COMMENT: Unlawful premises – moving past Anderson v FM Custodians

A review of residential tenancies law led to the Residential Tenancies Amendment Bill (No 2) gaining Royal Assent in July this year. The Residential Tenancies Amendment Act 2019 then came into force on 27 August 2019.

The amendment Act greatly impacts on the rights and obligations of both landlords and tenants. But one of the many changes it contains is clarification of the law around the use of non-residential property for residential use in the wake of the High Court decision in Anderson v FM Custodians Ltd [2013].

In order to understand why these changes were necessary it is important to have some context as to the position of the law, mainly due to case law before the amendment Act was enacted.

In the Anderson case, the High Court found that where a property is not lawfully able to be used for residential purposes, the property is no longer a residential property as defined in the Residential Tenancies Act 1986 (RTA).