No code of compliance on rental home

[sidinz]

On the face of what has been written it seems very unfair.
The work may have been unconsented but appears it was safe and sanitary.
Of course we only have the facts as presented.

So it's off to the District Court who may bring some sanity into the matter.

More detail here: https://forms.justice.govt.nz/.../Docu.../TTV2/121465045.pdf

[Shalodge]

The work may have been unconsented but appears it was safe and sanitary

You need to look at this differently... It is not about the state of the home .. it is about compliance with a regulatory requirement.

e.g If you are given a ticket because your WOF has expired or is not present on the vehicle it will make no difference and is not a defence if you prove your vehicle is up to WOF standard.

Over many years I have seen dozens of posts from people claiming you don't need various consents or permits to do work on houses.. all trying to shortcut the system to save a $. I don't have a lot of sympathy really.. Its one thing to ignore the requirements for your own home but another if you intend to rent it out.

If you rent a car you would expect the vehicle to have a WOF (in fact they have to have COF) and would not be happy just being told that the company is "sure it is up to standard". Further if they were silly enough to do that, or claim that the car had a COF when it didn't, you would probably be able to get your rental costs refunded.

[Learning]

e.g If you are given a ticket because your WOF has expired or is not present on the vehicle it will make no difference and is not a defence if you prove your vehicle is up to WOF standard.

If the Tenancy Tribunal looked after vehicles you could claim against petrol stations for a full refund of all the fuel you had purchased over the years while you were driving your unwarranted car.

[sidinz]

You need to look at this differently... It is not about the state of the home .. it is about compliance with a regulatory requirement.

Did you read the case? The landlord didn't do the conversion, the previous owner did, and it was, prior to this, the landlord's own home. Only part of the home had been altered, yet the entire tenancy was found to be 'unlawful' and the entire rent refunded. Plus the landlord's own claims were denied - damages included.

The tenant, for much of the tenancy, was unaware that the alterations were unpermitted. The house was safe and sanitary, as was shown by the council acceptance presented at TT. No harm, no foul. At the very most, a PARTIAL refund, reflecting the proportion of the house 'unlawful' should have been awarded. Having a couple of rooms technically uninhabitable does not make the rest of the house not a residential property, which is what this ruling did.

[cube]

So all homes in the country that are rented out and have unpermitted works should be taken off the rental market immediately.


[EDIT] It's worse than that

5. In Anderson v FM Custodians Ltd (2013) NZHC 243 the High Court found that premises that cannot lawfully be used as residential premises are excluded from the definition of residential premises" in Act.

means that all houses with unpermitted works should be evacuated immediately.

That's going to help the housing market.

Of course, it does nothing about the fully permitted houses that are uninsulated, damp and draughty, and I'm sure there are a few of those in Dunners.

The house in question has now been sold with a 'certificate' of sorts - does that mean the new owner is at liberty to rent it out, especially given the 'uninhabitable' judgement post-dates the certificate?

If the certificate is not good enough, what would make the house habitable again?

[Nick G]

"Professional Tenants" are becoming a Thing. Ugh.

[Davo36]

The house in question has now been sold with a 'certificate' of sorts - does that mean the new owner is at liberty to rent it out, especially given the 'uninhabitable' judgement post-dates the certificate?

Did the guy who sold it inform the purchaser of this? If not, do they have a claim against him also? After all, they may wan to use it as a rental.

But the bigger point is that this is getting out of hand really quickly. Has the TT made rulings like this in the past? Seems like it's a new, disturbing trend.

As FlyerNZL says in his Life as a Landlord thread, we're being pilloried. And I imagine this is for the fact that there aren't enough houses around at cheap rents. Oh and you know, super modern, warm, dry, INSULATED (no one ever cared about it 6 or 7 years ago), with free electricity and water. Oh and cheap. Surely 1% per annum is enough for a landlord to make?

As others have said, these moves by the TT are only going to exacerbate problems. Rentals that are perfectly fine to live in but don't have the stamp of approval by the council nazis will be pulled off the market. Hard to see how that will help tenants and rental levels.

Good for the rest of us of course!

[Tenant17]

You will see that the MBIE are already well aware of all these concerns, as they released an impact statement dated Feb 17 which includes a very thorough discussion of the issues at stake, and a proposal to make things clearer going forward. I'm unable to post the link because I haven't yet racked up 10 posts here so I'll have to spell it out...

Regulatory Impact Statement
Application of the Residential Tenancies Act 1986 to rental premises which are not lawful for residential purposes This Regulatory Impact Statement has been prepared by the Ministry of Business Innovation and Employment (MBIE). It provides an analysis of options for addressing a tenancy sector issue which has recently emerged in respect of tenancies over rental premises which are not lawful for residential use.

The analysis has been constrained by the limited time available, specifically it has not been possible to undertake a comprehensive analysis of the possible costs, risks and unintended consequences of the proposals.

There have already been very many cases decided in the tenant's favour at the Tribunal regarding this exact issue, however this is just the first one that's been prominent in the news. Probably because it was a case where the landlord did appear to be hard done by. In most other cases I've read the landlord was more obviously at fault, and so were probably less motivated to take their complaint to the local newspaper.

[sidinz]

I've been reading the comments under the link on the Otago Daily Times' Facebook page. Almost all of them are in support of the landlord and it seems that the lady in question has something of a reputation when it comes to money matters.

Oh, and the partner is a builder and father a lawyer. So it is HIGHLY likely that they recognised that works had been done, obtained the LIM and confirmed that they were unpermitted, then sat on that information until they were given notice. Oh, and in the meantime creamed off rent from illegally subletting the unpermitted part to someone else.

But I thought the law about unpermitted works meaning it's a non-tenancy hadn't been passed yet?

[hawkeye]

I wonder if landlord can find out what date the council information was requested and if she has known about it for the whole time then why didn't she move out asap?

[hawkeye]

So if she sub let it perhaps the tenants she let it to could be tracked down and she would have to pay them?

[Lighthouse]

Highly likely hawkeye. I have seen comments to that effect by some adjudicators.

In this determination, the tenant rented out a sleep out that came with a five bedroom house in contravention of his own tenancy agreement.
This tenant was lucky that the adjudicator decided not to apply the Anderson ruling in his case but he was punished for other serious infractions.


https://forms.justice.govt.nz/search/Documents/TTV2/121892141.pdf

https://forms.justice.govt.nz/search/TT/abstract.html?id=4024444

The following is very close to the scenario you outline.

https://forms.justice.govt.nz/search/Documents/TTV2/121622091.pdf

Sometimes tenants may be unaware that they are also landlords and if there are two dwellings on a property and one is unconsented the nature of arrangements between fellow tenants becomes important. I will be monitoring the results of any further rulings of this determination.

[John the builder]

You need to look at this differently... It is not about the state of the home .. it is about compliance with a regulatory requirement.

e.g If you are given a ticket because your WOF has expired or is not present on the vehicle it will make no difference and is not a defense if you prove your vehicle is up to WOF standard.

Over many years I have seen dozens of posts from people claiming you don't need various consents or permits to do work on houses.. all trying to shortcut the system to save a $. I don't have a lot of sympathy really.. Its one thing to ignore the requirements for your own home but another if you intend to rent it out.

If you rent a car you would expect the vehicle to have a WOF (in fact they have to have COF) and would not be happy just being told that the company is "sure it is up to standard". Further if they were silly enough to do that, or claim that the car had a COF when it didn't, you would probably be able to get your rental costs refunded.

the analogy proves the nonsense here.

It is the law and an offense to drive a vehicle without a WOF

It is also another and separate offense to have defects on a car such that it would fail a WOF

you compromise insurance only when these defects cause a crash..... not just because the offense is committed

It is not required to have an approval to rent out your house or part of it.

There are rules and obligations of all house owners but little in respect to tenancy except safe and sanitary and the RTA stuff for smoke detectors and insulation statements etc,

These TT decisions are crap and must be appealed This guy deserves the industry support and i hope he is getting it??

[John the builder]

Ths other story from ODT with comment from investor association

https://www.odt.co.nz/news/dunedin/rental-refund-%E2%80%98can-worms%E2%80%99

According to the first story he is appealing?? if anyone has contact details for Inglis please PM me as I know someone who can help?

I feel a "give a little" campaign coming on to support this guy's legal fight which is a fight for us all? anyone else game for this??

the law change is before a select committee now in resess due to election thankfully but yes it seeks to entrench this wrong thinking......

[artemis]

So those landlords who find there is a potential issue will be terminating tenancies quick smart and putting the place on the market. Though they might find it a bit harder to get the price they'd like with this decision. But still might be cheaper than paying back rent and getting council signoff.

Some back rent could go back years.