Published tribunal order
Tenancy Tribunal case 4650556 — Leaks
Decided 17 May 2024 · Published 17 May 2024 · Application 4650556
- Leaks
- Mould & damp
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2.
Reasons
Background
- The tenanted premises is a one-bedroom unit on the bottom level of a two- storey block of units on [Street].
- The tenancy began on 20 December 2020. It is a current tenancy.
- [The tenant/s] application relates to a septic pipe leak, mould / dampness, and an argument that the property manager (Ms Baker) harassed her by attempting to force her into leaving the tenancy in August 2023.
- The hearing took place in [Event location suppressed] on 12 April 2023. Both parties attended the hearing. Ms Baker represented the landlord. [The tenant/s] was assisted by her mother. Septic pipe leak
- The bathrooms of the units are on the back wall of the building. The septic pipe for the bathroom of the unit above [The tenant/s] goes into the wall cavity and down the wall. It exits the concrete exterior wall and then into a drain where it connects with the mains sewage.
- In November 2022 [The tenant/s] woke to find what she thought was a flood in her kitchen, living room, and into the bathroom. She notified Ms Baker and began cleaning up.
- Ms Baker contacted a plumber, who attended the next day. The plumber found that there was a sizeable (100mm x 10mm) hole in the copper septic pipe. Black and grey water from the upstairs unit had gone through the hole into the wall cavity and then into [The tenant/s] unit.
- The pipe was repaired. Ms Baker arranged for [Cleaning company] to carry out a microbial clean of the carpet.
- Ms Baker submitted that the landlord also intended to remove and replace part of the carpet and carry out an anti-bacterial treatment in the wall cavity (which involves removing then reinstating part of the wall), but this work did not go ahead because [The tenant/s] refused to allow the tradespeople access to the property.
- [The tenant/s] denied that she refused access to any tradespeople.
- In March 2024, the same pipe leaked again in a different location.
- At the hearing, Ms Baker said that the landlord has decided to replace all of the copper sewerage pipe.
- [The tenant/s] provided photographs and a video recording.
- [The tenant/s] stated that the video was taken some time in 2023, but she was unable to give a date.
- The video shows the back wall of her unit. It shows where the septic pipe exits the wall and goes down into the drain. The area around the drain is discoloured, and the green discolouration continues beyond the drain to a concreted area.
- The drain is outside [The tenant/s] bedroom.
- [The tenant/s] did not receive any rent abatement, compensation, or offer of alternative accommodation in November 2022.
- In terms of the septic leak issue, my findings are: a. Ms Baker acted promptly and appropriately when the flood happened in November 2022. b. It is likely that the pipe had been leaking slowly for some time before the large corroded piece came away from the pipe, resulting in the ‘flood’. However, the leak was behind the wall in the cavity, and neither the landlord nor the tenant could have known that it was occurring. c. The ingress of a substantial amount of black and grey water into [The tenant/s] unit is a serious health and safety issue. [The tenant/s] should have been offered alternative accommodation, or a complete rent rebate, until the premises were cleaned, de-contaminated, and made safe. d. It is possible that another slow leak occurred before the second (known) leak manifested in March 2024. e. The area outside [The tenant/s] bedroom is dirty and unpleasant and it is reasonable to think that this is connected to the failures in the aging copper pipes. f. The landlord did not fail to maintain the premises, but the pipe leaks caused a loss of amenity for [The tenant/s], most dramatically in the ‘flood’ incident.
- [The tenant/s] seeks compensation totalling $59,000, comprised of $20,000 for mould / dampness, $20,000 for harassment, and $19,000 for “loss of my permanent job due to having to stay home from work to meet with contractors”. The claim is for more than the total amount of rent that [The tenant/s] has paid during her three and a half year tenancy.
- Without diminishing the difficulties that [The tenant/s] has experienced, the amount of damages that [The tenant/s] is seeking is extremely excessive and unrealistic.
- I will award loss of amenity compensation of $2,000.00 for the septic leaks, comprised of $1,500.00 for the incident in November 2022 and $500.00 for the unsatisfactory area outside [The tenant/s] bedroom. Mould / dampness
- [The tenant/s] submitted that she has experienced problems with mould in the unit since the beginning of the tenancy.
- [The tenant/s] provided some photographs, most of which date back to 2021, showing large amounts of mould on the walls in parts of the unit.
- Ms Baker was not the property manager for this tenancy at that time. She took over in early 2022. Ms Baker submitted that she did not see mould to the extent shown in these photographs during any of her inspections. [The tenant/s] responded that this was because she spent a lot of time cleaning away the mould.
- Ms Baker submitted that any mould problems in the unit are due to [The tenant/s] failing to ventilate. Ms Baker commented that any time she has visited the property all of the windows are closed. She has received the same feedback from contractors.
- [The tenant/s] replied that she keeps the windows closed during the day because of noise (from other units, and because the property is on a very busy main road in [City]), but she opens the windows at night.
- It is very difficult to know with any certainty what the contributing factors are to mould development in any given property. In this instance, [The tenant/s] has provided sufficient evidence to show a mould problem. Her photographs of mould on the walls are not recent, but she provided other photographs showing mould on her furniture and clothing.
- Tenants have a responsibility to take reasonable steps to mitigate normal moisture that can lead to mould – that includes ventilating the property and not acting carelessly to introduce moisture in the air (using ventilation fans when showering or cooking, not drying clothes inside if possible, etc). However, tenants do not have to take extreme measures to combat a problem that is caused by the manner of construction of the property, a lack of adequate heating or insulation, or a fault in the property that is allowing water inside the premises.
- The property is of concrete block construction, dating to the 1960s or 1970s. There is a wall heater in the lounge and an extractor fan in the kitchen, but none in the bathroom. There is evidence of some ‘property problems’ that could be contributing to damp living conditions in the unit: a. The septic leak discussed above. b. Cracks in the exterior cladding. These can be seen on the tenant’s video. The location of the cracks suggests that they are due to movement. c. Blocked gutters. The property is two-storeys, so specialist equipment is required to clear the gutters. Ms Baker submitted that the maintenance plan calls for the gutters to be cleaned annually, but she acknowledged that this is not always done on time, and they are currently overdue for a clean. [The tenant/s] photographs show vegetation growing in the gutters, sizeable enough to block to the flow of water.
- The fact that [The tenant/s] keeps the windows closed during the day is also likely to be a contributing factor.
- Again, this is not an instance of the landlord failing to maintain the premises, except for the landlord’s failure to clear the gutters regularly. As noted above, the septic leak was not detectable until it became a flood. Ms Baker was not aware of the exterior cracks. The healthy homes compliance date for this tenancy is not until 1 July 2025.
- However, the evidence is sufficient to show a more than acceptable amount of mould, and presence of property faults / defects that are most likely to be contributing to the mould problem.
- It is appropriate to make an award of compensation to [The tenant/s], to reflect the fact that the mould has caused her inconvenience (extra cleaning) and damage to her personal belongings.
- The amount of compensation must take into account the fact that [The tenant/s] is not ventilating the unit as much as she could.
- I will award compensation of $1,250.00. Harassment
- [The tenant/s] submitted that Ms Baker harassed and bullied her in July / August 2023, in an attempt to “force her out” of the tenancy.
- Ms Baker submitted that it was [The tenant/s] who gave notice to terminate the tenancy, and she was simply following up on that notice.
- I was provided with copies of messages between Ms Baker and [The tenant/s] from that time. The first relevant exchange took place by text message on 4 July 2023. I have quoted the exchange in full below. [The tenant/s] refers to [The tenant/s] and MB to Ms Baker: [The tenant/s]: I’m giving three weeks notice in. It will be from today MB: You will need to give 28 days notice please put into writing and send it to my email [The tenant/s]: I’m giving three weeks due to my health MB: That’s not good to hear that you are unwell. Unfortunately its 28 days notice [The tenant/s]: Unless of course I have a reason of leaving. Which I can put in writing. MB: Let me know when you have emailed through the 28 days notice and I will respond. I am more than happy to look at your reasons for leaving please put in writing as well. [The tenant/s]: I don’t no about 28 days I will get more info from tenancy tribunal. Or I’ll just serve you a 14 day notice to remedy every single problem in this house... thank you
- The same day, 4 July, [The tenant/s] sent Ms Baker a 14-day breach notice.
- On a later date, the date is not shown on the screenshot provided to me, Ms Baker sent [The tenant/s] a message stating: Because you have been refusing entry via email threatening legal action with the contractor and being very aggressive the Contracting company don’t feel safe coming to the property. So the maintenance will be completed after you have vacated. VACATE DATE 24/7/23
- [The tenant/s] had not sent the 28-day notice by email that Ms Baker requested, and I was not provided with any message showing that Ms Baker had waived that requirement or accepted [The tenant/s] 21-day notice.
- On 17 July, Ms Baker sent [The tenant/s] a message reminding her that her vacate date was 24 July.
- On 25 July, the following exchange took place: MB: Let me know what time you will be dropping the key off to the office today. [...] [The tenant/s]: Please allow the full 28 days as I was informed by the Tribunal that 28 days is required for periodic tenancy agreement. My bad I was mistaken you have to give 90 days. Far as I’m concerned you haven’t given a valid notice. MB: Legally it’s 28 days notice that you have to give. You gave 21. As per previous text messages sent to you because of the situation with your tenancy we were ok to give approval for [balance of message not provided in evidence]
- After that, there were further exchanges about the tenancy ending on 8 August. Ms Baker threatened to bring a locksmith if [The tenant/s] did not vacate.
- Ultimately, [The tenant/s] did not vacate, and Ms Baker did not take steps to evict her.
- Landlords must not cause any interference with the tenant’s reasonable peace, comfort, and privacy. A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act 1 . The Tenancy Tribunal can award exemplary damages of up to $3,000.00 for harassment.
- As noted above, the communications begin with [The tenant/s] wanting to terminate the tenancy and insisting, incorrectly, that she only had to give 21 days’ notice.
- The messages provided to me do not show that Ms Baker formally accepted [The tenant/s] attempted 21-day notice. 1 Section 38(3) Residential Tenancies Act 1986 (“RTA”)
- Given the lack of clarity it would have been sensible for Ms Baker to send [The tenant/s] a message asking her to confirm that she wants to move out, and suggesting a conversation about what date would be suitable.
- Instead of that, Ms Baker sent emails attempting to hold [The tenant/s] to the termination notice that she herself had never accepted, even when it became apparent that [The tenant/s] had changed her mind.
- [The tenant/s] inconsistent messages did not help with the confusing situation.
- With the benefit of hindsight, Ms Baker’s approach can reasonably be described as unhelpful, and I accept that the whole incident caused [The tenant/s] some distress.
- However, I do not agree that this amounted to Ms Baker harassing [The tenant/s]. It was [The tenant/s] who said that she wanted to leave the tenancy. Giving notice to terminate a tenancy is a serious and binding commitment – legally, a valid termination notice can only be withdrawn with the consent of the other party 2 . If Ms Baker did accept [The tenant/s] 21-day notice, that was a concession to [The tenant/s] that she was not obliged to give. It is understandable why Ms Baker took the position that if [The tenant/s] wanted to the leave the tenancy, then she should get on and leave.
- My finding is that Ms Baker did not harass [The tenant/s], and therefore I will not make an award of damages under this heading. Loss of job due to “having to stay home from work to meet with contractors”
- There is no legal basis for this part of [The tenant/s] compensation claim.
- Tenants do not have to be home when maintenance / repairs are done on a tenanted property. The landlord has the right to enter the premises for the purpose of carrying out necessary maintenance and repairs, whether the tenant is present or not 3 . If [The tenant/s] insisted on being home, that was her decision. Filing fee, name suppression
- [The tenant/s] has been successful in this application, and I must also award her the filing fee of $20.44 4 .
- [The tenant/s] sought name suppression. Name suppression is granted on the basis that [The tenant/s] has “substantially succeeded in the proceedings” 5 2 Section 51(6)(a) RTA 3 Section 48(2)(d) RTA 4 Section 102(4)(a) RTA 5 Section 95A(1) RTA