NSW Tenant refusing to pay rent due to leekage

I have a unit as an IP. I received a call from my building manager late in the night alerting of some water leak coming from my IP and spreading to neighbouring units. Nobody answered the door nor was the tenant's phone answered. The next day my property manager opened the unit with the duplicate key to find out the unit was 1 inch deep in water destroying all our floorboards. It also destroyed floorboards of other units. We learnt that the water from the cistern has been overflowing from quite a few days and the tenant has been overseas since a month. The drainage in the bathroom was covered by the tenant in plastic which resulted in the water not draining through and spreading.

Luckily the building insurance has agreed to cover the damages but when the property manager spoke to the tenant overseas to discuss how their furniture can be removed from the property while the works take place the tenant was ready to break the lease. The property manager convinced them to continue with the lease but they are refusing to pay the rent for the period the works go on (expected to be about 6 weeks). Their furniture has been moved to the balcony so they aren't incurring any out of pocket expenses not are being inconvenienced in any way as they are away and don't plan to return for another couple of months.

I would like advise here as to what are my rights here. Can I insist on them still paying the rent? if they do decide to break the lease it is going to be difficult to find another tenant in this environment and at that rent. But I just feel the tenant is taking advantage of the situation as they were paying rent as normal before they heard of this.

 

What does your pm, and landlords insurance provider say?

 

Would you live there under the current circumstances? you would have to find alternative accommodation while the repairs were being carried out and pay for it without being expected to pay rent on your unit which is uninhabitable ATM.
Just be thankful the tenants are overseas and you can get on with the repairs. Hope your insurance helps out ...

 

Aren't you glad that you have a diligent agent?

So the repairs are covered. Are damages to the adjoining units covered as well?

You have the right to expect that the rent contnues to be paid provided that you are paying for them to be living somewhere else whilst the repair is undertaken. Have you started paying for alternative accommodation? The tenant has a right to terminate If the works are not done in a timely fashion.

 

I still have to speak to my landlord's insurance but have a feeling they may not compensate me for the loss of rent as the tenant isn't here anyway and doesn't have to incur any out of pocket expense.

The PM is siding the tenant and claims it isn't tenants fault. But I do feel the act of covering the drainage while they were away caused this

 

I wouldn't live nor are they as they are away. If they aren't inconvenienced in any way what gives them the right to stop paying rent?

 

The breach of lease requiring the property to be habitable.

PS, they are inconvenienced as their furniture cannot be stored safely inside the unit.

 

It was actually my building manager (not property manager)

The tenant hasn't been here for more than a month. They are with their family in Korea so there is no question of alternative accommodation. If there would be then yes they would need to be compensated but in this case, it has had no effect.

 

You have a choice. Either you allow them to terminate the lease, as the property is uninhabitable, or you allow them to not pay rent, while the property is fixed.

 

This is irrelevant.

 

I understand your annoyance at being without rent for a few weeks, that's why experienced landlords always keep a cash buffer to cover themselves against disasters ...

 

I'd be focusing on this point as the tenant has breached the lease and their actions have exacerbated the problem.

Do you have a photo of the plastic covering the floor drain, or did the tenants admit it to you?

The tenant covering up the drainage hold in the bathroom is a clear breach of Section 66 of the NSW Residential Tenancies Act.

Here is the relevant part of that section:

Tenant must not make alterations to premises without consent
(1) A tenant must not, without the landlord’s written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

NSW legislation

 

Even the fact they don't intend coming back to the country for the next few months?

 

Agree that it could be considered a breach, if it was something placed there for the purpose of covering the drainage, however if it was something that was left there unintentionally, which I think is more likely, it is a different matter.

 

Thanks, the PM claims they covered the drainage to prevent any drainage flys from coming out. But the issue of drainage fly's was never raised by the tenant in the past.

 

Yep!

 

Probably because the tenants were not flushing water down that drain to keep it from building up grime/sludge and getting smelly.... so that's another breach of the lease (Section 51).

I see this in the same way as tenants who cover up smoke alarms with cling-wrap because they don't want the smoke alarm going off when they are cooking.

 

Even if the plastic or other object was placed unintentionally... then one could argue that this is negligence on the part of the tenant anyway.

 

The least of your problems is the tenant not paying or wanting the break the lease. I would imagine that the tenant can cause immense problems for you through claims of damage to his furniture and by the sound of it entering the property without permission or at the least instigating work without the tenants knowledge.

I would also make sure that that stored furniture is not going to be damaged further by being stored on a balcony as the LL will be responsible for any such damage. Even the damage to the furniture from the flood may be claimable against the LL.

We have had tenants cover all sorts of holes (basically asian tenants) as they don't understand the water seals provided by the design of the plumbing.

Mind you the water can dry out in the traps so if the tenant was going to be away for some time the plastic may have been put there to stop the plumbing drying out.

The original poster seems to have missed the maintenance issue that caused the original issue which was a leaking washer on the cistern causing it to overflow. Not the responsibility of the tenant.

How has this tenant paid the rent for the last month he has been away and how is he paying the rent for the next 2 whilst away?

Covering the drain with plastic would hardly constitute a renovation, alteration or addition under the intentions of the act. Wouldn't want to be arguing this at a tribunal considering a lack of maintenance caused the initial problem being a leaking washer.

So as a LL I would be treading very carefully and try to appease the tenant as much as possible or you may find that you have a massive claim from the tenant.

 

Ooh, yes, I forgot that. @Handyandy is right, as the tenant is away, you will need to make sure that his furniture is taken care of properly. You can't just leave it on the balcony.