easily turn his car around and he therefore had to back out of the driveway rather than driving out forwards. The tenant complained several times to Housing NZ, but wasn’t happy with its responses.

    The tenant took the dispute to the Tenancy Tribunal, claiming the landlord had permitted a breach of his reasonable peace, comfort or privacy. But the Tribunal found the tenant hadn’t proved this claim. The tenant then appealed to the District Court, but the judge agreed with the Tenancy Tribunal, and decided that the tenant not being able to turn his car around wasn’t serious enough to amount to a breach of his quiet enjoyment of his property.

Your rights as the tenant: Making minor changes and installing fibre

Residential Tenancies Act 1986 ss 42A, 42B

From February 2021, you can make minor changes to your flat with your landlord’s permission. They can’t say no, as long as the change won’t seriously damage the property or it can be easily undone. A minor change could be installing a baby gate, picture hooks, or making furniture earthquake-proof.

Residential Tenancies Act 1986, s 45B.

Your landlord has to allow you to get a fibre internet connection installed free of charge, and they need to work with you to ensure it’s done within a reasonable period of time. They can only refuse if it would significantly affect the structure of the building, or make it impractical to do any major renovations they want to start within 90 days of your request. Fibre installation is free if you’re in the fibre area. You can check your eligibility at the Chorus search tool. Visit www.chorus.co.nz/getting-fibre

Your obligations: How you use your place while you’re living there

Residential Tenancies Act 1986, ss 40(2), 42, 46

While you’re renting your place, you must not:

  • cause any damage to the property or chattels, whether intentionally or carelessly, or allow anyone else to cause damage
  • use the place to do something illegal, or allow someone else to do something illegal there
  • disturb your neighbours
  • have more people living in the place than you’re allowed under your tenancy agreement
  • attach any fixtures that are more than minor changes (these are things that are fixed in position, like heat pumps, panel heaters, built-in wardrobes and clothes lines) or make any renovations (like painting) or any alterations to the place, unless the tenancy agreement allows this or the landlord has given you written permission (the landlord can’t refuse you permission unreasonably)
  • change the locks without the landlord’s permission
  • interfere with or block fire escapes.

Residential Tenancies Act 1986, s 16A

Note: If your landlord is going to be out of the country for more than three weeks, they have to provide a representative (an “agent”) for you to deal with – for example, if you need to get repairs done.

Keeping your home warm and dry: What your landlord has to provide

Your current rights

    As we explain in this section, your landlord has specific legal obligations to provide you with heating appliances and to make sure your place isn’t damp. The Tenancy Tribunal has been getting particularly strict about these requirements since 2017.

    Landlords also have to provide proper cooking appliances (an oven and stove top).

    The law will be changing after July 2021: New minimum standards

    The government introduced the new “Healthy Homes Standards” laws in May 2019. These set minimum standards that landlords have to meet – for example, your living room will have to have a heater that will heat the room to at least 18 degrees.

    These new requirements will come into force over several years after 1 July 2021. They will finally be in force for all rental properties from July 2024.

Protection from July 2021 under the Healthy Homes Standards

What are the Healthy Homes Standards?

Residential Tenancies (Healthy Homes Standards) Regulations 2019

The Healthy Homes Standards require every rental property to have:

  • Ceiling and underfloor insulation – there must be insulation in the ceiling and under the floor. This has been in force since 1 July 2019.
  • Heating – the living room must have a heater capable of heating the room to at least 18 degrees. The heater must be fixed to a wall or floor of the house, and can’t be a portable heater like an LPG bottle heater. An electric heater must have a thermostat that shows the temperature and allows it to be adjusted. It’s against the law to use an open fire or portable unflued heater.
  • Ventilation – there must be windows that can open in the living room, dining room, kitchen and bedrooms to allow airflow into your home, except for rooms that were legally built without windows. The kitchen and bathroom must both have an extractor fan except if it isn’t possible to install them or at the time the room was built or converted, it was lawful not to have an extractor fan.
  • Moisture drainage – since build-up of moisture causes dampness there needs to be efficient drainage for removal of water (like storm water, surface water and ground water) under and outside your home. To help remove the water from the roof your house things like gutters, downpipes and drains should be installed.
  • Underfloor ground moisture barrier – where there is an enclosed underfloor space, like a basement, your home must have a ground moisture barrier, unless it’s not reasonably practicable to install one. For example, if an experienced professional installer (not just your landlord) can’t access the space under your house without substantial building work or without causing substantial damage to the building, it won’t be reasonably practicable to install a barrier. But if it’s just a matter of removing base boards from the outside of the building to access the space, then the work has to be done.
  • Draught stopping – there must not be any gaps or holes in walls, ceilings, windows, skylights, floors and doors. Unused chimneys and fireplaces must be blocked off.

