Supplementary Order Paper No 565

No 565

House of Representatives

Supplementary Order Paper

Tuesday, 4 August 2020

Residential Tenancies Amendment Bill

Proposed amendments

Hon Kris Faafoi, in Committee, to move the following amendments:

Clause 2

Replace clause 2(1) (page 5, lines 5 and 6) with:

(1)

Sections 5(1A) and (3), 19, 69AAA to 71, 72, and 74A come into force on the day after the date on which this Act receives the Royal assent.

(1A)

Sections 31(1A) to (1C), 36A, 37A, 47(7), 50(1) to (3), 51(2) to (4), 51A, 68(1), and 73(2) come into force on a date appointed by the Governor-General by Order in Council.

After clause 2(2) (page 5, after line 8), insert:

(3)

One or more orders may be made under subsection (1A) bringing different provisions into force on different dates and appointing different dates for different purposes.

(4)

Any provision of this Act that may be brought into force under subsection (1A) and that is not in force on the expiry of the 12-month period that starts on the date of Royal assent comes into force on the expiry of that 12-month period.

Clause 5

In clause 5(1A), new section 5(1)(y)(ii), delete “or kind” (page 8, line 14).

Clause 31

After clause 31(1) (page 18, after line 13), insert:

(1A)

In section 50(1)(a), replace “sections 56A(1),” with “sections 55AA, 56A(1),”.

(1B)

After section 50(1)(ab), insert:

(ac)

by the sole tenant under a fixed-term or periodic tenancy giving notice of withdrawal under section 56B:

(1C)

In section 50(1)(b) (as inserted by subsection (1) of this section), replace “sections 56A(1),” with “sections 55AA, 56A(1),”.

Clause 35

In clause 35, replace new section 53B(1)(b)(iii)(B) (page 21, lines 2 to 6) with:

(B)

the other housing is appropriate for the tenant’s housing needs as most recently assessed (regardless of when that assessment took place).

In clause 35, replace new section 53B(2) (page 21, lines 7 to 10) with:

(2)

In this section,—

agency, community housing, community housing provider, Kāinga Ora housing, registered community housing provider, social housing, and social housing provider have the meanings given to them by section 2(1) of the Public and Community Housing Management Act 1992

as most recently assessed means—

(a)

as most recently assessed by the agency and notified to the provider under section 103 of the Public and Community Housing Management Act 1992; or

(b)

if there has been no such assessment and notification under that section in relation to the tenant, as most recently assessed by HNZ

HNZ has the meaning that it had under section 2(1) of the Public and Community Housing Management Act 1992 as in force on 13 April 2014.

New clause 36A

After clause 36 (page 21, after line 29), insert:

36A New section 55AA inserted (Termination by notice for physical assault by tenant)

After section 55, insert:

55AA Termination by notice for physical assault by tenant

(1)

A landlord may terminate a fixed-term or periodic tenancy by giving at least 14 days’ notice to the tenant if—

(a)

the tenant has physically assaulted the landlord, the owner, a member of the landlord’s or owner’s family, or the landlord’s agent; and

(b)

a charge has been filed in respect of the physical assault against the tenant by or on behalf of the Crown.

(2)

For the purpose of subsection (1)(b), a charge has been filed in respect of a physical assault if the particulars of the charge describe a physical assault against a person referred to in subsection (1)(a), regardless of the offence that is specified in the charge.

(3)

A notice to terminate a tenancy under this section must—

(a)

be in the approved form and include the prescribed information; and

(b)

be accompanied by qualifying evidence of the matters in subsection (1)(b); and

(c)

advise the tenant of the tenant’s right to make an application to the Tribunal challenging the notice (see sections 77(1) and 78(1)(a) regarding the Tribunal); and

(d)

be signed by the landlord or the landlord’s agent.

(4)

If the tenant makes an application to the Tribunal challenging the notice, it is for the landlord to prove that the physical assault occurred and that the notice met the requirements of subsection (3).

(5)

If the tenant makes an application to the Tribunal challenging the notice before the tenancy is terminated, the tenancy does not terminate under this section except in accordance with an order of the Tribunal.

