COVID-19 Response (Management Measures) Legislation Act 2021

Schedule 5 Ministry of Housing and Urban Development

s 3

1 Amendments to Residential Tenancies Act 1986
2 Section 145 amended (Provisions relating to outbreak of COVID-19)

(1)

In the heading to section 145, delete “outbreak of”.

(2)

In section 145, insert as subsection (2):

(2)

This section and Schedule 5 are repealed on the repeal of the COVID-19 Public Health Response Act 2020.

3 Schedule 1AA amended

In Schedule 1AA, after Part 5, insert:

Part 6 Provisions relating to COVID-19 Response (Management Measures) Legislation Act 2021

38 Order may be prepared before enactment or commencement of COVID-19 Response (Management Measures) Legislation Act 2021

Any action taken before the enactment or commencement of the COVID-19 Response (Management Measures) Legislation Act 2021 by or on behalf of a Minister of the Crown or the Government in relation to an order under clause 3 of Schedule 5 of this Act must be treated as having been taken by that Minister or the Government under and for the purposes of the COVID-19 Response (Management Measures) Legislation Act 2021 (as if that Act were already enacted and in force).

39 Transitional provision relating to repeal of Schedule 5

(1)

Any order that is made under clause 3 of Schedule 5, and that is in force when Schedule 5 is repealed, is revoked on that repeal.

(2)

The repeal of Schedule 5 does not affect the application of clauses 6 to 13 of Schedule 5 in relation to any tenancy affected, before the repeal, by the operation of Schedule 5 or by anything done under Schedule 5.

4 Schedule 5 replaced

Replace Schedule 5 with:

Schedule 5 Provisions relating to COVID-19

s 145(1)

1 Interpretation

(1)

In this schedule,—

area means a geographical area comprising all or part of New Zealand

COVID-19 public health order means a COVID-19 order within the meaning of the COVID-19 Public Health Response Act 2020 (see section 5(1) of that Act)

COVID-19 tenancies order has the meaning given in clause 3(1)

switching-on date, in relation to a COVID-19 tenancies order for an area, means the date specified in the order as the date on and from which the order applies to the area.

(2)

In this schedule,—

(a)

references to the application of a COVID-19 tenancies order to an area are references to the order’s application to tenancies of premises located in the area; and

(b)

references to a tenancy in an area are references to a tenancy of premises located in the area; and

(c)

references to section 60A are, in relation to any fixed-term tenancy granted before 11 February 2021, references to that section as in force immediately before that date.

(3)

In this schedule, a tenant of any premises resides in the premises if the tenant has not permanently vacated them.

2 Schedule applies despite any other provision of Act, etc

This schedule applies—

(a)

to a tenancy to which this Act applies; and

(b)

despite any other provision in this Act, or any other enactment, or any rule of law or agreement.

COVID-19 tenancies orders

3 Minister may make COVID-19 tenancies order for area

(1)

The Minister may make an order for the purpose of restricting the termination of residential tenancies in an area (a COVID-19 tenancies order).

(2)

However, the Minister may make the order only if satisfied that—

(a)

a COVID-19 public health order is or will be made containing measures that, subject to any exceptions specified in the order, restrict people in the area from moving (including on a permanent or long-term basis) to a new home or other place of residence; and

(b)

the COVID-19 tenancies order is necessary or desirable to support those measures.

(3)

A COVID-19 tenancies order must specify—

(a)

the area to which it applies; and

(b)

the date on and from which it applies to the area.

(4)

A COVID-19 tenancies order may also specify a date or period after which it will no longer apply to an area.

(5)

A COVID-19 tenancies order ceases to apply to an area on the earlier of—

(a)

the close of the date or period specified for the area under subclause (4) (if any); and

(b)

the revocation of the order, or the amendment of the order so that it ceases to apply to the area.

(6)

A COVID-19 tenancies order may—

(a)

apply to 1 or more areas; and

(b)

specify different dates or periods for different areas.

(7)

Before making or amending a COVID-19 tenancies order, the Minister must consult—

(a)

the Prime Minister; and

(b)

the Minister responsible for the administration of the COVID-19 Public Health Response Act 2020.

