Landlords and tenants both have things they need to consider
when looking at renting a written off house, particularly as some
of the responsibilities of each party under the Residential
Tenancies Act 1986 and other legislation cannot be contracted out
As a landlord, you have certain responsibilities. You must
provide and maintain the property in a reasonable state of repair,
having regard to the age and character of the property. However,
the period that a house is likely to remain habitable may also be
taken into account when determining how well maintained the
property must be.
Additionally, you must comply with all requirements relating to
health and safety. This includes the provision of adequate drinking
water, together with adequate toilet and shower facilities. Also,
you must provide an adequate waste removal system. Many agreements
for sale and purchase of written off properties will exclude the
seller from having to provide these services in a sale, but you
will not be able to contract out of these requirements with any
Failure to comply with these responsibilities is unlawful. A
Wellington landlord was recently found to have misled tenants about
the safety of the property and its earthquake risks. The landlord
in that case was ordered to pay compensation to the tenants. Be
honest with your tenants about the condition of the property.
If you are considering renting the property, we recommend that
you first obtain a structural engineer's report to confirm that
the property is safe. Additionally, any works required to make the
house weathertight should be completed before it is rented.
Insurance is another issue. As the landlord, you are unlikely to
be able to obtain insurance for the written off house itself, but
you are probably also unlikely to be able to get the usual
landlord's insurance covering loss of rents and damage to the
property by the tenant. If the property is dangerous and causes
damage to the tenant or their possessions, without insurance you
may become personally liable for any such damage.
The lack of insurance for the house may also affect the
tenant's ability to obtain contents insurance, so you should
advise your tenant that the property is uninsured. As well as
affecting the tenant's ability to insure their own property,
you may not be able to recover any loss from your tenant's
insurer where your tenant causes damage to the property, as
liability for such damage would normally be covered by their
The Ministry of Business, Innovation and Employment (formerly
the Department of Building and Housing) publishes suburb specific
market rent. We recommend that you look at this information when
setting the rent to ensure it is in line with the market rent. If
the tenant disputes the rental within the first three months of the
tenancy starting, they may apply to the Tenancy Tribunal to reduce
the rent if it's considered above the market rent by a
Tenants are in a difficult position in Canterbury as there is
high demand for rental properties, and many tenants must feel that
they don't have a lot of choices if they want to stay in a
However, at a minimum, you need to check that the house is
watertight, able to be heated during the winter months, and
generally safe to be occupied. You also need to satisfy yourself
that the damage will not affect your enjoyment of the property or
cause harm to any people living in the property, or their guests.
You do have rights if the property is not safe and sanitary,
regardless of what any tenancy agreement might say.
If you are a tenant, make sure you can get contents insurance if
the house itself is not insured. As already noted, if you don't
have insurance, as well as not having cover to loss or damage to
your property, you will not have cover for any damage that you or
your property causes to another person or their property. This
includes the uninsured house in which you are living.
Ideally you should have a clear, written agreement as to the
responsibility for maintenance, provision for what happens if
another earthquake significantly worsens the damage to the
property, and agreement as to what you may be liable for if you
cause damage to the landlord's property.
You always have basic rights under a tenancy agreement. If you
are concerned that those rights are not being met, contact your
lawyer for more information about your rights and how you can
ensure your rights are being met.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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