10 Nov 2022

Tribunal rules against landlord over failure to fix damp rental

5:23 pm on 10 November 2022

By Hazel Osborne of NZ Herald

Woman cleaning water  condensation on window

File pic Photo: 123RF

A landlord who was challenged about fixing her leaky rental retaliated by trying to evict the long-suffering family of five who had spent a year living in a damp home.

Couple Gil Jae Lee, Kyeong Ae Choi and their three teenage daughters moved into the Auckland rental in April 2021 and almost immediately noticed moisture issues.

They told the landlord, who admitted to being aware of the problems raised, but spent more than a year in the Eastern Beach home with seeping windows, mouldy bedrooms and "serious water leaks".

Frustrated that nothing significant was being done to repair the leak the couple refused to pay rent and in July filed an application to the Tenancy Tribunal seeking the appropriate work be done to fix the home.

Weeks later the landlord issued a 90-day eviction notice to the family citing "extensive alterations, refurbishment repairs or redevelopment of the premises".

Now the tribunal has ruled in the couple's favour, ordering the landlord to not only fix the leaks but pay the family compensation.

Choi and Lee told the tribunal they believed the landlord's efforts to respond to their complaints about the leaks were "inadequate" and only ever attempted the "bare minimum" in checks and repairs, never really addressing the major issues.

"They say that the vast majority of the real 'repair' work has only occurred since they stopped paying rent 'in protest', at the end of May 2022," Tenancy Tribunal adjudicator Jenny Smith said in a recently released decision.

"I am persuaded that there is merit in the tenants' claim that the majority of the remediation work has only occurred since the tenants stopped paying rent and then filed the application in the tribunal.

"Prior to that there were only sporadic efforts, and the emails from the landlord show that she was mostly dismissive of the tenants' ongoing complaints regarding the property."

The landlord, represented by Helen Han, told the tribunal they always responded to the best of their ability and engaged with appropriate tradespeople; however, any underlying moisture issues weren't due to their lack of repairs.

Excuses that extensive work needed to be done on the house were not accepted by the tribunal which ruled that the eviction notice was in retaliation for the tenant's application and complaints of moisture.

"I have found that the landlord's notice, in this case, was retaliatory. The landlord knew the reason was not genuine. The landlord has committed an unlawful act," Smith said.

"I record that even if I had found that the notice was not retaliatory, I would have found the notice to be invalid, because the landlord's evidence about what work needed to happen was vague, lacking a defined scope of work or quotation for the work."

Smith ordered Prosperous Property, which manages the rental, to get a qualified and independent building report done by a weathertightness expert on the house to identify what work needed to be done.

"Depending on the outcome of that report, it is expected that the landlord will then carry out whatever work is proposed by the builder in a timely manner."

If the landlord doesn't comply, she'll be ordered to pay the tenants $2000 and if that isn't done the couple can commission their own report and send the landlord the bill.

A moisture and leak detection report had only recently been commissioned by the landlord but confirmed "numerous issues" in the property.

The report found that moisture had caused damage, and "major action" was required for the deck, primary bedroom, lounge and another bedroom, all with elevated moisture levels.

Other areas of the house required minor action, however, most had above-normal moisture levels detected and a skylight was seeping.

This report comes after the landlord told the tenants on several occasions that she had builders' reports that said the house wasn't leaking.

Compensation order

Compensation of $8500 was awarded to the couple, which equates to approximately 15 percent of their overall paid rent since they moved in last year.

The tenants told the tribunal they would pay the outstanding rent immediately, and ongoing rental payments would now be honoured.

"I am satisfied that the evidence establishes that there are serious water leaks into the premises. Whilst the landlord did take some steps to address the issue little has been done to effectively remedy what is an ongoing issue.

"Residential premises should be watertight. This is a legal obligation that has existed for more than 80 years. The Housing Improvement Regulations 1947 require a landlord to provide a house that is free from damp," Smith said.

It was acknowledged by the landlord at the hearing that the property was likely a "leaky home and built in the era when weathertightness issues were common".

The family have been awarded $8500 in compensation because of the state of their rental and a further $1000 as a result of the unlawful eviction notice. The landlord applied for the termination of the tenancy, rent arrears and the refund of the bond, however, Smith declined the application.

This story appeared originally on the New Zealand Herald website.