What was Tenancy Tribunal case 4352321 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4352321?

Compensation: Back Door: $780.00 awarded to tenant; Compensation: Drawer In Kitchen: $50.00 awarded to tenant; Compensation: Shower Leak: $450.00 awarded to tenant; Compensation: Toilets: $250.00 awarded to tenant; Compensation: Water Refund 50510: $61.46 awarded to tenant; Water Rates: $955.50 awarded to landlord

Where can I read the official tribunal order for case 4352321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9497939-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4352321 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4352321?

Compensation: Back Door: $780.00 awarded to tenant; Compensation: Drawer In Kitchen: $50.00 awarded to tenant; Compensation: Shower Leak: $450.00 awarded to tenant; Compensation: Toilets: $250.00 awarded to tenant; Compensation: Water Refund 50510: $61.46 awarded to tenant; Water Rates: $955.50 awarded to landlord

Where can I read the official tribunal order for case 4352321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9497939-Tribunal_Order_Redacted.pdf.

86 Travers Road, Te Kauwhata, RD 2, Te Kauwhata 3782 Tenancy Tribunal Case 4352321 — Leaks

Claims and awards in Tenancy Tribunal application 4352321 — net $635.96 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates: invoice 62725	$955.50		Water rates: invoice 62725
Compensation: back door		$780.00	back door
Compensation: shower leak		$450.00	shower leak
Compensation: drawer in kitchen		$50.00	drawer in kitchen
Compensation: toilets		$250.00	toilets
Compensation: water refund 50510		$61.46	water refund 50510
Total award	$955.50	$1,591.46
Net award		$635.96
Total payable by Landlord to Tenant		$635.96

Claims and awards in Tenancy Tribunal application 4352321 — net $635.96 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates: invoice 62725	$955.50		Water rates: invoice 62725
Compensation: back door		$780.00	back door
Compensation: shower leak		$450.00	shower leak
Compensation: drawer in kitchen		$50.00	drawer in kitchen
Compensation: toilets		$250.00	toilets
Compensation: water refund 50510		$61.46	water refund 50510
Total award	$955.50	$1,591.46
Net award		$635.96
Total payable by Landlord to Tenant		$635.96

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants and Landlords names and identifying details.
[The landlord/s] must pay [The tenant/s] $635.96 immediately, calculated as shown in table below:

Reasons

There have been five in-person hearings and one telephone hearing in these proceedings over the period from 13 September 2022 to 19 June 2023. [The landlord trustee/s] attended all but the first two hearings by telephone from overseas. [The property manager/s] have attended all hearings for [The property management company]. One or both tenants have attended all hearings as have one or both of their adult daughters (who also live at the premises).
Both the landlord and tenants have made applications to the Tribunal.
The landlord has applied for payment of water rates of approximately $3,400.00.
The tenants have applied for:- a. Work orders to fix things at the property, b. Compensation for a failure to maintain the premises to a reasonable standard and/or to comply with the healthy homes’ standards, and c. Exemplary damages for the above breaches.
The tenants’ itemised claims 1 are:- a. A refund of water bill 50510 $ 955.45 b. A refund of water bill 61669$ 859.97 c. Exemplary damages for past maintenance breaches$7,200.00 d. Compensation for ongoing maintenance breaches i. Back door$ 10.00 per week ii. Ensuite shower leak$ 5.00 per week iii. Flooding patio, driveway$ 20.00 per week e. Breaches of s38 and s48 (total)$10,000.00 f. Refund gas bottle GST $ 33.60 g. Bond breachapology h. Loss of land usage due to poor drainage$ 6.00 per week
I have made interim decisions after each hearing which have mostly addressed the work orders and directions about evidence.
My understanding is that the landlord will have refunded the GST on the gas bottles by now.
This decision addresses all remaining claims. I address the tenants’ claims first and then the water claims because some of the maintenance issues relate to the water dispute. Burden and standard of proof
The party that makes a claim has the task of proving it; the burden of proof. 1 Tenant Bundle D.
In proving the claims, each applicant must provide evidence which persuades me that what they say is "more probable than not"; the standard of proof. The difference between compensation and exemplary damages
I explained in one of the early hearings that there is a difference between compensation and exemplary damages.
Compensation is when the applying party says that they have suffered a loss or disadvantage because of a breach by the other party. For example, they may have failed to comply with their obligations in the Residential Tenancies Act 1986 (RTA) or the applying party may not have received what they were promised under the tenancy agreement/contract. If the breach and loss are proven, then the Tribunal can award money to aim to put the innocent party back in the position they would have been in if the other party had not breached the law or contract between them.
Exemplary damages are more like a penalty or a fine and may only be awarded when the Tribunal considers that a party has intentionally committed an “unlawful act” (listed in Schedule 1A RTA), and that this would be “just” after having regard to intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA. The question is not whether the landlord knew they were breaching the law but whether they deliberately did, or failed to do, the thing complained of. The tenants’ claims regarding maintenance and Healthy Homes Standards: what are the legal obligations?
A landlord has legal obligations under section 45 RTA which include to:- a. provide and maintain the premises in a reasonable state of repair; b. comply with the Healthy Homes Standards including insulation requirements (insulation requirements apply from 1 July 2019); c. comply with any relevant enactment in relation to buildings, health and safety; and d. provide an adequate means for the collection and storage of water if there is no reticulated supply.
All these obligations apply even if a tenant knows the state of the premises at the time that the tenancy is entered into; see s45(3) RTA.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

Do the Healthy Homes Standards apply to this tenancy?

