Wynn Williams - Article | The Christchurch Earthquakes and Residential Tenancies | 16 September 2012

By: N/A

Published: 16/09/2012

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Mr Watkin was a tenant in a property which was damaged by the 22 February 2011 earthquake. The property was left without electricity for 5 days, water or sewerage for 10 days or a usable toilet for 3 weeks. The garage was also damaged. Mr Watkin was also concerned the chimney might also collapse into the house. He sought compensation (an abatement of rent) from the Tenancy Tribunal under the Residential Tenancies Act. The question to be decided was whether his house was 'uninhabitable'.¹

The Tenancy Tribunal held that Mr Watkin's house had not been destroyed or seriously damaged so as to be uninhabitable, which was the key factor under the Residential Tenancies Act, and that he was in a position similar to thousands of other Christchurch residents. The Tribunal declined his claim for compensation. Mr Watkin appealed to the District Court.

The judge in the District Court determined that whether a premises were 'uninhabitable' had to be assessed in context of prevailing conditions and expectations at the particular time.

The judge considered housing regulations which required an operating toilet for the exclusive use of occupants as a key requirement of habitability, and determined that the prevailing community standard throughout New Zealand was that a working toilet was necessary for a house to be habitable.

However, the regulations and community standard needed to be viewed in the context of the period following the earthquakes, during which numerous members of the community were also temporarily without toilet facilities and otherwise inconvenienced through loss of water and power. Whether a house was 'uninhabitable' depended on the post-quake expectations of the community.

The judge noted that structural safety of the house was an important consideration. The landlord's engineer's report concluded that, while the house had had some structural damage which would require remedial work, this was not so serious as to render the house structurally unsafe. There was nothing in the engineer's report to say that the chimney could potentially cause serious damage. Mr Watkin did not have his own engineering report.

Having found these points, the judge held that the overall structural safety of the premises was the relevant criterion for assessing whether a property could be deemed uninhabitable in the aftermath of the Christchurch earthquakes. Damage to the toilet, the loss of other amenities and the risk of the chimney falling were insufficient to render the premises uninhabitable, particularly when viewed in light of the conditions endured by many Christchurch residents. Therefore, Mr Watkin's appeal was declined.

The decision highlights the difficulty a tenant faces in any claim for compensation where there is significant inconvenience to the tenant from loss of amenities but no serious damage. It appears that, at least in the context of a large number of similarly affected resident tenants, if a tenant can safely live in the house despite the damage to it, it is difficult to say his or her premises are uninhabitable under the Residential Tenancies Act and that an abatement of rent is required.

¹ Watkin v Brazier Property Investments Limited & Joan Hazelhurst [2012] DCR 186