Published tribunal order
Tenancy Tribunal case 4705571 — Property damage at 31 Cameron Road, Waiuku, RD 1, Waiuku 2681
Decided 10 Jun 2024 · Published 10 Jun 2024 · Application 4705571
- Property damage
- Leaks
Party names are redacted in the official published order.
Order
- Ofeina Datt and Dinesh Datt must pay [The tenant/s] $7,390.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing on 28 May 2024.
- The tenancy commenced on 4 May 2019 and ended on 29 October 2023 after the landlord gave notice of termination due to the landlord wanting the premises to be put on the market for sale.
- While the tenant considers that the landlord had improperly given them notice after discovering that the property has since been relet in 2024, I am satisfied from the landlord’s evidence that the property had been marketed for sale within 90 days from the date of termination. The fact that the property has not been sold thereafter does not necessarily mean that the landlord had breached section 50(2)(a) Residential Tenancies Act 1986 (‘RTA’). The landlord has duly marketed the premises for sale within 90 days after the termination date for the purposes of sale, thereby meeting the grounds on which the notice of termination had been couched.
- The tenant also seeks compensation against the landlord due to various items in the premises being unrepaired or unattended to without a reasonable timeframe after being notified to the landlord. The tenant contends that repairs and maintenance are required to be carried out by the landlord on the premises during the 4 and half years period that they were residing at the premises.
- I firstly set out the relevant legal principles that I must address when dealing with complaints raised by the tenant regarding maintenance.
- Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair.
- A landlord must maintain the premises in a reasonable state of repair having regard to the age and character of the premises and to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they applied to the premises.
- 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 (see section 40(1)(d) RTA).
- 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).
- Compensation ought to be awarded for breach of the landlord’s obligations and where the other party has suffered a loss or inconvenience because of that breach.
- It goes without saying that only if the landlord is found to in breach of their obligations under section 45 (as set out above) and the tenant has carried out his/her corresponding duty to notify and allow maintenance to be attended to, would an award of compensation be considered and made. Where the tenant has not carried out his/her corresponding duty to notify or not allow maintenance to be attended to, no award of compensation will be made.
- I now address the specific instances of complaints raised by the tenant of items requiring attention, when the landlord was advised of the issue, and when, if any, the repairs and works had been (or never) carried out during the tenancy and if not, why they haven’t been carried out or attended to. Rats
- The tenant says that a month after moving into the premises, they advised the landlord that there were rats all over the premises. The landlord acknowledged being told of an issue with rats at the premises while conducting an inspection in August 2019 but attributed the infestation to the tenant not keeping the premises tidy, especially around the yard. I find however that the landlord was obliged to engage a pest controller in the circumstances to attend to the tenant’s complaint and eradicate the rats’ infestation. The issue of the cause of the infestation can then be determined later with the pest controller’s input/report and if the cause is found to be solely attributable to the tenant, the landlord can pass on the costs of pest eradication to the tenant accordingly. I do not consider the landlord to have acted in a reasonable manner by simply deferring to previous pest control measures having been attended to prior to this tenancy. On the contrary, I consider the fact that the landlord had attended to two rounds of pest eradication just prior to this tenancy indicates that the premises is likely to be suffering from rats’ infestation rather than solely being introduced by the tenant or due to the tenant’s untidiness. That said, I have taken into account the landlord’s photographs of the yard which was overgrown at the material times. Considering both parties’ respective liability and level of responsibility on the issue, I award the tenant compensation of $1,830.00 for the unattended rats’ infestation from August 2019 (when the landlord became aware of the issue) to February 2023 (when rat baits were finally placed at the property); the award is based on 183 weeks, calculated at $10 per week in favour of the tenant. Shower
- The landlord was notified of a leaking shower rose in November 2022 and obtained a quote from the builder. However, the shower rose was never repaired by the landlord. The landlord’s assertion that they have approved the quote and asked for the repairs to be carried out but it was left unattended to by their builder does not displace their duty to repair the known leak. I consider that the tenant is entitled to compensation for the issue being unattended until the end of the tenancy in October 2023 totalling 50 weeks, calculated at $20 per week, as set out in the table above. Stove elements
- The tenant only had 2 working stove elements (out of 4) from the start of the tenancy from August 2019 to the October 2023, totalling 219 weeks. The tenant also had to use a match or lighter to ignite the 2 stove elements because the in- built piezo ignition never worked. I award the tenant compensation of $10 per week for the faulty and unrepaired stove as set out in the table above. Gas bottle stored inside the house
- The stove was connected to an LPG gas bottle under the cupboard below the benchtop in the kitchen. Section 11 of the Gas (Safety and Measurement) Regulations 2010 deems such installation of LPG gas bottle inside the kitchen where cooking is done to be unsafe because it does not ensure persons are not exposed to carbon monoxide and other harmful products of combustion of gas. The Environment Protection Authority advises that portable LPG cylinders should be stored outside or in dry, well-ventilated areas. I consider that the landlord has breached section 45 RTA by failing to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they applied to the premises. I award the tenant $500.00 compensation for the landlord’s breach in respect of the unsafe practice of storing the LPG bottle indoors in the kitchen in an area that is not well ventilated (inside the cupboard under the kitchen benchtop). Effects of Cyclone Gabrielle
- After the premises was flooded from Cyclone Gabrielle in February 2023, the tenant lost belongings and living conditions in the house were awful with wet carpets and exposed concrete floors. While the landlord rebated the rent from $730 to $530 per week, I award the tenant a further rent reduction of $50 per week from February 2023 to October 2023 for the effects of Cyclone Gabrielle and stress and inconvenience suffered by the tenant on the unrepaired house for 37 weeks. Despite the builder having inspected the premises in end July 2023 and provided quotes to repair the premises, no work was done to the house prior to the tenant vacating the premises as a result of the landlord’s issuance of 90 day notice for the purposes of sale.
- Only the amounts ordered in the table above have been proved.
- As the tenant was largely successful, there will be an order for name suppression and reimbursement of the Tribunal filing fee to the tenant accordingly.