(8)

The Minister must—

(a)

keep every COVID-19 tenancies order under review; and

(b)

if satisfied that the criteria in subclause (2)(a) and (b) are no longer met in relation to an area to which a COVID-19 tenancies order applies, revoke the order, or amend it so that it ceases to apply to the area, as soon as is reasonably practicable.

(9)

Subclause (8)(b) does not limit the Minister’s ability to revoke or amend a COVID-19 tenancies order at any time.

(10)

Despite subclauses (8) and (9), any revocation by the Minister of a COVID-19 tenancies order, or amendment by the Minister of a COVID-19 tenancies order so that it ceases to apply to an area, must not come into force until at least 7 days after the revocation or amendment—

(a)

is published on the legislation website; and

(b)

has its making notified in the Gazette.

(11)

An order made under this clause is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Legislation Act 2019 requirements for secondary legislation made under this section
PublicationPCO must publish it on the legislation website and notify it in the GazetteLA19 s 69(1)(c)
PresentationThe Minister must present it to the House of RepresentativesLA19 s 114
DisallowanceIt may be disallowed by the House of RepresentativesLA19 ss 115, 116
This note is not part of the Act.

Tenancy terminations restricted while COVID-19 tenancies order applies

4 Restrictions on termination of tenancy

(1)

While a COVID-19 tenancies order applies to an area, no tenancy in the area terminates, and every fixed-term tenancy in the area that expires continues under section 60A(1) as a periodic tenancy, unless—

(a)

the tenancy is terminated, or the tenancy is not continued as a periodic tenancy, on the initiative of the tenant in accordance with a provision of this Act (including by a notice given, or an application made, before, on, or after the switching-on date); or

(b)

the tenancy is terminated with the written agreement of the landlord and the tenant; or

(c)

the tenancy is a fixed-term tenancy, and the landlord and the tenant have done any of the following in accordance with section 60A(2):

(i)

renewed, extended, or agreed to extend the existing tenancy agreement:

(ii)

entered into a new tenancy agreement:

(iii)

agreed not to continue with the tenancy; or

(d)

the termination is in accordance with section 50A, 53(4), 55(1)(a), (b), or (c), 59A, 61, 66U(1)(a) or (b), 66W, or 66X (but see subclause (3)); or

(e)

the termination is in accordance with clause 5 (anti-social behaviour); or

(f)

the tenant no longer resided in the premises on the switching-on date, and the termination or discontinuation is in accordance with a provision of this Act.

(2)

Subclause (1) applies to a fixed-term tenancy of 90 days or less as if it were a fixed-term tenancy of more than 90 days.

(3)

For the purposes of subclause (1)(d),—

(a)

section 55(1)(a) must be treated as if it referred to rent being at least 60 days in arrear (rather than at least 21 days in arrear):

(b)

on an application referred to in section 55(1)(a), the Tribunal may refuse to make an order—

(i)

if satisfied that the tenant is making reasonable endeavours to pay rent; and

(ii)

if, after balancing the interests of the tenant and landlord, the Tribunal considers that an order terminating the tenancy is not justified:

(c)

a landlord seeking to terminate a boarding house tenancy under section 66U(1)(a) or (b)(ii) must give at least 7 days’ notice:

(d)

a landlord seeking to terminate a boarding house tenancy under section 66U(1)(b)(i) must apply to the Tribunal for an order terminating the tenancy and, for the purposes of the application, section 55 applies (as modified by paragraphs (a) and (b) of this subclause) as if the boarding house tenancy were not a boarding house tenancy.

(4)

For the purposes of this clause, a termination under clause 7(3), 8(3), or 9(3) must be treated as being with the written agreement of the landlord and the tenant.

(5)

While a COVID-19 tenancies order applies to an area, a landlord must not give a notice, or make an application, for termination of a tenancy in the area unless—

(a)

the notice is given, or the application is made, in accordance with a provision specified in subclause (1)(d) (as modified by subclause (3)); or

(b)

the application is made in accordance with clause 5; or

(c)

the tenant no longer resided in the premises on the switching-on date, and the notice is given, or the application is made, in accordance with a provision of this Act.

