Liability issues of fencing for safety

Question from Keith updated on 18th November 2010:

My wife and I are looking at renting in a new town. The place we are looking at has decks about 1.5m off the ground and we asked the landlord about putting a barrier up to reduce the risk of our toddlers falling over the edge. They are happy for us to do this, providing we don't cause any damage (e.g. screw holes) but also want to include a clause in the contract excluding them from any liability should someone fall off the deck. Whose is responsible if anything happens? What are the implications of agreeing to this type of clause and is it legal? cheers

Our expert Jeff Montgomery responded:

Landlords have an obligation to ensure the premises are maintained in a reasonable state of repair, and comply with all the relevant health, safety, and building regulations. Where the premises does not require a barrier but the landlord has agreed for the tenant to install one, I would suggest discussing with the landlord what your obligations at the end of the tenancy will be (e.g. whether you would be required to remove it, or if compensation will be provided if the landlord would like the barrier to remain), and documenting the agreement in writing, preferably on the tenancy agreement. Tenants are responsible for any damage they cause carelessly or intentionally. This also includes damage caused when fixing something to the premises (e.g. if the tenant causes damage to the deck when installing a barrier).

If the landlord does not maintain the premises in a reasonable state of repair or if the premises do not comply with the relevant regulations, the tenant can give the landlord a 10 working days’ notice to carry out the necessary work, and keep a copy for themselves. Service time needs to be allowed for delivering the notice to the landlord. If the tenant hands the letter to the landlord, the 10 working day period takes effect immediately.

However, if the tenant drops it in the landlord’s letterbox they must allow an extra two working days, and if posted to the landlord allow an extra four working days. A template for a 10 working days’ notice can be downloaded from the Department of Building and Housing’s website (www.dbh.govt.nz). If the landlord does not comply with the notice, the tenant could apply to the Tenancy Tribunal to have the matter resolved.

In any case, the Residential Tenancies Act 1986 (the Act) prohibits tenants from waiving their rights under the Act. Any clause of a tenancy agreement that removes rights from the tenant that is granted to them by the Act will not be enforceable, even if the clause is in writing and has been signed by the tenant. To discuss your situation further, or for advice and information about applying to the Tenancy Tribunal, you can contact the Department of Building and Housing on 0800 TENANCY (0800 836 262).

The Department of Building and Housing provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.

 

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