(6)

In this section,—

charge means a charging document under section 14 of the Criminal Procedure Act 2011

physical assault means the act of intentionally applying force to the person of another, directly or indirectly

qualifying evidence means—

(a)

a declaration in the approved form made by a person who is prescribed, or is of a class prescribed, for the purposes of this subsection; or

(b)

evidence, in the approved form, of a prescribed type.

Clause 37

In clause 37, replace “After section 55” (page 21, line 31) with “Before section 56”.

New clause 37A

After clause 37 (page 23, after line 17), insert:

37A New sections 56B to 56E inserted

After section 56A, insert:

56B Withdrawal from tenancy following family violence

(1)

A tenant under a fixed-term or periodic tenancy may withdraw from the tenancy by giving at least 2 days’ notice to the landlord if—

(a)

the notice is accompanied by qualifying evidence that the tenant has been a victim of family violence while a tenant of the premises; and

(b)

the notice is in the approved form and includes the prescribed information.

(2)

If there are no other tenants under the tenancy at the time of the withdrawal, the tenancy terminates.

(3)

If there are other tenants (remaining tenants) under the tenancy at the time of the withdrawal,—

(a)

the tenant withdrawing from the tenancy (the withdrawing tenant) ceases to be responsible to the landlord for obligations under the tenancy agreement and this Act, except in respect of any liability for anything done or omitted to be done before the withdrawal; and

(b)

the tenancy continues in relation to the remaining tenants only; and

(c)

the withdrawing tenant must give each remaining tenant notice of the withdrawal no later than the close of the day that is 2 days after the date of the withdrawal; and

(d)

the amount of rent for which the remaining tenants are liable is reduced as set out in subsection (5) (unless subsection (6) applies).

(4)

A failure to comply with subsection (3)(c) does not affect the validity of the withdrawal.

(5)

For the period of 2 weeks beginning with the day after the date of the withdrawal, the rent payable for the premises is reduced to an amount calculated in accordance with the following formula:

a = b ÷ c × d

where—

a

is the rent payable for the 2-week period

b

is the rent that would otherwise have been payable for the 2-week period

c

is the number of tenants immediately before the withdrawal

d

is the number of remaining tenants.

(6)

However, the amount of rent is not reduced under subsection (5) if—

(a)

the rent payable under the tenancy by the remaining tenants is income-related rent; or

(b)

the tenancy is a PACHMA tenancy prescribed, or of a class prescribed, for the purposes of this subsection; or

(c)

the tenancy, or the landlord under the tenancy, is prescribed, or of a class prescribed, for the purposes of this subsection.

(7)

Neither a rent reduction under subsection (5), nor the reinstatement from the end of the 2-week period of the rent previously payable, is a variation of the tenancy agreement for the purposes of sections 13B and 13C, and the reinstatement does not constitute a rent increase.

(8)

In this section,—

family violence has the meaning given to it by section 9 of the Family Violence Act 2018

income-related rent, Kāinga Ora housing, and social housing have the meanings given to them by section 2(1) of the Public and Community Housing Management Act 1992

PACHMA tenancy means a tenancy that—

(a)

was granted before 14 April 2014 and is a tenancy of Kāinga Ora housing; or

(b)

was granted as a tenancy of social housing to a tenant assessed under the Public and Community Housing Management Act 1992 as eligible to be allocated social housing

qualifying evidence means—

(a)

a declaration in the approved form made by a person who is prescribed, or is of a class prescribed, for the purposes of this subsection; or

(b)

evidence, in the approved form, of a prescribed type.

56C Service of notices of withdrawal and accompanying evidence

(1)

Despite section 136(6),—

(a)

if a notice of withdrawal under section 56B(1) and accompanying qualifying evidence under section 56B(1)(a) are sent by post in accordance with section 136, they are to be treated as given to the landlord on the date on which they are posted, and, in proving that the notice and evidence were given, it is sufficient to prove that the letter was properly addressed and posted:

(b)

if a notice of withdrawal under section 56B(3)(c) is sent by post in accordance with section 136, it is to be treated as given to the tenant on the date on which it is posted, and, in proving that the notice was given, it is sufficient to prove that the letter was properly addressed and posted.

