When the tenant and landlord are not at fault
The rules for giving notice differ from normal circumstances if a rental property is destroyed or so seriously damaged that it can no longer be safely lived in (ie, it is uninhabitable), and neither party has breached the tenancy agreement (s 59 RTA).
Examples of situations where this might occur include:
- severe weather events or natural disasters, like flooding or earthquakes
- damage resulting from a fault, such as a broken water pipe or an electrical fire, that is not caused intentionally or carelessly by the tenant or by negligence or lack of maintenance by the landlord.
Regardless of whether it is a periodic or fixed-term tenancy, tenants can end the tenancy if the property is uninhabitable by giving at least two days’ written notice (s 59(3) RTA). Landlords must give at least seven days’ written notice if they want to end the tenancy on this basis (s 59(2) RTA).
Neither party needs to go to the Tenancy Tribunal to end the tenancy unless there is disagreement over whether the property is uninhabitable or who is responsible for the damage.
If only part of the of the property has been made uninhabitable, or the property can be quickly repaired, these rules may not apply. In this case, the tenant will need to go to the Tenancy Tribunal if they want to exit the tenancy.
Find out what tenants' rights are if the property is damaged but not made uninhabitable.
Find our more about support available for people affected by natural disasters.
Quick tip
When the property can be repaired quickly
A property may be only temporarily uninhabitable if it is able to be repaired in a reasonable timeframe. For instance, a property may not be able to be lived in while services such as water, sewerage and electricity are cut off or while a roof is replaced.
The rules around giving notice due to uninhabitability may not apply if the property can be quickly repaired.
If the tenant and the landlord cannot agree on when, or if, the tenant will be able to return to the house, a decision may need to be made through the Tenancy Tribunal.
Find out what tenant’s rights are if the property is damaged but not made uninhabitable.
Case study - Rules around uninhabitability may depend on how long repairs will take
A landlord gave their tenants seven days’ notice to leave their rental property after it became uninhabitable following extensive water damage. The damage was caused by a water pipe that became disconnected when an electrician was working on the hot water cylinder. The kitchen and main bathroom were no longer usable.
The tenants disputed the validity of the termination notice through the Tenancy Tribunal. They argued that the damage could be remedied relatively quickly, allowing them to move back in.
The Tribunal adjudicator agreed that if the premises could be quicky repaired, the section 59 RTA rules (regarding the right of the tenant or landlord to give notice if a property is uninhabitable) would not apply.
However, the termination notice was upheld because at the time of the Tribunal hearing, approximately two months after the flooding, the premises were still not ready to be lived in.
Rent adjustments
Rent must not be charged from the date that the property becomes uninhabitable (provided that the damage was not caused by the tenant breaching the tenancy agreement) (s 59(1)(a) RTA). This includes stopping the rent until the house is repaired if the property is only temporarily uninhabitable.
Quick tip
Tenants are not entitled to other compensation, eg, for damage to belongings or inconvenience, if the landlord is not at fault. The landlord's house insurance will not normally cover tenants' personal possessions. If the tenant has their own contents insurance, they should talk to their insurer.
Find out more about financial support when a natural disaster occurs.
Case study - Full rent abatement awarded for the whole time the tenancy was uninhabitable
A rental property became temporarily uninhabitable after asbestos was found when a vinyl floor covering was removed. The tenant moved out for two weeks while the asbestos was removed, and the rent was fully abated (stopped) for that time.
However, after the two weeks, the tenant did not move back in because she found asbestos dust. Testing showed that the premises were still uninhabitable. Further cleaning was then done.
The tenant paid rent during this time and until she ended the tenancy shortly after.
The Tenancy Tribunal noted that the Residential Tenancies Act (RTA) requires rent to stop immediately from the date that premises become uninhabitable. The tenant was awarded a full rent abatement for the entire period that the premises were uninhabitable, up to when the second cleaning was done.
Case study - Tenant claim for full rent abatement following water damage upheld
The date that a rental property became uninhabitable was disputed in a case where a water pipe burst, causing extensive damage to a property.
The flooding occurred on 11 January. Initially drying the property was attempted but, on further assessment, the property was deemed uninhabitable. The landlord issued a seven-day notice for the tenancy to end on 27 January.
The tenants claimed full rent abatement from 11 to 27 January, arguing that the premises were uninhabitable throughout that period. The landlord filed a cross application seeking rent to be reduced to 70% of the full rent (30% abatement). The landlord did not claim for $3,300 they paid towards alternative accommodation for the tenants.
The Tenancy Tribunal agreed that the property was uninhabitable from 11 January and that the rent must be fully abated from then until the tenancy ended on 27 January. The Tribunal took into account the effect on the tenants of the noise and mess of the remedial work, given that they had a baby and one tenant had a respiratory illness.
If the tenant can remain in the property
Rent must be reduced (abated) in circumstances where:
- the tenant can safely remain in the house while repairs are carried out, even though the house is classified as uninhabitable
- only part of the house is uninhabitable (s 59(4) RTA).
