Published tribunal order
Tenancy Tribunal case 9055624 — State of repair in Auckland Central, Auckland
Decided 13 Feb 2025 · Published 13 Feb 2025 · Application 9055624
Mixed / unclear
- State of repair
Order
- Faxin Chen must by the end of 21 February 2024: a. Ensure that the shower in Apartment 1108 is repaired against leaking to a professional, reasonable state of repair and durability. b. Repair the unit address’s bathroom ceiling to a reasonable state of repair.
- Faxin Chen must immediately pay Bo Liu $3,983.00 calculated as set out in the table below. DescriptionAmount Loss of opportunity at $250.00 per week$2,678.00 Alternative accommodation cost$575.00 Plumber’s invoice$230.00 Filing fee$500.00 Total award$3,983.00
Reasons
- The claim was heard before me on 4 October 2024 and13 February 2025.
- Dennis Liu attended the hearing for the applicant. He is the unit owner’s brother-in-law.
- Evan Zhang of Auckland City-Living Management Limited (ACLM), the respondent’s agent, attended the hearing for the agent.
- The applicant seeks work orders and compensation for a leak that he says originates from the respondent’s unit. Background
- The unit owner’s elderly father travelled from China to visit his New Zealand- based family. The visit is likely the last he could make given his advanced age and poor health. The unit was renovated for him to live in for the six months he intended to stay. He moved into the unit on 23 March 2024.
- However, he moved out on 21 April due to the leaks which are the subject of this claim.
- The Quest building manager emailed ACLM of a leak into the applicant’s unit on 10 April 2024: We have just been notified of the leak of the shower in unit 1108 , causing damage to 1008 the unit below Please organise
- A plumber to fix shower leak in the unit you manage
- A painter decorator to restore the damage to the unit below If you could keep me updated on the progress
- ACLM had its plumber attend on 10 April. The plumber found no apparent leaks from the shower did some minor “process of elimination” work retightening and resealing the shower waste.
- ACLM emailed the building manager that the leak had been fixed. However, on 14 April, Mr Liu emailed the building manager that the leaking was still occurring.
- On 15 April 2024, Mr Liu emailed ACLM (at cityrental@aclm.co.nz) to confirm access times to the unit for ACLM’s plumber to inspect and repair the leak.
- On 16 April 2024, ACLM’s plumber inspected the shower again. It siliconed an obvious area of grout/silicone deterioration. It noted that the shower door had a 10mm gap in a closed position and advised ACLM: Believe water maybe spraying on the glass and leaking onto the tile floor and making its was in the apartment below... To rectify this issue we recommend a shower specialist to attend.
- On 21 April 2024, Mr Liu emailed ACLM and the building manager: The water leakage from 1108 happened again last night...
- 23 April 2024, ACLM issued a work order to Shower Fix to provide a quote to repair the shower.
- On 26 April 2024, Mr Liu emailed ACLM (copying in the building manager): Could you please provide any updates on the repair as I have not heard from you since 16 th April.
- On 29 April 2024, Mr Liu emailed ACLM to require it to pay for this father-in- law’s alternative accommodation costs: ...complete the following by this Thursday 2 nd May 2024:
- Payment for relocation costs...
- Provide updates on the progress of the repairs...
- On 30 April 2024, Mr Liu phoned Bill Chu, ACLM’s new property manager for Apartment 1108, to confirm that the unit was still leaking. ACLM inspected 1108 the same day and could not locate any link.
- On 3 May 2024, Shower Fix gave ACLM an estimate to replace the shower door, stating: Hi Bill, yes sorry I went there yesterday and could not fix the door. You are going to need to replace the frame, glass and door etc...It will need to be custom made...
- On 23 May 2024, TMG provided ACLM with a quote to repair the shower.
- On 10 June 2024, Faxin Chen authorised Shower Fix to repair the shower.
- Significantly, on about 4 July 2024, ACLM’s contractor replaced the shower surround.
- There is no evidence that Apartment 1108 has leaked into the unit address since the repair was done.
Is the respondent liable for the leaking into the unit address?
- It is not disputed that the unit address’s bathroom ceiling was periodically leaking.
- The applicant claims the leak came from the respondent’s apartment. It was an intermittent leak that probably coincided with when the tenant in 1108 used the shower. Section 80(g) of the Unit Titles Act
- Under s 80(g) of the Unit Titles Act 2010, unit owners must, “must repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building”. Discussion
- Mr Zhang submitted that the applicant had not proved that the leak originated from Apartment 1108. The leak could be coming from common property or another unit.