(6)

See section 60AA (which has the effect that a landlord commits an unlawful act if they breach subclause (5) knowing that they are not entitled, under this Act, to give the notice or to make the application).

5 Termination for anti-social behaviour

(1)

While a COVID-19 tenancies order applies to an area, a landlord of a tenancy in the area may apply to the Tribunal for an order terminating the tenancy on the ground of anti-social behaviour.

(2)

The Tribunal may make the order if satisfied that the tenant, or a person in the premises with the tenant’s permission (other than the landlord or a person acting on the landlord’s behalf or with the landlord’s authority), has engaged in anti-social behaviour in connection with the tenancy.

(3)

However, the Tribunal must not make the order if satisfied that—

(a)

doing so would be unfair because of the circumstances in which the behaviour occurred (for example, circumstances of family violence) or the impact that terminating the tenancy would have on the tenant; or

(b)

in making the application, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy (unless the Tribunal is satisfied that the exercise or proposed exercise or the complaint was or would be vexatious or frivolous to such an extent that the landlord was justified in making the application).

(4)

In deciding whether to make an order under subclause (2), the Tribunal must take into account the impact that terminating the tenancy would have on the tenant.

(5)

For the purposes of subclause (2), if a tenant is in the premises at the time that another person engages in anti-social behaviour, the tenant is presumed to have permitted the person to be in the premises unless the tenant proves that they took all reasonable steps to prevent the person from entering the premises or to eject the person from the premises.

(6)

In this clause, anti-social behaviour means—

(a)

harassment; or

(b)

any intentional act that reasonably causes significant alarm, distress, or nuisance.

Effect on tenancy terminations initiated before COVID-19 tenancies order began to apply

6 Tenant may choose to remain in premises despite having initiated or agreed to termination

(1)

Subclause (2) applies if—

(a)

a COVID-19 tenancies order is made for an area; and

(b)

before the switching-on date,—

(i)

a tenant gave notice to terminate a tenancy in the area under a provision of this Act (a termination notice); or

(ii)

a tenant made an application for, and was granted, an order providing for the termination of a tenancy in the area (a termination order); or

(iii)

a tenant and a landlord agreed to terminate a tenancy in the area with effect on or after the switching-on date; and

(c)

the tenancy has not yet terminated under the termination notice, termination order, or agreement.

(2)

The tenant may, before the COVID-19 tenancies order ceases to apply to the area, give the landlord written notice of their intention to remain in the premises, in which case—

(a)

the termination notice, termination order, or agreement to terminate the tenancy is of no effect; and

(b)

the tenancy continues as if the termination notice had not been given, the termination order had not been made, or the agreement to terminate the tenancy had not been entered into.

(3)

If a termination order in relation to a tenancy becomes of no effect under subclause (2), the tenant may terminate the tenancy by giving at least 14 days’ notice to the landlord within 14 days after the COVID-19 tenancies order ceases to apply to the area.

(4)

Subclause (5) applies in relation to a fixed-term tenancy in an area if—

(a)

a COVID-19 tenancies order is made for the area; and

(b)

before the switching-on date,—

(i)

the tenant and landlord agreed under section 60A(2) not to continue with the tenancy; or

(ii)

the tenant gave the landlord notice under section 60A(2) (in relation to terminating or not continuing with the tenancy); and

(c)

the tenancy has not yet expired.

(5)

The tenant may, before the COVID-19 tenancies order ceases to apply to the area, give the landlord written notice of their intention to remain in the premises, in which case—

(a)

the agreement or notice is of no effect; and

(b)

on expiring, the fixed-term tenancy continues under section 60A as a periodic tenancy as if the agreement had not been entered into or the notice had not been given.

7 Certain notices to terminate given by landlord suspended or of no effect

(1)

This clause applies if—

(a)

a COVID-19 tenancies order is made for an area; and

(b)

before the switching-on date, a landlord of a tenancy in the area gave notice to terminate the tenancy with effect on or after the switching-on date (a termination notice); and

(c)

the termination notice was given in accordance with a provision of this Act other than a provision specified in clause 4(1)(d) (as modified by clause 4(3)); and

(d)

on the switching-on date, the tenant still resides in the premises.

