New regulations

The Residential Tenancies (Healthy Homes Standards) Regulations 2019 came into effect on 1 July 2019. They set minimum standards for rental properties for heating, insulation, ventilation, draught stopping, moisture removal, and drainage.

Private rental properties must comply with the requirements of the new regulations within 90 days of a new or a renewed tenancy after 1 July 2021, and all private rentals must comply by 1 July 2024.

Heating requirements

Under the Regulations, the requirement for heating is that one or more qualifying fixed heaters that can heat the room to and maintain a temperature of at least 18^oC, must be provided in the living room (or the largest living room if there is more than one). Qualifying heaters are defined in s.9 of the Regulations.

Recently we learned of the Housing Improvement Regulations 1947, a little-known piece of legislation that set minimum standards of fitness, including for heating, for New Zealand housing. It is now being used to support an argument that owners of rental properties must already be providing heating in rental properties.

Issues with the legislation

There is however, a conflict in this argument. Section 6 of the 1947 Regulations requires that “every living room shall be fitted with a fireplace and chimney or other approved form of heating, directly contradicting the Residential Tenancies (Healthy Homes Standards) Regulations 2019, which states in s.25 that an “open fireplace must be closed off or its chimney must be blocked” to prevent draughts.

Tenancy Services refers to the Housing Improvement Regulations 1947 and states that, under the Regulations, landlords must provide heating and that local authorities are responsible for enforcing them. It goes on to state the “some councils may provide information on approved forms of heating”.

Where does Wellington City Council stand?

When Wellington City Council (WCC) received an enquiry about the about the Housing Improvement Regulations earlier this year, they responded that they had asked Tenancy Services to remove the reference to “approved forms of heating” as they do not have such a resource. In their response, they also included what they would consider to be approved forms of heating (similar to that described on the Tenancy Services website), including:

….something sold in NZ Stores such as wall panel heaters, oil heaters, bar heaters that have been Safety Certified, tested and tagged as part of their manufacture and sales process…..Other approved forms would be fireplaces, installed after getting a building consent approved by Wellington City Council. Gas fires do not require consents from council and can be installed by a certified gasfitter.

Finally, their statement also said:

The landlord is responsible for making sure there is a form of heating provided in the lounge area of a flat, and enough power points for tenants to plug in a heater of their own in their room. This is stated in the Housing Improvement Regulations 1947. WCC have no other dealings to do with heating in rental properties.

Which legislation is correct?

At Nightingales, we obtained legal advice on the need for owners to provide heating at the present time. The advice we were given was that although the 1947 Regulations have not been repealed, they have been superceded by the more recent legislation, in particular the Residential Tenancies Act 1986 and its subsequent amendments including the Healthy Homes Guarantees Act 2017.

However, we strongly support the view that owners should provide heating in rental properties now, and not wait until the Residential Tenancies (Healthy Homes Standards) Regulations 2019 comes fully into force. To that end, we encourage our property owners to install heating where there is none and most of our owners are more than happy to oblige.