Blocked drains and clogged sewers in rental properties are some of the most common areas of dispute between landlords and tenants because it can be very difficult to apportion blame or responsibility in terms of how the blockage was originally caused. So who pays for sewer blockages and drain cleaning in rental properties?
Ultimately it all comes down to the burden of proof. More often than not the property owner (landlord) will not have sufficient evidence to be able to prove that the breakdown in the pipes was caused by the tenant and will end up footing the bill.
This article reproduces that case study, looking more deeply into the issue of determining responsibility in that particular situation and in cases of blocked and damaged sewers and drainage pipes in rental properties more generally. It offers guidance on ways that astute landlords can minimise their outgoings in terms of pipe and plumbing repairs by utilising a sewer and drain pipe risk management matrix to identify threats and transfer responsibility.
Lastly, it gives some specific strategies landlords can use to ensure they have the necessary evidence to support claims against tenants’ bonds when disputes do arise over which party is responsible for fixing blocked drains or cleaning out sewer pipes in a rental property.
Reducing Sewer Pipe and Drainage Repair Costs in Rental Properties
For most of us a decision to rent out a property we own and (sometimes) love to perfect strangers is not made lightly. It is also not usually made because we want to provide charity or a community service. Ninety-nine times out of a hundred, someone who puts a property up for rent is doing so because they want (or need) to make money out of it. And with that in mind, landlords who see their rental venture as a business (complete with management and marketing plans and strategies in place to ensure maximum profitability from that business), give themselves the greatest shot at success.
Risk Management: Essential for any Profit-Making Venture
For most businesses, managing risk is integral to ongoing survival, and having a sound risk management plan in place (either formal or informal) can be the difference between staying afloat during a recession or closing the doors.
The Risk Management Matrix so commonly taught in most business courses basically urges one to identify all possible risks, threats and negative impacts your business might face in the future, and then to rate them based upon:
1. how likely it is that the risk or threat will eventuate, and
2. how devastating the consequences of that risk occurring would be to your business.
Each event is then given a ‘score’ which helps management identify the most potentially dangerous threats so they can put plans in place to either remove, negate or best manage that risk.
Risk Management Strategies for Landlords
As a landlord, this would be a useful exercise to consider if you haven’t already done so. There might be a range of unique potential threats to the profitability of your ‘business’ (the closing down of a major employer in your area or a local building development providing a flood of new housing) but the threats most commonly faced by all landlords are:
- loss of rent (failure of tenants to pay) and
- damage, repairs and maintenance costs for the property
By viewing damage, repair and maintenance costs of sewers and drainage pipes in your rental property as a threat that needs to be managed, you can then assess the likelihood of it occurring (could my pipes burst or block up?) and the potential impact it will have (will I be able to afford the repair cost?). Some of the information you would need in order to answer those questions might include:
- Could a drainage pipe leak from my property impact adjoining properties (apartment blocks)
- What sort of costs would I be up for if a broken or blocked sewer pipe from my property impacted another property?
- What insurance do I have to cover blocked drains and how will a claim impact my premiums?
- What is the current state of my drainage and sewer pipes and how well have they been maintained?
- How much rent will I lose whilst repairs are being carried out?
- Will my tenant lose business/be angry/want to charge me for lost income if they are displaced if work is required to fix or reline blocked drains?
- What is the likely cost of clearing or fixing blocked drains or relining broken pipes in my area – particularly if excavation, demolition and reconstruction is involved (fixing blocked drains in Brisbane can often cost less than drain cleaning in Sydney, for example)? What proof will I need/do I have that the damage was the fault of the tenant?
The list could go on forever and the more questions you ask yourself, the more accurate the picture of the real consequences of a broken or clogged pipe you will have.
Once you’ve listed all your questions and answered them, you can begin to identify where you’re most vulnerable. As you move down the list you can decide how you want to manage those risks one by one. For example, if we take the first item, if you live in an apartment block you might want to go to your body corporate and check out the terms of any insurance policies they hold for damage caused to a property as a result of a broken drain on adjoining apartment.
