Published tribunal order
Tenancy Tribunal case 4922053 — Property damage at Unit/Flat 7, 205 Sunnynook Road, Wairau Valley, Auckland
Decided 19 Nov 2024 · Published 19 Nov 2024 · Application 4922053
Tenant favoured
- Property damage
Order
- A Grade Rental Homes As Agent For Hopestar Trust must pay Seyoun Kim $550.00 immediately, calculated as shown in table below. DescriptionTenant Compensation: Flooding damage and inconvenience$500.00 Compensation: Missing manhole cover$50.00 Total award$550.00 Bond$3,992.00 Total payable by Landlord to Tenant$550.00
- All other claims are dismissed.
Reasons
- The Tribunal must consider applications filed by both the tenant and landlord, however the landlord is only seeking to defend the tenant’s claim.
- Both parties appeared at the hearing today, and we were assisted by a Korean and Mandarin interpreter, however both parties advised at the start of the hearing they wished to proceed in English, and the interpreters were available for any support if needed, and there was some assistance provided for Mr Kim.
BACKGROUND
- The tenancy agreement records that the tenancy was to commence on 30 May 2024 and was a fixed-term tenancy due to end on 29 May 2025. The landlord is recorded as “A Grade Rental Homes on behalf of Hopestar Trust” and the sole tenant is Seyoun Kim.
- Things did not go well even before the tenant moved in. After the tenancy agreement was signed, the tenant requested to cancel the agreement, because he had had an offer in Australia, and wanted to move there. The landlord responded that because it was a fixed-term tenancy, there would be some costs involved for the tenant in finding a replacement tenancy. Ultimately Mr Kim decided to stay in New Zealand and moved into the premises.
- Right at the start of the tenancy there was a flood from a blocked drain. This caused damage to the tenant’s belongings on the garage floor. I note that the tenant has provided photographs showing boxes and other belongings which are exposed to water and I accept are likely to be wet.
- The house was a new build. It is apparent that there were some further issues in relation to the new construction that needed the builder to come back to address.
RELEVANT LEGAL CONSIDERATIONS
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
- That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
- This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
ANALYSIS
- The Tenants position is that there were a range of problems with the tenancy, and the tenant seeks compensation for those. At the hearing Mr Kim presented 7 specific claims, which I will now consider in turn (but combining the 1 st and 7 th claims).
- Compensation for damage to belongings
- The tenant has claimed for damage to his belongings from the flood at the start of the tenancy. The first claim relates to compensation for be belongings, but the 7 th claim is around his time and emotional energy in addressing the flood damage. It is sensible to address both claims together, so I will address claims 1 and 7 here.
- The tenant states that at the start of the tenancy there was a flood, which has caused damage to the tenant’s belongings. The tenant has not been able to quantify the specific loss but explained there has been damage and time that was needed to address the flooding and water damage.
- The landlord opposes this claim. The landlord does not dispute that there has been a flood, but the landlord’s position is that the tenant should have had insurance as required in their tenancy agreement. The landlord states this was an accident. Analysis
- Again there is no dispute between the parties around the flooding.
- I am not persuaded that this would be classed as an accident. The flooding arose from a blocked drain. Taking into consideration that this is a new build property, it is likely that the blockage would have been caused by something going wrong in the building process, such as carelessness with what when drown the drain by the builders. That is not an accident.
- In any event, it is important to consider what the tenant was paying rent for. Mr Kim was paying rent to receive a range of benefits from the house, one of which being that the premises would be dry and non-flooding. Mr Kim would have had a reasonable expectation that the plumbing would work. In fact the Housing Improvement Regulations 1947 requires that dwelling houses be free from damp, and flooding would not be consistent with that obligation on the landlord. Ultimately Mr Kim did not receive what he had contracted with the landlord to receive.
- As I explained to the landlord at the hearing, there is no statutory obligation on the tenant to take insurance for his goods. While the landlord may have included that obligation in the tenancy agreement, Section 11 of the RTA confirms that any provision of the tenancy agreement which is inconsistent with the RTA, is of no effect. There is no requirement in the RTA for the tenant to have insurance, so this provision in the tenancy agreement is inconsistent with the RTA to that effect, and I find of no effect.
- But even if Mr Kim did have contents insurance, that is not a defence that the landlord can apply to absolve itself from this compensation claim. If the tenant incurs a loss because of a breach on the part of the landlord, then the landlord will need to compensate for that loss, irrespective of whether the tenant has insurance. Furthermore, the tenant is not obligated to claim on any insurance policy if they have a loss. Often claims are not made because of the excess that would apply, or other effects claims have on premia.
- I do accept that Mr Kim has had some damage to his belongings from the flooding, but the damage has not been quantified (the monetary loss of goods has not been determined). But I accept there has been a loss no less. I also accept that Mr Kim has needed to spend his time in remedying the effect of the flooding, and I consider he should be compensated for that.
