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INTRODUCTION
In our submission we address
questions and issues raised in the discussion document
Getting the
Balance Right and we raise additional issues, using
evidence gathered from
Citizens Advice Bureaux around the country. We make suggestions and
recommendations for action.
The Association welcomes the review of the Act and supports change
that will provide
more consistency in terms of the rights and obligations of all those
involved in rental
accommodation and that will provide better protections, particularly
for the more
vulnerable parties in tenancy relationships.
COMMENTS
ON THE REVIEW DISCUSSION QUESTIONS
Should
more types of accommodation be covered by the RTA?
Our evidence shows that both
tenants and landlords living in or providing specialist
accommodation such as serviced apartments (where meals and cleaning
may be
provided), student accommodation, and private board experience a
range of issues and
problems that can be difficult to resolve, given the lack of
coverage of their situation by
the Act. Case studies from bureaux suggest that enquiries relating
to boarding in
residential homes are particularly frequent and problematic.
A
client came to the bureau seeking urgent help with their
accommodation situation. The client
had
been living in a residential home as a boarder but had that day been
asked to vacate
immediately.
The boarding provider would not allow the client to collect their
personal
belongings
and the client arrived at the bureau with nothing but the clothes
they were wearing.
What
could they do?
A
client called the bureau asking for assistance with a matter
relating to a former boarder. The
boarder
had recently terminated the boarding arrangement and vacated their
room at the client’s
house
without providing any notice. The boarder had returned wanting to
collect the personal
property
they had left behind. However, the boarder refused to pay the two
weeks rent
outstanding.
The client was unsure what course of action to take.
A
client approached the bureau for advice regarding their rights and
obligations in respect of a
former
boarder of theirs. The client had recently given their boarder one
month’s notice, but the
boarder
had in fact vacated the premises almost immediately after being
served notice. The
client
wanted to know if they were allowed to let the room out again, even
though the one month
notice
period was not yet up.
In order to alleviate these
sorts of difficulties, to provide clarity around the rights and
responsibilities of the respective parties involved, and as a matter
of principle, we
believe that there should be some consistency in terms of the
statutory protections for
tenants and landlords in these different types of accommodation.
The Association acknowledges
and commends the Residential Tenancy Act
Amendment Bill (Boarding Houses) which will extend coverage of the
legislation to
boarding house tenants and landlords, and recommends that the Act be
extended
further to apply to specialist accommodation such as serviced
apartments, student
accommodation, and private board situations.
The Association is also
concerned that the legislation provide coverage for situations
where temporary forms of accommodation such as backpackers, camping
grounds,
motor parks and hotels are being used as emergency accommodation.
Case studies
and feedback from our bureaux on emergency housing reveal that there
is a shortage of
dedicated emergency housing in many parts of the country and that
our clients are
therefore frequently being referred to other types of accommodation.
After
having been evicted from their lodgings, a client came to the bureau
to ask for help in
finding
emergency accommodation for a few weeks until they were able to
secure something
more
permanent. The bureau worker tried all the listed suitable emergency
accommodation
options
but none had any vacancies. The worker then tried local camping
grounds and motels
and
finally found a motel that would take the client.
A
client called in at the bureaux needing help to find emergency
accommodation for themselves
and
their child. The client had recently split up with their partner,
moved out of their home, and
had
very little money and nowhere to live. The options that the bureau
worker was able to
present
the client were very limited as there is no emergency accommodation
in the local area.
In
the end, the client decided to go the local camping grounds to see
if they could secure a cabin
until
they had sorted out their financial situation.
A
client came to the bureau after having slept rough for the past few
nights. Some days earlier
they
had an argument with their partner and had left the house. They did
not feel they could go
back
to the house but, being on a benefit had very little money for other
accommodation. After
going
through information and options with the bureau worker, the client
secured a night’s
accommodation
with a friend, after this staying in a cabin in a local motor park,
before finally
moving
on to a boarding house.
People living in and
providing these types of accommodation experience issues similar
to other private tenants and landlords, yet there is no clear
legislative protection for
them and no formal resolution processes they can refer to.
While the Association would
like to see adequate provision of emergency housing to
meet the need that exists, we recognise that until this happens many
people will
continue to rely on other forms of temporary accommodation in times
of crisis.
Therefore, the Association
recommends that the legislation defines the rights and
obligations of users and providers of temporary accommodation, such
as backpackers,
camping grounds, motor parks and hotels, in situations where the
accommodation is
being used as emergency housing.
Any provisions included
within the legislation to cover these types of situations must
take account of the particular vulnerability and special
circumstances of people using
these forms of accommodation as emergency housing. It must also take
into account
the fact that, due to the current shortage of emergency
accommodation in many parts of
the country, people rely on having access to these types of
accommodation. Under
these circumstances accommodation providers should receive
recognition and support
to enable and encourage them to make their accommodation services
available to
those in need of them.
