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Unlawful Residential Premises

27-Jul-2021 14:16:42


Under the Residential Tenancies Act, landlords must comply with all legal requirements relating to buildings, health and safety that apply to the premises. They must also ensure that the premises can legally be lived in at the start of a tenancy.

In practice, this means landlords need to be broadly aware of health-related and safety related requirements in the following laws:

  • Building Act 2004 and the Building Code
  • Health Act 1956
  • Housing Improvement Regulations 1947
  • Bylaws made under the Local Government Act 2002. These are set by individual councils.

The Residential Tenancies Amendment Act 2019 strengthened the law for holding landlords to account if they rent out unsuitable properties.

The Act has amended the definition of ‘residential premises’, so that regardless of whether premises can be legally lived in, they will be considered ‘residential premises’ under the Residential Tenancies Act if they are lived in or intended to be lived in. This amendment gives the Tenancy Tribunal full jurisdiction over cases concerning premises that are unlawful for residential purposes. It also means that tenants living in unlawful residential premises will be protected by the minimum requirements in the Residential Tenancies Act, such as landlord responsibilities for complying with building, health and safety laws, cleanliness, maintenance and repairs, smoke alarms, insulation, bond lodgement, rent increase notices, and notice periods for ending a tenancy.

Tenancy Services will be able to enforce the Act against landlords who breach it, regardless of whether premises are lawful for living in or not.

In cases of unlawful residential premises, the Tribunal can now order:

  • the landlord to repay the tenant all or some rent, depending on the circumstances of the matter
  • that the tenant is not liable for rent arrears, compensation or damages unless it would be unjust not to make the tenant liable
  • the landlord to make the premises lawful and comply with relevant legislative obligations, such as fire safety requirements under the Building Act 2004, within a specified timeframe
  • exemplary damages (a financial penalty payable to the tenant) for failing to comply with this work order
  • the tenancy be terminated
  • any other order in favour of the tenant that it may currently do under the Residential Tenancies Act.

Tenants will be able to give two days’ notice to end a tenancy in an unlawful residential premise if the premises were unlawful at the start of the tenancy and are still unlawful. Both the tenant and the landlord can apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful.

What are unlawful residential premises?

Unlawful residential premises include dwellings within a property which have been constructed for another purpose, such as a garage or a commercial building, or properties which do not comply with relevant building health and safety legislation. Many "granny flats" may fall under these criteria.

These articles were featured in Harcourts Property Management Focus, Issue 7 2021.

Topics: Property Management, Landlords, Tenants