What was the outcome of Tenancy Tribunal case 4354469?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4354469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4354469?

The primary dispute was Mould & damp. Related themes: State of repair, Leaks.

Where can I read the official tribunal order for case 4354469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9406989-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4354469?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4354469?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4354469?

The primary dispute was Mould & damp. Related themes: State of repair, Leaks.

Where can I read the official tribunal order for case 4354469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9406989-Tenancy_Tribunal_Order.pdf.

37 The Strand, Russell, Russell 0202 Tenancy Tribunal Case 4354469 — Mould & damp

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Reasons

Both parties attended the hearing.

This rehearing took place on 28 June 2023. Senior Constable Gorrie attended in person and was assisted by counsel Mr Mark. Mr Herring (Gibson Sheat Lawyers) represented the New Zealand Police and attended by telephone.

Mr Gorrie filed a rehearing request on 13 February 2023. This request was granted on 13 April 2023.

I have now reheard this application de novo and will consider the application in light of all evidence filed in support.

Mr Gorrie has provided “new” evidence of earlier written notifications: a. A screenshot of a message addressed to “Property”, dated 21 May 2012, stating “there are a few things needing of repair at the Russell Police House”, and listing 7 maintenance issues (none relating to roof leaks). b. A screenshot of a message listing “things to do at the Russell Police Station”, including “Where [sic] is a leak in the roof between the kitchen and dining room”. c. An email from Mr Gorrie addressed to Property Solutions – Transfield Services dated 31 August 2014 stating: “Still have a water leak in the dining room. The water is running down the light fitting. Fireplace chimney leaking also”. d. An email from Transfield Services to Mr Gorrie dated 2 September 2014 confirming a job logged for “Investigate Leaking Roof Police House”. e. An email from Transfield Services to Mr Gorrie dated 14 September 2014 confirming that the job was completed. f. A statement from Mr Mark Caswell, who was the officer in charge of the Russell Police Station prior to Mr Gorrie. Mr Caswell lived in the house from 2008 until early 2012. Mr Caswell’s statement is dated 17 January 2023. The statement details Mr Caswell’s experience of roof leaks and his communications with the Police about them. The tenant’s application:

Mr Gorrie says that issues with the leaking roof date back as far 2008. Repairs were attempted however most of these were of a temporary nature.

Mr Gorrie says that there is evidence confirming the police failed to maintain the premises in a reasonable state of repair from 2012 to 2022.

Mr Gorrie submits further as follows: The New Zealand Police were first informed of leaks in the roof of the Russell police house by the previous police constable Mr Caswell. Mr Caswell lived in the house from 2008 to 2012. A statement from Mr Caswell dated 17 January 2023 was provided in support of Mr Gorrie’s application. His statement refers to a constant problem with the roof leaking. His statement records that he reported maintenance issues through the then property manager. An audit was done on the house to assess what was needed to bring the house into good condition including the roof. It was at this time that a contractor placed sheets of black plastic in the roof as a temporary measure to catch the leaks. The black plastic was still in the roof cavity while Mr Gorrie was living at the police house from 2012 to 2022.

In 2008 the police used a local contractor for maintenance work on the house. A completed subcontractor health and safety induction dated May 2008 was provided in support of this. Mr Gorrie states that unfortunately this contractor has since passed away however his widow recalls him being asked in 2008 for his opinion on the state of the roof which was leaking around the chimney area, the pantry and a few other places. His widow also worked with him as his labourer. The black polythene was suggested as a temporary measure at the time. It is further stated by the contractor’s widow that he advised the police architect that the roof should be completely replaced.

Mr Gorrie was relieving constable in Russell at that time. When Mr Caswell was on leave Mr Gorrie would relieve him. The Russell police house was used as the police office at the time. Mr Gorrie was therefore aware of the leaking issues in the Russell house in 2008. He also knew that black plastic sheeting had been placed on the roof as a temporary measure.

