Published tribunal order
Tenancy Tribunal case 4662129 — State of repair at 14 Elisa Lane, Ranui, Auckland 0612
Decided 20 Dec 2023 · Published 20 Dec 2023 · Application 4662129
- State of repair
Party names are redacted in the official published order.
Order
- [The landlord/s] must pay [The tenant/s] $4,341.76 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing held on the 7 December 2023.
- This is a cross application.
- This decision should be read together with my order of the 14 June 2023, where I made a number of orders including that the landlord had incorrectly increased the rent during the period when the Covid Emergency provisions were in force. I ordered the landlord to recalculate the rent in accordance with my decision. The landlord has done so. The tenants accept liability for the recalculated rent arrears of $808.57.
- The tenants also accept the landlord’s claims for holes in the wall and damage to the door and painting of those items. The tenant accepts that the landlord’s claim for lock change. The amounts claimed are awarded. The claims in dispute
- The remaining claims in dispute are: Tenant’s claims a) That the landlord failed to repair leaks in the home over a period of 4 years which has resulted in the damage to the property, mould growth in the living areas and bedroom that made the tenant’s children sick with respiratory illness. The tenant seeks a 50% rent reduction over 137 weeks being the date of the second email to the landlord advising of the leaks to the end of the tenancy= $40,757.50 b) That the landlord gave the tenant notice to end the tenancy unlawfully because the landlord was responding to complaints made by tenants. The tenant seeks exemplary damages for this breach. Landlord’s claims
- That the tenant damaged the property by causing a fire in the oven which led to soot damage, or that the tenant failed to notify the landlord of a defect at the property causing soot damage. The landlord is seeking the insurance excess of $750 for this claim.
Did the landlord fail to maintain the property?
- In December 2019 the tenant notified the landlord of a leak in the lounge above the French doors. The water was pouring in. As a result of that incident the landlord came to the property and investigate and installed a further downpipe.
- In June 2020 the tenant once again advised the landlord that the roof was leaking in the same place and that another leak has happened in their son’s bedroom. The landlord says that they had a builder come to the property. The landlord says that the builder tried to contact the tenant but was unable to make contact, therefore the builder only inspected the outside of the property. The builder’s invoice (June 2020) states: “attempts to contact tenants were unsuccessful arrived to site to check a concern raised by the property manager regarding flooring in the living area. Checked the flooring under the property, the flooring was in reasonable condition and the bracing was structurally sound. There was a small area of discoloration found. Moisture reading was 8% showing the area was reasonably dry when the reading was conducted, discoloration may be historic. I've checked the gutters and there is an area with debris above the living room and I have cleared the debris.”
- The landlord accepts that the builder nor the landlord or the owner went to the property to check inside the property. The landlord says that they were reliant on the tenant to let the contractor inside and the tenant was not communicative with the contractor. The landlord accepts that it did not send a notice to enter the property to the tenant.
- The landlord says it did not have a key and was reliant on the tenant to let them in to inspect. This is at odds with a text message given in November shortly before the Healthy Homes Inspection where the landlord tells the tenant that a Healthy Homes inspection will be completed and says that if the tenant is not home then the inspector will let themselves in with a key from the landlord’s offices.
- On the 11 November 2020 the landlord undertook a Healthy homes assessment. The assessor noted that the property was not compliant for moisture ingress and drainage. In particular it noted: “The gutters above the pergola require clearing caused seemingly by an overhanging tree. There were large buckets placed along the French doors in the lounge with the tenants stating ‘water was dripping in” again possibly caused by the gutters being blocked. The gutters and down pipes are all connected except for one down pipe at the rear of the property which falls to the ground (pic above) (sic).” The HHS assessment also notes that there is no ground moisture barrier at the property.
- On the 3 December 2020 the landlord contracted [a roofer] to clear the gutters and attach a connection of the rear down pipe. Tried contacting tenants but I was unable to get through. Site visit 3/12/ 2020 cleared debris in gutters by hand and flushed gutters, no blockages in the down pipes. Attached connection to down pipe water now runs through drain. Cleaned up and left site.
- The tenants say that they told the landlord between June 2020 and November 2020 that the flooding occurred every time it rained. This accords with what the Healthy Homes assessor saw on his visit where the tenant had buckets out. There is also a recording on the 7 November 2020 made by the tenant which shows water pouring in the lounge doors.