Do
prospective landlords get the right advice?
We acknowledge the
initiatives undertaken by Tenancy Services to provide information
on rights and responsibilities
in the tenancy relationship, but are also conscious of the
fact that lack of awareness of
these rights and responsibilities is a persisting problem; it
is the underlying reason for
many of the client enquiries that Bureaux receive (from both
landlords and tenants).
Bureaux regularly field
questions on a broad range of issues relating to the tenancy
relationship. Here are just a
few examples of the kinds of questions recently put to
bureaux by landlords, which
show that not all landlords are adequately equipped with
the information and advice
they need when they take on their role:
Can
a landlord request unpaid rent from a former tenants’ family?
Is
it possible (and if so how to) track down a former tenant for rent
owing?
How
much notice of rent increases do landlords have to provide tenants?
Whose
responsibility is it for covering the cost of repairs to property
for damage caused as a
result
of burglary – the tenant’s or landlords?
What
protection/avenues for redress are provided to landlords in the
event of property
destruction
by tenants?
Is
there a deadline by which a landlord must pay back the bond to
former tenants?
Bureau evidence shows that
often (but not always) breaches of the legislation by
landlords are as a result of landlords’ lack of awareness of their
responsibilities under
the law. Further, we see cases where it is evident that landlords
are reluctant to
properly manage their properties and build professional
relationships with their tenants.
Many people, particularly first time landlords, are unaware
of the level of service
provision and management that investing in rental property requires.
This is reflected in
the variable standards of property management that is behind a
number of the enquiries
bureaux receive from tenants.
The Association believes
there is a place for further education and awareness-raising
for landlords about their rights and responsibilities under the Act.
We also believe that
education should be provided to landlords in their management role
in the tenancy
service industry, in order to better inform people about their
property investment
decisions and how to manage these successfully, fairly and lawfully.
Education in these matters
could be a compulsory component of any landlord
registration or accreditation system or standard quality mark that
is established as an
outcome of this review.
Why
are there so many disputes over responsibilities for household costs?
Bureaux assist a significant
number of people needing advice about how to resolve
issues between flatmates, sub-lessors /
“head tenants” (tenants who are the main
signatories on tenancy agreements) and
sub-lessees. Common disputes include
dividing of household costs, difficulties
over payment of rent or household expenses
such as
telephone bills, and timely returning of bonds.
Issues often escalate into
serious disputes when there is a lack of clarity and formal
agreement at the outset as to what are the
responsibilities of the parties involved. Many
tenancy agreements (where there is a formal
agreement) do not cover this particular
tenancy relationship and these sorts of
issues between tenants. We see a lack of
awareness amongst the tenant community as to
the importance of formalising and
having contractual coverage in this area. We
see the potential benefits for tenants of
having such
agreements in place.
Tenants should have the
option of signing up to a formal legal framework, which gives
Tenancy Services responsibility of overseeing
these contracts. This will provide people
with some legal avenue for settlement of
disputes and in cases that go before the
Disputes Tribunal, it will aid the Tribunal
in resolution between flatmates. These types
of provisions
could be added to a ‘standard’ tenancy agreement.
The Association recommends
that tenancy agreements are required to include clauses
that define individual rights and
responsibilities, which include multiple registering and
sharing of utility costs, with all residents
being equally responsible unless otherwise
formally
stated.
There are various standard
template tenancy agreements that are available. These are
designed to bypass some of the common issues
that tenants and landlords face.
However, Bureaux have found that knowledge
about these templates is limited, and
people still
sign agreements that do not adequately protect their rights.
We suggest that templates be
developed that more effectively address some of the
issues discussed
above, and that they are user-friendly and accessible.
Would some tenants benefit from advocacy services?
The experience of Citizens
Advice Bureaux around
New Zealand
suggests that
advocacy services for tenants are needed.
Bureaux regularly work with clients who,
regardless of the level of awareness they
might have about their legal rights and their
landlords’ obligations, find themselves in
need of some active intervention to ensure
their rights
are upheld.
A common problem that bureaux
have identified is tenants feeling threatened by
landlords, and therefore being reluctant to
lodge complaints and request landlord
compliance with
signed agreements and their rights under the Act.
A
couple of friends, both tenants of a lodging house, came to the bureau asking
for help. Whilst
they both believed themselves to be exemplary
tenants, having never been in arrears on their
rent or having caused the landlord any other
difficulties, they were told by a staff member they
were to be evicted without notice. They could
not think of any reasons for their eviction but were
afraid of making contact with the landlord to
clarify their situation. They were scared as to what
might
happen if the approach annoyed the landlord.
A
client sought help from the bureau for assistance with their tenancy situation.
The client had
recently moved into a flat and had duly paid
their bond and rent and had begun to settle into life
in their new place. However, not long after
moving in, the client was asked by the landlord to
move out as the landlord wished to
accommodate a friend of theirs in the property instead of the
client. The client duly moved out, but never
received their bond back. The client wanted the
bureau’s
assistance to retrieve their bond money.
