Published tribunal order
Tenancy Tribunal case 4880061 — Property damage
Decided 26 Sept 2024 · Published 26 Sept 2024 · Application 4880061
- Property damage
Party names are redacted in the official published order.
Order
- There is an order for suppression of the tenants’ names.
- Team Group Rentals Limited is ordered to pay [the tenants] the sum of $527.00 immediately, being $500 compensatory damages and $27.00 for the filing fee.
Reasons
- Both parties attended the hearing, Mr [A] by phone. The landlord was represented by Ms O’Brien and Ms Lardelli.
- The onus is on the tenants to provide the evidence to establish their claims. The standard of proof is on the balance of probabilities.
- The tenancy began on 13 November 2021 and ended on 7 May 2024.
- The tenants’ application concerns the limitations on their use of an outside unit attached to the garage. As a result of leaks, the source of which could not be ascertained, the water was turned off, impacting their use of that building.
- The tenants say that they chose the property because of the sleepout attached to the garage because Ms [A] wanted to operate her massage therapy business from there. The sleepout had a kitchen and toilet.
- The tenants knew that their use of the sleepout was not permanent because the owner was planning a subdivision and the sleepout would be in the divided piece of land. They decided it was likely that the subdivision would take a couple of years and so they would have the use of the sleepout for at least that long.
- The tenants say that within a short amount of time it became apparent there was a leak from the garage. They contacted the landlord and a plumber was sent. When the leak persisted, they raised it again. A plumber visited, could not locate the source of the leak, and on the owner’s instructions, turned the water off.
- The property manager who initially managed the premises has now left the firm. The tenants say that they had a discussion that once the subdivision went through, the owner would arrange for a cabin to be placed on the premises as a substitute for the garage/sleepout. They are certain that on his copy of the tenancy agreement, this was recorded in writing.
- Ms O’Brien has been through all of the former property manager’s documentation and emails and can find no such document. The tenancy agreement has a clause under the heading “Additional Terms and Conditions”:
- Future Subdivision – The owner of the property will be looking to subdivide the property at some point in the future. The garage and outbuildings are for the use of the tenants until such time.
- Ms O’Brien said that the owner understood that the garage and sleepout were to be used for storage.
- Ms O’Brien provided a copy of a plumber’s invoice dated 21 June 2021 and an email dated 24 September 2024 from the plumber saying that the water to the sleepout had been capped off in June 2021 at the request of the owner to stop further damage from a leak that had caused serious flooding in the wall.
- The issue of the water supply was raised again in 2022. Ms O’Brien produced a copy of an email dated 19 July 2022 in which she said: Basically the owner has stated he is not in a position to have the water supply returned to the area in order for the facilities to be operational, and as I can’t find any notes in the system to state otherwise there is not much else I can do. At this stage I am going to have to decline the request for the facilities to be fixed. I will get back to you on the cabin our (sic) front. Please let me know if further evidence comes to light, or if you have other information to add.
- Ms O’Brien provided a copy of an email dated 17 January 2023 from the tenants saying: We are not happy with the rent increase as you know we are VERY unhappy regarding the garage facilities not working when we were told and signed the contract on the grounds the facilities would be fixed. We would agree with the increase if the owner would agree to honour what he said in his verbal agreement of fixing the plumbing in the shed.
- The property managers also provided photographs from an inspection in April 2024, showing that the tenant’s business was set up on the sleepout.
- The tenancy ended in May 2024 as a result of the couple separating and Mr [A] asking to be removed from the tenancy agreement. This coincided with the surveyors commencing the subdivision which had been approved in 2022.
What were the terms of the tenancy agreement?
- There is no dispute that the premises being rented included the garage and sleepout until the subdivision was effected.
- Given there was a toilet and a sink connected to plumbing I find that the tenants had a reasonable expectation that their use of the sleepout and garage would include water. I accept the tenants’ evidence that the reason they chose this property was because of the convenience of this facility for the massage business. There was nothing in the agreement or in subsequent emails from the landlord that the use of the sleepout was only for storage or that they were not to use the water in that building.
- I am unable to determine if there was a further agreement that the landlord would provide a cabin for the premises. This is a significant additional clause that would be unusual and ordinarily be recorded in writing. In the absence of some corroborative evidence, the tenants have not been able to prove on the this was more likely than not an agreed term of the tenancy.
- That leaves the question of the leak and lack of water in the sleepout. Maintenance of premises
- Under section 45 of the Act, a landlord must provide and maintain the premises in a reasonable state of repair.
- Breaching any of these 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.
- However, no application for exemplary damages has been made. Therefore I have considered whether there should be an order of compensatory damages.
- The tenants were inconvenienced by the lack of water in the sleepout, as evidenced by their request in 2022 to have the water reinstated. However, they were still able to use the premises and operate the massage business. They continued to do so until 2024. I have decided that an order of compensatory damages of $500 is appropriate. This represents one week’s rent during the first two weeks of the tenancy.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.