When do the Healthy Homes Standards take effect?

Residential Tenancies (Healthy Homes Standards) Regulations 2019 Schedule 1 cl 2

The ceiling and underfloor insulation standard is already in force. The rest of the standards come into force on different dates as follows:

  • Boarding houses must comply with these standards by 1 July 2021.
  • Kāinga Ora (Housing New Zealand) and community housing tenancies must comply by 1 July 2023.
  • All private rentals must comply within 90 days of any new, varied or renewed tenancy from 1 July 2021, with the aim of all complying by 1 July 2024.

Residential Tenancies (Healthy Homes Standards) Regulations 2019 Sch 1, cl 11

From 1 December 2020 landlords must include a statement of their current level of compliance with these standards in any new or renegotiated or renewed tenancy.

Residential Tenancies (Healthy Homes Standards) Regulations 2019, regs 30, 31

The standards don’t apply if the tenant used to own the property or if the property is going to be demolished or substantially rebuilt.

Healthy homes information that must be in a tenancy agreement

Residential Tenancies (Healthy Homes Standards) Regulations 2019, regs 33–40, Residential Tenancies Act 1986,ss 66I, 123A

From 1 July 2019 the following information must be included in a tenancy agreement:

  • the heating capacity of the living room and the type of heater provided
  • the date the ceiling insulation was installed and last inspected, and its “R” value (warmth rating). The higher the R value, the greater the insulating power, the warmer the home
  • a statement that the windows comply with the standard, and the diameter and exhaust capacity of the extractor fans
  • a statement that the fireplace has been closed off or the chimney blocked, or (if you the tenant have asked for this) that the fireplace is available to use
  • a statement that the building is free from gaps
  • a statement that the building has an efficient drainage system, and a moisture barrier (if applicable).

Your landlord must keep enough relevant paperwork to prove that they have complied with the Healthy Homes Standards, and they must provide it if you ask for it.

Existing protections until the Healthy Homes Standards come into force

    Until the Healthy Homes Standards are fully in force (see above), some important minimum rights for tenants continue to exist under the Housing Improvement Regulations 1947, as we explain in this section below.

Does my landlord have to provide a heater?

Residential Tenancies Act 1986, s 45(1)(c); Housing Improvement Regulations 1947, reg 6; Cases: District Court, Chch, CIV-201 0-009-3562, 3 Feb 2011 – Tenancy Tribunal 4095081

Yes. The law says landlords have to provide an “approved form of heating” in the living room. This can’t be just a power point (an electrical outlet) or a gas outlet – there has to be some kind of heating appliance.

Landlords don’t have to provide heating in the bedrooms and other rooms.

Cases: Tenancy Tribunal 4121554 – Tenancy Tribunal 4127146 – Tenancy Tribunal 4129914

In various cases the Tenancy Tribunal has looked at exactly what kind of heating appliances a landlord has to provide. It doesn’t have to be a heat pump. On the other hand, landlords won’t be able to get away with something that’s clearly inadequate given the size of your place – like a small electric heater in a large home. In one case, the Tenancy Tribunal decided an electric wall heater was an approved form of heating.

Unflued gas heaters are not an approved form of heating. These are gas heaters, whether portable or fixed to the wall, that don’t vent to the outside air. They produce a number of harmful pollutants (like carbon monoxide), and also produce water vapour, which can lead to mould and dust mites.

Case: Tenancy Tribunal 4081393

If there’s a fireplace, the landlord has to make sure the chimney is swept regularly.

Does my place have to have insulation?

Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, regs 11–16

Yes. From 1 July 2019 all rental homes must have ceiling and underfloor insulation, unless your place is an exception because it’s not reasonably practicable for insulation to be installed. (Social housing provided by the government or community providers has been required to have insulation since July 2016.)

An example of an exception is if your place is built on a concrete slab so that it’s not possible to install underfloor insulation – or if you have a “skillion” roof, where there’s no ceiling space between the ceiling and the roof where insulation could be installed.

All new tenancy agreements also have to include a separately signed “insulation statement”, covering what insulation the place has and what type it is.