Private landlords must ensure their rental properties comply with the Healthy Homes Standards (HHS) within 90 days of any new, or renewed, tenancy that commences on a date between 1 July 2021 and 27 August 2022. 2
Where a new or renewed tenancy commences on a date on or between 28 August 2022 and 2 March 2025, the premises must comply within 120 days of the start date. The final compliance date is 1 July 2025.
Community housing tenancies must comply by 1 July 2024.
This tenancy started on 16 December 2019. This is before 1 July 2021, so the legislation does not require the landlord to comply with the HHS.
However, the tenancy agreement contains a statement, signed by the agent for the landlord which says: Healthy Homes The landlord will comply with the Healthy Homes Standards as required by the Residential Tenancies Act 1986 by 1 July 2021 in accordance with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 Section 45(1)(bb)
By including this statement in the tenancy agreement, the landlord has arguably contracted to comply with the HHS by 1 July 2021. This is because a landlord is free to agree to a standard more onerous than that required by law.
However, this was not noted or raised by either party or by me during the hearings. Also, the content of the tenants’ claims do not specifically relate to the HHS.
For these reasons, I have not addressed the HHS in this decision. Instead, I have considered the tenants’ claim to be that the landlord has not complied with the obligation to provide and maintain the premises in a reasonable state of repair; s45(1)(b) RTA. Summary of work orders – to fix maintenance issues at the premises
Where the Tribunal considers that the landlord has failed to comply with any of the obligations in s45 RTA, it may make an order for the landlord to carry out work. See section 78(1)(e) RTA.
The evidence presented by the tenants over the first two hearings, was sufficient to satisfy me that the landlord had failed to comply with its obligation to provide and maintain the premises in a reasonable state of repair (s45(1)(b) RTA). I made six work orders on 31 October 2022.
The work orders were:- 2 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019. a. Replace or repair the kitchen rangehood to ensure it is working correctly, b. Replace or repair the two middle gas-hobs on the stove to ensure they are working correctly, c. Replace the four blinds in the kitchen and ensure that these are working correctly, d. Repair the drawer in the kitchen and ensure it is working correctly. e. Replace the back door or ensure that it is safe (including that there are no sharp edges) and can be opened and closed easily, and f. Relocate the heat pump exterior unit so that it is sitting on a solid surface and not at risk of flooding,
The above work was completed by the hearing on 15 December 2022.
The landlord agreed at the first hearing on 13 September 2022, to:- a. urgently repair the back door. This was replaced with a new door on 26 November 2022, and b. investigate the drainage around the house and urgently take any action to ensure that the house and immediate surrounding area did not flood when it rained.
Expert drainlayer and engineering input was obtained which resulted in new drains being installed along the driveway, along the concrete patio edge, and replacement of a coil drain and sleeve further into the surrounding paddock. This work was completed by the end of January 2023. The tenants confirmed at the 31 March 2023 hearing that the work had significantly helped the drainage issues. I note that an email from a [The Local Council] building inspector in May 2023 notes that water was ponding by the front door that was not draining away. This issue may not be fully resolved. I do not make further work orders due to the complexity of the problem but discuss this further in the maintenance section of the decision, below. Should the landlord be required to pay compensation and/or exemplary damages for breaches of maintenance obligations? Section 45(1)(b) RTA
Fixing the maintenance issues was the primary focus during the hearings. This required persistence as the problem with the back door not properly fitting the frame and the drainage and water pooling problems around the house needed expert input and work.
This decision addresses the tenants’ application for financial compensation and/or exemplary damages for what they see as unreasonable delays and failure to fix things properly the first time.
A tenant has a statutory duty to advise of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being held to be in breach of its duty.
The sheer volume of evidence provided by both parties has meant that tracking each maintenance issue, the actions taken by the landlord, and the outcomes of various repair attempts has been challenging. My comments below are a summary of my understanding of the evidence.
Some of the maintenance problems required multiple callouts by various contractors. A landlord relies on tradespeople to do a job properly. In this case, some of the difficulties were exacerbated by the fact that [The Property Management Company] are based in [City 1], the property is in [Town] and the owner (who lives overseas) favours tradespeople who were sometimes travelling from [City 2]. Covid-19 restrictions during 2020 and 2021 often affected the availability of tradespeople and materials.
[The Property Management Company] have a practice of sending an “Inspection Check-list” to tenants as part of preparation for regular inspections. They ask that this be filled out, signed and left at the house for the property a manager to collect. The tenants say that they did this, many times. Unfortunately, neither the landlord or the tenants have been able to find copies or a record of these forms. Staff changes within [The Property Management Company] affected continuity and left gaps in property management records. I recommend that [The Property Management Company] implementing a tracking system for maintenance and repair requests that is not dependent on the records of an individual property manager.
I now list the maintenance issues that were addressed during the hearings and my decisions on each. The back door:
At the start of the tenancy, the back door could not be unlocked – the lock was replaced after 7 months (on 24.7.2020). It then wouldn’t open as was sticking in the frame (reported on 24.7.2020). A contractor ground or filed the door to assist with opening but this left sharp edges along the opening side of the door (evidenced in photographs) which were a hazard. The door also began to stick again by December 2020. 3 The problems were never properly resolved. In May 2022, a different contractor assessed the door as needing replacement and “bent beyond repair”. 4 It took 4 months to confirm a quote for a new door and a further 7 weeks until the new door was installed on 26 November 2022. There is 3 [Tenant 1] emailed [The Property Management Company] on 21.11.2020 advising that one of the family had cut themselves on the sharp edge and that the door was sticking again. 4 Landlord Bundle B, p24. some mention in the evidence that the door was taller than a standard size which may have contributed to the warping problem. I note that the front door does not have a handle latch but a roller latch which means that it must be locked to keep it shut if the weather is windy. I award compensation of $780.00 ($5.00 per week) for the inability to use the back door easily and safely for 3 years. The gas hob:
Two middle burners on the gas-hob have never worked properly and sometimes did not work at all. Again, this was a recurring problem, and the cause is unknown. However, there are a total of six gas burners hobs with the other four being of full-size. For this reason, I do not consider the detriment or loss to the tenants to be significant. I do not award compensation. The en-suite shower leak:
There was a leak from the side of the en-suite shower which caused water to pool on the bathroom floor. The evidence shows that multiple repair attempts from mid-2020 through until late 2022 failed to resolve the problem. A successful repair (where the silicon was fully removed and replaced) was completed in early 2023. The tenants did the right thing by continuing to advise the landlord that the problem was unresolved as any ongoing leak can cause water damage to the surrounding walls and floors. I note that the older roller shower doors have been mentioned as a possible maintenance issue. I award $450.00 for loss of amenity. The rangehood:
Intermittent problems have been reported by the tenants over the tenancy. It has worked at times, 5 been repaired, 6 and then failed again. A new rangehood was installed in November 2022. I find no failing by the landlord in that repairs have been arranged for. It is unclear to me what duration of time the rangehood has not worked. I do not award compensation. The four blinds and one drawer in the kitchen:
These issues were minor. The blinds were left by past tenants so are not the landlords to maintain (although they did). I award $50.00 for the time taken to remedy the drawer. 5 A Healthy Homes Assessment report done in March 2021 records the rangehood as in good working order. 6 Repaired in 1 June 2021 after 4 control lights staying on but nothing was working. Landlord Bundle A, p39 The toilets:
Problems with one or both toilets “running” into the bowl were another repeating issue. Three different plumbers or handymen have repaired them at various times. The first issue was noted in June 2020, both toilets were repaired in November 2020 (after at least 3 attendances by the landlord’s handyman and then by plumbers). The next issue was noted in March 2022, parts were ordered, and it was attended to in June 2022. The tenants took video of one of the toilets running fast into the bowl however the plumbers could not recreate the problem. 7
I agree that the landlord took too long to have these repairs attended to but also note that there seemed to be recurring problems. This has caused the tenants frustration, but I am not aware of any detriment. I have accounted for any water loss in the water section later in this decision. I award compensation of $250.00 to recognise the frustration. The drainage and water pooling around the house:
This has been the most difficult maintenance issue to address. It has taken expert advice and persistence by the tenants in bringing this claim before the landlord agreed (at the first hearing on 27 September 2022) to investigate the issue. 8 As noted in the work orders section above, new drainage has now been installed and the tenants report that this has helped a great deal.
The tenants seek compensation of $20.00 per week for the water pooling around the house and drainage and $6.00 per week for loss of use of land due to the water in the paddock. Compensation can be appropriate where there has been some fault on the landlord’s part or where the tenants have not received what they contracted for under the tenancy agreement.
The tenants provided video and photos showing the saturated grassed area surrounding the house and water pooling onto the concrete patio at the front of the house on dates including September 2020, March 2021, September 2021, July and October 2022. It is not clear to me whether the issue was raised with the landlords in 2020 and 2021. In February 2022, the tenants alerted [The Property Management Company] to their concerns including that the exterior unit for the new heat pump may become inundated. 9 7 Oral evidence from the plumber in hearing on 31 March 2023. 8 The landlord initially did not consider the drainage issues with the driveway or water pooling around the house to be something that could be remedied. See email [The Property Management Company] to tenants on 3 August 2022, 4:12pm in Tenant Bundle A, section 3 under Driveway. 9 The tenants’ photos from March 2022 show water sitting approximately 5 to 7 centimetres deep around the base of the heat pump external unit. Tenants Bundle A, compiled notes, drainage.
The fact of a drainage issue at the premises is proven.
