What was the outcome of Tenancy Tribunal case 4567515?

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

How much money was awarded in case 4567515?

Compensation: Sewerage Issue: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4567515?

The dispute type was not classified.

Where can I read the official tribunal order for case 4567515?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9437318-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4567515?

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

How much money was awarded in case 4567515?

Compensation: Sewerage Issue: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4567515?

The dispute type was not classified.

Where can I read the official tribunal order for case 4567515?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9437318-Tenancy_Tribunal_Order.pdf.

93 Fairview Avenue, Fairview Heights, Auckland 0632 Tenancy Tribunal Case 4567515 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4567515 — net $3,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: sewerage issue	$3,000.00	sewerage issue
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,020.44
Total payable by Landlord to Tenant	$3,020.44

Both parties attended the hearing.

Tracy Edna Beamsley and Caine Morris claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (“RTA”).

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. Specifically, the tenant claimed that the landlord’s sewerage system was broken and overflowing when it rained heavily.

Breaching this obligation 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 RTA.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.

The tenant applied for compensation, exemplary damages and a work order for the sewerage system to be fixed. Background

The tenancy began on 30 th April 2021.

The tenant did not raise any issues with the sewerage with the landlord until July 2022.

On 19 th July 2022, the tenant informed the property manager via text message that the tenant had been noticing a bad smell and that the rear outside drain was overflowing when it rained heavily. This was after a weed mat had been installed on the back garden by the tenant. The tenant asked the landlord to get someone out to have a look at it.

The landlord called Drain Patrol Ltd to have the blockage cleared and waste drain checked.

On 27 th July 2022, the tenant texted the landlord about being told by the plumber (presumably from Drain Patrol Ltd) that the septic tank needed to be emptied at the house. The tenant asked the landlord for someone to be sent out as soon as possible.

On 29 th July 2022, the landlord called Drain Ninjas Ltd to attend to the septic tank. The invoice showed that the septic tank was emptied but due to poor access, not all solids were able to be removed. Some 95% of the tank was emptied and 2,120 kg of matter removed and disposed at a council approved site.

Despite this, the tenant’s toilets were still not flushing and one still had sewage coming up into it. The tenant texted the landlord to get someone in urgently.

On 30 th July 2022, Drain Surgeons NZ was called to attend to the issue further. The invoice stated “plunged and cleared blocked gully trap, cctv 4m to septic tank, no faults. Flow tested, 2 toilets still blocked, attempted to plunge, and couldn’t clear. Flushed ip/vent, to clear block, cctv line, no issues, washed down and disinfected the area” (sic).

It seemed that the issue had been resolved at the time but problems resurfaced after the January 2023 Auckland flooding.

On 13 th February 2023, the tenant contacted the landlord regarding overflowing septic tank again and informed that the sewerage issue had gotten worse.

On 15 th February 2023, the landlord sent out Burnetts Septic Tank Cleaning to have the septic tank cleaned out.

The issue was not fully resolved and the landlord thought it was due to the unprecedented weather events from early 2023.

The tenant served the landlord a 14-days’ notice to fix the sewerage system on 10 th March 2023.

The landlord again had the septic tanks cleaned out on 19 th April 2023 and Drain Ninjas were sent out again on 6 th May 2023.

It was only on 8 th May 2023 when GBA plumbing was sent out that the extent of the septic tank problem was realised.

GBA plumbing told the landlord on 10 th May 2023 that there was a considerable upgrade required on the septic tank and that until then the premises was uninhabitable.

The landlord served the tenant 7-days’ termination notice under section 59A RTA due to premises having become uninhabitable.

The tenant moved out on 16 th May 2023.

It is to be noted that the landlord paid for the tenant to stay elsewhere for 3 nights from 9 th May 2023 at the request of the tenant. The tenant was concerned about the pending heavy rain at the time.

I also note that the tenant was able to stay 17 days without any rent being charged during the last 7 days of the tenancy and additional 10 days when the tenant came back to stay at the premises even after it had been deemed uninhabitable.

When the premises becomes uninhabitable not as a result of the tenant’s breach, the rent abates see s 59A(2) RTA. However, that does not mean that the landlord was required to provide additional 10 days free of charge entirely.

I acknowledge the good will of the landlord.

The tenant had Mr Glynn Allen from GBA plumbing as a witness. Mr Allen said that the landlord knew about the sewerage system issue at the premises. However, when asked specifically as to whether the tenant could prove that the landlord knew of the extent of the sewerage system issue before being told by GBA plumbing on 10 th May 2023, the tenant acknowledged that they could not.

I find that the tenant has not proven that there was any intentional failure by the landlord to maintain the sewerage system. I find that the landlord had responded adequately to the issues known at the time.

I decline to award any exemplary damages.

It is understood that the issue itself has now been resolved since the tenant moved out.

As the tenancy had ended and the issue now resolved, I do not make any work orders.

However, I acknowledge the extent of the sewerage issue that the tenant had to live with. The tenant said that there would have been 15 instances of overflowing between July 2022 and May 2023.

At the hearing, the landlord agreed to compensate the tenant $3,000.00 for this.

I order the landlord to pay the tenant $3,000.00 as compensation for the loss of use and stress caused by the sewerage system failure.

Because the tenant has substantially succeeded with the claim, I order the landlord to reimburse the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4567515 — net $3,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: sewerage issue	$3,000.00	sewerage issue
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,020.44
Total payable by Landlord to Tenant	$3,020.44