(2)

Despite section 136(7),—

(a)

if a notice of withdrawal under section 56B(1) and accompanying qualifying evidence under section 56B(1)(a) are delivered to an address in accordance with section 136, they are to be treated as given to the landlord on the date on which they are delivered, and, in proving that the notice and evidence were given, it is sufficient to prove that the letter was properly addressed and delivered:

(b)

if a notice of withdrawal under section 56B(3)(c) is delivered to an address in accordance with section 136, it is to be treated as given to the tenant on the date on which it is delivered, and, in proving that the notice was given, it is sufficient to prove that the letter was properly addressed and delivered.

56D Termination where it would be unreasonable to require remaining tenant to continue with tenancy

(1)

A tenant under a fixed-term tenancy from which another tenant withdraws under section 56B may apply to the Tribunal for an order terminating the tenancy on the ground of hardship.

(2)

The Tribunal may make the order only if satisfied that,—

(a)

as a result of the withdrawal, the tenant who made the application is suffering, or will suffer, hardship; and

(b)

that hardship is or will be greater than the hardship that the landlord would suffer if the tenancy were terminated; and

(c)

because of the hardship, it would be unreasonable to require the tenant to continue with the tenancy.

(3)

Any application under this section must be made before the end of the period of 60 days beginning with the day after the date of the withdrawal.

(4)

Any order under this section must specify a date for the termination.

56E Disclosure of notice of withdrawal or accompanying evidence

(1)

A landlord, or a person or class of person prescribed for the purposes of section 56B(8), must not disclose the whole or part of a notice of withdrawal under section 56B(1), or any of the accompanying qualifying evidence, unless the disclosure is permitted by subsection (2).

(2)

The disclosure is permitted if it—

(a)

is with the consent of the tenant who gave the notice; or

(b)

is for the purpose of seeking legal advice; or

(c)

is for the purposes of, or in connection with, any legal proceedings or procedure under this or any other Act to settle a dispute between the landlord and the tenant, or between the landlord and a guarantor of the tenant, in relation to the tenancy; or

(d)

is of a type, or in circumstances, prescribed by regulations for the purposes of this section; or

(e)

is otherwise authorised or required by or under any enactment or rule of law.

(3)

A person who contravenes subsection (1) commits an unlawful act.

Clause 39

In clause 39, new section 60A(2)(d) (page 23, lines 35 and 36), replace section 50(1)(a), (ab), or (b) with “any of section 50(1)(a) to (b).

In clause 39, new section 60A(3)(b) (page 24, lines 3 and 4), replace section 50(1)(a), (ab), or (b) with “any of section 50(1)(a) to (b).

In clause 39, new section 60A(4) (page 24, line 8), replace section 50(1)(a), (ab), or (b) as appropriate” with “the relevant paragraph of section 50(1).

Clause 47

After clause 47(6) (page 26, after line 6), insert:

(7)

After section 77(7A), insert:

(7B)

The Tribunal does not have jurisdiction to determine a dispute so far as it raises a question as to whether a tenant of premises who gave notice accompanied by qualifying evidence under section 56B was in fact a victim of family violence while a tenant of the premises.

Clause 50

Replace clause 50 (page 26, lines 21 and 22) with:

50 Section 95 amended (Proceedings usually to be in public)

(1)

In section 95(1), replace “subsection (2)” with subsections (1A) and (2)”.

(2)

After section 95(1), insert:

(1A)

If the proceedings relate to withdrawal from a tenancy under section 56B, the Tribunal must order that the whole of the hearing be held in private.

(3)

In section 95(2), replace “The Tribunal” with “In any other case, the Tribunal”.

(4)

Repeal section 95(3) and (4).

Clause 51

Replace clause 51 (page 26, line 23 to page 27, line 5) with:

51 New section 95A inserted (Suppression orders)

(1)

After section 95, insert:

95A Suppression orders

(1)

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

(2)

The Tribunal must, if the chief executive acts in the place of a party under section 124A, order that the name and any identifying particulars of that party not be published.

(3)

Subsection (4) applies to proceedings whether or not subsection (1) or (2) also applies to the proceedings.

