Published tribunal order
Tenancy Tribunal case 4581589 — Leaks at Unit/Flat 38, 45 Stoddard Road, Wesley, Auckland 1041
Decided 28 Aug 2023 · Published 28 Aug 2023 · Application 4581589
- Leaks
- Property damage
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant’s name and identifying details.
- Kāinga Ora–Homes and Communities must pay [The tenant/s] $4,120.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing on 30 June 2023.
- This proceeding concerns a tenancy from 9 March 2022 to 23 May 2023; the tenant is no longer living at the property presently. The landlord is a state housing agency.
- [The tenant/s] claims that the landlord has breached their obligations under section 45 and 38 of the Residential Tenancies Act 1986 (‘RTA’).
Did the landlord carry out their repair obligations within a reasonable time?
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness, maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
- A landlord’s obligation to maintain the premises includes compliance of the Housing Improvement Regulations 1947 (SR 1947/200) which requires rental properties to be free from dampness (regulation 15).
- A tenant has a corresponding duty to notify the landlord, as soon as possible after discovery of any damage to the premises, or of the need for any repairs (section 40(1)(d)). The landlord’s obligation is therefore to repair within a reasonable time after knowledge of the need for repair, either from observing the property or notice from the tenant: “... the obligation of the landlord, under section 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be.” (Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085-001431, 24 February 2010; see also Merwald Real Estate v Lanauze DC Auckland, MA151-89, 2 May 1989).
- The tenant has on 14 July 2022 given notice to the landlord about the leak coming from the ceiling.
- The landlord says that their contractor visited the site on 15 July 2022 and reported that having investigated the source of the leak, another trade is required because the conservatory had specialised panelling. The landlord then raised another job on 20 July to request the specialised trader to attend and the landlord “acknowledge there was a slight delay in starting the work for this reason”.
- The landlord says that an appointment was also made on 29 July 2022 for “contractors to investigate the leak further” and the landlord had sent an email to their contractors to “prioritise the job if possible”.
- The landlord says that since then they “made multiple attempts to contact [the tenant] to arrange a time to visit the property but were unsuccessful as a result the job was cancelled due to no access”.
- The landlord acknowledges that the work was not completed by the time the tenancy ended but maintained that the landlord did attempt on multiple occasions to remedy the leak in the ceiling.
- However, there was insufficient evidence adduced to show that the landlord had attempted on multiple occasions to remedy the leak in the ceiling. No notices of further inspections were adduced.
- From the landlord’s own submission, the contractor who attended and investigated the site on 15 July 2022, and reported back to the landlord had found the source of the leak. Accordingly, the contractor had already identified (or ought to have identified) the source of the leak as early as 15 July as the contractor had referred the landlord to another trade to attend to the specialised panelling in the conservatory.
- I therefore do not accept the landlord’s submission that further inspections are necessary or that the lack of access for further inspections had hindered the work from being carried out.
- The tenant on 28 July 2022 issued a formal 14-day notice to the landlord to remediate the leak failing which he would take the landlord to the Tenancy Tribunal.
- The landlord adduced no written notices of contractor’s visit to the property to carry out the repair work before the Tribunal. No tradespeople testified at the hearing regarding those purported failed attempts to gain access.
- The landlord also failed to submit any application being made to the Tribunal, for instance, to compel the tenant to provide access to the property to have necessary work on the property rectified, especially given the landlord’s submission that they had sent an email to their contractors to “prioritise the job if possible” on 29 July 2022.
- If the job had been properly prioritised by the landlord, as submitted, they should be able to adduce records of attempts made to access the property for repair work to be carried out, failing which an application ought to have been made to the Tribunal to require access to be granted under section 48(2) RTA.
- Under section 48(2), the landlord may enter the premises: (b) for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks; (d) for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry; or (e) pursuant to an order of the Tribunal.
- Under those circumstances, I consider no more than 1 month to be a reasonable timeframe (from the first reporting of the leak on 14 July 2022) for the leaks to be checked out, addressed ,and affected areas repaired. There is little or no evidence before the Tribunal to show that the landlord has done everything reasonably possible within their control to address and remediate the reported and confirmed leak.
- The landlord’s submission that they were not aware of any damages the leak has caused the property or any belongings is of no moment.
- As a general rule, a leak is a serious matter and must be repaired promptly. As determined by Adjudicator J Robson in Frampton v Property Brokers Limited TT 4117238, 4122927, 20 Feb 2018, leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
- While getting to an appropriate sum by way of damages, whether general or specific, is not an exact science, I assess the tenant’s loss of amenities and inconvenience at $100.00 per week from 17 August 2022 to 23 May 2023 for the landlord’s breach of its obligation to remediate the leak in a timely manner. The leaks ought to have been remediated latest by mid-August 2022 in the circumstances.
- Damages ordered against the landlord for failing to investigate and repair a defect brought to its attention within a reasonable timeframe are proved.
- The tenant’s claim to do with lack of maintenance in the shared garden area, however, is unsuccessful.
- I accept the landlord’s evidence that their tenants had been encouraged to use the shared gardens for plants and growing food and to maintain the garden themselves in the first instance.
- After the tenant had reported to the landlord about the overgrown and unkempt garden, the landlord’s contractors removed the weeds, and the garden was cleaned up prior to the end of the tenancy. Did the landlord breach the tenant’s right to quiet enjoyment?
- [The tenant/s] claims the landlord has harassed him.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded. See section 38(3) RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The tenant says that on 27 April 2022, the landlord’s property manager Matthew T had “yelled very loudly” to his next door unit 37 tenant telling him that “he is leaving” which the tenant had found very upsetting. The tenant says that the landlord had harassed or threatened him.
- The landlord says that Mr T denies this interaction and does not recall having this interaction with the tenant. The landlord submits that “Mr [T] was not aware of any negative interactions with [the tenant] and the property manager is available to speak over the phone to discuss, if required”.
- Despite calls to the property manager at the behest of the landlord’s representative during the hearing, the property manager Mr T was unable to be reached.
- No written statement or other evidence was adduced by the property manager concerning on what transpired on 27 April 2022.
- The tenant’s evidence is clear and earnest. He documented his interaction with Mr T in his affidavit affirmed before a Justice of the Peace on 9 May 2022, not long after the incident.
- The tenant’s direct evidence before me at the hearing is consistent with what he affirmed in his 9 May 2022 affidavit in that Mr T had told his neighbour that he was leaving and that he also yelled at the tenant “don’t worry about it”. Those words implied that the tenant would soon relocate from the premises, whether on his own volition or otherwise.
- On the evidence before me, I consider that the landlord had breached the tenant’s quiet enjoyment on 27 April 2022. The interaction between Mr T and the tenant had caused the tenant some degree of offence and upset.
- Having regard to the nature of words used during the party’s interaction on 27 April 2022, I award general damages of $100.00 for the mental stress and upset caused to the tenant.
- However, I do not consider the landlord has on 27 April 2022 interfered with the reasonable peace, comfort or privacy of the tenant in circumstances that amount to harassment.
- The tenant’s claim for exemplary damages under section 38(3) RTA is therefore unsuccessful.
- The tenant’s claim that the landlord’s team leader Sonia N having verbally harassed, intimidated and threatened the tenant on 1 November 2022 is unsuccessful.
- Ms N had attended the property on 1 November to look into the leak in the ceiling. I accept Ms N’s written statement adduced before the Tribunal that she asked the tenant to move a mattress to prevent water damage but the tenant became agitated.
- Ms N then decided to leave the property to prevent any further escalation of the situation to which the tenant first threatened to call the police on her. Ms N then replied that she would in fact be calling the police herself; ultimately however, neither party called the police.
- I do not consider the landlord breached the tenant’s quiet enjoyment on 1 November 2022 under those circumstances. The parties had exchanged words but the parting words from the landlord’s team leader was made while she was already leaving and at her car at the material time.
- I also do not consider Ms N’s initial request while on the property for the tenant to move the mattress to prevent water damage improper or made with ill will.
- For those reasons, I make neither award for damages nor exemplary damages against the landlord for the perceived breach of section 38 RTA on 27 April 2022.
- Only the amounts ordered are proved. This includes an award in favour of the tenant for the landlord to reimburse the tenant the filing fee paid on this application.