(2)

The tenant may, by written notice given to the landlord before the termination date provided for by the termination notice, elect to terminate the tenancy on that date.

(3)

If the tenant makes an election under subclause (2), the tenancy terminates on the termination date provided for by the termination notice.

(4)

If the tenant does not make an election under subclause (2) and the termination notice was given under section 51 or 53B(1)(b)(iii), the termination notice takes effect on the later of—

(a)

the termination date provided for by the termination notice; and

(b)

28 days after the COVID-19 tenancies order ceases to apply to the area.

(5)

A termination notice taking effect on the date provided for by subclause (4)(b) takes effect on that date—

(a)

as if the notice had provided for the termination to occur on that date; and

(b)

with any other necessary modifications.

(6)

If the tenant does not make an election under subclause (2) and the termination notice was given under a provision other than section 51 or 53B(1)(b)(iii), the termination notice is of no effect and the tenancy continues as if the termination notice had not been given.

(7)

Despite subclause (1), this clause does not apply to a termination notice to which section 60A(2) applies (as to which, see clause 9).

8 Certain tribunal orders for termination obtained by landlord suspended

(1)

This clause applies if—

(a)

a COVID-19 tenancies order is made for an area; and

(b)

before the switching-on date, the Tribunal made an order terminating a tenancy in the area with effect on or after the switching-on date (a termination order) (whether or not the termination order also covers any other matter); and

(c)

the termination order was made on the application of the landlord in accordance with a provision of this Act other than—

(i)

a provision specified in clause 4(1)(d) (as modified by clause 4(3)); and

(ii)

clause 5; and

(d)

on the switching-on date, the tenant still resides in the premises.

(2)

The tenant may, by written notice given to the landlord before the termination date provided for by the termination order, elect to terminate the tenancy on that date.

(3)

If the tenant makes an election under subclause (2), the tenancy terminates on the termination date provided for by the termination order.

(4)

If the tenant does not make an election under subclause (2), the termination order takes effect on the later of—

(a)

the termination date provided for by the termination order; and

(b)

14 days after the COVID-19 tenancies order ceases to apply to the area.

(5)

A termination order taking effect on the date provided for by subclause (4)(b) takes effect on that date—

(a)

as if it had provided for the termination to occur on that date; and

(b)

with any other necessary modifications.

9 Certain discontinuation notices given by landlord of no effect

(1)

This clause applies if—

(a)

a COVID-19 tenancies order is made for an area; and

(b)

before the switching-on date, a landlord of a fixed-term tenancy in the area gave notice under section 60A(2) that would, if the COVID-19 tenancies order had not applied to the area, have prevented the tenancy from continuing under section 60A(1) as a periodic tenancy (a discontinuation notice); and

(c)

on the switching-on date, the tenant still resides in the premises.

(2)

The tenant may, by written notice given to the landlord before the end of the tenancy’s term, elect not to continue with the tenancy.

(3)

If the tenant makes an election under subclause (2), the tenancy terminates at the end of the fixed term.

(4)

If the tenant does not make an election under subclause (2),—

(a)

the discontinuation notice is of no effect; and

(b)

the tenancy continues under section 60A(1) as a periodic tenancy, in accordance with clause 4(1).

10 Landlord may terminate certain periodic tenancies that were formerly fixed-term tenancies once COVID-19 tenancies order no longer applies

(1)

This clause applies if—

(a)

a COVID-19 tenancies order is made for an area; and

(b)

a fixed-term tenancy in the area has continued under section 60A(1) as a periodic tenancy, in accordance with clause 4(1); and

(c)

if the COVID-19 tenancies order had not applied to the area, that continuation would not have occurred because—

(i)

the fixed-term tenancy was for a term of 90 days or less; or

(ii)

before the switching-on date, the landlord gave notice under section 60A(2) that would have prevented the tenancy from continuing as a periodic tenancy.

