Brisbane water sufficient compliance

Tenants have lived in my IP for the last 5 year. They paid full water usage as per the contract says. However, recently, the tenants' family broke up. Only wife and her daughter are living now. It seems that they have financial difficulty to pay the rent. Therefore, I will complete the rent by Jan 2018.

Today, suddenly tenant called me and told that plumber reported the property does not have water sufficiency compliance and request to refund all the water usages in the last 5 years. She also stopped paying water usage for the last 2 quarters.

1) I wonder if tenant can request such refund.

2) Is there any law say they cannot request getting refund after certain period passed.

3) Can I questioned them why they not checked water compliance until now?

Are there any suggestions?

 

So is the property actually water efficiency compliant or not (and has been for the last 5 years)? Everything hinges on that fact.

It is your obligation to ensure your property is compliant and you meet all conditions before passing on water consumption charges.

Surely you have evidence of compliance? Certification from a plumber? Other evidence you relied on? This is legally necessary before passing on any charges.

Why should a tenant have to go to the expense of plumbing investigations to disprove your claim?

If you have wrongly charged the tenant, of course they are entitled to a refund. The tribunal will have you on toast!
Marg

 

It depends on the state regulations, I think. In WA, it's not required that a property be retrofitted with water efficient devices before being rented out or sold, I don't think. However new properties will not receive an occupancy certificate without it.

 

There isn't a clear cut answer, but if you made no effort to ensure the property was compliant and it's provable that it hasn't been compliant for the period that the tenant has been charged water (i.e. 5 years) there is a very good chance she will get her money back.

Assuming it's been managed by a Real Estate, I would DEFINITELY be asking them why they thought it was okay to charge water without having had the property checked and certified for compliance first.

 

To add to @Tom Rivera - If you did have a certificate what has been done over the last 5 years to change the situation? Did you or the agent arrange the work? Did the tenant so unauthorised works?

Why was there a plumber there recently?

 

Good point @Scott No Mates.

The certificate in of itself doesn't warrant charging of full water usage- the house just needs to be WELS3 compliant. The certificate just happens to be the best way of warranting that the house is compliant, but only so far as nothing is changed to make it not compliant since the certificate was completed (which I note, doesn't have an expiry or requirement to be renewed periodically).

It would be an extremely rare case indeed for a plumber to attend and replace something with an item that would not comply. Similarly rare but potentially less so would be a case where the tenant made unauthorized changes that caused the property not to comply. This would be a grey area, because then you have to consider the fact that the tenant was not authorized to make a change, but there may be an expectation that the agent notice and rectify the changes.

 

"I wasn't getting enough water through the shower head so I went to Bunnie's and got myself a new one" - typical tale of woe.

 

They do it all the time and rip the thread on the taps outside the house when they remove the restrictor to get more pressure to wash their car or boat. So sick of the rental systems in QLD, property managers are hopeless and miss this all the time.

 

1) They can take it to QCAT and if it is seen that there property is not water compliant then yes they will be entitled to a refund but in saying that they have actively paid the water for the last how many years so that may go in your favour

2) No, nothing that states this but for owners charging water yes, there was a ruling in QCAT that owners can only charge water 6 months after receiving the invoice - Not law not precedence at QCAT.

3) you can ask them but due to the messy break up and no doubt someone in real estate being their friend they are now asking the questions.

Best to keep all this information together for the property. Its annoying I know. I guess maybe buying out on acerage with town water is a bonus tenant has no choice but to buy their own water. If only we could get the same mind set into residential tenants .

 

The onus is on you to provide evidence of compliance. This doesn't necessarily have to be a plumber's certificate, but it's the easiest way to do it. If you've been charging water and it's not compliant or it cannot be proven, then you're going to have to refund.

Any good PM should and would have gone through these items with you and organised them for you as part of the sign up and it's something you should have taken into consideration when choosing a PM. Which PMs actually understand property investment and will take care of your interests holistically?

Often a cheaper management fee ends up costing you more elsewhere.

 

Maybe have a read from the link below,and Marg is 100% right just like putting cold water on a white hot bbq plate..
Home | Residential Tenancies Authority

 

This is bad news. Had she called in the plumber for this reason? Are they older style taps? Could another plumber check to make sure this bozo was correct?

 

This is the first step.

Confirm that the property is actually compliant, and, if not, do the necessary alterations to make it so (and get written evidence) for the future.

You will then be in a position of accurate information to deal with the past eligibility questions.
Marg

 

I would have also asked if a PM was involved in all of this, at the end of the day they would have been legally responsible for making sure that things have been done with in the law.

 

This is a common misconception. The owner is legally responsible for the property and that all compliance is within the law. If something isn't compliant, for example if there is a fire and the smoke alarms weren't up to code, the property manager won't be sued if one of your tenants dies, you will.

The onus is always on the property owner to meet their legal obligations and the property manager assists with this, but they are not the legal fall-guy if something goes wrong. There could possibly be onward repercussions for the PM dependent on a number of factors but at the end of the day, the contract of tenancy and the legal requirements associated with this is between the tenant and landlord, not the PM. You don't just suddenly absolve yourself of legal responsibility because you sign a management contract.

My advice to investment clients is to always manage the manager, know your legal responsibilities and know what is happening with your property at all times.

 

I don't think it will be lawful for a PM knowingly that the IP is not water complianced and on charging for water through their rental agreement. In all the years I've had a rental, I've always been asked by the PM to prove the property has been waterwise approved and not once have they ever said I'll take your word for it.

 

That's the point though, do you know the PM was aware that it wasn't compliant or are you speculating?

Once again, the PM doesn't have to prove the property is water compliant, the owner does. If, for example, it was a transferred management and the PM asks the owner, "would you like me to charge water?" and the owner says yes, the PM isn't required to ask for proof that it is compliant prior to charging it. It might be prudent and a good service to do so, but it's not required.

If the owner doesn't understand their obligations and the PM hasn't bothered to tell the owner, this is just bad service. Or if the owner has lied to the PM about compliance and/or doesn't have the ability to prove it if required (as with this case), the legal responsibility doesn't rest with the PM - they're not the owner of the property.

Don't get confused about the difference between legal responsibilities and bad service.

 

For all the years I’ve owned IPs, I always get a plumber to inspect and issue a water compliance certificate.

Latest IP settles in 10 days time. Plumber will be onsite tomorrow to inspect it and issue a water compliance certificate. I know I have to replace the toilet; hopefully, that will be all.

Once done, I should have my certificate.

 

Agree.

Our PM always said we needed to supply them with the certificate before they would write water charges into the lease, a prerequisite to passing on usage charges.
Marg