Case Update: Permanently sealing windows shut to prevent the cold is no solution

Law:
Under section 66 of the Residential Tenancies Act 1986, the Tenancy Tribunal has the power to reduce the duration of a fixed term tenancy where:

• there have been unforeseen changes in the tenant’s circumstances; and
• there would be severe hardship to the tenant if the term is not reduced which would be more than the hardship experienced by the landlord, if the term is reduced.

The Tribunal can make an order requiring the tenant to pay reasonable compensation to the landlord for any resulting loss.

Unforeseen change
The tenant had a baby and evidence was put to the Tribunal demonstrating that the premises was too cold for the young baby. The landlord had tried to resolve the issue by permanently sealing the windows shut however, this caused a loss of ventilation to the premises.

The Tribunal found that the above constituted as an unforeseen change.

Severe hardship
Evidence demonstrated that the cost of heating the premises to a reasonable temperature would have caused the tenant to undergo severe hardship. The Tribunal also noted the potential risk to the health of the baby and others in the family.

The Tribunal found that it was an inconvenience for the landlord to find a new tenant however, the tenant had instructed a letting agent and recommended an alternative tenant to the landlord. Initially, the landlord had agreed to release the tenant early however, communication pertaining to this had broken down.

The landlord did not provide any evidence of hardship.

Finding
Given the above, the Tribunal found that tenant’s hardship was more significant than the landlord’s hardship. The Tribunal reduced the tenancy to 2 September 2019 however, ordered that the tenant compensate the landlord $970.00.

The Tribunal noted that permanently sealing the windows shut was not an appropriate solution as it made the premises more susceptible to mould due to the windows no longer being openable and the risk of overheating in a hot summer. The Tribunal recommended that the landlord seek expert advice as to other viable solutions.

Click here for the decision.

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Health & Safety - PCBUs and Property Managers

The Health and Safety at Work Act 2015 (HSWA) came into effect on 4 April 2016.

You may have seen the word ‘PCBU’ used throughout the Healthy and Safety at Work Act 2015 and related regulations.

What is a 'PCBU' and what does it stand for?

A ‘PCBU’ stands for a person conducting a business or undertaking. The ‘business’ part refers to an arrangement which creates profit, while the ‘undertaking’ part refers to an arrangement which is non-commercial in nature for example, a charity organisation.

PCBUs are duty holders under the HSWA 2015. This means that they have certain duties under the legislation.

Operating a rental property is a business, therefore, Landlords, Property Management businesses and a self-employed Property Managers (sole trader) are all PCBUs under the legislation.

Employees of a Property Management business are considered workers under the Act. Workers must comply, as far as they are reasonably able, with any reasonable instructions that is given by the PCBU to enable the PCBU to comply with their obligations under the legislation.

Primary duty of care

Under section 36 of the Act, PCBUs have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers and others who are affected by their work.

This means the PCBU must take steps to ensure that the contractors (workers) are safe and that their work does not affect the tenants and any visitors who enter the property.

The law does not require that you become a trade expert however, it does require that you take steps to ensure that the contractor is competent and qualified.

Failing to mitigate against risks that are related to the work that is going to take place at the premises means that you are not ensuring the health and safety of the contractor. An example of this, is where you send a contractor to the site and the handrail on the deck is broken yet, you fail to inform them of this risk and their work is within the vicinity of the deck. You should be meeting the contractor prior to work being undertaken and discussing the risks pertaining to the work.

It is recommended that you have a signed Contractor’s Agreement with health and safety acknowledgement clauses.

Feel free to head to our website as you will find a Contractor's Agreement Template under, Residential Property Management Resources.

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Asbestos - Auckland demolition company fined $150k by WorkSafe

An earth moving company has been fined $150,000 after the demolition of a property ended up damaging part of the property next door and risked workers to the exposure of asbestos.

The company attempted to use a digger to support a wall while a second digger was used to demolish the house. The wall ended up falling onto the neighbouring property leaving the wheelchair bound occupier trapped until emergency services could free her from the property. The company was ordered to pay her $30,000 in reparation.

WorkSafe Principal Advisor, Robert Birse stated that “the company should have hired someone with experience to identify whether asbestos was present and remove the asbestos before demolition commenced.”

This case serves as a reminder to our Property Managers that they also have obligations under the Health and Safety at Work Act 2015 and Asbestos Regulations 2016.

When work is planned on a property that will create a risk of exposure to respirable asbestos fibres, additional duties will arise. The type of work that will create this risk could include refurbishments, renovations and demolitions. The duty to identify asbestos and the duty to prepare an asbestos management plan will need to be adhered to. All asbestos must be removed from the relevant area before any work begins.

For more information on this case, head to WorkSafe's website.

Click here to access our Asbestos Information Sheet for Property Managers

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Property Management Roadshow

Christchurch - The RTA and Keeping Safe Around Dogs
Wednesday 25 September
Book now

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Congratulations Shawn Li!

REINZ is delighted to announce that Shawn Li is the first learner on the programme to achieve the NZ Certificate in Property Management offered by Skills and REINZ.

Shawn gained plenty of knowledge from the course and feels much more confident around legislation, regulations and the Tenancy Tribunal.

Shawn Li with REINZ Head of Property Management, Jo Rae

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Stuck on something? Check out our information sheets!

Click here for our Information Sheets on:

• Insulation
• Healthy Homes Standards
• Privacy Act Guidance
• Asbestos
• Mould and Dampness in rental properties

Keep an eye out for the following Information Sheets that will be coming soon:

• Residential Tenancies Amendment Act 2019
• Methamphetamine Guidance for Property Managers

Any questions/suggestions you have, feel free to contact advisory@reinz.co.nz

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REINZ Residential Rental Review - August 2019

The August REINZ Residential Rental Review is available now - click here.

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Finding the right tenant - what can I collect after I have selected a preferred tenant?