On Friday night as the water rushed into the living room of his Kingsland flat, Adam and his flatmates tried to stop it.
“It was pouring out of the door like a waterfall cascading into the lounge,” he says.
“We got big laundry hampers and were filling them up with water using pots and pans, but the water kept on coming. We filled them up numerous times until we realised it was pointless because unless the rain stops, the water is just gonna keep on coming.”
Four days later, the carpet is still soaked and he’s not been able to live in the house. He’s deciding whether he will keep paying rent.
“I've reached the end of my tether. I have no desire to pay these people rent while my house keeps flooding around me and they continue to not solve the problem.”
You don’t have to pay rent for a house you can’t live in
The Residential Tenancies Act, the law that governs rentals, says if your flat is destroyed, or so seriously damaged as to be uninhabitable, “the rent shall abate accordingly”.
Abatement means your rent either totally or partially reduces, says Lucy Telfar Barnard, senior research fellow at the University of Otago housing and health research programme.
If your house is totally uninhabitable, you can totally stop paying rent until it is habitable again.
If it’s partially uninhabitable, then you can pay reduced rent.
How much should your rent be reduced by?
There’s no legal formula, but if you rent a three-bedroom house and only two bedrooms are usable, then you would expect the rent to reduce to a property of that size, Lucy says.
If you and your landlord can't agree what the rent reduction should be, you may need to go to the Tenancy Tribunal, she says.
Peter Lewis, vice president of the New Zealand Property Investors' Federation, says you should discuss the amount with your landlord.
Landlords should be open to the discussion, he says, because a tenant paying partial rent is still better than them moving out.
“I may figure that losing 50% [of my rental income] is better than losing 100%.”
So you can just … stop paying rent?
Yes, Lucy says.
You will need to let your landlord know that’s what’s happening, because you are required by law to tell them that the property is uninhabitable.
If you had paid rent in advance - say, you had just paid two weeks’ rent in advance on Thursday before the floods hit - and then the property is uninhabitable for those two weeks, you can ask your landlord for a refund, or for the payment to cover future weeks.
If they won’t refund you then you can apply to the Tenancy Tribunal.
But one thing to be clear on, says Lucy: “It doesn't remove any arrears, so whatever rent was due to be paid up until the day [your house] was flooded still has to be paid.”
Dr Lucy Telfar Barnard, senior research fellow at the University of Otago housing and health research programme. Photo: supplied.
You’re also allowed to cancel your tenancy with only two days’ notice
Normally a tenant needs to give their landlord 28 days’ notice when they want to end a tenancy.
But when the premises are destroyed or are so seriously damaged that they’re uninhabitable, that goes down to only two days.
But a warning - there’s a flipside to this
The landlord is also allowed to terminate the tenancy with seven days’ notice, which they might do if substantial work is needed to make the property safe and habitable again, says Lucy.
Okay, so if the house is uninhabitable you can totally stop paying rent. And if it’s partially uninhabitable you can negotiate a discount. But what counts as ‘partially uninhabitable’?
There’s not a set definition, Lucy says, so it depends on who is living there and the state of the house.
Who is living there:
If you’re a group of flatmates and one bedroom is affected but everyone else can get into the rest of the house without going through that bedroom, then it might be okay for that one person to go live with someone else and you'd expect reduced rent for that room.
“But that would be different than if there was a family living there - you wouldn't expect one member of the family to go live somewhere else, so it does depend on the circumstances rather than on the state of the dwelling.”
The state of the house:
Even if only one part of the house was flooded, if you need to pass through that area to get to the safe areas, then that whole home is not safe until those areas are cleaned, Lucy says.
“Say you've got a townhouse where the entry hallway has been flooded and you have to pass through that to get upstairs - that area is not a sanitary space to get through and therefore the whole home is not habitable.”
But if just one area, say the garage or laundry, has been flooded and you don't need to pass through it, and you can separate it off with doors, then that would be considered partially uninhabitable.
Is it fair to your landlord to just stop paying rent?
Any sensible landlord will have insurance for this kind of thing, Lucy says, and that insurance will cover the mortgage payments if the tenant is not paying rent.
“If the landlord has chosen to not take on that kind of insurance, that's a choice they made and the tenant is not responsible for that choice.”
A tenant literally can’t get this type of insurance, she says, so it is absolutely the landlord’s responsibility.
Who is responsible for what part of clean-up?
Peter Lewis of the Property Investors' Federation says any damage to the property itself is up to the landlord to sort out.
“But if there's any damage to the tenants’ own possessions, like their car parked there, like boats or equipment, that is the tenants’ responsibility to deal with that.”
This means landlords are responsible for things like drying out or replacing carpets.
Adam, who doesn’t want his last name used because he’s worried about how it might affect his rental, says his flat has flooded five times in the seven years he’s been living there.
His landlords have tried to make improvements, including building a trenching system around the side of the house.
“It worked for maybe about a year or two before the third flood eventually happened. And since then it has flooded two times.”
After the third flood, the landlords replaced the carpet and agreed to reduce his rent by 50% for a few weeks.
Each time the carpet flooded they brought in industrial dryers and dehumidifiers “that run for four days full blast” - but they didn’t pay for the power used, he says.
That’s not right, says Lucy, because the power used is part of the cost involved in the remediation, which is the landlord’s responsibility.
And just drying carpet may not be good enough because flooded carpets - even once they’re dried - are a genuine health risk.
Flood water could have cryptosporidium, giardia, or E. coli in it.
“It's not just a laundry leak. It's basically likely a sewer line running through your house, there’s potentially dead animals. It's not enough to just dry out the carpets and say ‘It's done now’ - anything that's absorbent needs to be gone,” Lucy says.
It might be a bit risky to stop paying rent
Demand for rental properties is going to get quite messy for the next wee while as there will be a lot of people who need to move, says Lucy.
“So if you can stick with what you’ve got you may find that's a better option - but only if it's sanitary.”
Tenants can fear retribution when asking for their legal rights.
Adam says: “There’s the fear ultimately in the end that if we rock the boat too much complaining about this, that the landlord or property manager might not end up renewing our lease in the next year.”
He says he’s really lucky to have a great deal in a great location.
“It's not easy to find a place that's that affordable and can also house my cat. It's an expensive time of life right now and [moving out] would be debilitating. But what's the alternative, I just suffer through it?”
Climate change means discussing weather as “one-in-100-year events” doesn’t work anymore
Since December, more than 30 people have drowned in our waters.
Here’s an update on the key things that happened on Monday.