Mr Gorrie moved into the police house in 2012. In November 2012 he sent an email to the New Zealand Police referring, inter alia, to a leak in the roof between the kitchen and dining room. He states that someone may have come out to check on the leak but cannot recall whether the attendance was in response to that email or other communications.

In August 2014 Mr Gorrie sent a further email to Police Property Solutions referring to the leak in the in dining room and advising that the water was running down the light fitting. He also noted that the fireplace chimney was leaking as well.

Mr Gorrie further states that he also received an email in September 2014 from the Property Department confirming receipt of a request to investigate the leaking roof at the police house in Russell.

A further email dated 10 September 2014 records that work had been completed. Mr Gorrie says that this is not correct. The contractors were not able to fix the problem. He says that because of the shingle roof it required a specialised skilled contractor to repair the problem. The New Zealand Police did not send anyone capable of fixing a shingle roof.

In 2017 there was a further email exchange with Property Solutions. Mr Gorrie says that it related to the hot water cylinder which was deferred due to budget restrictions. Mr Gorrie followed up in July 2017 pointing out that the roof was leaking in several places. His email records that the roof had been looked at by several people and had not been fixed and that the water leak was near lighting which he says was dangerous.

A letter from Dave Hesketh Plumbing Limited dated 23 June 2020 records that they had been called to check for roof leaks on the Russell police house. In that letter, which I have sighted, they recommend that a specialist shingle roofer be engaged to assess the property and that it was likely that the roof would need to be replaced.

Mr Gorrie provided evidence in the form of an email from Heritage New Zealand confirming that the roof was leaking and that it was not acceptable to have a tenant in the building with a leaking roof.

Mr Gorrie filed a series of emails dated 31 May 2020, 1 June 2020, 24 June 2020 and 15 July 2020 in respect of leaks and other maintenance issues. He says that the 31 May email reported that the leak had tripped the fuse box.

An email dated 27 June 2022 reported further roof leaks.

An email dated 6 September 2022 from a remedial roofing, cladding specialist and Licensed Building Practitioner, confirmed that the temporary fix was extremely detrimental to the durability and functionality of the roof. It was the writer’s opinion that it was causing excessive dampness from condensation and water ingress into the shingle roof, sarking and ceiling cavities and that the polythene should be removed as soon as possible as rot and mould is likely to have become prevalent under the polythene.

Mr Gorrie says that in March 2021 the tarp on the roof blew away and it took five weeks for it to be reinstated.

Mr Gorrie says that there are photographs produced of black plastic in the roof which was meant to be a temporary fix but has been there since 2008. He says when it rained water would lie in the plastic in close proximity to wiring and would create condensation in the roof cavity. It was his belief that water leaking through the roof shingles created condensation which in turn promoted mould growth in the house.

Mr Gorrie vacated the premises in September 2022. He subsequently obtained a report by a local builder advising that the dwelling was uninhabitable. The landlord’s response:

Counsel for the landlord submits as follows. The respondent acknowledges that the roof was leaking during Mr Gorrie’s tenancy however rejects the claim that it failed to maintain the premises in a reasonable state of repair from 2012 to 2022.

The respondent accepts that the applicant first made the respondent aware of roof leaks to the kitchen and dining room on 20 November 2012.

The respondent says that all requests were responded to and that because no further requests were made by Mr Gorrie until 31 August 2014, they were of the belief that the 2012 leak had been resolved.

The responded submits that the Tribunal should consider the steps that police took to deal with the maintenance and repair issues.

New Zealand Police engaged contractors to attend to maintenance requests on police residential properties. The respondent says that there are established procedures in place for the reporting of repairs and maintenance issues. They submit that the evidence is silent on whether Mr Gorrie has followed these procedures however there is evidence that the New Zealand Police have been responsive and attentive to requests. They also say that all requests for repairs and maintenance have been attended to by a contractor with the necessary skills. They also say that this is not a case of the landlord failing to attend to requests for repairs and maintenance but rather difficulty achieving a permanent solution to a leaking roof on a 150-year-old historic property with a steep pitched shingle roof.

