Published tribunal order
Tenancy Tribunal case 4839360 — Rent arrears
Decided 20 May 2024 · Published 20 May 2024 · Application 4839360
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details. 2. 3.
Reasons
Background
- The tenancy began on 7 December 2023. It was a fixed term tenancy with a termination date of 9 December 2024.
- The property has a pool. Under the terms of the tenancy agreement the landlord was responsible for maintaining the pool and the lawns and gardens. The rent was $950.00 per week.
- The tenants left the tenancy on 23 March 2024.
- The tenant’s application raises issues relating to contaminated household water, the collapse of the swimming pool on 10 February 2024, and breach of quiet enjoyment (mostly relating to attendances by contractors and others after the swimming pool collapse).
- The landlord’s application seeks rent arrears to the date that the premises were re-let, and break lease costs.
- The hearing took place in [Event location suppressed] on 26 April 2024. Both parties attended the hearing. Ms Skinner represented the landlord. Tenants’ application Water
- The property is on tank water.
- [Tenant 1] recalled that when he and [Tenant 2] first viewed the property, he was concerned about the fact that the property was on tank water. Their young daughter is immune compromised. He asked the property manager whether the water was safe and clean. The property manager assured them that it was.
- Soon after moving into the property, they noticed that the household water had a strong “stale” smell, which [Tenant 1] described as “like a mangrove”.
- They contacted Propertyscouts, but were advised that it was “part of living in the country” and that the water was safe and healthy.
- The tenants sought advice from [Water management expert], who advised them to have the water tested.
- The tenants arranged for the water to be tested by the [District Council Laboratory].
- They received the test results on 14 December 2023.
- The results showed that the sample taken from the water tank was positive for bacteria (more than 201 MPN 1 ) including E Coli (more than 11 MPN).
- The tenants informed Propertyscouts and issued a 14-day breach notice.
- [The tenant/s] submitted that they received some ‘push back’ to their notice, including a response from Propertyscouts that: a. Landlords only have to provide a filter at the tap, and the tenants could install those if they wanted. b. It was unlikely that the issue could be resolved before Christmas. c. It was “a lot to ask” of the owner to install UV filtration.
- On 15 December a contractor attended on site, emptied the tank, cleaned it (to some extent) and half-filled the tank again. [The tenant/s] submitted that the contractor could not do a ‘full clean’ because they were not informed of the E- Coli contamination, and they did not have the necessary health and safety equipment.
- On 21 December filtration was installed, including UV filtration.
- The tank was not topped up with water until 9 February 2024.
- Landlords have a legal duty to: a. Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises 2 . b. Provide adequate means for the collection and storage of water 3 .
- Under the Building Act 2004, a building is insanitary if it does not have a supply of water that is potable 4 . Potable water is defined 5 as water that is safe to drink, and that complies with the drinking water standards. The current drinking water standards state that the maximum amount of E Coli in a 100ml sample of water is less than one MPN 6 .
- In summary: a. Landlords have a legal duty to ensure that the premises have a supply of water that is potable. b. The water at this property was not potable.
- Ms Skinner submitted that Propertyscouts was not aware, and could not have been aware, that the water was contaminated. The only way of knowing this is 1 MPN is “Most Probable Number”, a statistical method to estimate the concentration of viable microorganisms in a sample 2 Section 45(1)(c) Residential Tenancies Act 1986 (“RTA”) 3 Section 45(1)(ca) RTA 4 Section 123(c) 5 Section 2, Building Act 2004 6 Water Services (Drinking Water Standards for New Zealand) Regulations 2022 to test the water, which is not part of the normal ‘inspection’ process in preparing the property for a tenancy.
- Ms Skinner noted that the landlord responded promptly when they were made aware of the contamination. A contractor attended the next day, the tank was drained and cleaned and half-filled. Although it was very close to Christmas, the landlord arranged for filtration, including UV filtration to be installed within a week of being informed of the contamination.
- I acknowledge those points.