You might then ask the maintenance manager or a qualified plumber friend what the likely costs of different types of pipe repairs would be, and what the current condition of the pipes in your property is. You might also consider having a CCTV pipe inspection of your pipe network carried out to assess how likely it is that you will have troubles in future.
If these investigations indicate a high probability of a broken sewer pipe or blocked drain occurring and that you could be responsible for not only the cost of fixing those pipes but also for rectifying the damage to adjoining homes, you should then find a way to manage (shift or negate) that risk. Obviously cracks or breaks will need to be relined and guaranteed by a reputable company such as Nuflow, but if no breaks are evident you need to think about how you can protect yourself from the cost of clearing a blockage a tenant has caused.
Transferring the Risk of Sewer and Drainage Repair Costs to Another Party
If a threat cannot be removed altogether, SHIFTING responsibility to another party for the consequences of that risk occurring is a commonly used strategy.
An example of this is when you and your mates decide jumping out of an aeroplane at 13,000 feet to celebrate your 50th birthdays is a great idea and as they’re strapping that parachute on your back they ask you to sign on the dotted line where it says you take full responsibility for any injuries (or worse) that may be caused as a result. Of course there is still an onus on them (a duty of care) to ensure they have ticked every box in terms of safety and abiding by rules and guidelines but if something totally unforeseen or accidental happens outside of their foreseeable control, then your signature can be called in as evidence that you were aware of the risks and decided to jump anyway.
It isn’t really possible to completely remove the risk of needing a drain repair carried out (if a pipe wants to break or clog up, you yourself can’t prevent it), but just like the skydiving operators, you can reduce the likelihood of something unpleasant happening and do all you can to shift responsibility.
In terms of shifting responsibility for the cost of fixing blocked drains or relining broken pipes in your rental property, this can sometimes be as simple as having an insurance policy that will cover you. If you’re not sure about where you stand with your insurance company ring and ask. If you don’t like the answers (for example if you find that you wouldn’t be covered for damage to another person’s property if your tenant leaves the water running in the bath), shop around to find insurance that you feel safer with.
Even then, there could still be a claim excess to pay or increases to premiums following claims – so the second way you can shift responsibility is to move it to the tenant. This is not easy but read on to see how it can (at least partially) be achieved.
What Should Landlords do if a Tenant Causes a Blocked or Broken Sewer Pipe?
It’s common practice for landlords and property managers to photograph properties prior to and after each tenancy so that responsibility for any damage that occurs (chipped tiles, broken locks etc.) can be proven and repair costs can be recouped from a bond (or the tenant be made to pay for them directly). But as explained above, deciding responsibility for the cost of fixing a blocked drain is not so simple.
The following case study has been reproduced from a companion article, and explains how just such a dispute arose between a landlord and tenant when a Brisbane homeowner (Rob) decided to move overseas for work and rent out his home.
A Queensland Case Study: ‘The nappy, the wipes and the aging, old pipes’ (reproduced).
In the first year the property was occupied by a married couple with a new baby and a two-year old. There were a number of issues the landlord was unhappy with during their tenancy (gardens and lawns not cared for and complaints from neighbours about arguments late at night), so their lease was not renewed. In the second year the property was rented by a single adult male (Matt) and his elderly mother. There were no further complaints and the house and gardens were being well cared for.
The house itself was approximately 70 years old but Rob (owner) had had no trouble with the sewer pipes since he’d bought it in 1996. In about the sixth month of Matt’s tenancy period the toilets began backing up and no amount of do-it-yourself manpower on his (Matt’s) part could shift the blockage for more than a few days. In the end it became severely blocked to the point of almost overflowing and one Sunday afternoon Matt contacted the property manager (a friend of Rob’s) who arranged for a plumber to do an emergency repair. The result was a hefty repair bill.
