What was the outcome of Tenancy Tribunal case 4594152?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4594152?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4594152?

The primary dispute was Leaks. Related themes: Property damage.

Where can I read the official tribunal order for case 4594152?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9401503-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4594152?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4594152?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4594152?

The primary dispute was Leaks. Related themes: Property damage.

Where can I read the official tribunal order for case 4594152?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9401503-Tenancy_Tribunal_Order.pdf.

29B Kuripuni Street, Kuripuni, Masterton 5810 Tenancy Tribunal Case 4594152 — Leaks

Order

No suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

The Tribunal must consider an application filed by the landlord and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). The landlord seeks compensation for replacement of a toilet pan.
There is no dispute between the parties, that during the course of the tenancy, the toilet became blocked with what the parties have described as a ‘toilet duck’. At the hearing the tenants brought in the device to the hearing, and it was a common plastic device routinely sold in supermarkets, that people attach to the side of the toilet pan as a bowl freshener. When the toilet is flushed the running water comes into contact with the device releasing fragrance and detergent etc. In this decision I will refer to that item as the ‘plastic device’. At some point in time that device must have come loose from the side of the toilet, and ended up getting flushed down the toilet.
The tenants explained that the first they knew of the problem was when they found the toilet had become blocked, and they then realised the plastic device was missing. Mr Coley explained that he has a history in plumbing, and placed his had in the bowl to try an remove the blockage, and was able to feel the tip of the plastic device with his finger, but could not get a purchase on the device, even when trying to remove the blockage with wire.
The landlord instructed a plumber to attend, and they were not able to remove the blockage. Because of the corroded nature of the pan screws, the plumbers needed to break off the existing toilet, and that was replaced by a new toilet. It is the replacement cost the landlord is now claiming.
An invoice has been provided by plumbers ‘Waterwise Wairarapa’ for costs totalling $681.27 for the replacement of the toilet pan. The invoice records: Try to clear blocked toilet Remove toilet had to break as could not be removed in one piece. Remove toilet duck from s bend on toilet Install new toilet.
The parties could not agree on liability for the replacement cost, hence the landlord has filed this claim with the Tribunal.
A hearing was convened on 11 September 2023.
Both parties appeared at the hearing.

POSITION OF THE PARTIES

The landlord considers that this is not a deliberate act on the part of the tenant to cause damage, but an act of omission with reference to 49B of the Residential Tenancies Act 1986. The omission being the tenants failure to pull out the plastic device from the toilet when it fell into the bowl, leading to the blockage.
The tenants are not sure how the plastic device went into the toilet bowl, but consider it was an accident. The tenants state that they did not know the device had fallen into the toilet, and despite their best efforts it could not be pulled out.

ANALYSIS

With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred. In this case the loss for the landlord is the sum paid to the plumber to replace the toilet.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
In this case there is no doubt that the damage is not fair wear and tear. So the onus now moves to Mrs Coley to prove the damage was not careless or intentional damage.
There is no suggestion of the damage being intentional, I am sure the Coley’s did not intend for the plastic device to fall into the toilet and be flushed into the system causing a blockage.
The question then becomes, was the damage careless? The RTA does not define what careless damage is.
I note at this juncture, I accept the evidence from the Coley’s that they did not realise the device had fallen into the toilet. It is conceivable that the device could have fallen into the bowl, and being flushed down the toilet without the person being aware of it, that is especially in circumstances where there are mobility issues. I accept the Coley’s evidence that they did not know the device had fallen into the pan.
The landlords position is that there was an act of omission in not removing the device from the pan when it fell in. I am not persuaded that it could be said there was an omission, because for there to be an omission, the Coley’s would have needed to know the device was in the pan, and then they omitted to remove it. It could not be an omission from a legal perspective if the Coley’s ‘omitted’ to remove the device if they did not know had fallen in the pan.
I cannot see the Coley’s have been careless here. They were using a device which is sold and commonly used in New Zealand, which attached to the inside of the bowl. There is no evidence or suggestion that this device was used carelessly, or in any way it was not designed to be used. It seems that what has occurred was an accidental situation of the device coming loose or breaking, entering the bowl, and then causing a blockage – unknown to the Coley’s.
Finding as I do that the damage is not careless or intentional damage, the result must be that the claim against the Coley’s is dismissed.