The causes of the problem are complex and have required engineering and [The Local Council] input. After reviewing the evidence, my conclusions are:- a. The natural slope of the land, the design of the driveway (running downhill from the road towards the house) and the fact that the ground along the driveway was, in places, higher than the driveway and patio, all contributed to water running down the driveway and onto the concrete patio along the front of the house. The engineer concluded that the main problem was the ground being higher than the concrete surface at the top of the driveway and recommended “forming a dish channel (or equivalent) ... to prevent ingress of surface flow onto the driveway”. 10 I do not know whether this has been done. b. The landlord’s drainlayer took photos showing that some of the drains around the patio had weeds growing in them and that large outdoor items were stored near the drains on the concrete patio. 11 I agree that keeping the drains clear is relevant. However, this does not explain the volume of water flowing down the driveway or through the paddocks. I agree with the tenants that the water flowing down the driveway also means that the drains will receive stones and silt rapidly meaning that keeping the drains completely clear is challenging. c. There is no fence between the land and the house. The tenants use movable electric fencing to control where their stock graze. Photographs show some pugging from stock footprints. The landlord submits that too many stock have been kept for the size of the land. There is not enough evidence for me to draw a conclusion about this but I agree that there may be a need for stock to be kept off areas that are very wet and away from the patio and driveway edges. d. One contractor who reviewed the drainage issue mentions a “spring coming from the hill”. 12 No other contractor or any of the parties mention a “spring”. e. There is insufficient evidence to show that the water pooling issues were caused or contributed to significantly by any leak from the roadside [Water Provider] water connection or the tenants’ hoses connected to that. “Water Leak Detection Auckland” tested this connection and found a water leak of 100ml per minute, which is 144 litres per day – a relatively small amount. 10 Engineer’s site appraisal report and photographs dated 24 November 2022 at 2.1 – at Landlord Bundle B, pages 86-92. 11 ‘General house drainage and storm water inspection report’ and photographs dated 22 September 2022 – at Landlord Bundle A, pages 4-15. 12 ‘Maintenance estimate dated 27 October 2022 after assessing the water problem on the driveway; Landlord Bundle B, p94. f. Photographs taken by the tenants and by engineering and drainlaying contactors in October and November 2022 show the new drains being laid. Rain on 30 October 2022 appears to quickly result in water drenched land around the house and a stream of water flowing into the paddock by way of the replaced soakage pipe and sleeve. g. The additional drainage added has helped but there may still be improvements that can be made. The observations and recommendations from the experienced building inspector from [The Local Council] 13 who inspected the site in May 2023 include:- i. That the strip drain in front of the garage is not fully preventing surface water ponding by the front door and “appears to have very little fall as the water sitting in the strip drain was not flowing anywhere”. He recommends assessment of the surface water catchment areas by a registered drainlayer and that “storm water should be conveyed away from the low point by the front entry and down the side of the dwelling to a suitable outfall”, ii. That water is entering at the base of the brick cavity (underneath the house) which is “not acceptable” because the purpose of the cavity is to keep the base dry, iii. That the culvert pipe under the (unsealed) driveway crossing is blocked so should be unblocked as it is adding to the water running down the driveway, iv. Recommending that the driveway crossing be sealed, and drainage or kerbing be added, to divert surface water from the road away from the driveway, v. Noting that this work must be done by a registered drainlayer and may require building consent. h. The owner gave oral evidence that all issues raised by the [The Local Council] inspector have “been sorted” between the inspector and the owner’s engineer. 14 I note that there is no written confirmation in the evidence that the recommendations from the inspector (i to iv above) have been addressed. Until they are, there may continue to be ponding and drainage problems. i. The tenants asked during hearings whether the driveway crossing and an extra downpipe and drain previously installed on the patio were properly authorised (by the council). The questions are relevant as part of 13 Email to owner from [The Local Council] ([redacted], 5 May 2023, 2:23pm) provided in Tenant Bundle H, at
6. 14 Oral evidence given during the final telephone hearing on 19 June 2023, at the 1 hour: 20 minute point. discovering the causes and remedies for the drainage issues. My summary of the evidence on this is:- i. That two driveway crossings into the property are permitted. An email from [The local council group] confirms this although does say that the existing cattle gate/entrance (in place before the house and driveway were built) must not be used as a vehicle entrance. 15 ii. That the previous additional downpipe connected by the owner into the strip drain in front of the house and into the stormwater system (and removed after these proceedings began) required a sump to stop silt and debris entering the stormwater system. The [The Local Council] inspector said that there was no sump in place. 16 The owner says that there was a sump installed but that it has now been covered up. He also says that no building consent was required for the alteration to the drainage because it was “minor work”. 17 There is no evidence to either support or refute this.
I have carefully considered the issue of compensation. I accept an effect on the tenants from being concerned about and having to walk through the pooling water on the patio and possibly being unable to use land that is waterlogged. Fortunately, water has not been able to enter the house and there is no evidence of water damage to any belongings. However, the landlord has spent more than $10,000.00 on investigations and work. 18 There is no evidence of any fault on his part. For this reason, I do not consider it would be fair to require payment of additional compensation. The septic tank and wastewater system (maintenance and water leaks)
The tenants have not applied for compensation or work orders relating to the septic tank and wastewater system as these were working well when they made their application. I have chosen to include discussion here because the evidence raises issues that might be important for the landlord to consider.
