Published tribunal order
Tenancy Tribunal case 4934166 — State of repair
Decided 4 Nov 2024 · Published 4 Nov 2024 · Application 4934166
- State of repair
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 Tenant names and identifying details. 2. 3.
Reasons
Background
- The tenancy began on 19 May 2023 and ended on 4 June 2024.
- The landlord’s application seeks water rates.
- The tenants’ application raises issues relating to the removal of trees, and maintenance.
- The hearing took place in [Event location suppressed] on 4 October 2024. Both parties attended the hearing. Ms Piper and Ms Welham represented the landlord. Water
- The landlord seeks $923.34 for water use during the tenancy calculated per the table below: DocumentPeriodDaysUnits (m3)$ [Council] Invoice10/5/23 to 1/11/23 175142$448.26 [Council] Invoice1/11/23 to 16/4/24167131$420.51 Landlord calculation16/4/24 to 5/6/245117$54.57
- The tenants dispute some of the water charges on the grounds that there was a leak at the property.
- When the tenants received the first water invoice in November 2023, they questioned the amount of water they were being charged for. Their water use was in the range typical for 4-5 adults. They contacted Harcourts, who promptly arranged for a plumber to attend at the property.
- It seems that the plumber attended twice but has only issued one invoice to the landlord.
- There is a puzzling conflict between the landlord and tenant’s evidence about what the plumber found and what work they carried out.
- [The tenant/s] said that she was home when the plumber attended on 19 December 2023, and he told her that he found a substantial leak underneath the house. He was able to repair the leak. Ms Piper said that the plumber did not report finding any leaks, and the invoice does not include any work on repairing a leak.
- The landlord’s view that the tenants are liable for the full water cost is understandable given that they have no confirmation of a leak from their plumber, and the water use recorded on the two [Council] invoices is consistent.
- However, I also acknowledge the tenants’ argument that: a. The similarity of the two invoices could be explained by a leak that continued for the end part of the first period and the early part of the second period, which would be consistent with a significant leak under the house that was repaired on 19 December 2023. b. [The tenant/s] carried out a leak test on 18 December. He monitored the water meter over a two-hour period when no water was used in the house. The meter showed that 58 litres were used over that two-hour period. c. [The tenant/s] oral evidence about what the plumber said to her on 19 December was clear and detailed.
- The factor that tips me towards accepting the tenants’ argument is the record of water use during the period from the end of the last [Council] invoice (16/4/24) to the end of the tenancy. This period is free from any leaks, and there is no evidence of any relevant changes in the way that the tenants occupied the premises that could have impacted their water use. In that sense it provides a ‘true’ indication of the tenants’ normal water consumption.
- Ms Piper helpfully calculated the average daily consumption across the three periods set out above, and their consumption moves from 0.811m3 and
- 784m3 for the first two periods, to 0.333m3 for the final period.
- I am satisfied that it is more likely than not that the water charges in the November 2023 and April 2024 [Council] invoices include water lost through a leak, and that the leak was repaired in December 2023.
- Tenants do not pay for water lost through a leak, and it is appropriate to hold them liable for a portion of those two relevant invoices.
- The usual difficulty lies in attempting to assess the amount of water lost through the leak.
- In the absence of any evidence about relevant changes in the way that the tenants used the premises during tenancy (such as having long-term visitors, or having a paddling pool) I will use the proven (leak free) water use during the last period as a guide.
- Allowing for natural variations in consumption over time, I will apply a 20% ‘uplift’ to the tenants’ average daily use over that period, which equates to
- 4m3 per day, and I will apply that rate to the previous 342 days. That totals
- 8m3. I will assess this at the current rate of $3.21/m3.
- The tenants are liable for $493.70 for water rates, which is a total of: a. $439.13, being assessed water consumption for the period from 10 May 2023 to 15 April 2024 (342 days at 0.4m3 per day at $3.21/m3); plus b. $54.57, being actual water consumption for the period from 16 April 2024 to 5 June 2024. Removal of trees
- The property is on a corner section. At the start of the tenancy there were several large mature trees on the northern side of the property, which faces the road.
- A month after the start of the tenancy, the owner’s father visited the property on a Sunday evening and told the tenants that contractors were coming the next day to cut down a tree.
- The next day the contractors removed two of the large trees and trimmed another.
- [The tenant/s] said that the removal of the trees significantly reduced their privacy.
- The tree removal also left an untidy area where the trees had been.
- Harcourts were not aware of the owner’s plans to remove the trees.
- This was a significant change to the premises that had an impact on the tenant’s use and enjoyment of the property.
- A landlord does not require the tenant’s consent to trim a large tree, or to remove a tree if it was dangerous. There is nothing to indicate that the two trees that were removed were dangerous. I understand that the trees were removed to increase the light and sun getting to the house. That is a benefit to the tenants, but the obvious compromise is a substantial reduction in privacy, and the tenants may not have chosen the removal of the trees if they were given that option.
- The loss of amenity that the tenants have suffered is compensable. They have not got the thing that they bargained for.
- Loss of privacy is difficult to quantify in monetary terms, and the loss of amenity by way of lost privacy must be balanced against the improved amenity by way of more light and sunshine to the house.
- I entirely accept that the landlord’s actions were well intentioned, and the real issue is inadequate communication.
- I will award $1060.00, which is the equivalent of two weeks’ rent. Maintenance issues
- Landlords have a duty to provide and maintain the premises in a reasonable state of repair. 1
- The tenants raised three issues: a. Electrics. b. Exterior steps. c. Kitchen blind and oven racks. a. Electrics
- On 19 June 2023 the tenants sent Harcourts an email covering a few issues, including that the light at the front door was not working. The tenants had replaced the bulb in that light, but the bulb blew within a couple of weeks. The email noted that not having a light at the front door made it difficult for the tenants to use the front stairs in the dark. [Tenant 1] was pregnant at the time, and [Tenant 2] was on crutches.
- On 29 June the tenants sent Harcourts an email about a problem with the light in the office, and reminding Harcourts about the light at the front door. [The tenant/s] was concerned that the blowing lights were a symptom of a wiring issue at the property.
- An electrician attended on or around 16 July.
- On 17 July the tenants sent an email saying that the front door light was still not working, and asking whether the electrician could return and check it.
- The electrician did not return, despite several follow-up messages from the tenants.
- In December the tenants arranged for their own electrician to repair the front door light. The landlord has reimbursed the tenant for the cost of this work.
- Harcourts said that they asked the electrician to return to the property after the tenant let them know that the front door light was not working in July, but they acknowledge that this did not happen, and that the tenants’ follow-ups in September, October, and November were not actioned.
- My finding is that the landlord did not meet their maintenance obligation in respect of this issue.
- The problem was frustrating for the tenants, but it was also more than just an annoyance because of the health and safety aspect. 1 Section 45(1)(b) Residential Tenancies Act 1986 (“RTA”)
- I accept that the landlord’s failure to address the issue was due to a genuine oversight, and I will not make an award of exemplary damages.
- I will make an award of compensation on the grounds that the tenants had to put up with this problem for far longer than was necessary.
- I will award compensation of $300.00. b. Exterior steps
- There is a set of wooden steps from the back deck to the garden.
- The steps were starting to rot and break.
- The tenants brought this issue (and several others) to the landlord’s attention at the September 2023 inspection.
- They heard nothing more, and sent an email on 7 November 2023 following up on the repair issues noted at the inspection including “Broken stairs to be fixed, almost fallen down them a couple of times since inspection”. The email stated “if no progress is made by the end of this week, then I have no choice but to organise a builder to repair the stairs”.
- The tenants received a brief response from Harcourts on 15 November, but no repairs were done.
- [The tenant/s] arranged for a builder to repair the stairs. He paid the builder and on 3 December he asked Harcourts to reimburse him that cost ($1,305.30).
- [The tenant/s] sent several subsequent requests for reimbursement, including in a 14-day breach notice on 7 December.
- On Christmas Day, [The tenant/s] builder sent him a message saying that he had just received payment (from the owner) of the account that [The tenant/s] had already paid. The builder promptly reimbursed the payment to [The tenant/s].
- Ms Piper explained that Harcourts had instructed a contractor to repair the steps, but that contractor then pulled out of the job and it was difficult to find another contractor at that time. When they received the invoice from [The tenant/s], they passed it on promptly to the owner with instructions to reimburse [The tenant/s], and the owner must have paid the builder in error.
- My finding is that the landlord did not meet their maintenance obligation in respect of this issue.
- The steps were not repaired within a reasonable period of time. Again, the issue is more than minimal because of the health and safety aspect. [The tenant/s] said that she fell on the steps and she noted that it was fortunate that she was not holding her baby at the time.
- The tenants were entitled to have the work done themselves and to recover the cost promptly from the landlord 2 . The delay in receiving reimbursement was excessively long and it put financial pressure on the tenants.
- I accept that the landlord took action in response to the tenants’ complaint about the steps, and the delay in repair work was due to factors outside of their control. Therefore, I will not make an award of exemplary damages.
- I will make an award of compensation.
- I will award $500.00. c. Kitchen blind and oven racks
- The kitchen blind fell down in early January 2024.
- After a reminder from the tenants in February, a contractor attended in late March, but instead of reinstating or replacing the blind, the contractor replaced the blind with a net curtain.
- The net curtain was the wrong length, and it did not provide the same privacy as the blind. This window faces directly onto the neighbour’s deck.
- On 22 March 2024 the tenants informed the landlord about an issue with the oven racks. They were insecure, which made the oven unusable.
- On 13 May the landlord informed the tenants that the oven was going to be replaced and new curtains put in the property after the end of their tenancy. This was understandably galling for the tenants.
- The kitchen blind was a non-urgent repair, and I understand that the landlord’s contractor had Covid in late February / early March, which contributed to the delay.
- However, the delay from early January until late March is difficult to justify for a simple repair, and even then the problem was not repaired but a makeshift (and inadequate) net curtain was put in place.
- The problem with the oven racks was serious enough to be inconvenient because it meant that the tenants could not use the oven.
- Again, although the cause of the delays was the contractors, Harcourts could have eased some of the tenants’ frustrations by communicating better with them.
- The loss of amenity is significant enough to warrant a small award of compensation, and I will award $200.00. 2 Section 45(1)(d) RTA Filing fee, bond, name suppression
- The bond will be released to the tenants.
- Both parties were successful in their applications, and both are entitled to be awarded the filing fee. 3
- The tenants’ application states that they are seeking name suppression. Name suppression is granted on the grounds that the tenants were substantially successful in the proceedings. 4