What was the outcome of Tenancy Tribunal case 4773978?

The tribunal order states: An application for suppression of the name and identifying details has been

How much money was awarded in case 4773978?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4773978?

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

Where can I read the official tribunal order for case 4773978?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9938577-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4773978?

The tribunal order states: An application for suppression of the name and identifying details has been

How much money was awarded in case 4773978?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4773978?

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

Where can I read the official tribunal order for case 4773978?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9938577-Tenancy_Tribunal_Order.pdf.

23B Kelman Road, Kelston, Auckland 0602 Tenancy Tribunal Case 4773978 — Leaks

Order

An application for suppression of the name and identifying details has been made in this case by the landlord. The Tribunal declines to order suppression of the landlord’s name and identifying details.
The landlord’s application for compensation for general damages is dismissed as it has failed to prove it claims and the tenants have disproven liability for the damage done to the shower and flooring from a slow leak that has been gradually happening over time.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation and reimbursement of the filing fee following a leak in the bathroom that has caused damage to the shower and flooring.
The tenants have resided at the property since 5 November 2021 and still reside there. Suppression
From 11 February 2021, the Tribunal can order that the name and identifying details of a successful party at a hearing be suppressed.
The landlord sought name suppression as a matter of course if it was successful in proving its claim.
The landlord did not present any persuasive reasons to the Tribunal that would justify the granting of the name and identifying details suppression sought if it was not successful in its claims. Therefore, the application is dismissed.

Is the tenant responsible for the damage to the premises?

