Published tribunal order
Tenancy Tribunal case 9051085 — Property damage in Auckland Central, Auckland
Decided 6 Nov 2024 · Published 6 Nov 2024 · Application 9051085
Landlord favoured
- Property damage
- Cleanliness
- Leaks
Order
- The claim against Body Corporate 313742 is dismissed.
- Helen Mihajlovic must pay Tina Mary Reid-Copus, Jason Patrick Copus, Raewyn Jeanette Lovett $1,487.19 immediately, calculated as follows: DescriptionsTo applicant Plumbing invoice 14.12.20$293.25 Plumbing invoice 14.8.21$124.20 Insurance excesses x 2$500.00 Electrical invoice 30.9.21$119.74 Cleaning $200.00 Filing Fee$250.00 Total award$1,487.19
Reasons
- Ms Reid-Copus attended the hearing for the applicants.
- Ms Mihajlovic attended for herself.
- There was no appearance for the body corporate. During the hearing, Ms Reid- Copus elected not to pursue her claim against the body corporate today. The claim against the body corporate is dismissed. Background
- In December 2020, Ms Reid-Copus’s tenants reported a leak into her unit. Ms Reid-Copus contracted a plumber, and the leak was traced to Ms Mihajlovic’s unit’s shower located on the floor above directly above the leak.
- Between December 2020 and 14 July 2021, after she became aware of the leak, Ms Mihajlovic virtually ceased using the shower. She was away from the unit in December and January. Between February and April 2021, she used the shower no more than for about two minutes about once per week.
- Unfortunately, the parties’ relations between Ms Reid Copus and Ms Mihajlovic deteriorated and communication between them suffered. Ms Reid-Copus instructed a lawyer. The lawyer wrote to Ms Mihajlovic on 12 February confirming the leak to Ms Reid-Copus’ unit was continuing and required her to repair it. Ms Mihajlovic doubts her shower had leaked although she concedes she occasionally used the shower very minimally.
- By April of 2021, Ms Reid-Copus was confident enough to have her bathroom’s ceiling’s damage repaired. However, neither she nor her lawyer directly discussed that step with Ms Mihajlovic.
- Unfortunately, on 14 July 2021, after Ms Mihajlovic’s bathroom contractors demolished the bathroom prior to refurbishing it, Ms Reid-Copus’ unit’s bathroom again leaked into Ms Reid-Copus’s unit. That incident did however have the benefit of identifying the source of the original leak. The leak was repaired the next day.
- There has been no recurrence of the leak.
- Ms Mihajlovic’s bathroom refit was substantially completed in about November of 2022.
- In the meantime, Ms Reid-Copus delayed the second repair of her ceiling on the because her insurance company wanted Ms Mihajlovic’s bathroom refit to be fully completed before the work was done again.
- From 16 April 2021 to September 2022, Ms Reid-Copus continued to instruct her lawyer whose advice included the applicable law relating to the leaks, the body corporate rules, and resolution or possible litigation against Ms Mihajlovic and the body corporate.
- Another problem for Ms Reid-Copus’s tenants was that Ms Mihajlovic’s elderly dog’s urine seeped through the deck onto the tenant’s deck on several occasions.
Is the respondent liable for the leak?
The claim
- Ms Reid-Corpus wrote the respondents on 12 December 2023: Owing to the lack of maintenance carried out by the owner Helen Mihajlovic's in her bathroom of Apt 502 over the years, there were two water leaks through the ceiling of our apartment 402 which is directly below Apt 502 on 20th November 2020 and again on 14 th July 2021.
- For remedies, Ms Corpus seeks reimbursement for plumbing invoices, and an electrical invoice, insurance excesses for two ceiling repairs, solicitor’s fees, and loss of rental income. Legal principles
- Ms Mihajlovic had a duty to repair and maintain her unit. Section 80(1)(g) of the Unit Titles Act provides: 80 Responsibilities of owners of principal units (1) An owner of a principal unit— (a) ... ... (g) must repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building... Discussion
- Given it was Ms Mihajlovic’s responsibility to “ensure that no damage or harm” was caused to any other unit, she is liable for Ms Reid-Copus’s proximate losses from the leak.
- The plumber’s invoices for locating the source of the leak are allowed. The excesses for the ceiling repairs are ordered. Likewise, the cost of electrical light repairs in the bathroom required due to the leak.
- I do not allow Ms Reid-Copus’s lawyer’s fees. She was fully entitled to instruct counsel, but it was unnecessary.
- Ms Reid-Copus sought compensation for lost rent. She says that between 2 August 2022 and 19 May 2023 she would have increased the tenant’s rent by $40.00 per week but could not because she had not been assured the tenant had completed her bathroom refit so she could not repair the bathroom ceiling. I decline to allow compensation for lost rent. Ms Mihajlovic’s unit did not leak after the repair on 14 July 2021. That being so, Ms Reid-Copus could have completed the ceiling repair in 2021 and increased the tenant’s weekly rent on 2 August 2022. That Ms Reid-Copus’s insurance company was not prepared to cover a repair until the bathroom refit was completed does not make Ms Mihajlovic liable because it was not sufficiently connected to the leak issue. The loss is not proximate, so damages are not available.
- Ms Reid-Copus sought interest on her expenditure. The expenditure was in dispute. A reasonable offer of settlement was refused. Only a portion of Ms Reid-Copus’ claim has been successful. Interest is refused. The dog urine issue
- Sadly, Ms Mihajlovic’s beloved pet dog was aged and unwell. She had a couple of accidents which led to urine dripping onto the leak below.
- Ms Reid-Copus cleaned the urine up on multiple occasions. She asks for and order for $200.00 for reimbursement of her time.
- I consider the amount sought is reasonable. Filing fee
- Ms Reid-Copus was partially successful in her claim.
- I order Ms Mihajlovic to reimburse Ms Reid-Copus 50 per cent of the filing fee. 1