Order

No suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

The Tribunal must consider an application filed by the landlord and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). The landlord seeks compensation for replacement of a toilet pan.
There is no dispute between the parties, that during the course of the tenancy, the toilet became blocked with what the parties have described as a ‘toilet duck’. At the hearing the tenants brought in the device to the hearing, and it was a common plastic device routinely sold in supermarkets, that people attach to the side of the toilet pan as a bowl freshener. When the toilet is flushed the running water comes into contact with the device releasing fragrance and detergent etc. In this decision I will refer to that item as the ‘plastic device’. At some point in time that device must have come loose from the side of the toilet, and ended up getting flushed down the toilet.
The tenants explained that the first they knew of the problem was when they found the toilet had become blocked, and they then realised the plastic device was missing. Mr Coley explained that he has a history in plumbing, and placed his had in the bowl to try an remove the blockage, and was able to feel the tip of the plastic device with his finger, but could not get a purchase on the device, even when trying to remove the blockage with wire.
The landlord instructed a plumber to attend, and they were not able to remove the blockage. Because of the corroded nature of the pan screws, the plumbers needed to break off the existing toilet, and that was replaced by a new toilet. It is the replacement cost the landlord is now claiming.
An invoice has been provided by plumbers ‘Waterwise Wairarapa’ for costs totalling $681.27 for the replacement of the toilet pan. The invoice records: Try to clear blocked toilet Remove toilet had to break as could not be removed in one piece. Remove toilet duck from s bend on toilet Install new toilet.
The parties could not agree on liability for the replacement cost, hence the landlord has filed this claim with the Tribunal.
A hearing was convened on 11 September 2023.
Both parties appeared at the hearing.

POSITION OF THE PARTIES

The landlord considers that this is not a deliberate act on the part of the tenant to cause damage, but an act of omission with reference to 49B of the Residential Tenancies Act 1986. The omission being the tenants failure to pull out the plastic device from the toilet when it fell into the bowl, leading to the blockage.
The tenants are not sure how the plastic device went into the toilet bowl, but consider it was an accident. The tenants state that they did not know the device had fallen into the toilet, and despite their best efforts it could not be pulled out.

ANALYSIS

With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred. In this case the loss for the landlord is the sum paid to the plumber to replace the toilet.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
In this case there is no doubt that the damage is not fair wear and tear. So the onus now moves to Mrs Coley to prove the damage was not careless or intentional damage.
There is no suggestion of the damage being intentional, I am sure the Coley’s did not intend for the plastic device to fall into the toilet and be flushed into the system causing a blockage.
The question then becomes, was the damage careless? The RTA does not define what careless damage is.
I note at this juncture, I accept the evidence from the Coley’s that they did not realise the device had fallen into the toilet. It is conceivable that the device could have fallen into the bowl, and being flushed down the toilet without the person being aware of it, that is especially in circumstances where there are mobility issues. I accept the Coley’s evidence that they did not know the device had fallen into the pan.
The landlords position is that there was an act of omission in not removing the device from the pan when it fell in. I am not persuaded that it could be said there was an omission, because for there to be an omission, the Coley’s would have needed to know the device was in the pan, and then they omitted to remove it. It could not be an omission from a legal perspective if the Coley’s ‘omitted’ to remove the device if they did not know had fallen in the pan.
I cannot see the Coley’s have been careless here. They were using a device which is sold and commonly used in New Zealand, which attached to the inside of the bowl. There is no evidence or suggestion that this device was used carelessly, or in any way it was not designed to be used. It seems that what has occurred was an accidental situation of the device coming loose or breaking, entering the bowl, and then causing a blockage – unknown to the Coley’s.
Finding as I do that the damage is not careless or intentional damage, the result must be that the claim against the Coley’s is dismissed.

Tenancy Tribunal case 4594152 — Leaks at 29B Kuripuni Street, Kuripuni, Masterton 5810

At a glance

Tenancy Tribunal case 4594152 — Leaks at 29B Kuripuni Street, Kuripuni, Masterton 5810

At a glance

Claims & awards

Order

Reasons

POSITION OF THE PARTIES

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

POSITION OF THE PARTIES

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions