Published tribunal order
Tenancy Tribunal case 4917846 — Leaks at Flat 2, 15 Maraetai Heights Road, Maraetai, Auckland 2018
Decided 11 Nov 2024 · Published 11 Nov 2024 · Application 4917846
Tenant favoured
- Leaks
Order
- Eva Frantz and F & S Trustee Company as trustees for the Eva Frantz Family Trust must immediately pay Raymond Andrew Simpson and Anita Merle Simpson $1,424.87, calculated as set out in the table below.
- The claims are allowed as set out in this order and
Reasons
. All other claims are dismissed. DescriptionTenant Compensation for rotting window$150.00 Compensation for leaking wastewater pipes$250.00 Compensation for leaking toilet drain$1,004.43 Filing fee reimbursement$20.44 Total award$1,424.87
REASONS:
- I heard this matter at the Manukau District Court on 28 August and 8 November 2024.
- The tenants attended the hearings in person.
- Braden Matson, counsel, attended for landlord. Mr Matson is the professional trustee for the trust that owns the premises.
- The tenants claim the landlord’s termination notice is bad for being retaliatory and the landlord failed to maintain the premises to a reasonable standard of repair.
- For remedy, the tenants seek an order for compensation in a sum to be determined by the Tribunal. Background
- The tenancy began over 10 years ago in March 2014. The landlord terminated the tenancy on 24 May 2024, to take effect on 22 August 2024 on the ground that the premises needed significant repair work.
- The premises is subject to the Eva Frantz Family Trust. Eva Frantz herself is advancing in years and no longer plays an active role in managing the trust.
- Ms Frantz’ daughter, Evie largely managed the tenancy for the trust.
- The tenants are a retired married couple. Mr Simpson is 75 years’ old, and Mrs Simpson is 67 years’ old.
- The premises is one of two flats. The flats are adjoined and share a 13,000 litre inground water tank.
- The tenants reported a rotting window frame in their bedroom in 2022. The landlords had a contractor dig out the rotting wood and filled the window frame in August 2022. However, the contractor cracked the window during the process.
- The tenants found their bedroom was prone to mould. They put that down partly to the bedroom’s walls not being insulated.
- From early in the tenancy, the tenants noticed water leaked into the garage, which they long suspected was due to faulty wastewater pipes. In November 2022, the tenants reported to the landlords that there was a strong smell of urine and ammonia coming from the water leaking into the garage. The landlords’ drainlayer sent out an employee who said it was not sewage.
- In December 2022, the landlords’ drainlayer carried out a brief CCTV inspection of the wastewater pipes and found the pipes were intact.
- In June 2023, another CCTV inspection found that the wastewater pipes were broken. The landlord replaced the wastewater pipes in early July 2023.
- In last year or so of the tenancy, the tenants’ neighbour has complained to them about the noise of the water tank pump and their water use.
- On 10 May 2024, the tenants showed Evie a leak from behind their flat’s toilet and mentioned they were concerned about their neighbour’s behaviour towards them: On or about 10 May 2024 the landlord was visiting the neighbours. As she was leaving, the applicants asked to show her that water was leaking from under the wall behind the toilet and from a connection close to the water pump in the garage. When the applicant's wife approached the landlady to say that the neighbour had been acting erratically, and his behaviour was concerning, she screamed at her saying it was her fault and that she wasn't going to talk to her. In particular she said "I'm sick of it, I've had enough, I don't want to know".
- The landlords’ plumber inspected the leak on 14 May 2024. He diagnosed the problem as being a leak from a concrete-encase copper pipe: 1 As discussed, we attended the site to look at a water leak and found it to be a copper water pipe that has split inside the concrete floor. There is no way to repair this pipe within the concrete foundation, therefore our only option is to repipe the unit. This would involve removing wall linings and plumbing fixtures throughout the unit. There are two units on the premises and they are both services by the same water line. This may trigger the need for the second unit to be repiped as there is no way to isolate the second unit off within the concrete floor. Due to the extensive work required, with unknown complexity...I estimate it to take around 6 weeks to complete... While work is taking place it will be impractical for residents to be living in the units as it will be a construction site.
- On 24 May 2024, the landlords gave the tenants notice terminating the tenancy on the ground, “extensive...repairs...are to be carried out”.
- On 4 July 2024, the landlords gave the neighbouring tenant notice to terminate their tenancy also. This time, the landlords gave the reason for the termination as, “The premises are to be put on the market by the owner...for the purposes of sale”.
- The landlords’ plumber’s diagnosis of the leak was proved wrong. Mr Simpson isolated the toilet leak to the toilet bowl’s drain. He has his own plumber, Dynamo Plumbing, fix the problem on 6 August 2024, the day before the tenancy ended. 1 Email from Taylor’d Plumbing dated 3 July 2024.
- The tenants carried out an E. coli contamination test of a water sample from the kitchen tap on the last day of their tenancy. The test result was positive for the presence of E. Coli.
- Prior to this hearing, the tenants and the neighbouring tenants moved out of their flats and the landlord sold the premises. Was the landlords’ termination notice retaliatory? Legal principles
- Giving a termination notice which is declared to be retaliatory is an unlawful act. 2
- For a notice to be declared retaliatory, the tenants must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenants exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.
- To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
- The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
- A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 3 Discussion
- The tenants suspect the landlords’ notice terminating their tenancy related to their exercising their rights under tenancy laws.
- However, the landlords gave a credible narrative supported by evidence for terminating the tenancy. The validity of their stated grounds for the termination is reinforced by subsequent events. 2 RTA, s 54(2), (3). 3 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”
- The landlords submitted an email from their plumber that advised the work to fix the leak would take about six weeks. While the work to repair the drain was not nearly as extensive as the landlords’ plumber reported, there is nothing that indicates that the landlords were not genuine in their stated reliance on what the plumber says. Nor was there other evidence that showed the landlords were motivated to give notice by the tenants’ actions or complaints. Conclusion
- I am satisfied on the balance of probabilities that the landlords’ notice terminating the tenancy was retaliatory.
- This claim is dismissed.
Did the landlords fail to maintain the premises?
Legal principles
- Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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...
- 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: 4 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: 5 4 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 5 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. “...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...”
- Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 6 However, Landlords also have an obligation to repair things that are apparent from observation: 7 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... Bathroom leak
- The tenants had to live with a leaky toilet drain between 10 May and 6 August 2024. The landlords’ contractor cut out the wall linings around the toilet. The exposed cavity was damp and mouldy. The tenants used about two towels per day to dry the bathroom floor. The water was likely to be contaminated with human waste.
- The landlords’ plumber incorrectly advised them that the leak was from a copper pipe buried within the concrete slab, so major work was required. The landlords relied on that advice. Mr Simpson actually correctly diagnosed the leak, but the landlords rejected his opinion. The tenants had the leak repaired themselves, but by then the tenancy had only a day to run.
- At the tenants’ request, the landlords tested the water tank water’s quality. Their professionally conducted testing found the water acceptable upon the measures used, but no E.coli measure was used. 8 After the tenancy ended, at the Tribunal’s direction another professional test for E.coli was done. The result was under the threshold for E. coli. However, the sample analysed was taken some weeks after the toilet drain had been repaired. 9
- On the last day of the tenancy, the tenants used a home-test kit to test E. coli results. The result was positive for the presence of E.coli. However, the test result does not record the level of E.coli and the test-kit has not been approved for accuracy and reliability for proof in court.
- I do not find it proven on the balance of probabilities that the tenants’ drinking water was contaminated with E. coli above safe levels. 6 RTA, s 40(1)(d). 7 See n 4. 8 Davey Water, Water Treatment Proposal, 19 July 2024. 9 Davey Water, 6 September 2024.
- I do, however, find it proven that the leak into the bathroom was a health hazard because the leak was from the drain at the back of the toilet bowl. The tenants’ grandchildren and guests were put at risk. The bathroom was unsightly and unpleasant, which they found embarrassing when they had guests. One of the tenants has Celiacs Disease and was susceptible to infection from exposure to bacteria.
- The tenants were entitled to have a properly functioning, healthy bathroom. While the landlords promptly instructed a professional contractor to deal with the leak, the contactor’s advice was wrong, and the leak was not repaired as promptly as it should have been. The tenants should still be compensated for the loss of amenity.
- I calculate the tenants’ loss of amenity at 20 percent of the weekly rent, which is $79.00 per week.
- The Tribunal orders the landlords to compensate the tenants $1,004.43 for this leak. Leaking wastewater pipes
- The landlords’ contractors CCTV inspections confirmed that the wastewater pipes were damaged at least in June 2023.
- The water leaked onto the driveway which provided access to the flat.
- The Tribunal orders the landlords to compensate the tenants $250.00 for loss of amenity in having to negotiate access to the premises across contaminated water. Window frame
- The interior wooden frame of the master bedroom’s window suffered from rot. The landlords contractor fixed the worst of the rot as a stopgap measure pending a full replacement of the window.
- I am satisfied the tenants suffered some loss of amenity due to the window being in a less than satisfactory state of repair.
- I assess the loss of amenity at $150.00. Mould in master bedroom
- The tenants found their bedroom suffered from mould. They submitted that the mould issue may have been alleviated by insulating the bedroom’s walls.
- The landlords were not required to insulate the bedroom’s walls under the applicable insulation regulations. The regulations only require ceilings and floors to be insulated. The bedroom ceiling was not insulated but is exempt due to their being no ceiling cavity. The floor was insulated.
- I am not satisfied that the landlords failed to maintain the premises to a reasonable standard in some way causative of the mould.
- This claim is dismissed. Filing fee
- The landlords must reimburse the tenants for the filing fee.