Some landlords will try and create rental properties in places that aren't suitable for people to live in, or don't have council consent. These may include garages, commercial buildings, and separating off parts of existing houses.
The Tenancy Tribunal has powers to protect tenants who find that they are living in an "unlawful residential premises" (s 78A RTA), including refunding all or part of the rent they have paid.
What can a tenant do if they are living in an unlawful house?
It's very important for the health, safety and wellbeing of tenants that the home they are renting meets minimum building and health and safety standards, and is a lawful dwelling designed to be lived in.
If a tenant discovers that there are minor issues with a house that make it unlawful, they should contact their landlord setting out the problem and asking them to fix it promptly. For example, the flat may have a new kitchen that is unconsented, or doesn't have a stove.
If the issues are more serious, they may want to move out. See rules around leaving unlawful residential premises below.
Can the tenant get compensation for the tenancy being an unlawful one?
If the issues that relate to the tenancy being unlawful cost the tenant money, or impact negatively on their rights or on their enjoyment of the property, they should ask the landlord to pay for these costs.
The tenant could also ask for a refund of rent paid, and / or a rent reduction for the remainder of the tenancy. If the landlord refuses, they could seek damages or compensation from the landlord in the Tenancy Tribunal (s 77(2)(n) RTA).
What can the Tenancy Tribunal do about "unlawful residential premises"?
The Tenancy Tribunal has the power to declare that a house or flat is an "unlawful residential premises" (s 78A RTA).
The Tribunal can do this if
- the house or flat can't lawfully be used for living in, and
- the landlord's failure to follow the relevant laws caused or contributed to this problem.
These relevant laws include the landlord's duty to take reasonable steps to ensure there is no legal impediment to people living at the property (s 36 RTA), and their duty to follow all relevant building, and health and safety laws (s 45(1)(c) RTA).
If the Tenancy Tribunal finds that a house or flat is an "unlawful residential premises", they will be reluctant to make the tenant pay the landlord any rent in arrears or any other money (s 78A(3)(a) RTA). The Tribunal can also make the landlord refund the tenant all or part of the rent that they've paid (s 78A(4) RTA) and can terminate the tenancy.
Can the tenant leave their tenancy because it's an "unlawful residential premises"?
The law allows tenants to leave an unlawful flat or house with very little notice.
A tenant in a place that was an unlawful residential premises at the start of the tenancy, and still is an unlawful residential premises, may terminate the tenancy by giving not less than 2 days' notice to the landlord (s 56A(1) RTA). Tenants should make it clear that they are relying on this section of the RTA when they give notice to leave.
The tenant may give notice to terminate under section 56A of the RTA with or without an order from the Tribunal declaring the house or flat to be an unlawful residential premises (s 56A(2) RTA). However, it may be useful to make a claim to the Tenancy Tribunal to ensure the tenant is not pursued for rent and can potentially get some compensation.
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