Following a review of the law of residential tenancies in New Zealand, the Residential Tenancies Amendment Bill (No 2) gained Royal Assent on 30 July 2019. This bill, now named the Residential Tenancies Amendment Act 2019 (“the Amendment Act”), came into force on the 27th of August 2019.
The Amendment Act greatly impacts on the rights and obligations of both landlords and tenants. One of the many changes brought about by the Amendment Act
is to clarify the law in regard to the use of non-residential property for residential use in the wake of the High Court decision in Anderson v FM Custodians Ltd [2013] NZHC 2423.
In order to understand why these changes were necessary it is important to have some context as to the position of the law, mainly due to case law before
the Amendment Act was enacted.
In the Anderson case, the High Court found that where a property is not lawfully able to be used for residential purposes (in that case the unlawfulness
was the use of a building outside the scope of its resource consent), the property is no longer a residential property as defined in the Residential
Tenancies Act 1986 (“the Act”). Essentially, the Court inferred lawfulness into the definition of residential property.
The effect of the Anderson decision was that such unconsented property was no longer within the scope of the Act and consequently the jurisdiction
of the Tenancy Tribunal. Not only did this mean that tenants of unconsented property were left without the protections of the minimum standards for
tenancies set out in the Act, but it also meant that the Tribunal was left with very limited options when residing over an unlawful property case.
