Published tribunal order
Tenancy Tribunal case 4776468 — Leaks at 16B Ronald Macken Place, Windsor Park, Auckland 0632
Decided 20 Sept 2024 · Published 20 Sept 2024 · Application 4776468
- Leaks
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- The Tribunal order suppression of the tenant’s name and identifying details.
- Katherine Yang [The tenant/s] $940.00 calculated as shown in the table below.
- The Bond Centre is to pay the bond of $3120.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- Both parties attended the hearing. The tenant was assisted by a property Manager Ms Jo. Interpretation services were provided.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant seeks compensation for the consequences of leaks affecting the premises. She also questions whether the premises met Healthy Homes standards and says that the landlord breached her obligation to provide Healthy Homes compliance information when requested.
- A claim is also made for the hardship caused by the delays in the matter being determined without her bond being refunded.
How much is owed for rent?
- The tenancy began on 2 October 2021. The tenant vacated the premises on 22 December 2023, although there is a dispute about whether her liability for rent ended on that date.
- After issues with leaks at the premises, the tenant indicated her wish to end the tenancy.
- On 14 December 2023 the landlord txt the tenant, “Just talked to the plumber and knew that the situation is really serious with the leaking, So I have decided that you can move out any day. Please talk to my son in law Raymond and get everything arranged,. Sorry about it!”
- The tenant vacated on 22 December 2023 and paid rent to that date.
- The landlord claims that further rent is owed, to the end of the fixed term on 26 January 2024.
- The landlord says that she only said to the tenant that she could move out whenever she wanted to, because she had been given incorrect advice by a plumber she had engaged on an emergency basis, that the leak was very serious and would take a lot to repair. She later found out, when her own plumber assessed the problem, that it was not a major problem and her plumber was able to fix the leak quite quickly and inexpensively.
- Nevertheless, the landlord gave the tenant written confirmation that she could leave when she wanted. The basis on which the landlord made that decision is not the responsibility of the tenant, who was entitled to and did rely on that written confirmation from the landlord.
- I find that the landlord is not now entitled to change her position and claim additional rent from the tenant.
- The landlord’s claim for the final water rates payment is approved to the extent awarded, which is calculated for the 8 days from the date of the last reading on 14 December 2023 to the end of the tenancy. I have used consumption data from the equivalent period in 2022, to ensure no leak effects are included but have applier the unit charges appliable for the and of tenancy period.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
- End of tenancy photographs provided by the tenant satisfy me that for the most part the premises were left in reasonably clean and tidy condition at the end of the tenancy.
- The landlord has provided an invoice for the cost of having the whole of the carpet cleaned. Photographs provided by the landlord show that there were stains and marks on the carpet. It seems to me likely that the water damage to the carpet may also have caused staining ,for which the tenant is not responsible – though some of the marks appear on stair treads etc unlikely to have been affected by water from the leaks.
- I find that the tenant should make a contribution to the cost of the carpet cleaning, but should not be required to pay the whole amount.
- The landlord claims the cost of having the exterior windows cleaned. Having the exterior of the house cleaned (including the windows) is outside the tenant’s obligation to keep the premises in a reasonably clean and tidy condition and is a landlord cost. That claim is declined. Tenant’s Claims Healthy Homes compliance
- [The tenant/s]
- The landlord has provided a Healthy Homes assessment report dated 1 September 2024 which confirms that as at that date, the premises complied with Healthy Homes standards.
- In the absence of evidence to the contrary, that report suggests that the premises have been compliant with Healthy Homes standards during the tenancy.
- I do not find it proved that the landlord breached her obligation to provide premises that complied with Healthy Homes standards and that claim is dismissed.
- A representative appointed by the tenant after the tenancy ended requested information about the premises’ compliance with Healthy Homes standards, which has been supplied as part of the evidence for this hearing but was not provided to the tenant’s representative when requested.
- Section 45(1AC) provides that, “If the tenant requests the landlord to provide information described in section 123A(1)(e) (relating to the healthy homes standards) to the tenant, the landlord must, within 21 days after the date of receiving the request, provide the information to the tenant.”
- At the point the request was made the tenancy had ended and the parties were no longer landlord and tenant but litigants in this dispute. The HH compliance information has been provided as part of the evidence and I do not find that the landlord committed an unlawful act by not providing that information sooner, as she would have if it were requested during the tenancy.
- The landlord brought a claim for compensation more than the bond. Although her major claim for rent arrears has been declined, the landlord was entitled to withhold consent to the bond being released to the tenant until that claim was determined. Leaks
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
- Breaching that obligations 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.
- The premises were affected by leaks. Photographic and video evidence provided by the tenant shows a significant inundation from the faulty hot water cylinder. Later there was a leak from a punctured water pipe behind the dishwasher.
- Those leaks constituted a breach of the landlord’s obligation to maintain the premises in an adequate state of repair. The landlord has thereby committed an unlawful act.
- 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.
- Here, the evidence satisfies me that the landlord took reasonable and responsible steps to respond to the leaks when brought to her attention by the tenant. I find that it would be unjust to make a punitive award of exemplary damages against the landlord when she has done what she can to respond to the problem.
- The tenant is nevertheless entitled to compensation for the effect of those leaks on her use and enjoyment of the premises, due to flaws in the premises that were not her responsibility.
- The tenant claims compensation for: a. lack of access to hot water for 3 days when the hot water cylinder was being repaired. That is a significant impact on the tenant’s ability to use the premises. I award compensation of $50.00 per day. The landlord suggests that the tenant was at fault for not knowing to turn the hot water cylinder switch back on when the cylinder had been fixed. That is the responsibility of whoever was doing the repair, not the tenant. b. the impact of the flooding on her use of the premises for the week following repair of the hot water cylinder while the premises were drying out. The evidence provided satisfies me that during that time, while the premises were affected by dampness, without the landlord having taken steps to dry the premises out, there was a significant effect on her use and enjoyment of the premises. I assess reasonable compensation at 50% of that week’s rent. c. the effect on her use of the premises from a water leak from a pipe behind the kitchen sink, caused by a nail puncture. The tenant says the leak was significant and constantly wet the kitchen floor requiring her to regularly mop up water from the leak. The landlord says the leak was not that bad and that the premises were old such those things were to be expected. It is the tenant who is aware of and lived with the consequences of the punctured water pipe and her evidence is corroborated by photographic evidence both of the leak and the resulting damage to the flooring and skirtings. I accept there was a significant impact on the tenant’s use and enjoyment of the premises for the 3 weeks the effects of the leak were dealt with before the leak was fixed. The premises, including the kitchen, were able to be used but there was a major nuisance factor. I assess $150.00 per week for that period as reasonable compensation. d. water use paid for as a result of the leaks. I find it more likely than not that while there were leaks at the premises, part of the water consumption paid for by the tenant was attributable to leaked water. In my view however, the amount of water the tenant says she paid for from leaks is not entirely supported by the evidence provided. I estimate $75.00 as reasonable compensation for any additional water charges resulting from the leaks.