- The tenants say that the issue continued despite the gutters being unblocked, there was no correspondence or text messages that the tenant produced over this period (2021) The tenants say that they told the LL’s property inspectors every time that they had an inspection but that nothing got done. There is nothing recorded in the inspections and there was only one inspection report produced for 2021 (because of the long lockdown in Auckland). However, it is clear that by 2 May 2022 the landlord knew that the leaks had not been fixed this is because the landlord contacted the tenant by text telling her that the contractors are coming to fix the leaks. On the 15 June 2022 the builder was sent to the property again, his invoice records: “Attempts to contact tenants were unsuccessful. Arrived on site no-one was home walked around the exterior, noticed some debris in the gutters above the living area cleared the gutters. Checked under the house and found evidence of moisture in one area of the subfloor. I secured the flooring by adding plywood bracing to the joists to strengthen the area and then cleaned up. I left my business card in the door as I needed to check the flooring inside the home at some point, it is no longer a safety issue but would like to investigate further once the tenant allows access.” (own emphasis)
- Despite the landlord receiving the invoice with the emphasised portion the landlord did not arrange a further inspection of the property nor ask the tenant if it was still leaking.
- At an inspection in August 2022 the landlord’s inspector took photographs of the property. In some photographs, what looks to be towels are lining the carpet on the areas that the tenant says leaked.
- The tenant says they continued to tell the inspectors at inspection about the leaking. They say that cleaning the gutters did not fix the problem, (although it did make it better) the tenant’s husband (who is in the building trade) was present at almost all of the inspections and when the owner came to the property in 2020 to install the additional downpipe says that told the owner that he believed that the design of the gutters without flashings, means that in heavy rains when the gutters are at capacity the water flows inward rather than over the exterior side of the gutters, causing leaking.
- The tenant says that the leaking happened so frequently that if it rained her family had a drill whereby they would lay out buckets and pots, and get the towels out. She says they even had a special plastic sheet that they used. She said it made her very sad that her young children knew what to do anytime it rained.
- At the hearing I heard from the landlord’s property inspector [The property inspector]. [The property inspector] could not recall the property or the inspections, he could not recall what he had or had not been told. The tenant’s partner is adamant that he raised the leaking with [The property inspector] on at least two occasions and once with [The property manager] another property manager.
- The leaks are not noted in any of the property inspections, even when there are towels on the floor and in one inspection is an item the tenants say is a black bucket.
- I found [The property inspector]’s evidence to be vague and uncertain, for that reason, I prefer the tenant’s evidence that they told [The property inspector] of issues. I also find that [The property inspector] did not make any sort of check of the problem areas to ensure that the known problems were not continuing.
- I am satisfied on the evidence that the landlord failed to maintain the property and to investigates the cause of leaks at the property. I say this for the following reasons: • The leaks were ongoing and over a long period. • Once the tenant notified the landlord of the existence of the leaks, the landlord was required to fix the leaks and to check to ensure that they were repaired properly. • There was no evidence that the landlord checked with the tenant after sending tradespersons around that the problem had been remedied, even when the tradespersons told the landlord to do that. • The landlord was aware of the problem in a Healthy Homes Assessment and yet still did not come into the property to check the interior of the property or to effect repairs. • The landlord consistently blamed the tenant for not communicating with tradespersons. That is not the tenant’s obligation. Once the landlord knows of a problem at the property is the landlord’s obligation to engage tradesperson and arrange notice to attend the property. If the tenant does not answer the tradesperson it does not mean that the repair work does not get done, it means that the landlord should issue a notice for entry to repair to the tenant. • The landlord’s agent went into the property regularly to carry out inspections, despite knowing there was a leak at the property there does not seem to be any indication in the inspection reports that the landlord took this opportunity to review the situation with the leaks or to investigate whilst on site, even when there was visual clues of defects such as towels on the floor. • I accept the tenant’s evidence that they told the landlord’s agent of the ongoing problem at the inspections and that the landlord did not note these down. • There were photographs missing of areas in the inspection reports. The numbered photographs skip numbers. The tenant says that these photographs were in the same rooms and in similar areas to the leaking and the inference should be made that the numbered photographs have been deleted as they show areas that would have proven issues at the tenancy. The landlord tells me that photographs cannot be deleted, and that the reason that the numbers skip is that the omitted photographs are likely to be blurry. This does not address the point that the skipped photographs are omitted from the report. They are not there; they are of areas that were where the leaks occurred and in the absence of any other explanation for why they are not included then I accept the tenants submission that it is likely that they have been deliberately omitted.