- However: a. The premises had absolutely no filtration between the tank and the taps. Anything that is washed off the roof and gutters ends up in the tank. With that arrangement, there is an ever-present risk that the water could be contaminated with bacteria from animal droppings, particularly birds, that can include Escherichia coli (known as E Coli). E Coli can cause diarrhoea, vomiting and (in serious cases) kidney failure and even death. b. The feedback that the tenants received from their property managers over this period was, to say the least, disappointing. It is important to note that the tenants were not dealing with Ms Skinner, who was on leave at that time, and who only became directly involved with this tenancy in its last few days. [The tenant/s] specifically asked about the quality of the water before they agreed to the tenancy. The property manager knew, or ought to have known, that the property was on tank water and that there was absolutely no filtration in place. The property manager’s assurance that the water was safe and healthy was reckless. When [The tenant/s] first raised concerns, they were ‘brushed off’ with broad assurances that they had nothing to worry about. Their concerns were not taken seriously. Even when they showed that the water was dangerously contaminated, the response was unacceptably casual. Fortunately, the landlord’s actions spoke louder than the property manager’s words, and the correct steps were taken, and were taken promptly.
- A breach of the duty to comply with all requirements in respect of buildings, health, and safety is an unlawful act. The maximum award of exemplary damages for that unlawful act is $7,200. The Tenancy Tribunal may make an award of exemplary damages if the Tribunal is satisfied that an unlawful act was committed intentionally.
- The District Court has held that, for the purposes of this section, “intentionally” means something more than a negligence or even a reckless action 7 .
- In this instance the breach was negligent, or arguably reckless, but it was not intentional.
- Therefore, I will not make an award of exemplary damages.
- However, I will make an award of compensation to the tenants. They suffered a loss of amenity due to the fact that they could not safely use the household water for drinking, and it was unpleasant to use for bathing and washing. The other loss of amenity for them was that they were exposed to the risk of harm from consuming the water before they were advised to stop using it.
- The loss of amenity is significant. Safe and clean water is essential for any property. From the commencement of the tenancy until (at the earliest) the 15 th of December, the premises were insanitary and could have been issued with an unsafe and insanitary notice by [the District Council].
- Having regard to those factors, I will award compensation of $1,500.00. Swimming pool
- The property has an above-ground swimming pool surrounded by a deck.
- On 10 February 2023, one of the metal supports on the side of the pool collapsed (apparently due to corrosion), rendering the pool unusable. The tenants immediately informed Propertyscouts.
- There are two aspects to the tenants’ claim for compensation in respect of this incident: a. Loss of use of the swimming pool. b. The impact on their peace comfort and privacy caused by the landlord’s “chaotic” approach to assessment and repairs, and the behaviour of the contractor who ultimately did the work.
- [The tenant/s] left the tenancy on 23 March 2024. By that time the repairs had been completed but the pool had not yet been refilled and ‘set up’ again. This means that the tenants did not have the use of the pool for the last six weeks of the tenancy.
- In terms of the assessment and repairs, [The tenant/s] submitted that: a. On the day of the collapse, the owner’s brother came over and viewed the pool. 7 Birch v Otautahi Community Housing Trust [2020] NZDC 17667, A1 Property Managers Ltd v Duggan [2021] NZDC 9168 b. Two days later, they came home to find that the pool had been drained. They were not informed that anyone was going to be coming onto the property that day. c. In the evening of the same day, a contractor arrived to look at the pool. The tenants were having dinner at the time. The contractor viewed the pool but said that he would not be able to do the repair. d. Over the next week “multiple people requested to inspect the pool with no notice, including weekends”. e. On 21 February, they were told that the landlord had chosen [a contractor] and that [the contractor] would come to the property between 3pm and 5pm on Saturday 24 February. f. [The contractor] did not arrive on 24 February. [The contractor] came on Sunday 25 February in the early evening. g. They were not given any information about when work would begin. h. The next day, 26 February, they came home to find the pool being dismantled. i. [The contractor] was back the next day. He brought a dog onto the property. The tenants found that their outdoor furniture was moved and used. They raised concerns about this. j. The same problems (dog on site, site messy, outdoor furniture used) persisted for the next week. k. On 5 March they informed Ms Skinner that they intended to leave the tenancy.