- In determining the level of compensation to order, the best I can do in the absence of independent assessments of the loss or quotations is to step back and determine an amount that I consider would be fair in the circumstances, and I have reached a figure of $500.00. That is about a half week of rent. I order that to be paid to the tenant immediately.
- Manhole cover
- The tenant states that there was a missing manhole cover in the hallway when the tenancy started, and it took a week for the landlord to address.
- The landlord’s position is that there would not have been any real impact to the tenant. When it was raised, the landlord requested the builder to fix the cover, all the builder needed to do was to cut another manhole cover and install it. The delay related to needing to work with the tenant to have this work completed. Analysis
- The tenant rented the premises and it would be expected that the premises would come with a manhole cover in place. It was I accept in a noticeable part of the tenancy and would be relevant for insulation and draught stopping purposes. Mr Kim was not getting what he was paying rent to receive.
- But I agree with the landlord, that the impact for Mr Kim would be modest. It is reasonable that a nominal amount of compensation be ordered, which I set at $50.00. I consider that would be commensurate with the breach and its effect.
- Healthy Homes Standards Report
- The tenant states that at the start of the tenancy, they were given a Healthy Homes Assessment report, which was for the wrong dwelling.
- The landlord states that when the inspector provided the report, they saw that the first page recorded the report was for flat 7 (the tenancy address) and accepted it was for these premises, but on page 2 it referred to flat 3, and they did not realise that error. Because of the concern from the tenant, the landlord arranged for another inspection report, but the conclusions were the same. Analysis
- I accept that there was an error with the HHS report originally provided to the tenant, in that on the second page it referred to flat 3, whereas on the first page it referred to it being for flat 7. I can understand why the landlord had mistakenly approached the report provided to the tenant as being the report for that tenancy, given the tenancy address was on the front cover. When this was raised with the landlord, the landlord acted appropriately with getting another report arranged to ensure that the report is accurate.
- But at the end of the day, there was no material difference in the assessment findings. Other than some minor inconvenience for the tenant in raising this with the landlord, I cannot see that the tenant has incurred any loss in relation to the provision of an erroneous report.
- Compensation can be provided to make good a loss for the tenant, but I cannot see any reasonable loss he has incurred. This claim is dismissed.
- Shower issues
- The tenant states that there were two problems with shower cubicles. Firstly one of the shower doors opened both inward and outward, which he states created a safety risk. Secondly the doors were missing a seal, which eventually the landlord had installed.
- The landlord states that the house has been inspected and passed by the Council. However because the tenant had raised this as an issue they had it addressed. Analysis
- This was a newly built property. The evidence is that in the construction process, the owner had obtained the necessary council inspections including plumbing inspections, leading to a Code of Compliance Certificate being issued. In order to issue a Code of Compliance Certificate, the Council inspectors must be satisfied that the building meets the necessary building requirements.
- The problem for the tenant with this claim, is that he has not identified any legal obligation that the landlord (or owner) has breached. For example, the tenant has not shown what law required the door to only open outward, or that how the shower required a door seal to be placed. Just because the landlord had the tenant’s concerns addressed, does not show a breach of a legal obligation.
- Because the tenant has not proven a breach, I find this claim must be dismissed.
- Exposed electrical wire
- The tenant states that in a draw under the sink was a live electrical wire. The tenant states the landlord blamed them for causing the damage, and this caused them further stress and concern. The tenant says it took one month for this to be fixed. The tenant does not know what the wire was for, and accepted they did not know if it was live.
- The landlord states they are not aware of any live wire in the kitchen. The landlord says that when this was raised by the tenant, they immediately raised it with the builder who fixed it. Analysis
- The difficulty faced with this claim, is that it is not clear to me what the nature of the issue with the wire was, or if it was even live and presenting a safety risk to the tenant. Ultimately the onus sits with the tenant to establish his claims, and in this case I find he has not established any breach of a legal obligation in relation to this wire. The claim must be dismissed.
- Disruption to family to family time
- The tenant states that over the course of several weeks, they had about 20 disruptions to allow contractors to come to the house.
- The landlord states that when the tenants raised problems, they would instruct tradespeople to go to the premises to fix the issue. The landlord disputes that there would have been 20 episodes of this. Analysis
- There is an expectation with any dwelling, that over the course of time work will need to be done to the premises, and that will in reality often involve tradespeople coming to the premises.
- There is a legal obligation on the landlord to maintain the premises, this is required in the RTA. The RTA also allows a landlord or their agents (contractors) to enter the premises with notice, or with consent of the tenant.
- The tenant has not convinced me that the landlord has acted unreasonably or that the attendances with tradespeople were excessive. I accept that some of those attendances were the result of the tenant requesting work to be done in the first instance, so an attendance would have been inevitable.
- This claim is not established, so must be dismissed.
- Time and effort to remedy the damaged documents and other items from the flooding.
- Again this claim was addressed above.
NAME SUPPRESSION
- The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case both parties have applied for name suppression. However neither party has been wholly or substantially successful in the proceeding, so name suppression is declined.