Build a Bridge to Cross

As children we often have the unfortunate honour of doing something so embarrassing that one’s friends are still reminding us some 40 years later. On any snow-blizzard day in Invercargill biking home in school shorts was bad enough, but to ram up the back of a parked car due to keeping one’s head down against the blizzard, only added to the chill-blain pain and left one’s friends rolling on the snow covered pavement in laughter. It is with this experience in my repertoire that I’ve always liked to look well ahead to avoid any potentially disastrous circumstances if I can.

Last year’s Property Management problems of spending hours, on top of our full time job, assisting EQC to achieve their ’50,000 by Christmas’ inspection regime, is thankfully fading as the New Year begins. But for the city’s landlords and managers of property there are other 2012 signs of a locomotive on our tracks heading in the wrong direction. We have had plenty of time to build a system to avoid the calamities but due either to the inertia of not wanting to look outside one’s own little square or considering one’s own problems are much more worthy of concern, then nothing has been done to avoid a rather obvious and pending problem.

“How do we ensure that our tenants move out when Fletchers/EQR come knocking to do our rebuild?” On the scale of things this problem, when looked at in the isolation of each dwelling, is not that spell-binding but when multiplied by the number of people it will affect, we can see that a worrying percentage of those 108,000 repairs to be done, will all have the same problem. You see, each corner of the argument has justifiable rights. Some encased in law, others simply out of need and the betterment of the community. It would be nice to think that it will work itself out but, I fear, it won’t and may need some ‘intervention’ to ensure all goes smoothly.

On the one hand we have the tenant’s rights to quiet enjoyment of their home. Their rights to the property are somewhat greater than the owner’s once a lease is signed, so regardless of what a landlord puts in their lease agreement he/she cannot contract out of the Act with regards to giving notice to vacate. In other words, if the tenant does not want to go, they can’t be forced to, and neither should they. Section 48 of the Residential Tenancies Act describes when a landlord can have right of entry but it was never written with anything more than an urgent one-off repair in mind. It certainly does not adequately cover the needs of getting a full-blown earthquake rebuild done. It is also understandable that the tenant will be concerned that such a move may mean they are financially disadvantaged as well as inconvenienced. However, underlying this is the obligation for the tenant to be ‘reasonable’ when being asked for access. What that means in light of being asked to vacate for what could be several weeks is anyone’s guess.

Another party ready to be called into the argument is the Tenancy Tribunal (TT) which, although it is not duty bound to follow the previous decisions of others has as its guiding torch the inadequacies of the Act, (with respect to earthquakes,) as mentioned above. Also understandably the TT has to be able to logically explain its decisions by hanging their hats on appropriate clauses of the Act used in their decisions. Such is the NZ judicial system. They would be loath to fly in the face of the written legislation just to make the rebuild go faster for landlords and the EQC.

I’m sure for the head of Fletchers/EQR there is nothing he’d like more than to allow his teams to have a clear slate to work with when fronting up to get on with the job of rebuilding or repairing someone’s dwelling. Unfortunately this is not the case as all dwellings need to be treated as what the architects call “live sites.” In other words, where occupants must be catered for as part of the overall project. EQR are going to have to be very patient as the landlords/managers will need to assist them with getting access and the ability to do the job at all. The early signs of patience have not been good as some landlords have been accused of being ‘obstructive’ and ‘not wanting their property fixed’ but this is only due to ignorance of some of the intricacies here mentioned. Simply everyone wants the job done but when no one can force the tenant out it doesn’t help to be threatened with being put to the back of the queue, some years away.

If the landlord could have their way he/she would get their rebuild done with the minimum of disruption to the tenant, all within the allocated time-frame and not miss a day’s rent. I suspect this will be the minority for it seems inherently unfair to be charging the same rent, if any at all, when asking your tenant to vacate the premises that they have been paying for. At best there will need to be a rebate. If handled correctly the tenant should see that the needs of the landlord, to get these repairs done, will result in them living in a much nicer environment, for the same rent afterwards, as the landlord won’t have the right to increase the rent until the granting of the next lease, unless pre-arranged in the current one.

Let’s be fair, the circumstances we have been through recently have seen tenants, post quake, occasionally put out of their red-stickered premises with no warning and virtually no come-back apart from demanding that no rent be paid for that period. This is the same for the home owners except that they can’t expect the same reprieve from their mortgagee banks as the tenants get from their landlords. There would appear to be no difference in asking the tenants to move out throughout 2012 apart from the fact that they can be given early warning at the time that they sign up, giving a much more civilized and structured approach to the process. The word we are looking for is for everyone to be ‘reasonable.’

However, in the possible absence of all parties being reasonable, and for some who prefer to be ‘obstructive,’ I believe there is a strong case here for CERA to give some guidance to all landlords through the temporary tweaking of legislation, especially for those in the TT who hang their hats on the existing Act. Under s48 (2)(e) of the Act, “The landlord may enter the premises…pursuant to an order of the Tribunal.” How hard would it be for CERA, the TT, EQC and Dept of Building and Housing to get together to give guidance to our tenants and ourselves on what is considered to be ‘reasonable’ in these unusual circumstances to ensure that the rebuild of a large proportion of our accommodation can, in fact, be repaired/rebuilt expeditiously through 2012. By then making this a blanket Order of the Tribunal we can all go forward knowing what the ‘reasonable’ expectations are and avoid scores of unnecessary TT hearings about tenants being asked unfairly to give access for repairs.

In 2011 I chaired a panel on this issue for the REINZ with the above invited parties. CERA, the only one that could do something about it, was the only one that didn’t turn up on the day. Hopefully 2012 will see them accept the type of role that they were set up for, i.e. to avoid face planting into the back of a blatantly obvious parked car.