Rob’s friend emailed him explaining what had happened and attached the invoice to be paid. He stated in the email he’d been told there was a massive build-up of toilet paper, ‘flushable’ make-up wipes, and other matter which had completely clogged the sewer pipe. He also said the pressure from the blockage had cracked the pipe, which meant after clearing it out, it had to be professionally relined with advanced composite resins.
Rob decided to speak to Matt (tenant) himself to explain that he believed they had caused the blockage (as the most visible and prolific item in the massive clog was the make-up wipes the mother used regularly). He added that they were therefore liable for the damage costs. Matt responded, however, that the wipes his mother used were labelled ‘flushable’ and that they could not have caused the damage. He added that she had been using those same wipes for many years in many properties with no previous trouble, and that they had been given no instructions when they signed the lease that such wipes were not to be used in the home’s plumbing and sewer system.
The Brisbane sewer cleaning and relining expert who carried out the repair was once again contacted and asked for a written report detailing what he believed had caused the issues with the broken sewer pipe. He confirmed the most likely cause of the blockage was actually a number of partly-decomposed nappies, and that other matter (including the wipes) had backed up behind the original blockage to form a massive fatberg (see our article ‘Everything you never wanted to know about Fatbergs’ here). The pressure of the blockage had cracked the aging pipes leaving sewage to leak into the ground, and dirt to further clog the pipe.
Case Study Analysis: Determining Responsibility for Blocked or Damaged Sewer Pipes
The nappy: In the above example, one might initially presume the previous tenants were the ones who caused the sewer pipe blockage by placing nappies down the toilet. After all, they did have two small children and the current tenant had none.
However, it is impossible to actually prove that fact. For example, who knows whether Matt and his mum had friends or relatives with babies, and whether they’d visited at some point during their tenancy and put a nappy down the toilet?
And how can Rob actually prove the nappy hadn’t been sitting there in the pipe for the past five years or more? Finally, with the previous tenants gone and bond pay-outs settled, there would be virtually no way of recouping costs from them even if you were able to prove anything.
The wipes: One might then consider whether fault actually does lay with Matt’s mum who was merrily dropping wipes down the toilet each day, unaware that the ‘flushable’ claims on the packet were grossly overstated.
Even if it was deemed that the wipes were the major contributor to the blockage, does fault lie with the companies making these unrealistic claims about the biodegradability of their products or with the people who use such items and dispose of them in toilets without doing adequate research? Additionally, would the wipes alone have caused such a blockage had the nappies not been flushed down the toilet in the first place?
The pipes: Finally we come to the issue of the home owner himself. Firstly Rob had not advised the tenants in writing (or otherwise) that such items were not to be flushed down the toilet in his property. Without such instruction, is it the owner or the tenant who should take responsibility for the blockage?
Also, pipes which may have been laid seventy years ago (but were definitely at least 26 years old) may not have been in great condition in the first place. They may have coped just fine when Rob, who worked full time and lived alone, was the only occupant but with larger family groups did pre-existing problems simply come to a head? There could even have been breaks or cracks in the sewer pipe which had subsequently trapped all the other materials over the past two years.
How long had it been since those pipes had been cleared or cleaned and what sort of on-going maintenance program had they enjoyed? By his own admission, Rob had experienced no issues with his sewer pipes at all in the time he had lived there, and he had never even needed to worry about cleaning or clearing them.
So how is anyone able to discern whether they had simply aged, corroded or broken down to the point where he was well overdue to have hydro jet drain cleaning and rehabilitation repairs with CIPP advanced composite resin relining carried out just to keep them maintained and fully functioning?
In the case above, the dispute became unpleasant and in the end it was the landlord who paid the bill.
Rights and Responsibilities When Sewer Pipes or Drains in Rental Properties Fail
Landlords have to ensure their property is safe and suitable for tenants, but tenants also have a responsibility to care for a property and keep it functioning the way it was when they moved in. Landlords also need to be very clear about how they want their property to be maintained, and what the consequences of ignoring those requests might be.
