Unlawful Dwellings

78A Orders of Tribunal relating to unlawful residential premises

(1) This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, unlawful residential premises.

(2) For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but—
(a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and
(b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.

Different types of unlawful dwellings

Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, there have been many examples of the Tribunal making orders under Section 78A. Below are eight descriptions of unlawful dwellings:

1. A premises that has never had resource nor building consent
2. Minor dwelling that never had resource consent
3. Minor dwelling that is not consented for sleeping
4. Minor dwelling that does not have CCC or COA
5. A rental property that does not comply with the Building Act 2004
6. A sleepout that has kitchen facilities
7. A premises that does not comply with the 1947 Housing Improvement Regulations
8. A premise that does not comply with the Building Code

A premises that has never had resource nor building consent

One example of an unlawful dwelling is where a premises has never had a building consent nor a resource consent. In a recent tribunal case, a tenant made a claim against a landlord who rented out a property where all three residences use one letterbox and shared the same rubbish and recycling bin. The tenancy did not have a separate water meter or power meter although it was agreed that the rent would include these outgoings. The tenancy had just one room, containing a lounge and a kitchen. The kitchen had just a sink, a bench, and a portable gas cooker.

Between that ‘living area’ and the bedroom was a glass sliding door. In the bedroom there was a handbasin, shower and toilet but these facilities were only blocked off by a curtain. The tenant, who was concerned about a sewage smell, made enquires with the Auckland City Council and accessed the property file. The property file contained no mention of the premises that the tenant lived in whatsoever, and the Tenancy Tribunal deemed the premises unlawful.

The landlord, unsuccessfully attempted to claim $1000 in rent arrears because under Section 78A
(3) the Tribunal must not order the tenant to pay any rent arrears if the premises is unlawful.

The discretion of Tenancy Tribunal crucial in unlawful dwelling orders
Where appropriate, the Tribunal can order the tenant to not pay the landlord:

- Any money owing in rent arrears
- And any other sum of damages or compensation

What orders can be made under Section 78A?

The Tribunal may also order a landlord who rents out an unlawful dwelling:
- A full rent refund, if the Tribunal is a satisfied the rental property was never consented as a residential premises.
- A partial rent refund if part of the rental property is lacking the necessary consent.
- A work order to remove or rectify any impediment that makes the premises unlawful
- A work order to comply with all requirements in respect of buildings, health, and safety under any enactment
- And exemplary damages of up to $7,200 if the landlord fails to comply with Section 45 (1) (c)

As a final note, even if the tenant does not make an application, the Tenancy Tribunal may make any of the above orders at its own initiative.

The wide range or orders available to the Tenancy Tribunal highlights how seriously the government views unlawful dwellings. Landlords will be held accountable for renting out properties which are either unconsented, non-compliant or expose tenants to health and safety risks. However, an important point to note is that the Tenancy Tribunal can use its discretion under Section 78A.