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Shhh! Heat pump breaches quiet enjoyment?

Wednesday, June 24, 2020

An APIA members’ recent endeavour to comply with the HHS heating standards brought a couple of issues to the forefront that are worth unpacking here.

Her experience in brief:

She owns a block of three adjoining flats and made inquiries with a heat pump installer (with whom she has an existing working relationship with) about putting heat pumps into all three units. The installer assessed the property layout and advised her that to go ahead would result in excessive noise being experienced in the adjoining flats (for example, one inverter would have to sit on the roof of the bedroom of another unit). In doing so, she would be breaching s38 and s45(1)(e) of the RTA which guarantee the tenant’s right to quiet enjoyment. She is told that, for this reason, her units would be exempt from compliance.

We absolutely disagree for two reasons:

  1. It is highly unlikely that the inverter of a brand new heat pump would produce so much noise as to breach a tenant’s quiet enjoyment. In any event, quiet enjoyment does not mean silence and is not always about noise.
  2. Even if that is not the case, noise (or the adjoining tenant’s right to quiet enjoyment) would not qualify as an exemption under the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“the Regulations”).
    1. Even if case law subsequently make allowances to reconcile s38 and s45(1)(e) with the Regulations the likely outcome would be a modified standard (i.e. take all reasonable steps to ensure the standards are met to the greatest extent reasonably practicable) rather than an straight out exemption.

Before we unpack further, note that our commentary assumes the following:

  1. That the inverter of the heat pump being recommended here is not more noisy than other heat pumps on the market;
  2. And if it is, that there are no comparable heat pumps on the market that would produce less noise; and
  3. That there are no other practicable ways to install that would cause less noise disturbance to the adjoining tenants.
Quiet enjoyment does not mean silence

The Residential Tenancies Act does not specifically define quiet enjoyment but refers to it in s38 as a tenant’s entitlement ’… to have quiet enjoyment of the premises without interruption by the landlord… [who] shall not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant…’ S45(1)(e) uses similar phraseology when describing the landlords’ obligation vis-à-vis the actions of the landlord’s other tenants. It doesn’t mean that the tenant has the right to a quiet property but rather the freedom to use and enjoy the property without unnecessary interference/harassment by the landlord.

Quiet enjoyment could be disrupted by noise nuisance but not all noise can disturb a tenant’s quiet enjoyment. The question to ask is whether the noise that arises out of the landlord’s action would substantially diminish the tenant’s ability to use the property as it is intended to be used. We are taking about something that is persistent, excessive, unwarranted, unreasonable or intrusive enough to cause ongoing discomfort/anxiety. An example would be excessive noise from building works (especially when they are significantly prolong or if the tenant has not been properly notified).

S38 and s45(1)(e) only protects the tenant’s peace, comfort and privacy to a reasonable (objective) standard. Wakefield, Paul vs OTAUTAHI COMMUNITY HOUSING TRUST [2020] NZTT Christchurch 4211907 defines the standard as ‘Whether the interference is unreasonable must be considered objectively, that is from the point of view of the hypothetical reasonable ordinary person.’ As modern heat pumps are not excessively noisy, installing them in compliance with HHS would not, in our opinion, give rise to a breach of s38 or s45(1)(e).

Neither noise nor interference with quiet enjoyment give rise to an exemption

Exemptions to compliance are specifically outlined in the Regulations. Noise and interference with the quiet enjoyment of adjoining tenants are not listed as qualifying events for an exemption. There is a possibility that a qualified installer would consider installing the inverter on the roof of the property to be impractical or unsafe. That doesn’t itself exempt the landlord from complying with the heating standards unless she can also prove that no other alternative forms of heating could be practically installed. Not being able to install a heat pump is not the same as not being able to comply with the heating standard.

If, in future, the Tribunal seeks to reconcile the landlord’s obligations to ensure quiet enjoyment while complying with the HHS standards, we would expect it to arrive at the conclusion of a modified compliance (to an extent that is reasonably practicable) rather than a full exemption.

 

Related: HHS Compliance #1: Heating requirements at a glance

Observations and recommendations

This case serves as a stark reminder that this unregulated (HHS) advisory space could do unwitting landlords a huge disservice. The Regulations having created a captured market for compliance also gave rise to a growing industry of HHS ‘advisors’. The fact that this member sought advice from an installer who has a prior relationship with her would suggest a sufficient degree of trust and reliance. Still, the advice received was incorrect. We cannot stress enough about the importance of putting in the hard work to find an advisor who is knowledgeable and experienced with HHS compliance. It will pay off in dividends! 

Do you have a question about HHS compliance? Become a member today and let us help

 

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