Published tribunal order
Tenancy Tribunal case 4542149 — Tenancy dispute
Decided 29 Sept 2023 · Published 29 Sept 2023 · Application 4542149
- Healthy homes
- Leaks
- Mould & damp
- State of repair
Party names are redacted in the official published order.
Order
- This Order amends the Order of 4 July 2023 by referring only to the landlord and deleting reference to its agent. In all other respects it remains unchanged.
- An application for suppression has been made in this case and the Tribunal orders suppression of the tenants’ names and identifying details.
- The landlord is to pay the tenants $40,020.44 being compensation of $40,000.00 and reimbursement of the filing fee of $20.44.
Reasons
- Both parties attended the hearing.
- Part of the tenants’ application was for the landlord’s noncompliance with the Healthy Homes Standards (“HHS”).
- This tenancy began on 2 June 2020. The HHS do not apply to tenancies which began before 1 July 2022. The tenants’ claims in relation to the HHS are therefore dismissed.
- The tenants’ remaining claims are that the landlord has breached its obligations under specific provisions of section 45(1) of the Residential Tenancies Act 1986 (“RTA”) which provide that the landlord shall: (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
- Regulations 14, 15 and 16(2) of the Housing Improvement Regulations 1947 provide: “14. (1) No house shall be occupied which is built on land which is not adequately drained or which is subject to periodic flooding in times of normal rain. (2) Every house shall be provided with gutters, down-pipes, and drains for the removal of roof water to the satisfaction of the local authority.
- Every house shall be free from dampness.
- (2) In cases where no sewerage system is available the waste matter from every sanitary appliance shall be discharged by waste-pipe or soil-pipe, as the case may require, into an adequate drainage system connected to an adequate sewage-tank or other adequate means of disposal.”
- Regulation 18 provides: “Every house and all the appurtenances and appliances of every house shall at all times be kept in a state of good repair.”
- These four regulations are part of the requirements with which the landlord must comply under section 45(1)(c) RTA.
- The tenants’ specific claims were that: a. Due to the inadequacy of the septic tank system, sewage flowed back through it and into the house on four occasions. The sewage system was inadequate to support a four bedroom house. b. Rainwater flowed freely into the attached workshop, pooled on the floor over exposed electrical wiring and that water came into three of the four bedrooms. c. Two dead trees in the driveway were not removed. d. A hole in the kitchen bench was not repaired. e. The floor tiles in the entranceway were not grouted and so represented a health hazard as they were difficult to clean.
- In considering the claims, the “standard of proof” or the level of evidence required is “on the balance of probabilities.” In other words, the tenants must establish with evidence that their claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.
- I do not need to be completely certain but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all evidence.
- Contemporaneous documents, such as emails, texts and photographs are often helpful in making factual findings, where facts are disputed or there are gaps in the recollection of the parties.
- While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
- By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely. The tenants’ evidence
- The tenants provided the following evidence: a. A Risk Register report carried out by the landlord’s agent dated 9 September 2020 which noted “multiple leaks in the barns, none within the house.” b. A Risk Register report dated 2 June 2022 carried out by the landlord’s agent which once again noted “multiple leaks in the barns, none within the house” and also “There is a leak to the shed roof caused by overflowing downpipes. Also a dead tree in the driveway needs felling.” c. A Risk Register report dated 6 November 2022 carried out by the landlord’s agent which noted once again “multiple leaks in the barns, none within the house” and also “Bedroom 1 in winter, water floods in from western side”, Bedroom 2 “Water ingress in heavy rain as per bedroom 1”, Bathroom “Waste can back flow through floor drain and shower”, Outbuildings “Water ingress through roof and ground on shed”, “Field drain and septic tank issues. Dead trees left of drive – dangerous in winds”, “Floods up against wall on west side”, Guttering/Spouting “Rusted, adds to drainage issues.” Its Comments section summarises: “Bedroom 1 - In winter, water floods in from western side, unusable. Bedroom 2 - Water ingress in heavy rain as per bedroom 1 - also not used. Field drains off the septic tank appear blocked, sewage can back flow into bathroom/shower, particularly if several people in residence. Gutters - Rusted, adds to drainage issues at side of house. Water ingress through roof and bottom of walls in sheds. Field drain and septic tank issues. Dead trees left of drive - dangerous in winds.” d. An Inspection Report dated 6 November 2022 completed by the landlord’s agent which noted water ingress/flooding in two bedrooms, “waste can through floor drain and shower” backflow, water ingress, field drain and septic tank issues, floods, guttering and spouting. e. An