(2)

The landlord may terminate the tenancy by giving at least 28 days’ notice to the tenant within 28 days after the COVID-19 tenancies order ceases to apply to the area.

11 Position if COVID-19 tenancies orders apply to area more than once

(1)

Clauses 4 to 10 apply afresh if another COVID-19 tenancies order (a subsequent order) applies to the same area as an earlier order.

(2)

Nothing done under clauses 6 to 10 before the switching-on date of a subsequent order limits a tenant’s fresh rights under clauses 6 to 10 after that date (for example, a tenant’s fresh right to continue with a tenancy trumps any termination decision of the tenant made under those clauses before that date (for example, under clause 6(3), 7(2), 8(2), or 9(2))).

(3)

However,—

(a)

a tenant may not give notice to terminate a tenancy under clause 6(3) (a clause 6(3) termination notice) if—

(i)

the tenant was previously entitled to give a clause 6(3) termination notice but did not do so; and

(ii)

there was a period of at least 14 consecutive days that commenced on the first day on which the tenant first became so entitled and ended with the close of the day immediately before the switching-on date of a subsequent order:

(b)

a landlord may not give notice to terminate a tenancy under clause 10(2) (a clause 10(2) termination notice) if—

(i)

the landlord was previously entitled to give a clause 10(2) termination notice but did not do so; and

(ii)

there was a period of at least 28 consecutive days that commenced on the first day on which the landlord first became so entitled and ended with the close of the day immediately before the switching-on date of a subsequent order.

(4)

For the purposes of any fresh application of clause 6 as a result of a subsequent order, an election by a tenant under clause 7(2), 8(2), or 9(2) must be treated as being an agreement to which clause 6(1)(b)(iii) applies.

Consequences of movement restrictions for new tenancies

12 Consequences of tenant remaining in premises

If, as a consequence of the operation of clauses 4 to 11 or anything done under them, vacant possession of any premises cannot be provided to an incoming or prospective tenant,—

(a)

the landlord must, as soon as practicable,—

(i)

advise the incoming or prospective tenant that the premises are no longer available; and

(ii)

refund the incoming or prospective tenant—

(A)

any amount paid to the landlord (or to any person on the landlord’s behalf) by way of rent in advance; and

(B)

any amount so paid by way of bond that has not been lodged with the chief executive; and

(b)

the provisions of this Act that relate to payment of bonds lodged with the chief executive apply, with any necessary modifications, in relation to any bond that has been paid under the tenancy agreement with the incoming or prospective tenant and lodged with the chief executive; and

(c)

the incoming or prospective tenant has no right to occupy the premises; and

(d)

the landlord and the incoming or prospective tenant are released from any obligations owed to each other in relation to the tenancy (except as provided by this clause).

13 Consequences if new tenant restricted by COVID-19 public health order from moving to premises

(1)

An incoming or prospective tenant who is restricted by a COVID-19 public health order from moving to the premises may terminate the tenancy by giving at least 2 days’ notice to the landlord.

(2)

Subclause (1) applies regardless of whether—

(a)

the tenancy has commenced; or

(b)

any other tenant under the tenancy is restricted from moving to the premises; or

(c)

the tenant or premises are in an area to which a COVID-19 public health order applies.

(3)

If a tenant terminates a tenancy under this clause,—

(a)

the landlord must, as soon as practicable, refund—

(i)

any amount paid to the landlord (or to any person on the landlord’s behalf) by way of rent in advance that is attributable to the period after the tenancy is terminated; and

(ii)

any amount so paid by way of bond that has not been lodged with the chief executive; and

(b)

the provisions of this Act that relate to payment of bonds lodged with the chief executive apply, with any necessary modifications, in relation to any bond that has been paid under the tenancy agreement with the tenant and lodged with the chief executive.

Tribunal proceedings

14 Application of clause 15

Clause 15 applies for a period of 12 months starting with the coming into force of Schedule 5 of the COVID-19 Response (Management Measures) Legislation Act 2021.

15 Tribunal proceedings

The Tribunal may conduct its proceedings (whether they relate to this schedule or otherwise) as it sees fit, including on the papers.