Does my landlord have to make sure the place isn’t damp?

Residential Tenancies Act 1986, s 45(1)(c); Housing Improvement Regulations 1947, reg 15

Yes. Your landlord is legally required to make sure your place is set up to be free from dampness. The kinds of issues the landlord might be responsible for and have to address include:

  • the lack of extractor fans (ventilator fans) in the kitchen and bathroom
  • windows in the kitchen and bathroom
  • the lack of heating (there’s a separate legal requirement to provide an approved form of heating: see above “Does my landlord have to provide a heater?”) and
  • problems with drainage.
In one case the Tenancy Tribunal put the issue this way

    Case: Tenancy Tribunal 4119318

    “Preventing mould in a house is a dual obligation of the tenant and landlord: the tenant must live in a way that avoids mould developing by heating and ventilating the house, and wiping away daily condensation that arises from ordinary living; and a landlord must provide a house that is not prone to mould, fix any issue creating mould; and provide the means to heat and ventilate it.”

If your place is damp – for example, there’s mould on the walls – you can remind the landlord that they’re breaking the law and get them to fix it. If they don’t do anything about it, you can take them to the Tenancy Tribunal, and ask for an order to fix the problem.

If you do take the landlord to the Tenancy Tribunal, you’ll need to provide evidence of the dampness – usually this would be photographs of mould.

Residential Tenancies Act 1986, s 45(1A),

You can also ask the Tenancy Tribunal to order the landlord to pay you compensation, but you can also ask the Tribunal to pay an extra amount, called “exemplary damages”, up to $4,000.

Example: A smoking fireplace, and a lot of mould

    Case: Tenancy Tribunal 4139773

    The tenant took the landlord to the Tenancy Tribunal, claiming the landlord hadn’t provided an adequate means of heating and that the place was cold and damp, along with other problems.

    The law says that there has to be a fireplace or other approved form of heating. In this case there was a fireplace, but the chimney didn’t work, so the Tenancy Tribunal found the landlord had breached this obligation. The landlord argued that the place was cold because the tenant often left doors open – but the Tribunal said that would have been necessary to make sure the place was adequately ventilated.

    The Tenancy Tribunal said it can often be hard to pinpoint the cause in cases where a tenant complains of mould. In this case it seems all the landlord had done was offer to paint the place with anti-mould paint – the tenant had said no to this, because it would have meant moving out for a while. The Tribunal said there were probably several reasons for the damp, including poor insulation, poor heating in the lounge, and lack of security stays on the windows to allow them to be open slightly for ventilation. The Tribunal said the landlord should have taken proper steps to fix the mould problem.

    The tenant got compensation

    To compensate the tenant for the heating, dampness and other problems, the Tenancy Tribunal worked out a rent refund of $3,300, which was about 10% of the rent paid over the tenancy, which lasted about 18 months.

    On top of that, the Tribunal also awarded the tenant $600 in “exemplary damages”. This is an extra amount on top of compensation – it’s intended to punish the landlord and discourage other landlords from doing the same thing. The Tribunal said that: “There was a persistent pattern of the landlord taking a minimalist approach to repairs, which meant that problems were not properly fixed. Therefore, an award of exemplary damages is appropriate.”

    The maximum exemplary damages that could be awarded for this is $4,000. This landlord hadn’t been taken to the Tribunal before, and the Tribunal decision-maker said “Normally I consider exemplary damages of around 30% of the maximum for a first incident.” That would have meant an extra award of $1,200, but the Tribunal gave the landlord credit for having recently installed an energy-efficient heater in the lounge and putting proper insulation in the house. The amount awarded was therefore $600.

Is my landlord responsible for leaks?

Residential Tenancies Act 1986, ss 38, 45(1)(b); Case: Tenancy Tribunal 4139470

Yes. The landlord is responsible for fixing any leaks in your place, as part of their obligation to keep the place in a reasonable state of repair.

The Tenancy Tribunal says that in general leaks are a serious issue and landlords have to fix them promptly. They shouldn’t be seen as just an inconvenience, because leaks create an undesirable, unhealthy living environment. They go to the heart of your right to have the use and enjoyment of the place, in return for the rent you pay.

Leaks can also cause dampness, and your landlord has a separate obligation to make sure your place is free from dampness (see above, “Does my landlord have to make sure the place isn’t damp?”).

Does my landlord have to provide a stove and oven for cooking?
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