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Can tenant be reimbursed for piped water when the water tank fails?

Monday, October 12, 2020
IMG SOURCE: UPSLASH 

This week's question comes from Anonymous:  

My tenant (from 2016 to 2020) has made a Tribunal application against me. She is claiming, among other things, reimbursement of water rates due to the roof and gutters not being cleaned rendering the water tank unusable. Is that a valid claim? 

Without further information, we assume the following:

  • That the property has both reticulated water supply and a water tank; 
  • The tenancy is not provided on the basis that the property is on tank water only; 
  • That the property complies with all building, health and safety requirements irrespective of the landlord's failure to clean the roof and gutters; and 
  • That the tenant is seeking reimbursement for only variable/consumption-based water charges.
We suspect the tenant is seeking to base her claim on one or more of the following sections of the Residential Tenancies Act: 
  • s45(1)(b) The landlord shall 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.
  • s45(1)(ca) The landlord shall if the premises do not have a reticulated water supply, provide adequate means for the collection and storage of water. 
  • s45(2)The landlord shall not interfere with the supply of gas, electricity, water, telephone services, or other services to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. 
Breaching any of the above subsections is unlawful. The maximum penalties are $4,000 for each of s45(1)(b) and s45(1)(ca) and $1,000 for s45(2). 


Seeing that the tenant has been charged and paid for water rates, we assume the property has a reticulated water supply that is uninterrupted therefore s45(1)(ca) and s45(2) would not apply. We then consider whether the landlord has breached s45(1)(b) by failing to clean the roof and gutters. Without further information (e.g. records of communication, 14-day breach notices, pictures evidencing disrepair) we hesitate to draw a conclusion one way or another (as an aside, we suspect not as if there is a breach then surely the tenant's complaint would more likely be related to weathertightness of the house rather than simply interruption to tank water supply). However, even if s45(1)(b) has been breached, the correct response is for the tenant to issue the landlord with a 14-day notice to fix and upon the landlord's failure to respond to that notice, apply to the Tribunal seeking an award of up to $4,000.  There is no mechanism for the tenant to be reimbursed for alternate water supply when one supply source fails. Note also that the tenant is not eligible for a s45(1)(d) compensation because she has not repaired the premises.  

We don't see the tenant as likely to succeed with her claim for reimbursement. That said, if the Tribunal is to determine that an unlawful act has been committed in this instance, exemplary damage will be awarded to the tenant without her having to ask for it. 

Do you have any tenancy related questions? Write to us at [email protected] or hit us up on our social channels here and here

 

 

 

 

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