- However, Mr Liu provided a statement from Quest Auckland’s Maintenance Technician, Brent Anderson: Upon inspection, I can confirm that the leak is originating from the shower in Room 1108, specifically from the trap and downpipe area...
- On the other hand, Mr Zhang did not provide evidence from a qualified contractor of any credible alternative source for the leak. ACLM had its contractors attend on several occasions. If the contractors seriously doubted Apartment 1108’s shower was leaking, they presumably would have told ACLM that, and ACLM would have called them to give evidence. It did not do so.
- The building manager emailed ACLM on 10 April 2024: We have just been notified of the leak of the shower in unit 1108 , causing damage to 1008 the unit below
- The emphasis is added.
- The owner of Apartment 1108, Faxin Chen, was made well-aware of the leak from his apartment into the unit address.
- The photographs and all the evidence are consistent with the building manager’s email stating the respondent’s shower was leaking. There is no evidence that credibly suggests a different source for the leak.
- I am satisfied on the balance of probabilities that the leak to the unit address emanated from Apartment 1108’s shower. Conclusion
- The respondent breached its duty under s 80(g) to ensure a need for repair did not damage or harm another unit. Remedies Work orders
- It is appropriate to make an order that the respondent repair the applicant’s unit’s bathroom ceiling.
- Mr Wright, of Valley Plumbing and Drainage Limited, who is a Certifying Plumber is concerned that the current repair is not permanent in nature. He said: From my 20 plus plumbing experience, I would guess that the shower above had a leak within the cubicle that was tracking along the concrete floor, and dripping through the penetration. No leakage or water stains appeared to be on the actual pipe itself. It looks like this may have now been repaired with silicone, but in my experience this will not last, and advise a replacement of shower in room 1108 for a more permanent solution.
- Given Mark Wright’s comments, the respondent would be well advised to provide a copy of the report to its own contractors and ensure the repairs will last the test of time. If not, further repairs should be done immediately to ensure the leaking does not recur.
- Mr Liu asks for an order that the respondent ensure that any leaks from Apartment 1108 that may affect Apartment 1008 have been properly fixed. The respondent should have already done that. It is the respondent’s own best interests to ensure that the shower repair is to a good professional standard and that the repairs are not just temporary. I am content to make an order that the respondent ensures the leak repairs are properly completed, which is in both parties’ interests. Cost of alternative accommodation
- The unit owner’s father (Mr Liu’s father-in-law) had to move to another apartment in The Quest for about five nights at the cost of $575.00.
- The cost is connected to the leak. I order the respondent to reimburse the application for this loss. Opportunity cost
- The respondent lost the use of the unit while it was leaking.
- I quantify the respondent’s opportunity cost at $250.00 per week.
- I set the starting date for the weekly loss from 1 May 2024, which is 10 days after the applicant’s father vacated the premises. The applicant could, for instance have rented the unit out for profit by then if the unit was not at risk of leaking. The unit was obviously at risk of leaking for as long the repair to 1108’s shower had not been completed.
- I set the end date for the calculation of weekly loss to 14 July 2024, which is 10 days after 1108’s shower repair was completed. The applicant could have, for instance have rented the unit out by then.
- Mr Liu was unaware of the repair. ACLM did not tell him (as would have been sensible and courteous). Mr Liu did not enquire about the progress of the repair or check the unit to see if it was still leaking (as he should have to mitigate his loss). If the applicant had taken the reasonable step to limit the damage or loss of asking ACLM about the progress of the repairs or monitored whether the leaks were continuing (for example by putting a container to catch leaks under the crack through which the water was leaking), he would have been able to fully use the premises by about 14 July 2024. Plumber’s invoice
- The Tribunal orders the respondent to reimburse the applicant $230.00 for the cost of a plumber’s report that confirmed that there were no evident leaks from Apartment 1108’s shower (although he guessed that the leak may have been repaired by silicone and suggested a complete shower replacement for a more permanent solution). Legal costs
- Mr Liu obtained some legal advice for his claim at a cost of $402.50. He also sought reimbursement for his own time.
- The Tribunal does not have jurisdiction to order costs where the party is not legally represented in the Tribunal. 1 1 Residential Tenancies Act 1986, s 102(2)(b). Filing fee
- The Tribunal orders the respondent to reimburse the applicant for the filing fee because the applicant has substantially succeeded in his claim. 2