- Having found that the landlord breached their obligations to the landlord, I award the tenant $3425 compensation. Compensation restores a party to the position if the breach had not occurred. The tenants were able to live in the property during the tenancy and still use the property, although every time it rained they had to set out towels and move furniture. They say they had to have dehumidifiers going all the time. The tenants says that some of their furniture was ruined, but there was no evidence of what this was. I have given a rent abatement of $25 per week from June 2020 for 137 weeks. (from June 2020) I accept that there would have been some weeks when the tenant was not affected by leaks and others that she would have been affected considerably. This amount reflects the ongoing nature of the problem.
- The tenant has also claimed exemplary damages for this breach.
- Breaching s45 (1)(b) 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.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- I am satisfied that the landlord acted with intention in respect of the breach, whilst they sent contractors to remedy the breach, they never followed up with the tenants to check if the problem was fixed, they did not repair the leaks within the house. They were not proactive in maintaining the gutters even when they knew there was a problem with the gutters becoming full of the overhanging tree.
- The tenant says her children were constantly sick with respiratory illnesses, she says that was stressful to be worried about leaking at the problem and the inaction of the landlord made her feel frustrated and helpless. The tenant said that as both her and her partner were self-employed contractors, they lost their employment during covid and had to access WINZ assistance. When the tenant was late for rent over this time, the landlord immediately sent notices etc, but when it was the leaking the landlord did not take any action. The tenant says that made her feel helpless and hopeless. Her family members were telling her to move, but because of the lack of suitable housing in her area she put up with it for fear that she would be moved to emergency accommodation. At the time there were lots of media reports that emergency housing that children would be housed in cramped conditions in an antisocial environment. The tenant says she became depressed. The tenant also says it was sad that her 3-year-old son knew if it rained to put the buckets out.
- I consider that it is in the public interest what when leaking occurs at the property that it is promptly dealt with. It is well known that damp and mouldy homes leads to illness in children and there were 5 young children living in this home. One of the children has a serious autoimmune illness and I heard evidence from the tenants, their family members and their health professionals that the child had to be removed from the home to live with other family members at one stage for a short period of time because of the concerns on her health from the ongoing leaks.
- I consider that property managers must take an active role in ensuring the leaks are repaired properly. Property Managers should also proactively check areas where known leaks have occurred in subsequent property inspections to ensure that the remedy has worked and record those in property inspections.
- Giving all of the above factors I make an award of 3500.00 for exemplary damages. This also takes into account the length of the breach and the general stress, worry and inconvenience caused to the tenants by the leaks and having to deal with the leaks. Was the landlord’s notice to end the tenancy retaliatory?
- On 15 February 2023, the landlord gave the tenant a 90 day notice because the landlord wanted to do attend to repairs to the property. The tenant claims the notice is retaliatory.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
- A notice is not retaliatory if it is necessary to effect repairs at the property which the tenants are complaining about. The tenants say that the landlord did not need to give them notice, that they could have lived around the building work, and or found other accommodation with family members and moved back in after the work was done. I disagree, the landlord has carried out extensive work at the property replacing the floor in the living room and the hallway. The landlord has also replaced carpet and has repainted the property. As the landlord made insurance claims, both for the soot damage and leaking, the remedial work has taken a long time (from June to November).
- I do not consider that the landlord’s notice was retaliatory. I consider it a genuine notice because the landlord wanted to fix problems at the property, and it was no practicable for the tenants to live in the property with 5 children whilst this work was carried out.
- I acknowledge that when the landlord gave notice, it proved all of the tenant’s concerns true (They told me that they worried about complaining about the leaking as they thought that it would result in their tenancy being terminated) but I consider by February 2023, when the notice was given, the remedial work was necessary, it was substantial in that it was the flooring of the lounge and hall. The doors had to be removed, and that it was not practicable for the tenants to remain at the property whilst the work was being carried out.
- The tenant’s claim that the landlord has given a retaliatory notice is therefore dismissed as not proven. The landlord’s claim for soot damage.
- The landlord claims that the tenants damaged the property by allowing soot build up in the kitchen. The landlord says that the tenants had a fire in the oven and/ or did not turn on the rangehood above the oven. The tenants deny this and say both the oven and the rangehood were not working.
- I am satisfied that the tenant carelessly damaged the property by allowing soot to build up. There is no evidence in writing that they told the landlord that the oven or the rangehood were not working. Those items were found to be working at the end of the tenancy.
- The state of the oven at the end of the tenancy does not indicate any attempt to repair or clean the oven which may be why there was soot when using the oven.
- The landlord has received insurance for this claim and is seeking the excess of $750.00 from the tenant and that is awarded. Fling fee and Suppression.
- As both parties have been somewhat successful in their claims then neither will pay the other the filing fee.
- As both parties have been successful in their claim suppression is ordered.