The respondent says that there are no records of repair and maintenance requests or responses prior to 2018. They say that since 2018 there were 37 jobs logged for this property between November 2018 and November 2021. The respondent attempted to put the cost of these maintenance requests into context by suggesting that an amount equivalent of more than 36 years’ worth of rental income over a three-year period.

The respondent reiterated that the property has a wood shingle roof with a steep pitch. They say that significant attempts were made at remediating the issues to keep the premises waterproof and watertight and ultimately relied on the advice from external consultants in respect of the limited options available at the time. While a complete roof repair would most likely have achieved a permanent solution the respondent says that they did maintain the premises in a reasonable state of repair having regard to the age, the Historic Places Trust category, location, type and pitch of the roof and the overall cost.

The respondent submits that the landlord’s maintenance responsibilities pursuant to section 45(1)(b) of the Residential Tenancies Act are qualified to the extent that the landlord’s obligation is to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.

The respondent accepts that the roof was not replaced. They say that to replace the roof would have been prohibitively difficult and expensive.

The respondent referred me to two decisions from this Tribunal. In Hardy v White the Tribunal was not persuaded that minor gaps in doors of a 100-year- old sleep out with original windows and joinery meant that the property was not in a reasonable state of repair. The Tribunal noted that the age and character of the premises must be taken into account. 1

In Sommerville v Kobialdo the Tribunal held that a landlord’s obligation to provided a home free of dampness had to be interpreted reasonably. 2 1 Hardy v White [2020] NZTT Whakatane 4222218

Mr Gorrie claims that the landlord has breached their obligations under the Residential Tenancies Act 1986.

Landlords have a duty to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises (section 45(1)(b) Residential Tenancies Act 1986).

The respondent says that I should adopt the same approach which is consistent with the two authorities from this Tribunal. Analysis and Findings

Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 3 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 4 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”

Landlords also have an obligation to repair things that are apparent from observation: 5 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...

This has been a long road for all both parties and one in which there has been no easy solution. That said, each and every dispute which comes before the Tribunal must be considered within the circumstances which are unique to the application. It should not be a cookie cutter exercise. There are always nuances which make each application unique in comparison to others. While there are certain ‘features’ which may at times appear common between applications there are others which may be considered aggravating features.

Having carefully considered all evidence filed with this application I am of the opinion that the premises of the Russell police house was not fit for purpose. I acknowledge the steps taken by the respondent to address the ongoing issues with the premises. Ultimately it is for me to decide whether those steps were reasonable in the circumstances. I would have been more sympathetic to the respondent had the issues been a draught under the door or a window not 2 Sommerville v Kobialdo TT14/00921 29 October 2014 3 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. Footnotes not included except for see n 5. 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 5 See n 4. sealing properly. This was not the case in this situation. There is clear evidence before me of a significant health and safety issues in respect of a building in which Mr Gorrie was residing. I accept the challenges in respect of a property with Historic Places Trust protection however the health and well being of a tenant must be the overriding consideration.

My view is that while the steps taken by the respondent were evident the failing of the respondent to find a more permanent solution was careless to the point of neglect. Not providing a permanent solution was tantamount to allowing Mr Gorrie to reside somewhere not fit for purpose. Knowing as they did very early on that the house was problematic should have been the catalyst for more proactive options. The respondent understood the roof required a roofer with specialist knowledge but instead allowed temporary measures to continue. It is fair to say that alternative accommodation should have been arranged at the start of his tenure in Russell. The age of the property was no secret and would have been obvious to even the most lay observer. The significant cost and challenges of repairing and maintaining a building of this age comes with the territory.

And the fact that a landlord has spent significant money on maintenance does not mean that the landlord has fulfilled its duty to provide and maintain the premises in a reasonable state of repair.

Accordingly, having considered all evidence placed before me I find that the landlord has not complied with its duty to maintain the premises in a reasonable state of repair from 2012 to September 2022.