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.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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.
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.
Careless damage is caused through lack of attention or concern for the consequences (for example, leaving a stove on while the tenant goes to do something else or leaving a sink tap running unattended while going to answer the door).
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 claims that the damage to the shower wall and floor, following a leak that was identified as coming from the shower elbow being secured to tightly to the lining of the shower wall when the nipple behind the wall did not have sufficient thread tap on it to create a tight seal. The landlord claims the damage to the shower wall and floor was caused when the tenant installed a new shower head, hose and elbow unit on the outside of the shower at the property manager’s request and the damage is more than fair wear and tear and was the result of a careless and/or deliberate act by the tenants.
The tenants provided evidence that they had raised issues about rotten floorboards in their bedroom in August 2022 and in October 2022 and had also raised concerns that the hot water was not lasting long. They claim the concerns about the floorboards were not fully addressed in a reasonable timeframe.
The tenants also gave evidence that around 7 August 2023, they raised concerns about the shower unit (head, hose, and part that holds the shower head) and confirmed they had raised it at times during property inspection as it had been problematic for some time and had continued to deteriorate. They also gave video and photographic evidence that the floorboards in the hallway had rotted through because of a gradual leak. They stated the house was old, in need of some repair, and that they had noticed the floorboards in the hall had been squeaky and that they could feel a dip under the carpet for some time but thought that was to be expected in an old house. They were not aware that the dip was rotten floorboards until the carpet was lifted during the shower leak incident in October 2023.
The landlord claims the tenants are liable for the rotten and water damaged gib behind the shower wall, that needed replacing after the shower leak had been found, and for the need to install a new shower enclosure (tray, liner and doors) and replace rotten floorboards in the hall. The landlord bases these claims on an email dated 12 December 2023 from Kevin Fitzgerald at Ocean Plumbing. In this email Mr Fitzgerald stated the “leak was coming from where the elbow (that the hose comes off) was wound into the thread coming out of the wall. Nowhere near enough thread tape was used and therefore was not sealed properly. Caused the water to slowly seep when the shower was in use (proven by the rust stains on the bottom of the elbow). Because the elbow was wound up tight against the shower lining, the leak could not drip down the shower but instead leaked behind the wall”. are all as a result of the tenants careless or intentional actions when one of the tenant’s replaced the external shower fitting and put tape over the nipple thread when he screwed the new fitting into the shower wall”.
To further support its claims the landlord produced a builder’s invoice for $6,267.50 made up of the following costs: a. $1,200.00 plus GST for replacing the floor leading from the hallway to the bedroom that has water damage from a previous leak; b. $600.00 plus GST for replacing the damaged flooring in the master bedroom in the corners of the walls and underneath the bed; c. $$150.00 plus GST to patch and repair damage on the wall from a previous leak; d. $3,200.00 plus GST to install a new shower enclosure, after the floor had been replaced; e. $300.00 plus GST to: i. Replace part of the gib wall behind the shower that was rotten and damaged; ii. Extend the shower waste pipe to reach the new shower waste hole in shower tray; iii. Refix the exterior aircon pipe; and iv. Install a metal kick strip over the carpet and tile floor at the bathroom door entrance.
The landlord also produced a plumber’s invoice, dated 3 January 2024, for $186.30 for silicone behind the shower mixer, taking off shower elbow to rehemp and silicone.
The landlord also submitted in evidence an email from its insurer dated 27 November 2023 that clearly states that the landlord’s sudden and accidental insurance policy does provide cover for the landlord claim for the plumber or the builder’s costs as there is “evidence of rot within the chipboard subfloor which suggests the leak has been happening gradually over time”. The insurer also informed the landlord in this email that its House Plus policy will cover up to $2,000.00 for the gradual leak leading to rot overtime claim, with a $750.00 excess.
The landlord further says that the receipts from Bunnings the tenants submitted to it for reimbursement show the tenants purchased the shower fitting and an additional brass thread nipple and thread tape. It claims that this evidence shows that on or around 31 October 2023, the tenants tampered with the brad thread nipple inside the shower wall that led to the rotten and water damaged gib board behind the shower and did not put enough thread tap around the new nipple to seal it properly. Further, it says that the property manager, when instructing the tenants to change the shower fitting, expressly told the male tenant not to touch the elbow or use any tools on the shower and provided the tenants with a YouTube video link to show him how to install the new shower fitting. The property manager claims the tenants acted carelessly as they had not followed her YouTube instructions and had changed the thread nipple and put thread tape on the thread nipple when that was not part of what she had instructed the tenant to do.
When asked why the property manager would require the tenants to install a new shower fitting themselves instead of getting a professional to do this for the landlord, the property manager confirmed that it was an easy job, she had replaced her own shower fitting and all that was required was to hand screw the hose into the elbow, and that the male tenant is a builder and the landlord/owner had asked him to undertake other repairs on the property at times.
The tenants confirm that they had purchased and replaced the shower unit and that they had placed tape over the existing brass thread nipple but had not replaced it as the male tenant could not access that properly without making a hole in the wall. The male tenant denies having replaced the brass thread nipple even though it was rusty, and he was concerned about it when he had first gone to screw the new shower unit into it, which is why he went back to purchase the nipple and thread tape an hour and a quarter after purchasing the shower unit. Once he looked at the thread nipple, he knew he could not replace it, so taped it up so the elbow fitted tightly into it. He then used a spanner to ensure the hose and elbow was on tight. He took all reasonable steps to ensure the shower fitting was securely in place and did not leak. He is not a plumber and could not have reasonably been expected by the landlord to install a new shower unit without some level of foreseeable risk that comes with a lay person undertaking a job it should have got a professional to undertake. But for trying to please the landlord and do as instructed, the tenants would not have been before me answering to the landlord’s claims that the tenants intentionally and/or carelessly caused the damage to the shower and floor.
The tenants did not become aware of the leak for approximately a week after the male tenant had replaced the shower unit, as instructed by the property manager. He only did this because he was concerned about his wife and child’s safety as the hose was badly worn and had bits sticking off it and the fitting that held the shower head was broken, so his wife could not stand under the shower with the child safely.
The tenant’s representative gave evidence that he had called the builder that undertook the work for the landlord, and the builder had confirmed what was written on the invoice, that the gib and the other boards were water damaged, but also rotten and that the water damage and rot could not have happened in the one week from when the tenant changed the shower fitting to when the leak was found and the shower wall opened up to reveal the rot. The builder said he could provide a report that would say that the rot had been caused from a gradual leak overtime and not by the leak in the shower fitting that had been located at the elbow and thread nipple sections of the shower fitting. However, the builder would charge for this, and the tenants did not want to incur further costs unnecessarily. They confirmed that if this matter went further, they would ask the builder to provide that report. I did not find this report necessary as the builder is quite clear in the descriptions in his quote and invoice that the boards he replaced were rotten from a gradual leak over time.
In addition, the landlord’s insurer’s email also confirms that on the report they had received from their assessor that the damage was due to “a leak that has been happening gradually over time” and therefore was not covered by the sudden or accidental policy cover but by the general house policy cover. They support this assertion because of the rot that was found in the gib behind the shower and in the floorboards that would have taken more than a week to have developed.
Lastly, the tenant’s representative provided a copy of the product certificate from strand flooring that certifies that the board that had rotted is suitable for up to eight weeks exposure to the outside elements, i.e. water. Therefore, it is highly improbable that the flooring would have rotted in one week after the tenant installed the shower fitting.
Even if I had accepted the tenants had engaged in an act or omission that was careless or intentional, which I do not, the $1,584.00 compensation the landlord is claiming is excessive when the builder’s invoice clearly shows the majority of the work and the replacement of the old shower was necessary due to fair wear and tear of an old shower and flooring.
Even if the tenant’s had been careless in installing the new shower unit or had done it without the landlord’s permission, I would not have granted the landlord any more compensation than one quarter of the $300.00 at paragraph 15(e) above and the $186.30 plumbers cost to silicone behind the shower mixer and re silicone and rehemp the elbow. The landlord incurred the insurance excess cost as a result of its failure to repair and maintain the shower unit, and whatever prior leak that had led to the rotten floorboards in the hall, bedroom and under the shower. The most the tenants could have ever been held liable for is some of the water damaged gib board behind the shower, if it had not also been rotten, and the plumbers cost to silicon behind the shower and the elbow. The $1,250.00 the landlord has recovered from its insurance more than covers those costs. The remainder of the costs are clearly fair wear and tear related, as old houses develop leaks that cause rot gradually over time until the rot alerts the landlord to the hidden gradual leak that has caused the rot.
The landlord has not proven the tenants caused the damaged by a careless or intentional act or omission that led to the damage it is claiming and the tenants have disproved liability for the damage. Therefore, the landlord’s claim is dismissed. Reimbursement of the filing fee
Because Crockers Property Management Limited Acting Agent For Ganesh Viswanathan & Kiruthika Manoharan has not wholly or substantially succeeded with the claim I dismiss its application for reimburse of the filing fee.

Tenancy Tribunal case 4773978 — Leaks at 23B Kelman Road, Kelston, Auckland 0602

At a glance

Tenancy Tribunal case 4773978 — Leaks at 23B Kelman Road, Kelston, Auckland 0602

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions