A Tenancy Tribunal decision that a no-smoking clause in a Queenstown rental agreement was unenforceable is out of step with the law, industry bodies say.
The New Zealand Property Investors Federation says it is another "left field" decision by the tribunal about no-smoking and no-pets clauses, which are almost standard in tenancy agreements.
Federation vice-president Peter Lewis said the clauses had been enforceable for years, but in the past year or two, some adjudicators had ruled something had to be specifically prohibited by the Residential Tenancies Act for them to be enforceable.
"It’s very hard to be law-abiding if you don’t know what the law is."
Requests by the federation to meet the tribunal’s principal adjudicator to discuss the issue had been rebuffed, he said.
The Queenstown Lakes Community Housing Trust applied to terminate the tenancy of a woman who breached the no-smoking clause in her tenancy agreement, despite being repeatedly asked to stop smoking inside.
It went to the tribunal after complaints were received from other residents in the 78-unit Toru Apartments building in Frankton that her second-hand smoke was entering their apartments through its ventilation system.
However, the application was dismissed on the grounds that prohibiting smoking was inconsistent with the tenant’s responsibilities under the Residential Tenancies Act, and that smoking was not unlawful.
Real Estate Institute (REINZ) chief executive Jen Baird said the decision was "out of step with the law" and the housing trust could appeal it to the district court.
"It’s perfectly legal to include those clauses. They’re a part of a contract that people choose to sign, and they’re enforceable."
That view was backed up by guidance for landlords on Tenancy Services’ own website, Ms Baird said.
"Smoking in a property can have pretty long-term impacts on the condition of things like the paintwork and the furnishings, and make it really hard to let to non-smokers in the future."
Mr Lewis said the current principal adjudicator’s predecessor was willing to engage with the federation, and even spoke at one of its national conferences.
He and federation president Sue Harrison raised their concerns with Associate Minister of Housing Barbara Edmonds in a meeting two weeks ago, but nothing had come of it so far.
The Otago Daily Times has approached Ms Edmonds and Tenancy Services’ umbrella ministry, the Ministry of Business, Innovation and Employment, for comment.
