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Communtity Law Manual | Disability rights | Renting a flat: Access to housing and accommodation

Renting a flat: Access to housing and accommodation

Overview

Discrimination by landlords against disabled people is illegal

Human Rights Act 1993, s 53

It’s illegal for landlords to discriminate against you because of your impairment. This covers where they do any of the following things because of your impairment:

  • decide not to rent a place to you
  • treat you differently when they rent to you, including giving you worse terms (like charging you more rent) than other people
  • end your tenancy, or decide not to renew it.

This includes when real estate agents, property managers or lawyers are acting on behalf of the landlord.

Residential Tenancies Act 1986, ss 12, 109, Schedule 1A

If a landlord does discriminate against you, the Tenancy Tribunal can order them to pay you a penalty of up to $4,000.

But they are allowed to discriminate against you if they would be sharing the place with you – for example, if the tenancy is in their name.

There are also some key exceptions that can permit discrimination in some cases, for example on the basis of risk (see below, “Exceptions for unreasonable accommodation”).

Example: Landlord ending a tenancy because of
the tenant’s impairment

Case: Tenancy Tribunal, Tauranga 4060586

The tenant of an apartment had chronic fatigue syndrome and fibromyalgia. The landlord was generally aware of the tenant’s impairment when the tenancy began, and the two had a reasonably good relationship for a few months. But then it started to break down. The tenant made several complaints, including about the lack of a proper lock, but also about being disturbed by the landlord playing music and their dog barking. The tenant recorded some of their conversations, including when the landlord said things to her like “You sicko”.

The landlord gave the tenant notice to move out. The Tenancy Tribunal decided that the landlord was motivated partly by the tenant’s complaint about not having a proper lock, which meant the notice was illegal. This is the kind of serious breach of a tenant’s rights that the tenancy laws set large penalties for, and the Tribunal ordered the landlord to pay the tenant $1,800.

But the Tenancy Tribunal also found that the landlord ended the tenancy partly because of the demands the tenant was making because of her poor health. This meant this was a case of disability discrimination, which is also a breach that the Tribunal can award a penalty for. However, in this case the Tribunal didn’t order any additional penalty over and above the $1,800 for retaliating against the complaint about the lock, because the two breaches involved essentially the same act – the landlord’s ending of the tenancy.

Exceptions for “unreasonable accommodation”

Human Rights Act 1993, s 56(3)

The landlord can discriminate against you because of your impairment – for example, refusing to rent to you – if you’d need special facilities or services and it would be unreasonable to expect the landlord to provide them.

Human Rights Act 1993, s 56(1), (2); Case: Tenancy Tribunal Palm Nth 410884

The landlord can also discriminate against you if your impairment poses an unreasonable risk of harm to you or to other people and reducing the risk to normal levels would cause an unreasonable amount of disruption. The risk to other people can include the risk of infecting them with a physical illness, but it can also include non-physical harm – for example, when a person’s behaviour interferes with other tenants’ peace, comfort or privacy.

Example: The “risk of harm” exception

Case: Tenancy Tribunal, Palmerston North 410884

The tenant, who had a mental health condition, rented a room in a boarding house with a total of 14 residents. This shared house was run by a charitable trust that provides accommodation for vulnerable people who find it hard to rent in the private market or to get council or state housing.

The tenant was given notice by the landlord that they were ending the tenancy. The tenant had made several complaints to the landlord about the place and about the other residents – for example, that the light in the toilet didn’t work and that the other residents had been rude to him.

But the charitable trust told the Tenancy Tribunal that the tenant’s behaviour, not his complaints, were the reason for ending the tenancy. They said he’d been annoying other residents and had sent the manager a large number of texts about very trivial things (like other tenants leaving cereal on the bench). They also said they’d fixed the problems the tenant had complained about. The Tribunal accepted that the landlord hadn’t given notice because the tenant had asked for some work to be done at the boarding house, but because of the tenant’s behaviour and the way he communicated with staff and other tenants.

In its written decision, the Tenancy Tribunal noted that the landlord had said that the tenant’s behaviour was the reason for ending the tenancy, but the landlord had also explicitly linked this to his mental health issues, which they said they weren’t equipped to handle.

The Tribunal said that you can’t always separate a person’s behaviour from their psychiatric issues, and that the landlord had seen the tenant’s mental health issues as causing his behaviour. Because of that, the Tribunal decided, the decision to end the tenancy was influenced by the mental health issues.

However, the Tribunal found that the “risk of harm” exception from discrimination law applied here. This meant that although the landlord had ended the tenancy because of the tenant’s mental health condition, it wasn’t illegal in this case. The kind of harm covered by this exception includes interfering with other tenants’ peace, comfort or privacy.

The Tribunal said that the purpose of the anti-discrimination laws was to protect against discrimination based on stereotypes. In this case, it noted that the charitable trust accommodates other tenants with mental health issues, and accepted that it was the specific behaviour of this particular tenant, and the risk this presented to other tenants, that had motivated the trust to end his tenancy.

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