The tenant should try to reach agreement with the landlord about how much the rent should be reduced by and get this agreement in writing. If no agreement can be reached, the tenant can go to the Tenancy Tribunal.
The Tenancy Tribunal has suggested that reducing rent by 50% is a reasonable starting point when a tenant remains in the property despite it being deemed uninhabitable, such as can happen when a natural disaster affects a whole region.
However, the extent of loss of amenity and enjoyment of the property (ie, how much of the house and its facilities can no longer be used) and the individual circumstances of the tenant must be taken into account.
(See further discussion in Tenancy Tribunal Order 4593431, 4565196 and Tenancy Tribunal Order 4495506, 4501886).
When the tenant or landlord is at fault
If either the tenant or landlord, through a breach of the tenancy agreement, causes the rental property to be destroyed or so seriously damaged as to become uninhabitable, only the party not at fault can give notice (s 59A RTA).
Examples of such circumstances include:
- a flood or electrical fire that occurrs because the landlord has not adequately maintained the property (s 45(1)(b) RTA)
- the tenant (or someone they permitted to come on to the property) intentionally or carelessly damages the property, for instance, by starting a fire (s 49B(1) RTA)
For action to be taken against the other party, it must be proven that there is a direct link between the breach of the tenancy agreement and the damage.
If the landlord is in breach:
- the tenant can end the tenancy with two days’ notice (s 59A RTA)
- rent abates as described in the Rent Adjustments section above
- the tenant may be entitled to compensation for any losses that they experience, eg, for damage to belongings.
If the tenant is in breach
- the tenancy can be ended by the landlord giving the tenant seven days’ notice or by order of the Tenancy Tribunal (s 59A RTA)
- the rent does not abate, and the tenant must pay the usual rent until the end of the tenancy
- they are likely to be liable for some of the costs if they caused the damage carelessly, or possibly all of the costs if they caused it intentionally or though criminal activity such as manufacturing methamphetamine (s 49B RTA).
Case study title - No rent abatement where tenant did “not disprove” liability
A landlord gave a their tenant a termination notice after a fire made the property uninhabitable. The landlord claimed that the fire was caused by the tenant. Despite this, the tenant chose to remain in the house for a further two months until the tenancy was ended by order of the Tenancy Tribunal.
The Tenancy Tribunal adjudicator stated that the tenant did “not disprove” that they were responsible for the fire. The tenant’s explanation that the fire was caused by a “displaced candle or glass jar” was disproved by a fire investigation report.
The tenant’s application for 4 weeks’ rent rebate because the premises were uninhabitable after the fire was dismissed. The tenant was required to pay rent through to the day that they left the premises and pay for the landlord’s insurance excess.
How is “uninhabitable” defined?
The Residential Tenancies Act (RTA) does not define “uninhabitable”. In practical terms, it means that a property cannot be lived in, usually because it is dangerous or unhealthy.
Decisions must be made on a case-by-case basis
The Tenancy Tribunal uses a set of general principles to decide whether a particular property is uninhabitable. These principles come from District Court decisions after the Christchurch earthquakes in 2011 (see discussion in Tenancy Tribunal Order 4495506/4501886 and Tenancy Tribunal Order 4504952)
Under these principles, decisions must be made on a case-by-case basis and be determined by what damage has been caused to the premises and how it affects the tenant. The tenant’s personal and family circumstances must also be taken into account, including their vulnerability.
If services such as water, sewerage and electricity are cut off, the premises will likely be considered uninhabitable for the time that the services are unavailable.
The courts have stated that the Tribunal should take a liberal approach in determining if a property is uninhabitable.
Case study - Rent abatement granted only for days property was uninhabitable
A tenant wanted a full rent abatement for the five and a half weeks that they moved out of their rental property because a flood affected the dining room floor and wall, and for a further week after a second flooding event four months later. The tenant claimed that the property was uninhabitable due to the flooding and other unrelated repairs that needed to be done.
The Tenancy Tribunal found that the premises met the definition of uninhabitable for only seven days in total: the days of the floods and the days drying was carried out. A full rent abatement was ordered for those days only. It was not accepted that other repairs that the property needed made the property uninhabitable.
Exemplary damages were awarded to the tenant for the landlord’s failure to carry out repairs in a timely manner.
What about council sticker ratings?
After a natural disaster, tenants and landlords cannot rely on council visual inspections and sticker ratings alone to determine if the premises are uninhabitable.
Case study - Tribunal finds property uninhabitable despite Council’s white sticker
In a Tenancy Tribunal case, tenants challenged the notice that they received from their landlord when the rental property became uninhabitable after weather-related flooding.
The tenants argued that the house was “white stickered” by Auckland City Council (meaning it was considered safe to live in) and it didn’t show obvious damage.
However, the termination notice was upheld by the Tenancy Tribunal because testing of the property found high moisture levels, contamination due to black water ingress and subsequent mould.
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