Residential Tenancies Amendment Act 2020

70 New sections 126A to 126R and cross-headings inserted

After section 126, insert:

Infringement offences

126A Interpretation

In this Act,—

infringement fee, in relation to an infringement offence, means the infringement fee for the offence prescribed in accordance with clause 2 of Schedule 1B or in regulations made under this Act

infringement offence means an offence identified, in this Act or in regulations made under this Act, as being an infringement offence.

126B Proceedings for infringement offences

(1)

A person who is alleged to have committed an infringement offence may—

(a)

be proceeded against by the filing of a charging document under section 14 of the Criminal Procedure Act 2011; or

(b)

be issued with an infringement notice under section 126C.

(2)

Proceedings commenced in the way described in subsection (1)(a) do not require the leave of a District Court Judge or Registrar under section 21(1)(a) of the Summary Proceedings Act 1957.

(3)

See section 21 of the Summary Proceedings Act 1957 for the procedure that applies if an infringement notice is issued.

126C When infringement notice may be issued

The chief executive may issue an infringement notice to a person if the chief executive believes on reasonable grounds that the person is committing, or has committed, an infringement offence.

126D Infringement notice may be revoked

(1)

The chief executive may revoke an infringement notice before the infringement fee is paid, or an order for payment of a fine is made or deemed to be made by a court under section 21 of the Summary Proceedings Act 1957.

(2)

An infringement notice is revoked by giving written notice to the person to whom it was issued that the notice is revoked.

(3)

The revocation of an infringement notice under this section is not a bar to any other enforcement action against the person to whom the notice was issued in respect of the same matter.

126E What infringement notice must contain

An infringement notice must be in the form prescribed in regulations and must contain the following particulars:

(a)

details of the alleged infringement offence that fairly inform a person of the time, place, and nature of the alleged offence:

(b)

the amount of the infringement fee:

(c)

the address of the department:

(d)

how the infringement fee may be paid:

(e)

the time within which the infringement fee must be paid:

(f)

a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957:

(g)

a statement that the person served with the notice has a right to request a hearing:

(h)

a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing:

(i)

any other matters prescribed in regulations.

126F How infringement notice may be served

(1)

An infringement notice may be served on the person who the chief executive believes is committing or has committed the infringement offence by—

(a)

delivering it to the person or, if the person refuses to accept it, bringing it to the person’s notice; or

(b)

leaving it for the person at the person’s last known place of residence with another person who appears to be of or over the age of 14 years; or

(c)

leaving it for the person at the person’s place of business or work with another person; or

(d)

sending it to the person by prepaid post addressed to the person’s last known place of residence or place of business or work; or

(e)

sending it to an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand.

(2)

Unless the contrary is shown,—

(a)

an infringement notice (or a copy of it) sent by prepaid post to a person under subsection (1) is to be treated as having been served on that person on the fifth working day after the date on which it was posted:

(b)

an infringement notice sent to a valid electronic address is to be treated as having been served at the time the electronic communication first enters an information system that is outside the control of the chief executive.

126G Payment of infringement fees

All infringement fees paid in respect of infringement offences must be paid into a Crown Bank Account.

Improvement notices

126H Power to issue improvement notices

(1)

This section applies if the chief executive reasonably believes that a person—

(a)

is contravening a provision of this Act, of regulations made under this Act, or of a tenancy agreement; or

(b)

is likely to contravene a provision of this Act, of regulations made under this Act, or of a tenancy agreement.

(2)

The chief executive may issue an improvement notice requiring the person to—

(a)

remedy the contravention; or

(b)

prevent a likely contravention from occurring; or

(c)

remedy the things or activities causing the contravention or likely to cause a contravention.

Compare: 2015 No 70 s 101

126I Content of improvement notices

(1)

An improvement notice must state—

(a)

that the chief executive believes the person—

(i)

is contravening a provision of this Act, of regulations made under this Act, or of a tenancy agreement; or

(ii)

is likely to contravene a provision of this Act, of regulations made under this Act, or of a tenancy agreement; and

(b)

the provision the chief executive believes is being, or is likely to be, contravened; and

(c)

briefly, how the provision is being, or is likely to be, contravened; and

(d)

a reasonable period within which the person is required to remedy—

(i)

the contravention or likely contravention; or

(ii)

the things or activities causing the contravention or likely to cause a contravention.

(2)

An improvement notice may include recommendations concerning—

(a)

the measures that could be taken to remedy the contravention, or prevent the likely contravention, to which the notice relates:

(b)

the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates.

Compare: 2015 No 70 s 102

126J Compliance with improvement notice

(1)

A failure to comply with an improvement notice is an unlawful act.

(2)

It is not an unlawful act to fail to comply with recommendations in an improvement notice.

Compare: 2015 No 70 s 103

126K Extension of time for compliance with improvement notices

(1)

This section applies if a person has been issued with an improvement notice.

(2)

The chief executive may, by written notice given to the person, extend the compliance period for the improvement notice.

(3)

However, the chief executive may extend the compliance period only if the period has not ended.

(4)

In this section, compliance period

(a)

means the period stated in the improvement notice under section 126I(1); and

(b)

includes any extension of that period under this section.

Compare: 2015 No 70 s 104

126L Chief executive may withdraw improvement notice

(1)

The chief executive may withdraw an improvement notice.

(2)

The withdrawal of an improvement notice does not prevent another improvement notice from being served in relation to the same matter.

Compare: 2000 No 24 s 223G

126M Objection to improvement notice

(1)

A person who has been issued with an improvement notice may file an objection with the Tribunal.

(2)

An objection must be filed with the Tribunal within 28 days after the date on which the improvement notice was served on the person.

(3)

In determining the objection, the Tribunal must consider—

(a)

whether the person has failed, or is likely to fail, to comply with a specified provision of this Act, of regulations made under this Act, or of a tenancy agreement; and

(b)

the nature and extent of the failure or likely failure to comply with the provision; and

(c)

the nature and extent of any loss suffered by any other party to the tenancy agreement as a result of the failure or likely failure to comply with the provision.

(4)

The Tribunal may confirm, vary, or rescind the improvement notice as the Tribunal thinks fit.

Compare: 2000 No 24 s 223E

Enforceable undertakings

126N Chief executive may accept enforceable undertakings

(1)

The chief executive and a party to a tenancy may agree in writing that the party will undertake by a specified date (an enforceable undertaking) to—

(a)

rectify the breach of any provision of this Act, of regulations made under this Act, or of a tenancy agreement; or

(b)

pay money owed to another party to the tenancy under this Act, of regulations made under this Act, or of a tenancy agreement; or

(c)

take any other action that the chief executive determines is appropriate, having regard to the nature of the breach.

(2)

The giving of an enforceable undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.

126O When enforceable undertaking is enforceable

An enforceable undertaking takes effect and becomes enforceable when the chief executive’s decision to accept the undertaking is given to the person who made the undertaking, or at any later date specified by the chief executive.

Compare: 2015 No 70 s 125

126P Compliance with enforceable undertaking

(1)

A person must not contravene an enforceable undertaking given by that person that is in force.

(2)

A person who contravenes subsection (1) commits an unlawful act.

Compare: 2015 No 70 s 126

126Q Withdrawal or variation of enforceable undertaking

(1)

A person who has given an enforceable undertaking may at any time, with the written agreement of the chief executive,—

(a)

withdraw the undertaking; or

(b)

vary the undertaking.

(2)

However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act, the regulations, or the tenancy agreement.

Compare: 2015 No 70 s 128

126R Proceedings for alleged contravention

(1)

Subject to this section, no proceedings (whether civil or criminal) for a contravention or an alleged contravention of this Act, the regulations, or a tenancy agreement may be brought against a person if an enforceable undertaking is in effect in relation to that contravention.

(2)

No proceedings may be brought for a contravention or an alleged contravention of this Act, the regulations, or a tenancy agreement against a person who—

(a)

has made an enforceable undertaking in relation to that contravention; and

(b)

has completely discharged the enforceable undertaking.

(3)

The chief executive may accept an enforceable undertaking in relation to a contravention or an alleged contravention before proceedings in relation to that contravention have been completed.

(4)

If the chief executive accepts an enforceable undertaking before the proceedings are completed, the chief executive must take all reasonable steps to have the proceedings discontinued as soon as practicable.

Compare: 2015 No 70 s 129