unlawful premises
📖 What is unlawful premises? Meaning and definition
In New Zealand tenancy law, premises are considered unlawful if they are not consented for residential occupation or fail to meet essential living conditions. This can include properties like a garage converted into a 'granny flat' without proper consent, or a dwelling with significant health and safety concerns such as inadequate roofing, walls, flooring, or lack of hot water and ventilation. When a property is deemed unlawful, tenants may be entitled to compensation, which can include a refund of rent paid.
The Tenancy Tribunal considers several factors when determining compensation for unlawful premises. These factors include the rent paid, the benefits the tenant received from living there, the seriousness of the regulatory breaches, any other breaches by the landlord, and the detriment or loss suffered by the tenant. The Tribunal also considers the public interest in discouraging unlawful tenancies and ensuring landlords do not unfairly profit from them.
If a tenant successfully proves that the premises were unlawful, the landlord may be ordered to pay compensation. For example, a tenant who lived in an unconsented converted garage was awarded a refund of rent. However, not all claims of unlawful premises are successful; the Tenancy Tribunal will make a declaration on whether the premises are indeed unlawful based on the evidence presented by both parties.
📋 Requirements
- The premises are not consented to be occupied for residential purposes (e.g., a converted garage without consent).
- The premises have substandard conditions affecting health and safety (e.g., inadequate roofing, walls, flooring, lack of hot water, unsafe plumbing, lack of ventilation or smoke alarms).
- The landlord failed to address serious issues like a leaking roof.
- The tenant suffered detriment or loss due to the unlawful nature of the premises.
📝 Procedure
- The tenant applies to the Tenancy Tribunal for a refund of rent or compensation.
- Both the tenant and landlord attend a hearing, potentially with legal representation for the tenant.
- The tenant provides evidence to support their claim that the premises are unlawful residential premises.
- The Tenancy Tribunal considers evidence regarding the property's consent status, living conditions, and any breaches by the landlord.
- The Tribunal makes a declaration on whether the premises are unlawful and, if so, determines the appropriate compensation amount.
💡 Examples
- A tenant was awarded compensation because they lived in a garage that had been converted into a self-contained 'granny flat' without the necessary council consent for residential occupation.
- A tenant received a partial refund of rent due to living in a property with substandard kitchen conditions, including inadequate roofing, walls, flooring, and no running hot water, along with other safety concerns.
- A claim for compensation based on unlawful premises was dismissed after the Tenancy Tribunal declared that the rented property was not, in fact, unlawful residential premises.
- A landlord was ordered to pay compensation to a tenant for unlawful premises, taking into account the seriousness of regulatory breaches and the landlord's failure to address a leaking kitchen roof.
❓ Frequently asked questions
What makes a property 'unlawful premises' in New Zealand?
A property can be considered 'unlawful premises' if it lacks the necessary council consent for residential occupation, such as a garage converted into a living space without permission, or if it has serious health and safety issues that make it unfit for habitation, like unsafe plumbing or inadequate ventilation.
Can I get my rent back if I lived in unlawful premises?
Yes, if the Tenancy Tribunal determines that the premises were unlawful, you may be awarded compensation, which can include a refund of some or all of the rent you paid. The amount depends on various factors, including the severity of the issues and the length of your tenancy.
What kind of compensation can I claim for unlawful premises?
Compensation can include a refund of rent paid, and potentially other damages for any loss or detriment you suffered. The Tenancy Tribunal will assess factors like the seriousness of the breaches and any other landlord failures when deciding the award.
How does the Tenancy Tribunal decide the amount of compensation?
The Tribunal considers factors such as the total rent paid, the benefits the tenant received, the seriousness of the regulatory breaches, any other landlord breaches, the detriment suffered by the tenant, and the public interest in discouraging unlawful tenancies.
What if my landlord says the premises are lawful, but I disagree?
You can apply to the Tenancy Tribunal to have the matter decided. The Tribunal will hear evidence from both you and your landlord and make a declaration on whether the premises are unlawful based on the facts presented.
Are there specific health and safety issues that make premises unlawful?
Yes, issues like substandard kitchen conditions (e.g., inadequate roofing, walls, flooring, or lack of running hot water), unsafe plumbing, lack of ventilation, and absence of smoke alarms can contribute to premises being deemed unlawful due to health and safety concerns.