As can be seen from the case study above, when it comes to clearing blockages, attributing fault (and deciding who should pay the bill) can be difficult. If it’s a relatively simple thing, such as a major clump of hair that has blocked a drain, responsibility might lie with the tenant, but even then, if the landlord does not have solid evidence to the contrary, it could be argued the hair could have been accumulating in the drain for years prior to the start of their tenancy or that given that the landlord did not have a hair trap on the drain, they had not taken due care of their property in the first place.
Essentially, things become more complicated when it’s unclear whether a problem at a property falls under the classification of ‘maintenance’ or ‘repair.’ In a very general sense, maintenance refers to fixing things on the property that are daily wear and tear and aren’t classed as urgent. These are usually paid for by the landlord. Emergency (or other) repairs typically refer to something that’s broken or damaged and needs to be fixed promptly. It is here that a tenant may find themselves footing the bill but only if it can be proven that their actions brought that emergency situation about.
Proving Who Blocked or Damaged a Sewer Pipe
If a dispute arises, it all comes down to who it is that can best meet the burden of proof. A landlord needs to fix a blocked drain urgently particularly a blocked sewer because to do otherwise means they are not fulfilling their obligation to provide a safe and liveable property for their tenant. Once the drain is fixed, the bill needs to be paid and if the tenant disputes that responsibility is theirs, it is usually the landlord who will pay the account. They must then consider whether they want to try to recoup the funds from the tenant. If they do (and the tenant continues to deny responsibility) the onus will be on the landlord to prove that the blockage was caused directly by the tenant’s careless actions.
The bond is the tenant’s money therefore for the landlord to have a right to take some of that money they must prove their case. If the two parties have tried their best to resolve the dispute on their own to no avail they can either proceed to formal mediation and if there is still no agreement the matter can be put before a civil administrative tribunal (check your state or territory in Australia) or contact the Tenancy Tribunal (New Zealand). Here, whatever evidence each party can bring will be considered, remembering that it is the landlord who must prove they have a right the tenant’s money.
This is why blocked drains (which are almost always tucked secretly away behind walls, under floors and buried deep in the ground) present such difficulties. Most landlords are seriously unprepared to be able to meet that burden of proof prior to a dispute arising.
Tips to Help Landlords Reduce the Risk of Sewer and Drainage Pipe Repair and Maintenance Costs
In this section we will offer suggestions to increase a landlord’s chance of recouping costs for drain cleaning and repairs that are directly caused as a result of a tenant’s misuse.
1. Fulfil your duty of care
As stated above, the onus is on landlords to provide a property that is safe and liveable – both when a tenant moves in and throughout their tenancy. If you want to be able to demonstrate that you had fulfilled your duty of care (to provide pipes that worked well) and give yourself the best chance of NOT being held responsible for repairs, you will need to show:
a. that the sewer and drainage pipes were in good working order when the tenant moved in, and
b. that you have put measures in place to prevent clogged drains by ensuring regular maintenance of those pipes took place.
Evidence of good working order: One way of doing this is to have a CCTV camera pipe inspection carried out by a reputable company such as Nuflow prior to the tenant moving in. Make sure they offer hydro jet cleaning (in case there are existing blockages) and CIPP pipe relining (in case there are any breaks or cracks which need repair) and that they can provide you with clear video evidence of the state of the pipes and a written report that there are no blockages.
Evidence of regular maintenance: Household drains and pipes require regular maintenance (see our article on maintaining drains here), even if it is as simple as a monthly clean-out with a few litres of hot water and a cup of dish detergent. This is because fats, oils and grease (FOG) can accumulate in pipes as they cool, and then form a barrier which traps other items such as hair, soap scum, food particles etc. The sewer pipes can also benefit from such a clean.
Whether you write a clause into the tenancy agreement that the tenant is responsible for carrying out this task (as part of their duty) or you pay someone to visit the property monthly is up to you, but evidence that you have done your best to ensure such pipe and drainage maintenance is carried out is what matters.
