NSW Tenant refusing to pay rent due to leekage

This is a really interesting case because we can see it from both sides. All other things aside, you have two options:
1. Accept their rent abatement and continue with the tenancy.
2. Terminate the lease or argue the rent abatement and end up in Tribunal making your case at some stage down the track.

Effectively, if you're worried about losing the tenant- you'll need to let him have his cake. It seems unlikely that you can force him to continue the lease, pay all the rent AND continue to stay there ongoing.

 

Maybe, or maybe the fact that it would likely have gone undetected for months could have caused black mould throughout your bathroom and possibly adjoining rooms.
I'm not saying it would have, but at least from the information that I have, I can't conclusively say that covering the floor trap definitely led to a worse outcome. Likely perhaps, but not definitely.

But I agree with you that I'd be very frustrated too.
Just count yourself extremely lucky that all it's costing you is 6 weeks' rent! If the insurance hadn't covered it (which they might not have had to), it would have easily cost tens of thousands.

 

The bathroom floor wet area drainage pipe is a lot bigger than the waste pipe of a shower and wash basin put together, it shouldn't have any problem exiting water from a cistern leak unless there are other problems. If anyone doubts it, the LL can test it themselves. The tenant has interfered or tampered with a safety feature of the home, so they can be found at fault for part of the damage.

Not the best idea to leave rentals unattended for months on end either because of insurance issues. Any normal person with half a brain would get someone to check up on the home every couple of weeks or turn off the electricity and water supply if they knew the house would have been unoccupied for a long duration.

 

Your biggest problem is you have to prove that the tenant's actions were not something a reasonable person would have done. I.e. did they intentionally or recklessly do something that could reasonably be foreseen to have caused damage. I see a few people here saying that drain is there to allow runoff from catastrophic plumbing failures, but does a reasonable person know that? No, they do not - they see it as a drain to remove water coming out of the shower, bathtub, or vanity.

I haven't gone rifling through Lexis or anything but I would actually be inclined to believe that a magistrate would not find even in part against the tenant, and your case would be thrown out. Just ask your insurer if they intend to pursue a negligence claim, if they tell you I can bet the answer will be no.

Regardless, since OP has subrogated the so-called negligence issue to the insurer, it is no longer relevant to the requirement to provide a habitable property. I cannot see how they can refuse rent abatement for an uninhabitable property, since there is no legal requirement for the tenant to actually live in the place, but there is a requirement for the lessor to provide a place they can live in.

 

I'm not sure where the cistern leak was, it could have overflowed or it could have sprayed at the connection point. If it sprayed and got into gyprock, it could have caused bigger issues than it did.

 

If the place is uninhabitable it's unlikely that you can get the tenants to keep paying rent.
Regardless of who/what caused the damage if there is the insurance in place to cover the event, let the insurer worry about who or what caused the damage. The right insurance if it is in place will also make sure you have a rental income while the place is uninhabitable.
If this is all in order, give the tenants a rental holiday, keep the lease in place, and then deal with it when the place is habitable again.

 

I would certainly look into what happened and why but this is a serious issue that needs to be addressed by the RTA of the state where it occurred, worst case scenario someone may have been electrocuted in the units below or possibly even the person that first entered the unit to turn the water off. We all know that the RTA is skewed towards the tenant's favour, most wouldn't even be qualified to understand the magnitude of the matter and as far I know it's not a normal act for a tenant to block drains intentionally or not.

Just acting ignorant and not caring about issues like this is what the rental industry seems to do well from my experience.

 

RTA is irrelevant, they don't deal with civil issues like this, even when a residential tenancy is involved. This would go to a CAT, and a tribunal or magistrate would make a judgement. It's a common trope that the CAT is "skewed towards the tenant" but I believe that's just rubbish often spouted by those who keep losing at at. The judiciary being "skewed" in such a way would bring the entire system into disrepute.

As to whether it's a normal act, just stop right there. The standard that must be met is "could a reasonable person with a reasonable level of knowledge have known that taking this action, or not taking this action, could have resulted in this outcome?" The standard is not "is this a normal act". I maintain that you would fail to prove to the required standard that it was a negligent act.

 

How could someone be electrocuted in the units below or by turning the water off?

 

I guess if the electrical sockets were non-compliant with the Building Code and were too close to the floor or plumbing, and the property had no RCD, but then the tenant still wouldn't be found liable and someone would actually be facing criminal charges.

 

The initial problem of the flooding below to other units, water may get into their walls and ceilings, it can make water pipes live that are interconnected.

 

Still don’t quite see how in this case?

Would the earth stake help?

 

The residual current device would trip and sever the electrical supply virtually instantaneously if that water actually did get into one of those locations and touch live electrical supply, which it would not, since electrical cabling running through walls is insulated.

 

That’s what I would have thought too.

And it doesn’t sound like the water was at the level of the power points.

 

Maybe or maybe not, electricity takes the shortest path and some electrical circuits don't require to be on the RCD circuit. You might have a wall that's partially wet and go to turn the light switch on in the middle of the night and get zapped.

 

While it's an interesting experiment in whataboutism, you're totally incorrect. There is an additional RCD on the switchboard alongside the circuit breakers. The entire property is on an RCD.

(And even still, lightswitches? Really? You know how little current runs through those?)

 

Unless they've amended the ruling in the last few years, it wasn't a requirement to have a RCD on hot water systems, stove tops or ovens but even if there was, the mains to go through unit blocks to sub boards wouldn't be on a RCD.

 

The root of the matter is whether covering a drain with plastic is reasonable as opposed to using an alternative eg a bathmat. Would a bathmat achieve the same desired outcome for the tenant and result in the same damage? Possibly.

Is the damage foreseeable? Yes

How likely is it? Pretty low.

 

The RCD is on the primary electrical circuit to the property. Everything is protected by at least one RCD.

Disagree. The root of the matter is that a washer was faulty or something and the cistern was leaking. A reasonable person would not expect this so while you might call covering the overflow drain unusual, I think you haven't a hope in hell of getting it across the line of "negligent".

This damage is only foreseeable if the tenant could foresee that their lessor was not maintaining the plumbing correctly.

 

Mmm... I'm gonna block this thing called a... oh yeah, a DRAIN. I wonder what a drain does? Damn, I wish there was some clue as to its function. Haha!

I guess you could ague that if it was a normal act, then the drain would come with a plug.

Scott No Mates makes an interesting point about people putting bathroom mats over the drain. Whilst that doesn't stop drainage, it would for sure slow it down. But then again, mats aren't put over drains to seal them unlike what the OP is explaining here.

Does intent matter?

Not arguing what would happen legally. Just having some fun with the wording.

Anyway, sounds like the OP needs to be flexible in resolving this.