(4)

The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

(5)

An order under subsection (4) may be made subject to any conditions that the Tribunal considers appropriate.

(6)

An order under subsection (4), or a condition under subsection (5), must not be inconsistent with subsection (1) or (2) (to the extent that those subsections also apply to the proceedings).

(2)

After section 95A(1) (as inserted by subsection (1) of this section), insert:

(1A)

The Tribunal must, in any proceedings that relate to withdrawal from a tenancy under section 56B, order that the name and any identifying particulars of the parties not be published.

(3)

In section 95A(3) (as inserted by subsection (1) of this section), replace subsection (1) or (2) with “any of subsections (1) to (2).

(4)

In section 95A(6) (as inserted by subsection (1) of this section), replace subsection (1) or (2) with “any of subsections (1) to (2).

New clause 51A

After clause 51 (page 27, after line 5), insert:

51A Section 96 amended (Further provisions relating to procedure generally)

(1)

After section 96(3), insert:

(3AA)

The Tribunal must, on the application of any party to proceedings before it relating to withdrawal from a tenancy under section 56B, permit the party’s evidence to be given remotely if the necessary facilities are available.

(3AB)

If evidence is to be given remotely under subsection (3AA), the Tenancy Adjudicator conducting the hearing or a Registrar of the Tribunal may determine which 1 or more of the following are to be used:

(a)

telephone:

(b)

audiovisual link:

(c)

any other remote access facility that the Tenancy Adjudicator or Registrar considers appropriate.

(2)

In section 96(3A), replace “a matter” with “any other matter”.

Clause 68

Replace clause 68 (page 37, line 36 to page 38, line 2) with:

68 Section 136 amended (Service of documents)

(1)

After section 136(7), insert:

(7A)

Section 56C overrides subsections (6) and (7) in relation to the giving of a notice of withdrawal under section 56B(1) and (3)(c) and accompanying qualifying evidence under section 56B(1)(a).

(2)

After section 136(10), insert:

(11)

Nothing in this section applies to the service of infringement notices (see section 126F).

New clause 69AAA

After clause 69 (page 38, after line 18), insert:

69AAA New sections 138E and 138F inserted

After section 138D, insert:

138E Regulations relating to termination of tenancy for physical assault by tenant

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing all or any of the following matters:

(a)

information to be included in a notice under section 55AA(3)(a):

(b)

persons, or classes of persons, whose declarations are qualifying evidence for the purposes of section 55AA(6):

(c)

types of qualifying evidence for the purposes of section 55AA(6).

(2)

The Minister must consult the Minister of Justice before recommending the making of regulations under this section.

138F Regulations relating to withdrawal from tenancy following family violence

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing all or any of the following matters:

(a)

information to be included in a notice under section 56B(1)(b):

(b)

persons, or classes of persons, whose declarations are qualifying evidence for the purposes of section 56B(8):

(c)

types of qualifying evidence under section 56B(8):

(d)

PACHMA tenancies, or classes of PACHMA tenancies, in relation to which rent is not to be reduced under section 56B(3)(d) and (5):

(e)

other tenancies, or other classes of tenancies, in relation to which rent is not to be reduced under section 56B(3)(d) and (5):

(f)

landlords, or classes of landlords, in relation to whose tenancies rent is not to be reduced under section 56B(3)(d) and (5):

(g)

types of permitted disclosure, or circumstances in which disclosure is permitted, under section 56E.

(2)

The Minister must consult the Minister of Justice before recommending the making of regulations under this section.

(3)

The Minister must not recommend the making of regulations under subsection (1)(e) unless satisfied that, following any withdrawal under section 56B from tenancies, or classes of tenancies, prescribed by those regulations,—

(a)

the landlords of those tenancies will reduce the rent for which any remaining tenants under that section are liable; and

(b)

the reduction will be the same or substantially the same as, or greater than, the reduction that would otherwise have applied under section 56B(3)(d) and (5).

(4)

The Minister must not recommend the making of regulations under subsection (1)(f) unless satisfied that, following any withdrawal under section 56B from tenancies of the landlords, or classes of landlords, prescribed by those regulations,—

(a)

those landlords, or classes of landlords, will reduce the rent for which any remaining tenants under that section are liable; and

(b)

the reduction will be the same or substantially the same as, or greater than, the reduction that would otherwise have applied under section 56B(3)(d) and (5).

