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.

(3)

Despite anything to the contrary elsewhere in this Act,—

(a)

unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord—

(i)

any sum found to be owing by way of rent in arrear; or

(ii)

any other sum by way of damages or compensation:

(b)

if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.

(4)

Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in accordance with this Act in relation to the matter,—

(a)

the Tribunal may order the landlord to pay to the tenant—

(i)

the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or

(ii)

an amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct:

(b)

a section 78A work order may comprise or include an order that the landlord take the steps available to the landlord, as specified in the order, to (or to endeavour to)—

(i)

remove or rectify any impediment to the tenant lawfully occupying the premises for residential purposes; or

(ii)

comply with all requirements in respect of buildings, health, or safety under any enactment so far as they apply to the premises.

(5)

Even if the tenant does not apply for a particular order, the Tribunal may make any of the following orders on its own initiative:

(a)

any order under subsection (4)(a); and

(b)

any section 78A work order; and

(c)

any other order, authorised by this Act, that is in favour of the tenant (including, without limitation, an order under section 109 for an amount in the nature of exemplary damages for failure to comply with section 45(1)(c) or 66I(1)(c)).

Section 78A: inserted, on 27 August 2019, by section 19 of the Residential Tenancies Amendment Act 2019 (2019 No 37).