Family Violence and changes to the RTA as at 5th Oct 2022.
There have been important changes to the Residential Tenancies Act (RTA) that make it easier for victims of family violence to end their tenancies. New laws came into effect on 11th August 2021, however they are “subject to regulations” – and it’s these regulations we have been waiting for, to enable the laws to be applied. The regulations have still not been written, however there are now provisions – something that enable the law to be applied without the regulations. Yes – it’s confusing!
I agree that it’s very important for victims of family violence to be able to escape their abusers, I just want to highlight the implications for landlords so you’re not caught by surprise if these new provisions impact one of your tenancies.
Section 56B of the RTA (Withdrawal from tenancy following family violence) will enable a victim of family violence to leave a tenancy at short notice if they provide their landlord with a family violence withdrawal notice. The definition of family violence is the same as that in the Family Violence Act 2018 and includes physical abuse, sexual abuse, and psychological abuse. The minimum notice period for a victim leaving a tenancy is two days, and after the withdrawal date, the tenant would not be liable for any further rent.
The key points from the information I’m about to give you are:
- Tenancies can be ended with 2 days’ notice if the tenant is a victim of family violence
- We can end a tenancy if the property manager, landlord or a landlord’s family member is assaulted by the tenant with 14 days’ notice
- Expect the Tenancy Tribunal to rule as if the proposed regulations are already in place
This is from the Government’s Tenancy website:
Provisions relating to family violence and physical assault are in force and can be used.
Regulations that support these changes are being developed. These will provide more detail and seek to ensure that the provisions operate as intended.
- Family violence: tenants who have experienced family violence during the tenancy can withdraw from their tenancy by giving 2 days’ notice without financial penalty or the need for agreement from the landlord.
- Physical assault: a landlord can give notice of at least 14 days to terminate the tenancy if the tenant has assaulted the landlord, the owner, a member of their family, or the landlord’s agent, and the Police have laid a charge against the tenant in respect of the assault.
The following information has been sent to us from the Residential Property Managers’ Association of NZ (RPMA), who received the information from MBIE.
Here is an excerpt of the communication that Aspire Property Management received from RPMA on 1.9.22:
“MBIE has updated RPMA on the provisions in the Residential Tenancies Act 1986 (RTA) to enable victims of family violence to leave a tenancy at short notice (section 56B), and to enable landlords to terminate tenancies where a charge has been filed for assault (section 55AA).
The two sets of provisions can be used currently
After taking legal advice they are saying that the provisions are in effect and can be used, even though the regulations are not yet in force.
This means a tenant can give their landlord a family violence withdrawal notice, attaching a form of evidence, and expect it to have effect.
A landlord can serve a termination notice on a tenant if the tenant physically assaults them (or the landlord’s agent or a member of their family), the Police file a charge related to the assault, and the notice attaches a form of evidence the Police have filed a charge.
Guidance has been published on the MBIE Tenancy Services website to make clear that the provisions can be used
They have updated the information on the Tenancy Services website about the family violence withdrawal notice provisions and the termination for physical assault provisions here.
Their guidance is based on what the Residential Tenancies Act specifies about how the two sets of provisions will operate. Please note the guidance is interim and not the same as detailed regulation.
MBIE states “We cannot pre-empt the decisions that the Tenancy Tribunal may make related to the family violence withdrawal notice provisions or the termination for physical assault provisions if a dispute is brought in front of them”.
Family Violence Withdrawal Notices
MBIE’s guidance for family violence withdrawal notices, the notice must attach at least one form of evidence that the tenant has experienced family violence during the tenancy.
In the absence of regulations, examples of acceptable evidence could include:
- a letter or email from a medical professional (for example, a doctor or nurse), a social worker, or a family violence service provider
- a Police Safety Order, a Protection Order or charging document relating to the family violence that was issued during the tenancy.
MBIE anticipates that the options for qualifying evidence of family violence will be significantly broader in the regulations than currently provided for in guidance.
For physical assault termination notices, the notice must attach at least one form of evidence that the Police filed an assault charge.
In the absence of regulations, examples of evidence could include:
- Police charging documents in respect of the assault
- written confirmation from police that charges for assault have been filed.
MBIE / HUD are working to have the regulations in place as soon as possible to provide clarity and ensure that the provisions operate in accordance with Parliament’s intentions.
In the meantime, the Tenancy Tribunal will continue to decide any matter before it based on the facts of the case, including tenancy disputes involving family violence or terminations for assault.
New regulations expected to be in place early 2023
“This timing allows for the regulations to be drafted, approved and gazetted by December, and come into effect early 2023. We will move through the next steps as fast as possible while ensuring appropriate scrutiny” states MBIE.”
So summarising all of this – the Government is still working on its regulations in regard to family violence and tenancies, but there are now provisions which allow the laws to be enforced.
Here are some questions and answers we’ve put together:
How would a landlord know the tenant has suffered family violence?
Along with the family violence withdrawal notice, the tenant will need to provide their landlord with evidence that shows they are a victim of family violence. Types of acceptable evidence could include a Protection Order, a Police Safety Order, or a declaration signed by an independent and reliable person, such as a women’s or men’s refuge worker, or a counsellor.
Can landlords evict remaining occupants in the rental premises?
If the victim of the family violence is the sole tenant on the Tenancy Agreement, the landlord can seek possession of their rental premises if any remaining occupants do not leave. If there are occupants remaining in the rental premises whose names are on the rental agreement, the landlord can only evict them under one of the grounds in the Residential Tenancies Act.
How will a family violence withdrawal notice impact landlords?
Landlords are likely to experience a loss of rent while they select another tenant. However, the likelihood of any single landlord receiving a family violence withdrawal notice is expected to be very low. Any remaining tenants will continue to pay rent, but at a reduced amount for two weeks. The requirement for a notice to be accompanied by independent evidence of family violence will minimise any misuse of this provision. Landlords will also be able to challenge a family violence withdrawal notice in the Tenancy Tribunal.
Will the remaining tenants be liable to pay the rent for the tenant who has left?
If there are remaining tenants, they will pay a reduced rent for two weeks after the termination date, proportional to the number of tenants left in the tenancy. The two week reduction of rent minimises the financial impact on remaining tenants balanced against the financial impact on landlords and allows the tenants time to seek a new tenant or flatmate, should they want to. The two week rent reduction formula calculates the reduced rent as follows: Rent price divided by no. of tenants on Tenancy Agreement (before tenant leaves) multiplied by no. of remaining tenants after tenant leaves.
We will upate our website with further information as this subject progresses. Feel free to reach out to us if you have questions.
Where to get help:
If you or someone else is in danger or endangering others, call the police immediately on 111.
For more information and resources:
Written by Mike Atkinson