(5)

Regulations under this section may make different provision for different classes of persons, premises, or tenancies.

(6)

In this section, PACHMA tenancy has the meaning given to it by section 56B(8).

Clause 69A

In clause 69A, new section 139A(3), delete “kinds or” (page 38, line 33).

Clause 70

In clause 70(3A), new section 140(1)(eaa), replace “, or kinds or classes of persons,” (page 39, line 11) with “or classes of persons”.

Clause 73

Replace clause 73 (page 39, lines 22 to 24) with:

73 Schedule 1A replaced

(1)

Replace Schedule 1A with the Schedule 1A set out in Schedule 2 of this Act.

(2)

In Schedule 1A (as replaced by subsection (1) of this section), after the item relating to section 54(3), insert:

56E(3)Disclosing notice of withdrawal or accompanying qualifying evidence of family violence3,000

New clause 74A

After clause 74 (page 39, after line 27), insert:

74A Schedule 5 amended

(1)

In Schedule 5, replace clause 14 with:

14 Application of clause 15

(1)

Clause 15(1) and (2) applies for a period of 12 months starting on the commencement date (the 12-month period).

(2)

Clause 15(3) to (6) applies for the part (if any) of the 12-month period during which section 56B (as inserted by section 37A of the Residential Tenancies Amendment Act 2020) is in force.

(2)

In Schedule 5, after clause 15(2), insert:

(3)

In relation to any proceedings that relate to withdrawal from a tenancy under section 56B, subclauses (1) and (2) are subject to subclauses (4) to (6).

(4)

If the Tribunal decides to hold a hearing, it must order that the whole of the hearing be held in private.

(5)

The Tribunal must, on the application of any party to the proceedings, permit the party’s evidence to be given remotely if the necessary facilities are available.

(6)

If evidence is to be given remotely under subclause (5), the Tenancy Adjudicator conducting the hearing or a Registrar of the Tribunal may determine which 1 or more of the following are to be used:

(a)

telephone:

(b)

audiovisual link:

(c)

any other remote access facility that the Tenancy Adjudicator or Registrar considers appropriate.

Schedule 1

In Schedule 1, new Part 5 of Schedule 1AA, after clause 27 (page 40, after line 31), insert:

27A Notice to increase rent

(1)

An amendment made by section 19 or 72 of the 2020 Act does not apply to an increase of rent by notice given under section 24 of this Act if the notice is given before the commencement date for those amendments and relates to an increase with effect on or after 26 September 2020.

(2)

See clauses 2 and 11 to 13 of Schedule 5.

In Schedule 1, new Part 5 of Schedule 1AA, after clause 29 (page 41, after line 9), insert:

29A Termination for physical assault by tenant

The amendment made by section 36A of the 2020 Act does not apply in relation to a physical assault that occurred before the commencement date.

In Schedule 1, new Part 5 of Schedule 1AA, after clause 30 (page 41, after line 14), insert:

30A Withdrawal following family violence

The amendment made by section 37A of the 2020 Act applies whether the family violence occurred before, on, or after the commencement date.

Schedule 2

In Schedule 2, new Schedule 1A, item relating to section 66I(7) (page 44), column 3, insert “750”.

In Schedule 2, new Schedule 1A, insert in their appropriate numerical order:

45(1AB)Landlord providing premises, or continuing to provide premises, despite landlord’s knowledge of contamination of premises4,000
66I(5)Landlord of boarding house providing, or continuing to provide, boarding room despite landlord’s knowledge of contamination of boarding room or facilities4,000

Schedule 4

In Schedule 4, Part 1, item relating to the Unit Titles Act 2010, new section 176(1)(ab), replace section 95A(3) and (4) (page 48, line 14) with section 95A(1) to (3) and (6).

Explanatory note

This Supplementary Order Paper amends the Residential Tenancies Amendment Bill. The Bill amends the Residential Tenancies Act 1986 (the Act). The amendments contained in this SOP are summarised below.