You should also consider having drains regularly checked with a CCTV inspection every couple of years where long-term tenants are in place.
2. Transfer or Eliminate the Risk of Costly Sewer Pipe Repairs to Another Party
Ensuring your property’s pipes are well maintained is important, but it cannot totally eliminate the threat of a costly pipe repair because things can always go wrong. Whether through earth movement, an aggressive tree root or misuse, pipe problems can still occur so having strategies in place to transfer the risk of having to pay for those repairs to another party is the next strategy. For landlords, this will most commonly mean:
- transferring the risk to an insurer, or
- transferring the risk to a tenant.
Finding an insurance policy which covers the cost of drain cleaning and fixing blocked drains is self-explanatory, but transferring risk to a tenant can be a little more difficult because at the end of the day the onus will be on you to prove that it was their misuse that directly caused the problem.
Ensuring Tenants Assume Responsibility for Sewer Pipe and Drainage Repairs and Blockages
Below are some important strategies landlords can implement to encourage a greater sense of responsibility for a property’s pipe health in their tenants and formally transfer a degree of risk.
1. Communicate with tenants regarding the importance you place on the care and maintenance of your property’s pipes and drains. By ensuring tenants are aware that you have the pipes inspected, filmed, cleaned and maintained regularly and that you expect them to be very mindful about what they place into those pipes, you are letting them know you are serious about keeping things working well and that you are informed and prepared to recoup costs from them if the pipes and plumbing systems are misused.
2. Include in the lease what CAN’T be flushed down your toilet.
To reinforce the above point in writing, you should highlight in the tenancy agreement, specific items NOT TO BE want flushed down your toilet. For a range of reasons (culture, education etc.) many tenants are genuinely unaware that certain items can wreak havoc on sewer pipes and plumbing. To help you decide what to include, we’ve compiled a list of the 32 items most commonly found clogging and blocking sewer pipes in Australia which you can find here.
3. Include in the lease what DAMAGE could be caused to your property if these requests are not abided by and the associated costs that will result.
As well as identifying the items you specifically want tenants to avoid flushing, specify what damage such actions might cause (blockages, overflows, leakage of sewer into soil, breaks in sewer pipes, breakdowns in local treatment facilities, environmental impact etc.). Also state some of the consequences that could result (costs, ill health, inconvenience, endangering of marine animals, higher rental fees, lack of service etc.). Having a good lease which specifically addresses these matters can be very useful when trying to prove you took every action possible to try to help the tenant avoid a blockage AND that you informed them of the consequences.
4. Include in the lease terms a requirement for tenants to notify you of certain signs of damage or impending plumbing issues.
There are many signs that sewer pipes and drains are under stress and that the need for a repair (or even an emergency repair) might be imminent (read our article here). If a landlord or property owner is not made aware that these signs are evident they are not being given the chance at fixing something like a partially blocked drain in the early (and cheaper) stages hence they will have to pay for a much more expensive repair later on.
5. Near each toilet on the property, install signage which lists the items that CAN’T be flushed and potential issues they can cause (see the list noted in point 2 above).
Remember to use an informative, entertaining and positive tone. This is a home, so no-one wants to feel like they are at school but at the same time, you need to get your point across. Just like there might be instructions for using the pool or operating the security system, you need to think about how to educate your tenants and their guests about what can cause trouble and how to avoid it. Make it attractive, informative, friendly and unobtrusive, and be clear that this is a gentle reminder to help tenants and their guests make a positive contribution that will help save them hassles and money as well.
Once tenants are fully aware that:
- keeping the property’s pipes working well is just as much their responsibility as it is yours
- you’ve got evidence to show you’ve upheld your responsibilities as a landlord, and
- they could be up for a hefty bill if they do the wrong thing and ignore your efforts,
- they are much more likely to comply.
If they don’t, they are also much more likely to have a court judgment go against them.
NOTE: The above advice is general in nature and professional legal advice should be sought if further clarification is needed.