The Association recommends
that accessible, independent, and professional advocacy
services be provided to tenants to ensure
tenants’ rights are upheld and to help to bring
about greater
landlord compliance with the legislation.
Is
there a problem with quality of rental property?
The links between housing
quality and health, educational, and economic outcomes are
widely recognised. One of the common concerns
expressed by bureaux in their
feedback on the review questions was about
the sub-standard quality of the
accommodation of many of their clients and
the obvious effect this was having on other
aspects of their clients’ lives. Bureaux
cited cases of generally poor conditions in rental
accommodation, neglect, lack of
maintenance/refusal to undertake maintenance, or
substandard
repairs to damaged, decayed and deteriorated properties and amenities.
A
client approached the bureau regarding a problem with the landlord over
maintenance and
repair issues. Some months ago the client had
discovered leaks in the roof. The flat was damp
and mould had begun to appear on the walls.
The client had taken the issue up with the
landlord on a number of occasions over the
past few months but to no avail. The client wanted
to
know what the legal issues were and what options were available to them.
A
client asked the bureau for help concerning a situation with their landlord. A
recent storm had
damaged the house; a window had blown out
causing damage (and dampness) to the carpet.
The landlord arranged for the window to be
replaced but would not take care of the damaged
carpet. The carpet is starting to smell and
the client and their partner are confined to their
bedroom in order to avoid the odour. It is
becoming a real concern for them, but as their
landlord
won’t budge, they need to know how to address the situation.
As we suggested in our
submission to Housing New Zealand Corporation on the New
Zealand Housing Strategy discussion document,
one possible solution to addressing
the quality of rental accommodation in the
private sector is that of a ‘warrant of fitness’
style of check for housing to ensure minimum
standards of quality and safety are met.
Inspections could be made upon point of sale
or purchase of the property and again
every three or four years. A clause could be
inserted into contracts “subject to quality
inspection”
(i.e. same as for “subject to building inspection”).
This was a suggestion made by
a participant at the HNZC stakeholder consultation
meeting in Porirua on
the 15th June 2004
and we think it is a good idea worthy of
consideration. Perhaps this general
‘warrant of fitness’ approach could also be adapted
to suit the
state housing system.
The Association recommends
the adoption of a ‘warrant of fitness’ style of check to
ensure minimum
standards of quality and safety are met for rental accommodation.
OTHER
ISSUES
Enforcment
of tenancy legislation
Another issue the Association
addressed in its submission on the New Zealand Housing
Strategy discussion document was that of
enforcement of tenancy legislation. While we
acknowledge the existing channels through
which individuals can seek redress for their
grievances e.g. Tenancy Services, we are
aware that currently enforcement capability is
limited. Consequently, there are tenants and
landlords in breach of the law that are
never called to account for their actions.
The Association believes it is time to look a the development of a system for
ensuring compliance of the law. However, care would
need to be taken to ensure that any such
system put in place is fair and not heavy
handed.
The Association recommends
that lack of compliance with the law governing the
tenancy relationship should be addressed by
this review and that consideration is given
to the
development of a strengthened system for ensuring compliance.
Summary
of recommendations
The Association acknowledges
and commends the Residential Tenancy Act
Amendment Bill (Boarding Houses) which will
extend coverage of the legislation to
boarding house tenants and landlords, and
recommends that the Act be extended
further to apply to specialist accommodation
such as serviced apartments, student
accommodation,
and private board situations.
The Association recommends
that the legislation defines the rights and obligations of
users and providers of temporary
accommodation, such as backpackers, camping
grounds, motor parks and hotels in situations
where the accommodation is being used
as emergency
housing.
The Association suggests that
landlord education about their legal rights and
obligations under the Act and about their
management role in the tenancy service
industry could be a compulsory component of
any landlord registration or accreditation
system or
standard quality mark that is established as an outcome of this review.
The Association recommends
that tenancy agreements are required to include clauses
that define individual rights and
responsibilities of tenants, which include multiple
registering and sharing of utility costs,
with all residents being equally responsible
unless
otherwise formally stated.
The Association recommends
that accessible, independent, and professional advocacy
services be provided to tenants to ensure
tenants’ rights are upheld and to help to bring
about greater
landlord compliance with the legislation.
The Association recommends
the adoption of a ‘warrant of fitness’ style of check to
ensure minimum
standards of quality and safety are met for rental accommodation.
The Association recommends
that lack of compliance with the law governing the
tenancy relationship should be addressed by
this review and that consideration is given
to the
development of a strengthened system for ensuring compliance.
Conclusion
The Association is pleased to
have had the opportunity to provide feedback on ‘Getting
the Balance Right’, and we would be interested to participate in
any further
opportunities for public input into the review.
Please contact the
Association if you have any questions or seek points of
clarification on our submission.
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