Withdrawal from tenancy following family violence

New section 56B of the Act, inserted by new clause 37A of the Bill, gives a tenant who has experienced family violence the ability to withdraw from a tenancy. In order to withdraw, the tenant will need to give a notice and qualifying evidence of the family violence to the landlord. What constitutes qualifying evidence for this purpose will be set out in more detail in regulations to be made under the Act. A tenant who withdraws from a tenancy on this ground ceases to be responsible for obligations under the tenancy agreement.

If there are no other tenants at the time of the withdrawal, the tenancy is terminated. If other tenants remain, the rent is reduced for the 2-week period following the withdrawal (unless the rent is income-related rent within the meaning of the Public and Community Housing Management Act 1992 or in other prescribed circumstances). If the tenancy is a fixed-term tenancy, remaining tenants can apply to the Tenancy Tribunal to terminate the tenancy in certain circumstances where they are suffering hardship as a result of the withdrawal (see new section 56D, inserted by new clause 37A).

Related provisions inserted by the SOP prohibit the disclosure of the notice of withdrawal (and the qualifying evidence) except in certain limited circumstances and, in related Tenancy Tribunal proceedings, provide for the evidence to be given remotely, hearings to be held in private, and the name and identifying particulars of the parties to be suppressed.

Termination by notice for physical assault by tenant

A new ground for termination of periodic and fixed-term tenancies in the case of physical assault by a tenant is added. Under new section 55AA, if a tenant physically assaults the landlord, the owner, a member of the landlord’s or owner’s family, or the landlord’s agent, and is charged in respect of the physical assault, the landlord may terminate the tenancy on 14 days’ notice.

The notice must comply with certain requirements and be accompanied by qualifying evidence of the charge. What evidence is qualifying evidence will be set out in regulations made under the Act.

If a tenant challenges the notice in the Tenancy Tribunal, the burden of proving the physical assault and the charge is on the landlord.

Bringing forward commencement of rent increase provisions

Clauses 19 and 72 of the Bill relate to rent increases. The effect of those clauses is that rent cannot be increased more than once every 12 months. (Under the Act currently, rent cannot be increased more than once every 6 months. In addition, clause 12 of Schedule 5 prohibits any rent increases until the close of 25 September 2020.)

In the Bill as introduced, those changes were to come into force on the day that is 6 months after the date of Royal assent. In this SOP, the commencement of those 2 clauses relating to rent increases is brought forward to the day after the date of Royal assent.

New clause 27A of Schedule 1AA, inserted by this SOP, provides that that change does not apply to an increase of rent by notice if the notice is given on or before the date of Royal assent and relates to an increase with effect on or after 26 September 2020.

Extending flexibility for Tribunal proceedings

Clause 15 of Schedule 5 of the Act provides additional flexibility for Tribunal proceedings. That provision was to cease applying at the close of 25 September 2020. One of the effects of new clause 74A, inserted into the Bill by this SOP, is to extend the application of clause 15 by an additional 6 months.

Minor and technical changes

Other minor and technical changes are made to the Bill, for example, to correct typographical errors, to ensure that the changes in the Bill work as intended (including with other extant changes to the Act), or to align the language used in the Bill with the language used in the Act. For example,—

  • the SOP shortens a few instances of the phrase “kinds or classes” in the Bill to “classes” for consistency with the Act. (In that case, no substantive change is intended.):

  • the SOP inserts an amount into new Schedule 1A that had been inadvertently omitted from the introduction version of the Bill:

  • the SOP inserts, into new Schedule 1A, 2 unlawful acts that are due to be inserted into that schedule by section 48 of the Residential Tenancies Amendment Act 2019 at some point before the Bill replaces Schedule 1A.

Departmental disclosure statement

The Ministry of Housing and Urban Development is required to prepare a disclosure statement to assist with the scrutiny of this Supplementary Order Paper. The disclosure statement provides access to information about any material policy changes to the Bill and identifies any new significant or unusual legislative features of the Bill as amended.

Regulatory impact statement

The Ministry of Housing and Urban Development produced regulatory impact statements on 2 and 21 July 2020 to help inform the new policy decisions taken by the Government relating to the contents of this SOP.