What was the outcome of Tenancy Tribunal case 4602290?

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

How much money was awarded in case 4602290?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4602290?

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

Where can I read the official tribunal order for case 4602290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9182350-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4602290?

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

How much money was awarded in case 4602290?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4602290?

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

Where can I read the official tribunal order for case 4602290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9182350-Tenancy_Tribunal_Order.pdf.

Unit/Flat 5, 89 Glendale Road, Glen Eden, Auckland 0602 Tenancy Tribunal Case 4602290 — Mould & damp

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application for compensation is dismissed.

Reasons

Both parties attended the hearing.
Ms Perese appeared on behalf of the landlord.
Ms Andrew appeared with Ms Galvin as her agent. I allowed Ms Galvin to speak on behalf of Ms Andrew in the hearing where Ms Andrew needed assistance to convey her case to me.
I want first to acknowledge the challenges Ms Andrew has faced since she moved to her current premises in October 2021. In particular, loss of personal property due to flooding in the garage.
I am grateful to Ms Perese and Ms Galvin for assisting me in understanding the issues that Ms Andrew had asked me to adjudicate. The memorandum filed by each of the parties was extremely helpful.
When filing a complaint, the burden of proof lies with the party making the claim. The party making the complaint needs to provide evidence that it is more likely than not that the opposing party breached the terms of the agreement or the Residential Tenancies Act 1986 ("RTA"). This is known as the balance of probabilities standard.
In the present case, Ms Andrew must establish the claim to the civil law standard of proof, on the balance of probabilities.
Ms Andrew claimed: a. That her neighbour was discharging toxic materials into the environment and that her landlord did not do anything to stop the neighbour; and b. The landlord did not maintain the premises after numerous complaints, the landlord failed to maintain the premises, and flooding damaged her personal property stored in the garage. Neighbour discharging toxic materials into the environment
In the hearing, Ms Andrew showed me samples of dirty water collected from her property. Ms Andrews submitted that the water was muddy, murky, and smelly.
I asked Ms Andrew if the samples were tested to support her claim under this heading. Ms Andrew accepted that there were no tests done.
Ms Andrew submitted that she had made multiple complaints to her landlord and other relevant agencies but had yet to receive any helpful response. She was deeply concerned for her life.
I expressed my scepticism to Ms Andrew regarding her landlord's authority to investigate her neighbour's environmental discharge. She should approach Auckland City Council, which is the appropriate agency with jurisdiction under the Resource Management Act.
For her complaint under this heading, Ms Andrew failed to satisfy me on the balance of probabilities for the reasons below: a. That she has yet to be able to point me to any section under the Residential Tenancies Act that her landlord has a responsibility to investigate that her neighbour has allegedly discharged contaminants into the land; and b. that there is no evidence that her land is contaminated.
Accordingly, the complaint under this heading is dismissed. Damages to personal property due to flooding
Ms Andrew’s complaint under this heading has all to do with the rain flood. Ms Andrew gave evidence that since she moved into the property on 27 October 2021, her property got flooded on the following dates: a. 16 December 2021 (first flood) - rain flood. b. 16 January 2022 (second flood) - rain flood. c. 11 February 2022 (third flood) - rain flood. d. The week commencing 8 March 2022 after the remedial work was done (fourth flood) - rain flood. e. On or about 22 March 2022 (fifth flood) - rain flood. f. 23 May 2022 (sixth flood) - rain flood. g. 11 June 2022 x2 (seventh floor and eighth flood) - rain flood. h. Work was being done on 12 July 2022 (ninth flood) – rain flood.
Ms Andrew gave evidence that she did have contents insurance when she moved into the property on 27 October 2021. She gave evidence that the insurance company later cancelled her contents insurance on 21 November 2021 because the property was in a flood zone. She left with no contents insurance since then.
Ms Andrew’s primary complaint is that the landlord has not maintained the property. Ms Andrew submitted photos showing the flood. Photographs were taken on the following dates: a. 27 January 2023 – Cyclone Gabrielle - photos showing rainwater accumulating at the end of the driveway and the backyard. b. 01 February 2023 – flood on the property. c. 10 February 2023 – photos showing tradespeople on the property doing remedial work. d. 14 February 2023 – photos showing tradespeople on the property doing remedial work. e. 21 February 2023 – photos showing tradespeople on the property doing remedial work. f. 24 February 2023 – photos showing rainfall won’t go through the cesspit and accumulating around the garage. g. 01 March 2023 – muddy backyard after the flood. h. 04 May 2023 – falling leaves and dirt surround the muddy backyard and drainage. i. 25 May 2023 – photos showing the backyard, dirt in the garage and mould growing on the wall in the garage. j. Undated photos show a damaged mattress and dirt left in the backyard after the flood.
The landlord acknowledged that the backyard and the area near the end of the driveway were prone to flooding. They also admitted that rainwater had entered the garage and caused damage to the tenant's belongings.
According to the landlord's evidence, the previous tenants did not report jobs as frequently as Ms Andrew. However, on 25 May 2021, there was a job logged for burst pipes under the property. There were no further issues after the job was completed. The landlord was not aware of any ongoing flooding issues on the property before Ms Andrew's tenancy.
The landlord denied Ms Andrew’s allegation that they did not discharge their responsibility under Section 45(1)(b) of the Residential Tenancies Act (“RTA”). In summary, the landlord submitted evidence of what they did after receiving complaints from Ms Andrews. See below timeline of complaints and maintenance responses by the landlord on pages 6 and 7.
Under Section 45(1)(b) RTA the landlord's responsibility is to provide and maintain the premises in a reasonable state of repair having regard to the age and the character of the premises. The evidence before me satisfies me that the landlord has discharged his responsibility to maintain and provide the premises in a reasonable state of repair having regard to the age and character of the premises.
The flooding problem cannot be solved simply by addressing the drainage size or any blockages. After reviewing the photos submitted by Ms Andrew as evidence, the land at the end of the driveway and in the backyard is the lowest point, causing rainwater from surrounding properties to collect. Since water naturally flows downwards, it is important to thoroughly investigate the entire area to prevent future flooding from occurring.
In regards to this complaint, the RTA does not mandate that the landlord must prevent the accumulation of rainwater from neighbouring properties on the land itself. This is due to the possibility of involving the local Council to address drainage concerns of the affected area comprehensively. The responsibility does not fall on the landlord.
Accordingly, I find Ms Andrew has not discharged her burden on the balance of probabilities that her landlord did not provide and maintain the premises in a reasonable state of repair having regard to the age and the character of the premises.
The claim under this heading is dismissed. General comment
I acknowledge that Ms Andrew was the one who suffered the most from these unfortunate events and did not receive any compensation.
Fortunately, I have received information from the landlord in the hearing that may bring comfort to Ms Andrew. The landlord has stated they are currently searching for another place for her to stay, and Ms Andrew is at the top of their list. Additionally, the landlord has assured her that they will cover the expenses involved in relocating her since it is the landlord relocating her.
I would like to thank Ms Andrew for her persistence in addressing the issues she had identified.
If it weren't for her persistence, the landlord may not have been aware of the full extent of the flood and the impact it could have on the tenant, including that the insurance company would not cover the damage to the contents on the property.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application for compensation is dismissed.

Reasons

Both parties attended the hearing.
Ms Perese appeared on behalf of the landlord.
Ms Andrew appeared with Ms Galvin as her agent. I allowed Ms Galvin to speak on behalf of Ms Andrew in the hearing where Ms Andrew needed assistance to convey her case to me.
I want first to acknowledge the challenges Ms Andrew has faced since she moved to her current premises in October 2021. In particular, loss of personal property due to flooding in the garage.
I am grateful to Ms Perese and Ms Galvin for assisting me in understanding the issues that Ms Andrew had asked me to adjudicate. The memorandum filed by each of the parties was extremely helpful.
When filing a complaint, the burden of proof lies with the party making the claim. The party making the complaint needs to provide evidence that it is more likely than not that the opposing party breached the terms of the agreement or the Residential Tenancies Act 1986 ("RTA"). This is known as the balance of probabilities standard.
In the present case, Ms Andrew must establish the claim to the civil law standard of proof, on the balance of probabilities.
Ms Andrew claimed: a. That her neighbour was discharging toxic materials into the environment and that her landlord did not do anything to stop the neighbour; and b. The landlord did not maintain the premises after numerous complaints, the landlord failed to maintain the premises, and flooding damaged her personal property stored in the garage. Neighbour discharging toxic materials into the environment
In the hearing, Ms Andrew showed me samples of dirty water collected from her property. Ms Andrews submitted that the water was muddy, murky, and smelly.
I asked Ms Andrew if the samples were tested to support her claim under this heading. Ms Andrew accepted that there were no tests done.
Ms Andrew submitted that she had made multiple complaints to her landlord and other relevant agencies but had yet to receive any helpful response. She was deeply concerned for her life.
I expressed my scepticism to Ms Andrew regarding her landlord's authority to investigate her neighbour's environmental discharge. She should approach Auckland City Council, which is the appropriate agency with jurisdiction under the Resource Management Act.
For her complaint under this heading, Ms Andrew failed to satisfy me on the balance of probabilities for the reasons below: a. That she has yet to be able to point me to any section under the Residential Tenancies Act that her landlord has a responsibility to investigate that her neighbour has allegedly discharged contaminants into the land; and b. that there is no evidence that her land is contaminated.
Accordingly, the complaint under this heading is dismissed. Damages to personal property due to flooding
Ms Andrew’s complaint under this heading has all to do with the rain flood. Ms Andrew gave evidence that since she moved into the property on 27 October 2021, her property got flooded on the following dates: a. 16 December 2021 (first flood) - rain flood. b. 16 January 2022 (second flood) - rain flood. c. 11 February 2022 (third flood) - rain flood. d. The week commencing 8 March 2022 after the remedial work was done (fourth flood) - rain flood. e. On or about 22 March 2022 (fifth flood) - rain flood. f. 23 May 2022 (sixth flood) - rain flood. g. 11 June 2022 x2 (seventh floor and eighth flood) - rain flood. h. Work was being done on 12 July 2022 (ninth flood) – rain flood.
Ms Andrew gave evidence that she did have contents insurance when she moved into the property on 27 October 2021. She gave evidence that the insurance company later cancelled her contents insurance on 21 November 2021 because the property was in a flood zone. She left with no contents insurance since then.
Ms Andrew’s primary complaint is that the landlord has not maintained the property. Ms Andrew submitted photos showing the flood. Photographs were taken on the following dates: a. 27 January 2023 – Cyclone Gabrielle - photos showing rainwater accumulating at the end of the driveway and the backyard. b. 01 February 2023 – flood on the property. c. 10 February 2023 – photos showing tradespeople on the property doing remedial work. d. 14 February 2023 – photos showing tradespeople on the property doing remedial work. e. 21 February 2023 – photos showing tradespeople on the property doing remedial work. f. 24 February 2023 – photos showing rainfall won’t go through the cesspit and accumulating around the garage. g. 01 March 2023 – muddy backyard after the flood. h. 04 May 2023 – falling leaves and dirt surround the muddy backyard and drainage. i. 25 May 2023 – photos showing the backyard, dirt in the garage and mould growing on the wall in the garage. j. Undated photos show a damaged mattress and dirt left in the backyard after the flood.
The landlord acknowledged that the backyard and the area near the end of the driveway were prone to flooding. They also admitted that rainwater had entered the garage and caused damage to the tenant's belongings.
According to the landlord's evidence, the previous tenants did not report jobs as frequently as Ms Andrew. However, on 25 May 2021, there was a job logged for burst pipes under the property. There were no further issues after the job was completed. The landlord was not aware of any ongoing flooding issues on the property before Ms Andrew's tenancy.
The landlord denied Ms Andrew’s allegation that they did not discharge their responsibility under Section 45(1)(b) of the Residential Tenancies Act (“RTA”). In summary, the landlord submitted evidence of what they did after receiving complaints from Ms Andrews. See below timeline of complaints and maintenance responses by the landlord on pages 6 and 7.
Under Section 45(1)(b) RTA the landlord's responsibility is to provide and maintain the premises in a reasonable state of repair having regard to the age and the character of the premises. The evidence before me satisfies me that the landlord has discharged his responsibility to maintain and provide the premises in a reasonable state of repair having regard to the age and character of the premises.
The flooding problem cannot be solved simply by addressing the drainage size or any blockages. After reviewing the photos submitted by Ms Andrew as evidence, the land at the end of the driveway and in the backyard is the lowest point, causing rainwater from surrounding properties to collect. Since water naturally flows downwards, it is important to thoroughly investigate the entire area to prevent future flooding from occurring.
In regards to this complaint, the RTA does not mandate that the landlord must prevent the accumulation of rainwater from neighbouring properties on the land itself. This is due to the possibility of involving the local Council to address drainage concerns of the affected area comprehensively. The responsibility does not fall on the landlord.
Accordingly, I find Ms Andrew has not discharged her burden on the balance of probabilities that her landlord did not provide and maintain the premises in a reasonable state of repair having regard to the age and the character of the premises.
The claim under this heading is dismissed. General comment
I acknowledge that Ms Andrew was the one who suffered the most from these unfortunate events and did not receive any compensation.
Fortunately, I have received information from the landlord in the hearing that may bring comfort to Ms Andrew. The landlord has stated they are currently searching for another place for her to stay, and Ms Andrew is at the top of their list. Additionally, the landlord has assured her that they will cover the expenses involved in relocating her since it is the landlord relocating her.
I would like to thank Ms Andrew for her persistence in addressing the issues she had identified.
If it weren't for her persistence, the landlord may not have been aware of the full extent of the flood and the impact it could have on the tenant, including that the insurance company would not cover the damage to the contents on the property.

Tenancy Tribunal case 4602290 — Mould & damp at Unit/Flat 5, 89 Glendale Road, Glen Eden, Auckland 0602

At a glance

Tenancy Tribunal case 4602290 — Mould & damp at Unit/Flat 5, 89 Glendale Road, Glen Eden, Auckland 0602

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions