Alleged Failure To Maintain Property

Chronicle (Levin), 14 February 1947, Page 4

Alleged Failure To Maintain Property

The extent to which a tenant is liahle for the Upkeep of the maintenance of the property he leases formed the basis :of :a case heard before Mr. A. "M. Goulding, S.M., at a special sittlng of t'he Magistrate's •Court in Levin on Wednes'day. The -case, whidh was a defended one, 'Occupied a full day qnd 15 princ'ipal witnesses gave .evidence. The plaintifl, A'gnes Avery., widow, Levin, daimed £300 from Frederick Lang, faraner, Levin, for ■alleged fa'ilure. to maintain , the propertyin the state in which it was first leased and for alleged destr-uction ' of trees _on - the property eontrary to a clause in the lease. Evidence presented by both .Sides was complfetely contradictory, the only agreement being in the state of the wash-'house, which both parti-es conceded was in a dilapidated condition when defendant :ook over the property. "I don't think the tenant in this' case has quite fulfilled some of the cl'auses in the lease, and there is evidence of :a measure -of carelessness by the tenant for which he will -have to pa-y," was the summing up of Mr. -Goulding. When referring to witnesses who had given evidence regarding the unoleanliness of the house when taken over by plaintive after the expiration .of lease, the magistrate commented that he could not imagine that they would make

such allegations if the conaition was not so. However. the age of the house had to be taken into consideration. Judgment was given for the plaintive to the extent of £84. Witnesses' expenses to the extent of £5 5s, solicitors' fees £5 4s and court costs amounting to £3 were allowed plaintiff, the magistrate remarking that a => tenant eould ■haBdly foe liable for borer, corrosion or damage due to faulty .spouting. On the .other hand, however, windows broken during the tenancy should be replaeed. Where, as in this case, a lavatory pan had broken through oid age immediately after occupation, the tenant sho'uld retain the parts and these should be handed over after the -expiration of the lease.

Mr. S. J. Shale-George, oi Petone, who represented plaintiff, said that she had leased the house and property in Roslyn Road to defendant for a period of nine years. When- defendant took possession, the buildings, house and grounds were in g30d order, and hedge's had been trimmed. She now accused defendant of letting the dwelTing and environments ;go to wreck and rpin, and flve trees previously used for shelter for cattle were alleged to have been cut down and others ill-treated. For the defendant, Mr. S. M. Gordon, >of • Palmerston North, maintained that the property had been deteriorating over a period of 20 years, and that inferior paint had been used. The timber with which the building had been -original'ly built was of O.B. (ordinary huilding), and not heart matai as claimed by Mrs. Avery. The roof was 1-eaking in many places and he had 'gone to some expense when he took over the property to have repairs made, both to the building and outhouses. He had also xeplaced the flush lavatory with ;a dr-y one, at his own -expense, as the former was unfit for use. He maintained that Mrs. Avery had promised to have the rooms papered and in good eondition -when she let the property, but this had not been fully carried out. Relations had always been very good between the two parties, continued .Mr. Gordon. Mrs. Avery had oceasionally had tea .with them and her son had often stayed there for a Week-end. Lang knew that at that time Mrs. Av-ery was not in a flnaneial posi-tion to make repairs, and he had not bothered to worry her over many of -the details requiring attention, but had made'a number df repairs himsel'f . He denied xhat the house was in a filthy- condition when handed back to Mrs. Avery, stating that it had been "scrubbed from end to end."" He did not think he had viblated a clause in regard to the tr-ees. Some of them had been -infeeted by disease ■■.nd bugs, and he had halved and iimbed some which were interfering with a hay shed and causing its deterioration, When approached* one day by Mrs. Avery, while he and his son were cutting & tree back to allow a truck to enter a gate on the property, he had stopped the work immediately. PlaintiiT's Story Mrs. Avery gave evidence that wlien she leased the property t© Lang it'was subjject to a mortgage under the |&tate Advances Corporaion, and -one of their representatives had inspected the property and recommended that the house be .painted and certain repairs made. These had been carried out before Lang took possession.-. Questioned by her counsel, Mrs. Avery described. in detai'l the condition of the house' .and buildings at this stage. A cow bail on the property was practically flew and had been built to the requlrements af the dairy regulations.^ A concrete floor and yard had' "been built, and was in 'ffood condition when sne left. There had been approxi--mately 20 trees on the property, and a maerocarpa hedge, kept well ^rimmed, surrounded fhe orehard. When she viewed the property about a year later, the outside of Lhe house looked very shabby, the windows were cracked and -the olace had a general appearance -of neglect. ' About R-ve y;rrs later she again visited the property and noticed the -cords of the windows were broken and some nailed up uitogether. The sleeping poreh,

which had ohce been occupied, was* iin a filthy condition. Earth was on tche floor and plants were growing lon it. One end had been closed.1' 'The spouting was gone in many places and the water running down the front of the house. When she had questioned Hangi about this, he had replied that he icould not find labour for its repair., proceeded Mrs. Avery. The hedge' was hacked about. After com.plaining to Lang she had ftritten to the State Advances to see if •anything could be done about it. 'Two years passed and nothing was idone. Some tr-ees' had been ouk ■down and others halved and lirnb-' -ed. She had told Lang about tnis, but she alleged he had shouted and roared at her. .She said she .had; also told him where he could, obtain spouting for the roof. After two years of occupancy he had written to her asking for a reduction in the rent, but she had replied that she was orily realising £70 net from the rent and explained her flnaneial position. She had offered to release him from his lease, but he had agreed to stay and pay the rent as usual. On the termination of the lease on July 2, 1946, she had taken over the prqperty and found the dwelling in a filthy, broken down condition. The water -had been allowed to run down the wall from the roof and was in .such a sodden condition that it was possible to push a fist through it. It had subsequently fallen down. The wood was r-otten behind and underneath the bath and the roof was leaking in every

room but one. She had had to scrape grease, filth and maggotsfrom round and under the sin-k. The pantry was filthy and had to be pulled down. She claimed, she had had to live with a neighbour for three weeks and worked in the house every day. The cowshed floor and yard were covered with weeds and there were many holes. The hay shed was rotten anq almost falling down. The flush layatpry had gone .and had been xeplaced with a dry one. She could not locate the original pan and fittings. She admitted that she had ctmsented to the nlteration to the lavatory. A whare which her son had once occupied, and which was in good condition when she left, had been in such disrepair that it had had to be pulled down ' An

area of grourrd representing five acres, which had previously been ploughed, had been left fallow and allowed to grow in weeds. She claimed that the farm generally had heen neglected during Lang's term of tenancy. Defendant's Testimony

Defendant .stated in evidence i that the paintmg of the house had not been completed wlien he took over the lease. The bottdm boards had not been touched. He also claimed that .the building had not been painted by a tradesman,vbut fy plain tiff's son, and that an inferior paint had been used. Mrs. Avery, he said, had promised to repair the house a little at a time as she had not then had the money to outlay on the major repairs. Questioned by counsel for plain-, tiff, Lang denied knowledge of any' new boards having been put into the building. He claimed the house i was full of drv rot and .borer. Ihe* lavatory, he stated, had been M ;a| shocking condition and was over- 1 flowing under the house. Had a; health inspector seen it the lava- 1 tory would have been .condemned.; The sink was Sn a rotten cenditipn. . Mrs. Avery 's son, who was a car-: penter by trade, had ihade a few, repairs and had covered the -rotten ; wood with a sheet of tin. The magistrate: What did you do about all this? Did. you tell Mrs. Avery? — No. We just patGhed things up as best we could. Did she ask you to do anything to the house?— No. She was going to put things in good order for us,but aidn't do so. Lang went on to say that he had tricd to get a plumber to mend the spouting, but had not been able to do so. He had tried time and again to stop the leaks. The front part of the verandah was rotten, and he claimed Mrs. Avery knew of this but had never discusscd it with uhem. He claimed the concrete in the cow-kbyre was of poor quality and he could never use a hard broom to sweep it. If he had there would have been no concrete left by now.; He denied knowledge of a clafm by Mrs. Avery that he had neglected the concrete and allowed it to become overgrown with weeds. He described the maerocarpa hedge as merely a shelter belt, as the trees were planted too far apart to be any use as a hedge. He had cut off certain limbs on instructions fr.om he power board, as they were bbstructing wires. He also denied that he had left the land fallow,, sttating that he had sown it in grass in 1945 and it had realised 90 »dd bales of hay in 1946. The whare was in good order :and he used it for storing nndons. It had been nfested with vermin when he took ovor the premises. Lang said he consider-ed the house and buildings were in as good, if not better condition, than when he first leased them. He had improved the land and made more caddocks. He had also erected a shed, using a few beams from an )ld. shed, but mainly new timber, as the old shed was rotten with age. When summing up, -the magistrate said he would accept the evidence of a competent witness who iad stated that the laying down «of ihe grass in the paddock referred io was "a poor job." The cutting lown and interference with the trees was a direct brsach of the terms of the lease. *The trdmiriicg f .the hedge op shelter belt should have been maintained, but it; appeared that defendant had; merely complied with the order of /

sat the Power Board. As a witness had pointed out, it was very difficult to , assess the value to farmers of trees used as shelter, but he ruled that £30 -should cover the loss of five trees allegedly destroyed and the damage to the hedge, which would probably have to be cut out. He also allowed the plaintiff £30 for certain repairs, £10 for compensation in regard to the fallow -ground, .26 for the loss of the lavatory pan, £5 for a missing water trough and £3 for damage to the cow byre. ' . After hearing the evideiice • of tradesmen of long standing, 3ae would have no hesitation in agreeing that the large percentage of the timber in the house was ordinary building, though there might be a, percentage of matai. There was no - ; -clause in the lease which intimated who was to carry out the painting of the premises, but- on evidence submitted by experts, and considering that the padnting was not done by a tradesiman, it seerned clear that the .quality of paint used was inferior. Judgment was given as stated above.