In summary, the septic and wastewater system has needed some significant repairs over the time of the tenancy. In particular, a new air blower pump was installed in July 2020, this was replaced again in September 2021 together with a new effluent pump and high water alarm. The tank was reported as “flooded” at this time and 6 months later it was noted that the tank was flooded again, and the filter and grill blocked. At the next service it was reported to be working well. 19 15 Email from [The local council group] to the owner date 20 April 2023 at 3:00pm. 16 Email to owner from [The local council] (Johnstone, 5 May 2023, 2:23pm) provided in Tenant Bundle H, at
6. 17 Oral evidence given during the final telephone hearing on 19 June 2023. 18 Landlord Bundle B, page 15 and 93. The landlord increased the regular service interval from every 6 months to every 4 months.
There don’t seem to have been recent problems however I make the below observations in case this is useful to the parties:- In emails between [Drainage Company] and the tenants, [Drainage Company] say that they have “lots of notes and photos” and have done a “small report” on the septic tank. 20 These documents may be useful to the landlords. a. The [Drainage Company] serviceman said “this tank is actually looking the best it has looked since coming here, he said its finally growing some good bacteria which indicates you may be using the right products or using less chemicals? There was no smell.” Have the tenants been given instructions on how to keep a septic system healthy? I notice that when the owner asked [Drainage Company] for advice about why the septic tank may smell bad, [Drainage Company] reply to say that they recommend the use of eco-friendly products (dishwashing and laundry) as harsh chemical products can sometimes affect and kill the bacteria in the system which can cause smell. 21 b. The [The Local Council] building inspector recommends 22 that: “the effluent field be protected from any stock movement ... ” “there was a hose pipe that appeared to be going into the septic tank ...” And that a “registered drain layer ... also has a look at the wastewater system as well” because of the repairs that have been required. c. There is an email from [The Property Management Company] 23 to the tenants that advises them that they “need to keep the dripline area for the septic system clear of stock as they can damage the drip lines and the septic system.” The tenant replies to say that they have not been told this before (after nearly 3 years at the property). The tenants have used electric fencing to keep stock off some of the septic system (there is no other fencing) 19 See Landlord Bundle A at pages 99 to 107. 20 Tenant Bundle H, at 4.4. 21 [Drainage Company] email 21.01.2020 to owner at Landlord Bundle A, page 100. 22 Email to owner from [The local council] (Johnstone, 5 May 2023, 2:23pm) provided in Tenant Bundle H, at
6. 23 [The Property Manager/s], 11 October 2022, reporting back after an inspection on 30 September 2022. however this may not be protecting the effluent field which is usually quite a large area. 24 Has the location of the “dripline area” for the septic system been identified and fenced off from stock? This is a landlord responsibility. Summary of maintenance issues and the claim for exemplary damages
In summary, I agree that the landlord has breached the maintenance obligations by taking too long to fix the back door, the en-suite leak, and the toilets. I find no breach for the gas hob, rangehood, and drainage.
The tenants also seek exemplary damages which are like a fine and are awarded only when a breach is intentional. A deliberate failure to attend to repairs in a reasonable timeframe can be inferred where a professional property management company is involved and there is no reasonable explanation for a delay. [The Property Management Company] were unable to clearly explain why some of the issues were ongoing because of the lack of documentation by the first property manager. I am satisfied that maintenance issues were dealt with appropriately once [The property manager/s] took over management.
On balance, I do not consider that the maintenance breaches were intentional nor that a fine or penalty are just in this case. I understand that to the tenants the issues were ongoing and what they called “band-aid” fixes were inadequate. However, the evidence does not satisfy me that the blame for this rests with the landlord. I conclude that delays caused by the extraordinary circumstances of the Covid-19 restrictions as well as the repeat nature of some of the problems (the rangehood and the toilets) mean that the breaches were not intentional. I do not award exemplary damages.
I do make a comment that the owner has often referred to the maintenance issues as being tenant “complaints”. The tenants point out that they are required, by law, to notify a landlord of any maintenance issues and them doing so is not only to help them but also to make sure that the landlord’s property is not further damaged.
I agree with the tenants. The owner lives overseas, and [The Property Management Company] are not local and (prior to these hearings) did not have detailed knowledge of the property nor keep good maintenance records. If the tenants had not alerted the landlord to the various maintenance issues (especially the drainage problems), the problems may have been worse and caused damage to the structure of the house and/or land. 24 Email from [redacted] to tenant on 20.12.2019 Landlord Bundle A, page 135, and to the owner at page 136, discusses fencing the septic system but does not specifically identify the effluent field. Did the landlord breach the tenants’ quiet enjoyment or unlawfully enter the premises? Sections 38 and 48 RTA.
The tenants claim that the landlord entered the premises without consent or notice and/or breached their privacy or “quiet enjoyment”.
A landlord may not enter the inside of tenancy premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. Section 48 RTA.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. Section 38(2) RTA.
The tenants’ concerns in this regard arose after these claims had been brought to the Tribunal. The specific incidents are:- a. [The Property Management Company] salespeople coming to the premises with the tenancy property manager in September 2022 without the tenants being notified of this in advance: I agree that a landlord should advise tenants if they are bringing agents involved with a prospective sale process to the property. A notice given for one purpose does not cover all other legal purposes. However, a landlord has a right to have tenancy premises appraised and valued for sale as a tenant cannot withhold consent unreasonably; s48(3)(3A) RTA. I accept the landlord’s evidence that agents only went inside after obtaining the consent of the tenants. I find there to be no breach. b. A maintenance handyman who had come to the property to do certain specified repair work then also investigating and taking photographs of other issues: [Tenant 1] gave consent for entry to fix the back door. The tenants had raised a concern about the heatpump exterior unit and other maintenance issues. The handyman did not enter the premises for these reasons. All investigations and photos were outside the house (so do not strictly need consent) and were to address issues raised by the tenants. I find there to be no breach. c. A visit from a building advisor friend of the owner’s: I agree that it would have been preferable for [The Building Advisor] to contact the tenants first rather than arrive unannounced. However, strictly, there is no unlawful entry unless someone goes inside the house or garage or other tenant buildings. I find there to be no breach. d. [The Property Management Company] representatives coming earlier than advised (on 10 November instead of 11 November 2022): [The Property Management Company] had been trying since 2 November 2022 to arrange times to have work orders completed. They were co-ordinating multiple contractors. After reviewing the evidence, I find that they acted more than reasonably and were respectful and patient. I find there to be no breach.
These claims are dismissed. The landlord’s claim for payment of water bills
A landlord claim for payment of water bills usually starts with copies of all water invoices and a clear ledger showing the dates and amounts of the invoices and the dates and amounts of any payments. The amount owing can then be calculated.
[The Property Management Company] did not initially provide copies of all water rates invoices. Over the hearings it became clear that [The Property Management Company] has a practice of sending its own water invoices to the tenants rather than forwarding on the [The local council] invoices. Some of the [The Property Management Company] invoices were based on readings taken by [The Property Management Company] rather than by [The Local Council].
[The Property Management Company] provided an updated “water rates invoice summary” and “tenant ledger” prior to the final hearing. 25 I found these difficult to understand partly because the tenant ledger does not show a running rent arrears/credit balance and partly because [The Property Management Company] have sometimes credited tenant payments to something other than what the tenants intended it for.
I recently required the ledgers to be resubmitted in a format that shows a running rent balance. 26 The rent ledger provided is still incorrect as it does not show that the rent was paid an additional week in advance since 12 April 2021. The “arrears” column should show a credit of $550.00 from this date.
The end result of the new ledgers from [The Property Management Company] is:- a. [The Property Management Company] have invoiced $2,260.00 for bond and the tenants have paid this. b. An additional $60.00 paid by the tenants for bond (after a rent increase) was credited by [The Property Management Company] towards water bills. 27 [The Property Management Company] then took $60.00 off a later rent payment and credited this to the bond. 28 [The Property Management Company] thought that this made the rent short. They were wrong about 25 Landlord Bundle F. 26 Landlord Bundle G. 27 Receipted on 05/07/2022. 28 Tenant payment of $1,130.00 split into $1,070.00 for rent and $60.00 for bond – receipted on 28/09/2022. this because the rent had in fact been paid three weeks in advance since
04.2021. 29 c. To remedy what [The Property Management Company] thought was the short-paid rent 30 , [The Property Management Company] then used a tenant payment of $346.22 (paid for water invoice 67703) for rent. 31 This made the [The Property Management Company] error worse as the funds paid by the tenants for water were not used for that. This caused confusion. 32 d. [The Property Management Company] have invoiced $7,506.73 for water and have credited $4,202.26 of tenant payments to water. e. The tenants realised that their rent payments were more than 2 weeks in advance as part of these proceedings so adjusted their rent payments. 33 f. After the rent payment on 12.09.2023, the tenants are $50.00 in credit for rent and paid up to 17.09.2023. g. The total stated as outstanding on the [The Property Management Company] water ledger is $3,033.25. 34
The landlords claim outstanding water rates of $3,033.25.
The tenants disagree that they are liable to pay any more for water and counterclaim for a refund of $955.45 from water invoice 50510 and $859.97 from invoice 61669. The counterclaim is based on an assertion that the landlord failed to attend to repairs during the period of these first two water invoices and did not properly investigate high water usage although alerted to this by [The Local Council]. 35 29 Rent payments were made fortnightly from the start of the tenancy. The payment cycle changed on 12/04/2021 when fortnightly rent was paid on 06/04/2021 and then again on 12/04/2021. This resulted in the rent being paid 3 weeks in advance. 30 $15.00 for the week of 11/07/2022 when the rent increase took effect and $60.00 debited by [The Property Management Company] and used for the bond. 31 Receipted on 22/11/2022. 32 See Tenant Bundle I, at 1 – “tenant ledger anomalies”. 33 The usual fortnightly rent payment of $1,130.00 was reduced to $858.78 on 15/03/2023 which reduced the rent paid in advance to 3 weeks. The tenants have changed to weekly payments and skipped a payment on 21/08/2023 so that the rent is now paid one week in advance. 34 The [The Property Management Company] “water rates invoice/Bond summary” submitted at LLG5 states that there is a credit of $271.22 to be deducted from the total outstanding for water of $3,304.47. My understanding is that this amount has been credited to the tenants in the rent ledger so does not need to be credited again. 35 See Tenant Bundle D at 2.1. Water usage tables
I compiled analysis tables of water usage based on the available evidence and sent these to the parties in a direction dated 17 April 2023. Both parties responded with additional evidence.
I include here a combined table showing water usage as invoiced to the owner by the[The local council] and the [The property management company] invoices to the tenants, some of which contain meter readings taken by a property manager.
The second table shows [Water Provider] invoices and meter reading dates. The [Water Provider] is a charitable incorporated society supplying “trickle-feed” water to members that is generally used for stock and other rural purposes. The tenants say that water is supplied on a Daily Supply Entitlement (“DSE”) or allowance of 2.2m 3 per day. The tenants said that they limit their water usage to this amount because usage over this is charged at a penalty rate which is why the invoices are for almost the same usage amount each charging period (202 – 212 units). Table of water use – COMBINED [The Local Council] and [The Property Management Company] (bold italics) Invoice date Billing period end Meter reading *est Cubic metres used (m 3 ) Days in period Water used per day (m 3 ) Usage invoice amount Payments credited Tenancy start reading
12.20192059 36 07 Apr 2020
3.20202085* 37 01 Oct 2020
9.20202989930 38 2593.59$1,806.00 9 Oct 2020 (50510)
10.20203029$1,910.90 39 $1,910.90 (19.11.2020) 01 Apr 2021
2.202133723831752.19$785.15 36 Recorded on ingoing property inspection report 37 This is an estimated reading so does not show actual usage. 38 Calculated from start of tenancy reading. 39 970 units charged (start at 2059 end at 3029) at $1.97 per unit 01 Oct 2021
9.202138644921892.60$1,016.80 21 Feb 2022 (61669) Two periods:
10.20 to
6.21
6.21 to
9.21 3700 3864 671 164 265 64
53
56 $1,719.95 40 $900.00 (2.3.2022) $819.95 (4.5.2022) 01 Apr 2022
2.2022538715231758.70$3,198.30 8 Apr 2022 (62725)
2.20225387$3,198.30 41 $180.05 (4.5.2022) $60.00 42 (6.07/2022) 03 Oct 2022
8.202255501631830.89$346.22 11 Nov 2022 (67703)
8.20225550$346.22 43 $0.00 44 (28.9.2022) 03 Apr 2023
2.202357021521860.82$331.36 12 Apr 2023 (3516)
2.2023$331.36$331.36 (26.04.2023) Table of water use – [Water Provider] meter [Water Provider] Invoice date [Water Provider] reading date Other reading date Meter reading Cubic metres used (m 3 ) Days in period Water used per day (m 3 ) Usage invoice amount [Water Provider] start From
3.2022 45 0 40 671 units charged at $2.05 = $1,375.55 plus 164 units at $2.10 = $344.40 41 1523 units at $2.10 42 Paid by tenants for additional bond after rent increase. Credited by landlord to water. 43 114 units at $2.10 = $239.40 plus 49 units at $2.18 = $106.82 44 Paid by tenants for water. Credited by landlord to rent. 45 Email from [Water Provider], Tenant Bundle G4.1.3. 31 Mar 2022
4.2022202202$114.82 46 30 June 2022
7.2022404202$114.82
10.2022 47 570 30 Sep 2022
10.2022616212$119.65
11.2022 48 776 31 Dec 2022
01.2023818202$114.82 Summary of water usage tables
The water analysis tables show the average water use reasonably stable at between 2.2m 3 and 3.6m 3 per day from the start of the tenancy up to 1 September 2021.
There is then a large jump in usage over the next six months up to the meter reading on 23 February 2022 with average usage at 8.70m 3 per day.
Average [The Local Council] water usage from March 2022 onwards is stable at around 0.8m 3 per day.
The tenants switch to using [Water Provider] water supply for their stock from about 8 March 2022. Discussion
Section 39 RTA says that a tenant is responsible for outgoings (such as electricity and water) that are “exclusively attributable to the tenant’s occupation of the premises”.
A tenant is generally not liable for water that is lost through a leak or for any reason not from their own usage. A tenant has an obligation to notify a landlord of any need for repairs (s40(1)(d) RTA) and a landlord must attend to these within a reasonable timeframe as part of its maintenance obligations (s45(1)(b) RTA). Also, a landlord is expected to send water invoices to tenants regularly so that they can budget and so that any unusual water use is identified. 46 Charged at 42.0 cents per m3 plus $15.00 subscription charge per quarter 47 Poynton Shen video taken of [Water Provider] meter (LL Bundle D33) 48 Tenant reading (Tenant Bundle E1)
The difficulty in this case is trying to establish whether there has been a leak or any other reason for water loss other than the tenants’ usage.
The main period in question is from 1 September 2021 to 23 February 2022 (invoice 62725) where a very large volume of water has been used or lost. There have been several checks by plumbers over the tenancy but there is no evidence of a substantial leak being found.
Both parties supplied a large amount of evidence about routine maintenance issues that arose during the tenancy that may have affected water usage. After assessing this, I conclude that at least one toilet was running in to the bowl for about 6 months before it was repaired, 49 and that there was also a delay of about 6 months in having an outside tap (that was leaking when it was turned on) and a leak on the Infinity gas heater fixed. 50 The tenants again reported problems with the toilets running from March 2022 through until about October 2022 but the evidence does not indicate water loss over this time. 51
The landlords’ position is that the standard maintenance repairs to toilets and other household fixtures could not have caused water loss of the amount in dispute, and that the tenants must have used the water for stock or other purposes.
That said, the landlord has calculated potential water loss from the en-suite toilet, garden tap, gas water pipe (Infinity), and bathroom tap at a total of 40.24m 3 over the invoice 62725 period. 52 The rationale given for the calculation is reasonable.
The tenants say that they could not have used all the water charged for as they do not have large numbers of stock and have not used water excessively.
Both parties presented evidence about the average amount that cows and sheep drink and how many stock were on the property. In short, there is not enough clear evidence for me to try to assess this.
The tenants submit that the information in the water usage tables shows that the average usage of water for their stock is 1.96m 3 per day 53 and for the household is 0.85m 3 per day. 54 This is a total of 2.81m 3 per day. They suggest that this 49 The tenants notified [The Property Management Company] of a problem with the en-suite toilet on
6.2020 and the plumber’s invoice from work on 19.11.2020 says “inspect both toilets, adjust and replace underwater washers, lube buttons and check for leaks”; Landlord Bundle A at page 41. 50 The tenants alerted [The Property Management Company] to the gas infinity leak in August 2021 and the outdoor tap on 7 September 2021, the property manager noticed the bathroom tap dripping in February 2022 – see Landlord Bundle G4. The issues were repaired on 2 March 2022 – see Landlord Bundle A42. 51 The water invoice is low over this period and evidence from the plumber that repairs precautionary only – see Landlord Bundle D at 5. 52 Landlord Bundle G at page 4. 53 Taken from [Water Provider] tables and assuming usage habits are unchanged from when watering stock from [The Local Council] supply; see Tenant Bundle G at 2.3. 54 The average usage from [The Local Council] readings since stock water supply switched to [Water Provider]; see Tenant Bundle G at 2.3. stock usage estimate may be an overestimate as they point out that the average total daily usage was less than 2.81m 3 over the time of two of the [The Local Council] invoices (from 2.09.2020 to 1.09.2021).
On the other hand, the landlord says that the tenants might have used more water for their stock at the start of the tenancy. He says that the water usage since switching to [Water Provider] doesn’t indicate what was used previously because the tenants have limited their use under [Water Provider] to stay within the DSE limit which imposes a penalty rate if they use more than the allowance.
I agree with the landlord on this point. In my view it cannot be assumed that the water used for the stock on the [Water Provider] supply is an indication of the stock usage on the [The Local Council] supply.
I make brief mention of the repairs required to the septic tank and wastewater system. The tenants asked a question in their evidence which was whether the problems with the septic tank flooding might indicate undetected water loss into the wastewater system. I have discussed the septic system maintenance in the maintenance section above and highlight this again here. The file notes and expertise of [Drainage Company] and an expert drainlayer may shed some light on this. Conclusion on water claims
The tenants are right that [The Property Management Company] should have sent the water invoices more regularly. The first invoice was sent in October 2020 ($1,910.90), the second invoice more than 16 months later in February 2022 ($1719.95), and the third invoice only about 6 weeks after that in April 2022 ($3,198.30). No doubt this put financial stress on the tenants however they managed this sensibly by making part payments and raising the questions they have about the very high third invoice. In this sense, it has not disadvantaged them.
The owner said several times that he feels that the tenants did not do leak tests when they were asked to do so by [The Property Management Company] and that they should have done so. My comment on this is that the tenants were reporting maintenance issues and if there is unusually high water use, the ultimate duty rests with a landlord to check for leaks because they are responsible for the pipes and fittings.
I find it probable that some water was lost from the leaks in the toilet/s (reported in June 2020, fixed in late November 2020) but that this was a relatively small amount. I reduce invoice 50510 to allow for a maximum possible leak of 2600 litres per month per toilet for 6 months. 55 This is 5200 litres x 6 months which is 31,200 litres or 31.2m 3 . This is a refund to the tenants of $61.46.
I see no good reason to award a refund to the tenants from invoice 61669.
The very high water usage during the period of invoice 62725 has not been explained. The 6-month delay to fix the outdoor tap and Infinity gas water pipe occurred during this period and the landlord’s calculation of potential water loss of just over 40m 3 has a reasonable basis but the actual loss cannot be known for sure. The largest repair to the septic system was completed before this high use period so even conjecture about this does not assist.
Taking into account the tenants’ water usage before the period covered by invoice 62725 and in the absence of any other explanation, I conclude that the majority of this water use was probably not from the tenants’ use. My decision is that the tenants are required to pay for water use at a rate of 2.6m 3 per day for the 175 days covered by invoice 62725. The [The Local Council] charge rate at this time was $2.10 per unit. The calculation is 2.6m 3 x 175 days = 455 units x $2.10 = $955.50.
I am aware that the above decision means that the landlord has paid the majority of invoice 62725. I repeat my suggestion made during the hearings that the landlord contact [The Local Council] about leak remission. Conclusion
These proceedings have been lengthy, and the decision has required review of a very large amount of evidence. Neither party has been substantially successful.
This is possibly an appropriate outcome given the combination of covid-19, an overseas owner, agents operating from a different town, unexplained water loss, and drainage and septic tank issues that may not be well understood by either landlords or tenants.
The filing fees will remain as paid.
Neither party is entitled to suppression of name (as neither has been wholly or substantially successful) however neither is obviously “at fault”. I have decided to suppress both parties names but to publish the address of the property because of the ongoing maintenance issues.

Tenancy Tribunal case 4352321 — Leaks at 86 Travers Road, Te Kauwhata, RD 2, Te Kauwhata 3782

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Tenancy Tribunal case 4352321 — Leaks at 86 Travers Road, Te Kauwhata, RD 2, Te Kauwhata 3782

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Do the Healthy Homes Standards apply to this tenancy?

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Residential Tenancies Act sections

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Award balance

Claims & awards

Order

Reasons

Do the Healthy Homes Standards apply to this tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions