Minor changes to existing provisions!

Something crazy happens at the moment. A tenant takes her landlord to the Tenancy Tribunal because it’s below legal standards: it’s damp, for example. The Tenancy Tribunal concludes, “yes, that’s illegal”. The Tribunal can order the landlord to bring the property up to standard. But the landlord can decline to do so. In that case, the adjudicator orders the landlord to compensate the tenant.

That’s great for that tenant. But not so great for other tenants. Even though the Tribunal has just ruled that the house is below standard, it can be put on the market again in the same condition, and rented out by other unsuspecting tenants.

The new tenants live in the horrible conditions. And maybe, eventually, if they are aware of their right to a home which meets a certain standard, and if they have the confidence and the time and the energy, they go to the Tenancy Tribunal. The process starts again. They get compensated, they move out, the house is rented out to others.

This process is not fair to tenants, and it’s a grand waste of the court system’s time.

(I wrote about this situation in more detail here – I learned about it in Lyndon Rogers’ excellent Paper Walls report).

The good news is that the government is taking action on this as part of the changes to the Residential Tenancies Act announced a couple of weeks ago. There’s far bigger changes, of course, and I’ll write about them in the future, but I wanted to draw attention to this one, as it’s easily overlooked.

It’s way down on page 7 of the Cabinet Social Policy Committee Paper, under the modest title “minor changes to existing provisions”:

j. Currently the Tenancy Tribunal can order a monetary payment as an alternative to a work order (s 78 (2)). Remove this provision in relation to work orders for compliance with smoke alarm and insulation requirements, as well as compliance with the requirements prescribed in the Housing Improvement Regulations (for example functioning sanitation).

This means that in the future, the Tenancy Tribunal has to force the landlord to bring his or her property up to standard. For example, if it’s a damp house (and it’s illegal to rent out a damp home under the Housing Improvement Regulations, as Bierre, Bennett and Howden-Chapman recently pointed out), the dampness problem has to be resolved.

This is really great news.

However, it will be interesting to see the detail of this change. As Lyndon Rogers points out, it’s strange that at present, compensation and a work order are the two alternatives available to an adjudicator. In reality, they’re different things: “compensation is about harm done, while the work order [is] about ensuring that it does not happen again…” [p.20].

Let’s hope that the future, improved s 78, which will ensure that a house’s problems are fixed, will also provide the adjudicator with the option of ordering compensation to the tenant for the harm done by living in a home below standard.

This was reposted to Public Address – check it out for some interesting discussion in the comments.


  1. Kevin Reilly says:

    Thanks for keeping in the loop.  Kevin  MTU

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