- Ms Skinner noted that: a. The landlord (and the landlord’s contractors and agents) is not legally required to give notice of entry if they do not enter the house but remain on the outside of the property. b. All of the attendances were for the purpose of assessing the problem and getting it repaired as soon as possible. c. She was not directly involved with management of the tenancy until 4 March. When she did become involved, she promptly passed on [The tenant/s]’ concerns / requests about [the contractor], but she is not able to control what happens on site.
- The collapse of the pool was sudden and unexpected, and there is no evidence to indicate that it was the result of the landlord failing to maintain the pool.
- However, the loss of the use of the pool was a loss of amenity for the tenants and they are entitled to compensation for that loss of amenity. They paid rent of $950.00 per week for a property with a swimming pool. For a period of six weeks they did not have the use of the pool.
- I will award compensation of 10% of the rent for that six week period.
- I accept Ms Skinner’s argument that the landlord is not legally required to give notice if they (or their contractors) do not enter the house. I also accept that the landlord had a duty to repair the pool as quickly as possible, and the job was not simple. It is unsurprising that there were attendances by various people at different times, and that the work caused some inconvenience for the tenants. Tenants must accept that type of general inconvenience as a necessary part of the landlord’s obligation to carry out repairs.
- However, the tenants have identified some aspects of the work that are beyond the parameters of a “reasonable” and necessary interference with their peace, comfort, and privacy, in particular: a. On several occasions contractors came to the property in the weekend and in the evening. b. There was very little communication from Propertyscouts about who was coming and when. c. The tenants’ reasonable requests that [the contractor] not bring a dog onto the site, that he keep the site reasonably tidy and free from hazards, and that he not use their furniture, were repeatedly ignored.
- [The tenant/s] also described two other puzzling incidents relating to the pool, before the collapse.
- On one occasion the landlord’s gardener brought her daughter onto the property with an expectation that the daughter could swim in the pool.
- On another occasion, a group of teenage boys arrived at the property without notice, at least one of whom was the owner’s son, expecting to use the swimming pool.
- Landlords must not cause or permit any interference with the tenant’s reasonable peace comfort and privacy. A breach of this duty in circumstances that amount to harassment of the tenant is an unlawful act, and exemplary damages of up to $3,000.00 can apply. Landlords are responsible for the actions of their agents and contractors.
- The circumstances do not amount to harassment of the tenant and I will not make an award of exemplary damages.
- I will make an award of compensation on the grounds that the tenants suffered multiple instances of interference with their peace comfort and privacy that were beyond “reasonable”.
- I will award $500.00. Landlord application Rent arrears
- This was a fixed term tenancy.
- Fixed term tenancies cannot be ended by notice. If a tenant leaves a fixed term tenancy before the termination date, they remain liable for rent until the premises are re-let or the fixed term ends (whichever occurs first).
- Propertyscouts were able to re-let the premises from 5 April 2024.
- The rent record shows rent arrears of $2,035.71 to that date.
- The claim is proven. Break lease costs
- Landlords are entitled to recover “any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination” of a tenancy 8 .
- Propertyscouts seeks expenses totalling $702.42, comprised of Ms Skinner’s time and travel (viewings, documentation for new tenancy), exit and entry inspections, methamphetamine testing, and advertising (TradeMe).
- The methamphetamine testing and advertising cost are actual expenses incurred by the landlord.
- I accept that the entry and exit inspections are also an actual expense (property managers commonly charge owners a fee for property inspections).
- I do not agree that Ms Skinner’s time and travel costs are an “expense incurred” by the landlord. Property managers do not charge owners by the hour for their time, and they do not charge owners for their mileage. Owners pay for the property manager’s time and expertise by way of a percentage commission on the rent.
- Therefore I find that the tenants are liable for expenses totalling $338.10 calculated as follows Two inspections @ $60 each$120.00 Methamphetamine test$76.00 TradeMe advertising$98.00 Sub-total$294.00 Plus GST$44.10 8 Section 44A(1) RTA Total$338.10 Filing fee, bond, name suppression
- Both parties were successful in their applications, and both are awarded the filing fee of $20.44.
- The tenants sought name suppression. Name suppression is granted on the basis that the tenants were substantially successful in the proceedings 9