Exit Inspection Report dated 17 February 2023 completed by the landlord’s agent which noted: three bedrooms affected by water ingress, one bedroom’s floor coverings “Badly affected by damp, possibly sewage”, and that in the bathroom “Waste can back flow through floor drain and shower”, “Water ingress through roof and ground on shed”, “Field drain and septic tank issues. Dead trees left of drive – dangerous in winds”, “Floods up against wall on west side”, “Guttering/spouting – rusted, adds to drainage issues”. f. An email dated 16 June 2020 from the tenants to the landlord’s agent complaining that “There are plumbing issues in the main bathroom the sink and shower do not drain and when the toilet is flushed they bubble through and then drain away, obviously there is some blockage of some sort.” g. An email dated 12 January 2021 from the tenants to the landlord’s agent advising him of the water ingress inside and attaching photographs. h. An email dated 26 May 2022 from the tenants to the landlord’s agent noting uncompleted items following the December 2021 inspection including tree removal, the hole in the kitchen bench and the severe water leak in the storage shed. i. An email dated 16 June 2022 from the tenants to the landlord’s agent advising that water has flooded the shed to a depth of three inches and entered the house in one bedroom “to approximately three feet.” j. An email dated 18 July 2022 from the tenants to the landlord’s agent advising that water was coming off the main road and entering the dwelling, and that water was coming through the roof in the shed onto electrical wiring.
- The tenants advised that two or three months into the tenancy, sewage flowed up through the toilet and bathroom drain so that it pooled in the bathroom. The sewage contamination flowed into a bedroom. The tenants’ daughter who lived in the property advised in a letter to the Tribunal that this happened on four occasions during her occupation of the property and that she and the tenants attended to the clean-up required. The tenants explained that after the last occasion in August 2022, their daughter left the property because of the recurrence of this issue. The property did not have anyone resident until the tenancy ended on 16 February 2023.
- The tenants explained that the whole property comprising a dwelling and workshops were all constructed on one concrete pad. They explained that the soak pits for the downpipes were clogged up and did not operate, the water from the workshop roof flowed onto the ground through rotted guttering, and the field tiles were blocked. In their view, this caused water to rise on the section and come into the property.
- Section 40(1)(d) RTA requires the tenant to notify the landlord, as soon as possible after discovery, of any damage or of the need for repairs to the premises. Once the tenants notified the landlord or the landlord otherwise becomes aware of the need for repairs, the obligation in section 45(1)(b) requires those repairs to be attended to in a timely manner.
- What is a reasonable time frame depends on the gravity of the problem and also on the attempts made by the landlord to investigate and fix the problem.
- The tenants gave evidence at the hearing that in addition to the email correspondence referred to above, they regularly spoke to the landlord’s agent by telephone and in person and complained of these and other issues with the property. Some of the required works were carried out but these issues were never resolved.
- There is a suggestion in some of the email correspondence that the flooding on the property was caused by an issue with a council culvert outside the property. The tenants denied that there was any such issue and confirmed their belief that the causes for the flooding were the issues with rainwater drainage on the property. The landlord had no evidence confirming that the culvert had caused any of the flooding.
- It is not for a tenant to determine the cause of the flooding or the sewage issue. The tenants’ obligation is to notify the landlord of the problems with the property. It is for the landlord to investigate and then fix those problems promptly.
- It is to be noted that the current property manager has not been acting for the landlord throughout the term and has only been acting for about a year. She could not confirm or deny from her records whether the tenants had been complaining of these issues during the first year of the tenancy, nor whether a previous employee of the agent had been regularly advised of these issues. She noted that the landlord had paid an invoice in March 2022 “to attend and check septic tank”. The landlord advised that the only notice in its records of the issues were those listed in paragraph 6 above. The landlord confirmed that other issues of maintenance throughout the tenancy had been remedied.
- The tenants advised that not all the bedrooms in the property had been used and some were just used for storage. They had used the workshop and an adjoining storage area. In the storage area, they had to keep items on pallets so as to keep them off the floor in case of flooding. They stored farm equipment in the workshop because it was lockable, despite it not being weather tight.
- The tenant’s daughter noted in her letter to the Tribunal: “I was unaware of the water leaking into the end bedrooms until a smell eventuated and my father found it.”
- The tenants advised that the property smelled of mould and sewage throughout the tenancy and that this made it unpleasant to live in. The issue regarding the sewage system resulted in their daughter leaving the property and it being vacant for some six months.
- The tenants had been led to believe that it was a requirement of a separate lease of adjacent farmland that they rent this property. They advised that it was for this reason that the tenants continued to rent the property despite these significant, unresolved issues. The tenants advised that once they became aware that they could terminate this tenancy and continue with the lease of the farm land, they did so.
- The landlord’s own reports confirm that it was aware of the issues with: a. Water ingress in the outbuildings since September 2020. b. Water ingress into the dwelling since November 2022. c. The sewage issue since November 2022.
- The tenants’ evidence also confirms that the landlord had notice by email of the sewage issue in June 2020, water ingress into the outbuilding in January 2021, water ingress, the dead trees and the hole in the bench from the inspection in December 2021 and by email in May 2022, water ingress into the dwelling and the outbuildings in June 2022 and July 2022.
- The tenants advised that the property was inspected by the landlord’s agent approximately six monthly. Neither the tenants nor the landlord had seen any written report arising from these inspections, other than those listed above. The tenants complained that the landlord’s previous agent never took notes but promised to get these issues sorted out.
- Notice from the tenant is not needed if the landlord knew of the need for repair or the need for repair is apparent from observation: “... the musty smell and the generally deteriorating condition of the lower level would have indicated to a reasonably competent person inspecting the dwelling with reasonable frequency – or indeed at any time over, or immediately preceding, the tenancy – that water leakage or seepage (whatever the cause/s) was a significant, if not distinctly widespread, problem.” Barfoot & Thompson Ltd v Casey DC Auckland VIV-2005-004-1762
- I accept the tenant’s verbal evidence at the hearing that these issues were present throughout the tenancy and that the landlord’s agents were notified or were aware of them from inspections carried out during the tenancy. The tenants’ claim for compensation
- The tenants have claimed in compensation a sum equivalent to all the rent paid during the tenancy which the tenants’ claim calculates at $67,830.00. I note that the tenancy lasted just over 141 weeks or nearly two years and nine months. The rental at the start of the tenancy was $470.00 per week but was increased to $510.00.
- The tenants also gave evidence that some of their possessions were damaged by the water ingress. No other evidence concerning such loss was presented and no attempt to quantify an amount was made. This claim cannot therefore succeed.
- The tenants’ claim is then for compensation in reduction and refund of the rental paid. Decision
- The tenants have persuaded the Tribunal that it is more likely than not that there were the deficiencies in the property claimed by the tenants and detailed above.
- I am not persuaded that the lack of grouting in the entranceway tiles is a matter that establishes any breach by the landlord. There is no specific regulation breached, no evidence of it being unhealthy and causing health issues to the tenant. The tenants’ claim in relation to this issue is dismissed.
- The tenants have proven on the balance of probabilities that the landlord has failed to maintain the property in breach of its obligation under section 45(1)(b) RTA and section 45(1)(c) by failing to comply with the legal requirements of Regulations 14, 15, 16(2) and 18 of the Housing Improvement Regulations 1947 detailed above.
- In this case, the tenants have proven on the balance of probabilities that: a. The section was not adequately drained. b. The section was subject to periodic flooding in times of normal rain. c. The house lacks adequate guttering and drains for the removal of roof water. d. The workshop leaked badly and water pooled in it. e. Water came into three of the four bedrooms due to the issues listed above. f. The house lacks an adequate sewage-tank. g. Problems with the sewage system caused sewage to enter the property on four occasions. h. Two dead trees in the driveway which constituted a hazard were not removed by the landlord. i. The hole in the kitchen bench was not repaired during the tenancy.
- These deficiencies are a failure in maintenance as it appears probable that at some distant date in the past, the property was adequately drained, had appropriate guttering and drains and had an adequate sewage-tank.
- The tenants advised that the property was purchased by the landlord as it was required for the Levin bypass. The tenants believe that it is no longer require for that purpose.
- The landlord’s obligation is to maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
- Whether or not the property was or is to be demolished at some later date does not relieve the landlord from its fundamental duties to provide watertight premises and a sewage system adequate for a four bedroom house and that does not regurgitate sewage.
- I am satisfied that the deficiencies were of such a nature and extent as to significantly breach the tenants’ right to the enjoyment of the property.
- Further, I accept the tenants’ evidence that these issues were ones of which the landlord was aware from property inspections or which were brought to the landlord’s attention during the tenancy and that the landlord failed to have these issues resolved during the tenancy.
- The watertight and sewage issues are serious and required urgent investigation and repair. On the evidence before the Tribunal, the landlord appears to have made some sporadic attempts at investigation and at one time tried, unsuccessfully, to patch the roof to the outbuildings. It did not remove the dead trees in the driveway which were an obvious hazard.
- It is therefore necessary to assess an appropriate amount to award the tenants as compensation.
- The Tribunal can order a landlord to pay such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any provision of the Residential Tenancies Act (section 77(2)(n)).
- The Tenants’ claim for compensation is for general damages for the inconvenience, stress and loss of amenity of living in a poorly maintained property over an extended period of time.
- General damages for distress and anxiety are refused as they are not usually awarded in cases of commercial arrangements such as the lease of a property.
- A landlord should not be censured twice for the same act, for example, where – as in this case - a failure to repair (a breach of s 45(1)(b) of the RTA 1986) also resulted in a breach of compliance with a regulation for the health and safety of the premise (a breach of s 45(1)(c) RTA).
- Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
- Some of the deficiencies complained of are relatively minor, such as the hole in the kitchen bench. Some are serious, such as the water ingress and the sewerage issue. Some are of moderate concern, such as the dead trees and the water flowing over electrical wires which were a hazard but did not cause harm during the tenancy.
- The appropriate factors to consider in this case are: a. The impact of these deficiencies on the tenants’ enjoyment of the property. b. The period over which the tenants suffered from these deficiencies. c. The benefits which the tenants enjoyed throughout the tenancy, however much they were diminished.
- The tenants gave evidence concerning these factors as follows: a. The tenants could not use all the bedrooms. The house was damp and smelt. They caused the resident to move out. They had to adjust their use of the property to accommodate these issues, although the water ingress in two of the bedrooms only became known towards the end of the tenancy. They cramped their use of the property. b. These issues were present throughout the tenancy. When the sewage entered the property or it flooded, the impact was more severe and the tenants were left to clean up the mess. c. Because of the sewage issue, there was a limit on the number of people who could use the toilets and live at the property. d. Living in a property that is not watertight is both stressful and inconvenient. e. The tenants derived some benefit from their daughter occupying the property for most of the tenancy term and themselves using parts of it for storage. In the tenants’ view, they paid full market rent for a property that should not have been rented out.
- It is not straightforward to calculate a percentage of the property that the tenants could not use during the tenancy due to these deficiencies. In considering appropriate compensation, I have therefore considered the following factors: a. Not all of the house was affected, but the tenants’ ability to enjoy those parts of the house not directly affected was reduced because of dampness and smell. b. The tenants had the benefit of housing their daughter throughout much of the tenancy, even if such accommodation was substandard. c. There was no indication that the rental was anything other than the full market rental, indeed it was increased during the tenancy. d. The breaches were significant and fundamental to a tenant’s rights and a landlord’s obligations. e. The breaches were longstanding, most having been present throughout the tenancy. f. The breaches were of such an extent that the property may not have been in a condition to be rented from the start. g. From the evidence before the Tribunal, the landlord took only perfunctory steps to investigate or remedy the issues, despite having been notified by the tenants on numerous occasions. From the evidence, it appears that the tenants’ complaints were not taken seriously until November 2022. h. The landlord’s reports since that date confirm that the issues raised by the tenants are both valid and significant.
- I have considered what would have been a rental at which this property in this condition could have been rented to a tenant who knew of these issues (if such a tenant could be found and rental in this condition was lawful).
- Firstly, it would have been for the rental of a one-bedroom property, as three of the bedrooms could not be used with water ingress and the sewage system appears on the tenant’s evidence to be insufficient to cope with more than a couple of occupants. Secondly, it would have been without the use of much of the outbuildings which suffered the worst water ingress. Thirdly, it would have been a damp and cold house with a waterlogged section during much of the year.
- Having considered these factors and the seriousness of the deficiencies, it is appropriate to compensate the tenants for almost 60% of the rental paid.
- The sum of $40,000.00 is awarded to the tenants by way of compensation for the deficiencies in the property throughout the tenancy.
- Because [The applicant/s] have substantially succeeded with their claim, I have reimbursed the filing fee.