Published tribunal order
Tenancy Tribunal case 4582609 — Property damage
Decided 27 Oct 2023 · Published 27 Oct 2023 · Application 4582609
- Property damage
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay [The landlord/s] $1971.14 immediately, calculated as shown in table below.
- The remaining landlord claim is dismissed.
Reasons
- Both parties attended the hearing.
- The landlord and tenant were both represented.
- There is a dispute between the parties over the bond. The landlord has applied for compensation for rent arrears, damage to the drains, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
- The tenant has applied for a full refund of the bond. Co-tenants
- It is important to record for completeness that there are two co-tenants on the tenancy agreement, being a couple. Their relationship has broken down, and [Tenant 2] has moved out. However, the landlord has not varied the tenancy agreement to remove [Tenant 2]. Therefore, [Tenant 2] will be equally liable for the awards set out herein given the principle of joint and several liability. Late claim
- The tenant claimed the landlord communicated with her and her sub-tenant in a threatening manner. The tenant submitted several text messages of the landlord’s inappropriate language. As the tenant had not raised a claim in her application that the landlord breached her quiet enjoyment or harassed her that claim has not been considered herein. Rent arrears
- The landlord claims two weeks rent arrears (being $800.00) on the basis that the tenant left items behind at the premises when she vacated, including a sofa, chair, bed, bookcase and clothing and that eventually [Tenant 2] collected the items two weeks after the vacate date.
- If a tenant leaves behind items, landlord must follow the rules set out in clause 62 onwards the Residential Tenancies Act 1986 (RTA) for dealing with those items. The landlord has made no such claim to the Tenancy Tribunal with regard to those items. Instead, the landlord contacted the co-tenant of the premises, and the items were eventually removed. Rent arrears is not a remedy in these circumstances. The landlord’s claim for rent arrears is dismissed. Damage to the drains The Law
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. The landlord’s claim
- The landlord claims that the tenant’s sub-tenant was flushing wet wipes down the toilet for a period of approximately one month which caused the drain to block.
- The landlord arranged for various contractors to attend between 2 nd May and 10 th June 2023 to identify the blockage, insert cameras down the drain, break open the drain, clear it, and remove broken concrete off the driveway.
- The landlord claims the following compensation: DateContractorAmount 10 May 2023 [Contractor 1]$3,927.25 7 June 2023 [Contractor 2]$2,875.00 7 June 2023 [Contractor 3]$943.29 10 June 2023 [Contractor 4]$855.86 TOTAL$8,601.40
- The landlord provided evidence of an insurance pay-out of $1,500.00 for the drain repairs. Therefore, the landlord seeks compensation of $7,101.40.
- The landlord submits that it is not possible that the flat next door that shares the same drain caused the blockages as the flat was vacant and undergoing renovations at the time.
- The landlord provided invoices, photographs, witness evidence, bank statements and correspondence with the tenant in support of his claims. Of note, the landlord’s witness, [Redacted] of [Contractor 1] gave evidence that there were a substantial number of wet wipes found in the 120mm pipe and that whilst the drainage was likely 30-40 years old it was robust. The tenant’s response
- The tenant does not dispute the wet wipes usage but claims that her sub-tenant was using “flushable” wet wipes. The tenant referred to a history of previous blockages dating back to 2021.
- The tenant provided evidence of correspondence with the landlord relating to previous drain blockages on 6 October 2022, 3 February 2023 and 15 March 2023.
- The tenant claims that the drains had not been adequately maintained by the landlord resulting in gradual damage to the drains. Findings
- I am satisfied that it is more likely than not that the damage was caused by the flushing of wet wipes down the drain during the tenancy. There is considerable evidence that the blockage was caused by the wet wipes. The unit next door was vacant, so it is unlikely the blockage was caused by the next-door property.
- It is well recognised that wipes and sanitary pads are not items that can be flushed down a toilet. Taking into account the volume of material removed by the plumber, reflects the tenant’s sub-tenant flushing this material over an extended period of time, bringing the situation into that considered in Guo v Korck, meaning the continuous acts brings the claim to one of intentional damage.
- As I have found the damage would be intentional damage, the tenant is liable for the full cost of the plumbing account. There is also the age of the drains to consider. Subsurface drainage or pipes are typically anticipated to have a useful life of 20-25 years. Therefore, the drain may well have been close or at the end of its expected life. Accordingly, I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. This means the landlord cannot receive compensation that would put them into a better position. To that extent, the drains should be considered as entirely depreciated. However, but for the damage, I consider that the landlord reasonably expected the drains to last a few more years so that an award of broadly 50% of the costs incurred by the landlord is justified.
- The amounts ordered are proved. Filing fee
- Because [The landlord/s] has substantially succeeded with the claim I must reimburse the filing fee. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The landlord has substantially succeeded in the proceedings, so I have ordered suppression of their name and identifying details in accordance with section 95A of the RTA.
- Having regard to the interests of the parties, I similarly order suppression of the tenant names and identifying details in accordance with section 95A(4) of the RTA. T Lee-Lewis 25 October 2023