Rule 8.9 of the Land Transport (Road User) Rules 2004 requires that all motor vehicles must be kept in appropriate condition, obliging vehicle owners to obtain a “warrant of fitness” demonstrating that the tyre condition, brake condition, structural condition, seatbelts, airbags, and other features of the vehicle are safe and sufficient for use. The purpose of this, of course, is to prevent avoidable injury or death. This poses the slightly abstract but similarly relevant question of: should rental properties be subject to a warrant of fitness to prevent any avoidable injury to physical or mental well-being caused by living in an unsafe and unhealthy environment?

It is arguable that the Healthy Homes Standards, established in accordance with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and the Residential Tenancies Act 1986, creates a “warrant of fitness” for housing. The quick-fact sheet for these Standard’s emphasizes their importance in that “nearly 600,000 households rent in New Zealand, and research tells us that rental properties are poorer quality than owner-occupied homes. The research shows a link between cold, damp, and mouldy homes and negative health outcomes, particularly for illnesses such as asthma and cardiovascular conditions”. The aim, of course, is to establish standards requiring pre-defined levels of drainage, moisture, ventilation, heating, and draught stopping to prevent poor quality rental housing. But are these standards sufficient?

One primary issue for tenants is the lack of immediacy in the implementation of the Healthy Homes Standards. From 1 December 2021, landlords are required to include a statement of their current level of compliance with the Standards in most new or renewed tenancy agreements, however, the Standard’s themselves do not actually apply 1 July 2021 at the earliest. Following 1 July 2021, all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. All boarding houses must comply by 1 July 2021. All houses rented by Kāinga Ora (formerly Housing New Zealand) and registered Community Housing Providers must comply by 1 July 2023. This can be both a blessing and a curse. Landlords benefit from the time delay in compliance, allowing them to seek out contractors and finances to complete any work required. Tenant’s, however, may suffer in having to live in an unhealthy environment that does not meet the Standards for the first three months of their tenancy before the landlord is obliged to remedy the issues.

A further issue with the Standard’s is that they are not designed to extend to cover every health hazard or issue. In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Tribunal stated that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding in that case that the mould was not the responsibility of the landlord because “the tenants have no identified any pre-existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”. The concern here is that with the help of some exit mould prior to a tenancy, a damp and mouldy home can appear inconspicuous, but of course, tenant behaviour can also cause mould in an otherwise healthy home.

In Weaver v Keates and Others [2020] NZTT Wellington 4274486, 4271282, the Tribunal stated that the test was not whether evidence demonstrated that the premise was “superior” or “average”, the test was whether the work done was compliant with the Standards, and unfortunately for the tenants in that case and many other cases, the Standards were inapplicable and not yet in force. It is well-know that the quality of rental housing in Wellington is lacking just as much as its quantity, with various individuals living in entry way closets (honorary mention to Wellington’s Vic Deals where such a “bedroom” was advertised) or small, damp, dark and uninsulated rooms whilst paying anywhere between $200-400 per week. Wellington’s housing crisis often means individuals are living in poor quality environments because that is all that is available or all that they can afford.

So, my question is: Will the Health Homes Standard fix this, or will the renovations it encourages simply drive rental prices up?

J Cooper

(employed) Barrister