What was Tenancy Tribunal case 4687497 about?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4687497?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4687497?

The primary dispute was Leaks. Related themes: Property damage.

Where can I read the official tribunal order for case 4687497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9657781-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4687497 about?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4687497?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4687497?

The primary dispute was Leaks. Related themes: Property damage.

Where can I read the official tribunal order for case 4687497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9657781-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4687497 — Leaks

Order

The landlord’s application is dismissed.
There is no tenant liability for the damage to the bench top.

Reasons

Both parties have made applications to the Tribunal seeking a determination as to liability for damage that has occurred to the kitchen bench top upon which the hob sits.
The matter was heard in two hearings. The first when [The landlord/s] and [The tenant/s] gave evidence. The second was scheduled to enable their tradespeople to give evidence and opportunity was provided to them to make final submissions.
It is agreed that the bench top, which was installed approximately five years ago, has been damaged by water ingress. This was discovered at an inspection in May 2023. The benchtop has bubbled underneath the laminate around the hob causing the hob to fail to sit flush with the benchtop as it needs to. It cannot be repaired and needs to be replaced at a cost of $3,290.15 1 . Both parties contend the other is liable for that cost. 1 Only one quote has been obtained
The issue for decision is whether the water ingress occurred as a result of tenant negligence or as a function of the nature/installation of the bench top/hob.
As yet, the replacement has not occurred, and [The landlord/s] is concerned that there will be ongoing damage to the benchtop and hob given its current state. [The landlord/s]’s insurance policy says they will not cover him for damage caused gradually. As such he considers he is uninsured for the damage and has not submitted a claim.
[The landlord/s] submits that the damage must have occurred during the tenancy given there was no sign of any damage at the pre-tenancy inspection or at the first inspection in February. He says the damage would have been caused from failing to wipe up spilled water from the hob and/or bench regularly. He says it could have been [The tenant/s] or her teenage daughter.
[The landlord/s]’s advice is from a benchtop installer (Trade 1) who reported:
In oral evidence he made the following points: i. He considered the damage was clearly caused by misuse being someone allowing a considerable amount of water to remain on the hob/bench for a long period of time. ii. It probably happened a few times over a few months, as it most likely did not happen on one occasion. iii. There would have been a lot of water, therefore it was negligent to not wipe it up. iv. He could not recall taking the bench out or inspecting the seals or brackets. v. It is possible that if the seals were insufficient that this could happen gradually. vi. This is the worst damage he has seen in 30 years in the industry.
[The tenant/s], who has lived in the property since November 2022, submits that the damage was caused because the hob was not installed and sealed correctly which allowed water to gradually infiltrate the bench top with usual use over time. She has provided a copy of the user manual which says the hob should have brackets which clip into the bench to hold it down and ensure the rubber seal is tight. The brackets do not appear to be present.
She says she wiped up spills whenever they occurred and took the usual care one would expect of the bench top. She also points out that it is relatively close to the sink draining board so water could come from there or pots boiling over on the hob in usual use, but never excessively in her tenancy.
[The tenant/s] is clear she has never left water on the bench or hob for unreasonable amounts of time and her teenage daughter who lives with her rarely cooks.
[The tenant/s]’s initial contractor who is an appliance repair person (Trade 2) gave the following written report:
He made the following points in oral evidence at the second hearing: a. The seal was not sitting correctly as there were gaps in it and one side was not in the right position. b. The seal was not fully around the hob and at places was on the hob case rather than on the glass where it is supposed to be. c. There were no brackets holding the hob in place. d. The damage had occurred over a long period, probably months, but it was impossible to be specific. e. The hob was not installed correctly and as such the seals were not complete which is how water got down the side and into the untreated timber of the bench top.
[The tenant/s]’s second contractor, a kitchen installer (Trade 3) gave the following comments on their written report: It looks to me like water has made its way under the hop which was not clamped in and the seal has deteriorated due to its age. A little bit of water over time (approx. 5 years) onto the unprotected custom wood will make it swell. It looks like the kitchen would be 5-10 years old.
In oral evidence he made the following points: a. The damage likely happened over a long period of time, most likely years. b. The hob was not sealed correctly which is why water was allowed to get into the bench. c. The hob was not secured to the bench as it could easily be lifted out. d. It is an older style kitchen that has been subject to wear and tear. e. The damage is not extensive, and the kitchen can probably still be used for a few months before replacement was necessary.
[The landlord/s] disputes there was anything wrong with the instal and says he was involved in the initial work so has that expertise. He says hobs can either be silicone down or fitted with a rubber seal; this one has the latter. He has undertaken many renovations himself and so is knowledgeable on the subject. He submits that there is nothing wrong with the seals and had there been, the damage would have become apparent earlier.
