Severe Weather Emergency Legislation Act 2023 Archives

Storm damage to properties

June 6, 2023

For landlords, tenants and buyers

With historic amounts of rain and flooding in many regions, this year has so far been challenging for many communities in the North Island. It is anticipated that these extreme weather events are likely to become more frequent in the future.

Many properties have been damaged by flooding, landslides and silt. Some of these may be under sales agreements or leased under residential tenancy agreements. We give some advice on what landlords, tenants and buyers (who have not yet settled) can do.

Residential tenancies

The responsibility for repairing damage to a property caused by a weather event or natural disaster, including drying a property that has been damaged by flood water (and paying for the electricity to do so), lies with the landlord.

If the landlord and tenant cannot come to an agreement on the next steps, either party may apply to the Tenancy Tribunal for a way forward.

Is the property completely destroyed? If the property is no longer habitable, rent will reduce accordingly and either party may give notice to the other terminating the tenancy. A landlord must give seven days’ notice and a tenant must give two days’ notice. We recommend taking photos of the damage in case there is a dispute about whether the property is destroyed. Notices from emergency services or council officials (such as red stickers) can also be used as evidence that the property is no longer habitable.

Partially destroyed? If the property is partially destroyed, or part of the property is so seriously damaged that it is no longer habitable, rent will reduce accordingly and either party may apply to the Tenancy Tribunal for an order to end the tenancy. The tribunal may make an order terminating the tenancy if it is satisfied it will be unreasonable to require the landlord to repair the property or the tenant to continue with the tenancy at a reduced rent.

Damaged but can be repaired? The damage should be repaired at the landlord’s cost as soon as practicable. The landlord should ask a building professional whether it is safe for tenants to remain in the property in the meantime. If the tenant can remain in the property while the work is completed, the landlord and/or tenant should consider agreeing to a rent reduction to compensate the tenant for any inconvenience while the work is being carried out.

If the tenant needs to move out, the landlord and tenant should negotiate to reach an agreement. The landlord should let the tenant know how long the repairs are expected to take and when the tenant can move back in.

Bought a property but not settled?

Under the ADLS Agreement for Sale and Purchase of Real Estate, the property and chattels remain at the risk of the seller until possession is given and taken (usually on settlement day). If you have bought a property but not yet settled, the cost of repairing the damage usually lies with the seller.

Property is destroyed? If the property is destroyed or damaged so it is no longer habitable, and is not repaired prior to the settlement date, the buyer must decide to either:

Complete the purchase at the purchase price, less an amount equal to the insurance payment received or receivable by the seller (unless the insurance company agrees to reinstate the property up to the insurance cover for the benefit of the buyer prior to the settlement date), or
Cancel the agreement: the deposit is refunded in full and neither party can make any further claims against the other.

Damaged but can be repaired? If the property is damaged, but is still habitable, settlement takes place on settlement date at the purchase price less an amount equal to the reduction in value of the property.

The reduction in value is deemed to be equivalent to the reasonable cost of reinstatement or repair. If the seller and buyer cannot agree on a reasonable cost of repair, the dispute will follow the compensation dispute procedures under the agreement.

We can help

Insurance companies will be very busy over the coming months assessing properties and processing claims. Given the scale and timing of the extreme weather events this year, this will take some time. There are also likely to be delays in the timeframes for repairs. Both landlords and tenants, and sellers and buyers, will need to be patient, flexible and practical to resolve any issues that may arise. Any agreement made between parties should be recorded in writing.

If you need any help to work through these issues, please don’t hesitate to talk with us.

DISCLAIMER: All the information published in Property eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022. Editor: Adrienne Olsen. E-mail: [email protected]. Ph: 029 286 3650

Severe Weather Emergency Legislation Act 2023

May 2, 2023

Amanda Leahy

Rural, Your Own Business

Assisting recovery and improving resilience

The severe weather events this year, in particular Cyclones Hale and Gabrielle, highlighted the need to amend some legislation to assist recovery and improve resilience for areas that have been impacted.

The Severe Weather Emergency Legislation Act 2023 is the government’s response to legislation that can be amended to improve emergency response and reduce regulation. Having come into force on 21 March, the Act amends these four statutes:

Civil Defence Emergency Management Act 2002 (CDEM)
Resource Management Act 1991 (RMA)
Food Act 2014 (FA) and the Food Regulations 2015 (FR), and
Local Government Act 2022 (LGA).

Civil Defence Emergency Management Act 2002

Amendments to the CDEM address issues relating to concurrent declarations of states of emergency and notices of transition periods, and how resources dedicated to emergency response are used.

Group recovery managers appointed under the CDEM are responsible for coordinating the recovery activity within the region they are appointed. The Act clarifies that they must not use their powers, in respect of resources, for the benefit of a current emergency response if it is contrary to the priorities of an ongoing transition period in the region.

Resource Management Act 1991

Changes to the RMA slightly reduce the level of red tape following significant weather events. These changes lower the level of notice required by an authority to enter land in response to an emergency, and increase the ability for owners or occupiers of land to conduct emergency work and preventative remedial actions. Cyclones Hale and Gabrielle, as well as the heavy rainfall in Northland, Auckland, Waikato and the Bay of Plenty, are listed as ‘severe weather events’ with areas impacted by these events being ‘affected areas.’

Formerly a local authority or consent authority entering any place to take an action to remove the cause of, or mitigate any actual or likely adverse effect, of an emergency, had to give notice to the occupier. This has now been modified so that the authority only needs to display a prominent notice on the land and, as soon as practicable, a notice containing the same details is to be served on the ratepayer.

Under the old legislation, the notice required a person who had undertaken emergency works, or preventive or remedial action, to give notice of that activity within seven days and apply for any appropriate resource consents within 20 working days (if the activity contravened sections 9, 12, 13, 14 and 15 of the RMA). These times are now extended to 100 working days and 160 working days respectively. The same extension has been applied where emergency work is undertaken under the CDEM via section 330C.These extensions will revert back to the previous timeframes on 1 April 2025.

Immediate preventive or remedial measures to avoid, remedy or mitigate loss, injury, detriment or damage caused by a severe weather event undertaken by an owner or occupier of rural land is now a permitted activity under the RMA.

However, any activity classified as a prohibited activity in a relevant plan, any applicable regulations or national environmental standards will not be a permitted activity. Written notice must be provided to the relevant consent authority within 60 working days after starting the activity and, if the requisite notice is not given, the permitted activity status is revoked from the date on which the notice period ends. This will end on 1 October 2023 and the previously listed activities will no longer be permitted by default.

These sections aim to provide short-term relief for rural owners and occupiers to begin remedial work after the recent severe weather events without having the requisite resource consent as long as they are not listed as prohibited activities elsewhere.

Food Act 2014 and the Food Regulations 2015

Under the FA and FR, a food business is a business, activity, or undertaking that trades in food, whether in whole or in part. The FA and FR apply to food for sale as well as food-related accessories.

The Act acknowledges that compliance with the FA and FR registration and verification requirements may not have been possible for some food business owners during recent severe weather events in Northland, Auckland, Waikato, Bay of Plenty, Gisborne and Hawke’s Bay and the districts of Tararua, Masterton, Carterton and South Wairarapa (collectively referred to as ‘affected areas’).

If a food business in an affected area had their registration expire, or their registration is due to expire, between 8 January and 16 May 2023, they are provided with an extension for registration until 16 May 2023. A food business owner may continue to operate beyond this period provided they have paid the required fee for renewal of their registration.

Under the amended FR, food business owners in an affected area that were due to comply with regulations 87(1), 88(1) or 90 between 8 January 2023 and 16 May 2023 and regulations 91(1), 92(1), 93(1) or 94 between 8 January 2023 and 16 August 2023 are now exempt from doing so. However, if an operator of a food business benefits from an exemption they must resume compliance when they are next required to so in accordance with the FR.

Local Government Act 2002

Local authorities may amend existing long-term plans (being plans for the period 1 July 2021 to 30 June 2024) to include matters relating to water services so that they may respond to the damage that has been caused to water infrastructure as a result of Cyclone Gabrielle.

Local authorities and Civil Defence Emergency Management Groups now may also meet by audio or audiovisual link.

There is a great deal to digest with these changes; if you have any queries or need some help, please don’t hesitate to contact us.

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022. Editor: Adrienne Olsen. E-mail: [email protected]. Ph: 029 286 3650