To give context, the following is a picture of the bench/hob:
In assessing the evidence, I do note the following: i. That [The landlord/s] was the first to uplift the hob to inspect the damage. Both [The tenant/s]’s contractors saw it after that had been done. It is possible therefore that the seal had been damaged in the first uplift. ii. That Trade 1 inspected the bench top for the purpose of quoting to replace it, neither of [The tenant/s]’s contractors were ever of the understanding that they would be asked to quote to undertake the job. They were specifically looking at the possible causes of the damage. iii. The kitchen bench/hob are approximately five to seven years old but [The landlord/s] is unsure exactly. According to current depreciation standards, the expected lifespan of a laminate bench top in a New Zealand rental property is 12 to 18 years and hobs are 8 years. iv. [The landlord/s] had not noticed any concerns with the way [The tenant/s] has kept the property internally since the start of the tenancy. The law
To render tenants liable for damage, the landlord must firstly prove to the balance of probabilities 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 to the same evidential standard that 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 Residential Tenancies Act 1986 (RTA).
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “heedless or thoughtless” and can cover a situation of inadvertent lack of care.
The standard of care is the standard of an ordinary careful person, and it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach. This means that the damage will not be compensated if considered to be too remote.
An alternative to carelessness is pure accident. This would be a situation where all reasonable care was taken, but the damage occurred anyway; therefore, care would not have prevented it. Tenants are not responsible for accidental damage of this nature.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) 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 standard of proof the Tribunal uses, as discussed above, is the civil standard; the balance of probabilities. In other words, this means I must weigh the evidence provided to assess what is more likely than not. In this case, there is evidence that is either contradictory or calls for the Tribunal to draw inferences. In that case the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence. Discussion and findings
Two trades put the damage down to an incorrect install, whilst one puts it down to negligent use. It is undisputed that the damage was discovered six months into the tenancy and yet the bench had been in place for a number of years.
I am satisfied on the evidence that the hob has not been secured into the bench by the recommended brackets. This is because the photos do not establish the presence of such brackets. The photos also show some deterioration of the seal and there are some small gaps in the seal. As the deterioration is not consistent throughout the seal, but only in certain places, I find it more likely than not that the deterioration is from exposure to water.
Had the seals been sufficient, water should not have been able to access the bench, even in relatively large quantities. The fact that Trade 1 could not recall when giving evidence an inspection of the seals indicates to me that he did not sufficiently turn his mind at the time to the issue being one of incorrect or deteriorated sealing.
I prefer the evidence given by Trades 2 and 3 given their evidence was consistent with each other and was given after specifically being asked to look at the reasoning for the damage. Trade 3 was quoting for a replacement rather than solely inspecting the damage to determine the cause, therefore his evidence must be seen in that light.
There is no evidence that the oven, which is directly below the hob has been damaged by exposure to water. This indicates that the water ingress was absorbed by the benchtop before it was able to drip down to the oven. This also tends to indicate that the water was sufficiently minimal to be absorbed by the wood before it got any further. There was insufficient evidence to establish whether it was usual practice to have untreated MDF wood down the sides of bench tops.
Whilst the damage was discovered in May 2023, I am not satisfied that it has been established in evidence that it occurred definitively in the preceding six months. It seems more likely that this damage occurred as a result of small amounts of water getting into the bench from under the hob over the course of its lifespan. I find it likely that it would have taken a long period of time for the damage to have become sufficiently become to be apparent.
Even if I am wrong in that finding, I am satisfied that [The tenant/s] has established to the evidential standard that she has not been careless in her use of the hob/bench. I find her a credible witness and accept her submissions that she wiped up after every spill.
Accordingly, pursuant to the RTA, [The tenant/s] has no liability for this damage and [The landlord/s]’s application must be dismissed.
As an aside I note that [The landlord/s] raised the issue of [The tenant/s] being aware of the damage and not reporting it as her partner had noticed it. I accept [The tenant/s]’s statement that her partner noticed it shortly before [The landlord/s] had, but did not mention it to her until it was raised at the inspection. I therefore do not find it established that [The tenant/s] has breached section 40(1)(d) of the RTA by failing to notify the landlord of damage. Filing fee
As both parties have filed applications it is not appropriate to award reimbursement of the filing fee to either party, and those costs should lie where they fall. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion if in the public interest.
Both parties have sought suppression. [The tenant/s] was successful therefore she is entitled to suppression. [The landlord/s] was not, however given the uncertainty of this situation based on the conflicting trades’ advice; I do not consider it proportionate to publish his name. Accordingly, both parties’ claims for suppression are approved.

Tenancy Tribunal case 4687497 — Leaks

At a glance

Tenancy Tribunal case 4687497 — Leaks

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions