If there’s anything the past week in Auckland has shown us, it’s to expect the unexpected. Or perhaps now, expect the worst and hope for the… summer we have been robbed of?

The storm has been devastating. That is an understatement. You can blame the mayor, the politicians, the Council, or others, but the bottom line is we need to learn a few lessons here. Other than the need to keep our gutters and drains cleaned, we need to consider the effect on our properties, insurance, tenancies, and employment.

Properties

Hundreds of properties are now damaged throughout Auckland (and others) due to flooding and landslides, some beyond repair. If you are purchasing a new property, you need to proceed with caution. So here are a few things to watch for:

• Check the LIM report
  Review the property’s LIM (Land Information Memorandum) report. Is there a record of the property receiving a red, yellow, or white sticker from the recent flood? One of the important points in the LIM report is whether or not the property is flood prone. Unfortunately, there is talk that some properties which were not identified as being flood prone have now had their records amended with Council to make it a flood prone property. For current owners, this may affect property valuations. For future purchasers this serves as a warning. It however also shows that Council may not be able to fully identify all flood prone properties, so you still need to check other factors as per below.
• Overland Flow Paths
  In addition to checking for flood prone properties, you should also check for overland flow paths to see if this goes through the property. Council has a good record and you can check this by clicking here.  
• Location
  If the house is close to a river, a lake or the sea, the risk of flooding is obviously higher. Naturally, houses located below a hill, down a steep driveway or close to a valley mouth could be harder to drain, as there is nowhere for the flood water to go. Similarly, if the house is at the top of a cliff or near a cliff, it will be at risk of a landslide. Houses at the bottom of a hill also face the risk of landslides in addition to flooding. So regardless of the LIM report, always check the visible location of the house and nearby drains and ask the agent, neighbours and others whether there has ever been a flood or landslide in the area.
• Drains, gutters, and downspouts
  Trees that shed often and are placed near drains, gutters or downspouts require constant maintenance so that blockages do not occur. If your property was to experience torrential rain and the drains are already clogged with leaves, the water would have nowhere to go, and it could lead to unnecessary flooding.  Many insurance policies and healthy home standards require regular cleaning of drains and gutters.
• Flood-Resilient Housing
  Having concrete or tiled floors provides more protection against water damage compared to wooden or carpet floors. Check the placements of power sockets and built in electrical items such as heated towel rails, how high up are they? And how high would the water level have to be before they were damaged? 
• Elevated homes
  Properties that are built on piles are typically higher off the ground than houses built on concrete slabs, and the higher off the ground you are, the lesser chance there is for a flood to affect your home.  A crawl space also means adequate drainage and plumbing can be repaired when needed over the house’s lifetime.

For a YouTube clip on 10 things to watch for when purchasing property, please click here.

Insurance

Some interviewed on the news said their houses had been regularly flooded as many as 8 times over the last 7 years. Unfortunately, this will likely mean that flood cover for this property will be removed by the insurer. Lloyd London has recently identified New Zealand as the second riskiest country to insure, second only to Bangladesh which has a very high rate of floods. This is serious and will undoubtedly affect the “insurability” of houses. Your due diligence of the property should include checking whether the property can be covered for flooding, as an exclusion for flooding may have catastrophic consequences if a flood was to occur again.

If your house has recently been affected by the storm and you need to get insurance cover to repair the property, you need to proceed with extra caution. There have been several published articles on this. The main advice has been to take lots of photos and not commence any works until you get approval. Sometimes prior approval is not possible for emergency remedial work and insurance companies often accept this. However, this is where good record keeping is imperative including photos, videos, quotes, assessments, and invoices. You need to lodge the insurance claim ASAP which can often be done online or over the phone nowadays. The insurance company will normally assign a cost assessor to work with you to get the quotes and repair approvals. All building works over $30,000 are legally required to have a written contract. Please seek legal advice before signing contracts with the contractors or the insurance company. Sometimes the insurance company will offer a fixed lump sum pay-out when the repair works may take months/years and if you agree you will be taking a risk that this will be enough to cover all repair costs. Again, you will need proper legal advice.  

Tenancies

How has the flooding or landslide affected tenancies? Bearing in mind the recent Healthy homes standards include the obligation on landlords to regularly maintain the drains and gutters, but also provide a safe and warm house for tenants. Is the landlord at fault if the property floods? It is hard to say as the answer will likely involve a case-by-case approach of facts. At the minimum, if you are a landlord and your property is in a flood prone area, you should consider what steps you may be able to take to protect your tenants and your property. Perhaps offer sandbags or further drain works to divert water?

Contracts

The recent State of Emergency would arguably be a “force majeure” (otherwise known as “an act of God”) to a contract. However, you would need to look at the contract terms to see what the force majeure will mean to that contract. The standard ADLS standard terms for sale and purchase of real estate does not allow extensions of time or settlement for a State of Emergency, as there is no specific clause to cover this. It was recently modified to include extensions of time where Covid 19/Pandemic resulted in lockdowns, there is nothing to cover floods or emergency meaning there would be no contractual basis to extend condition dates or settlement dates even though people could not travel to or from the property. This may result in changes to the contracts in the future, but the current agreements may be caught out.

Employment

Good faith obligations prevail in employment relationships. Difficulties arose recently when employees were unable to travel to/from work. In addition to this, the Ministry of Education suddenly shut down all schools and ECE centres affecting the ability of many parents to work. This again raises many legal questions of what your entitlements/obligations are. Firstly, you would need to look at the Health and Safety at Work Act 2015, secondly the employment agreement, thirdly the Employment Relations Act 2000, and lastly the obligation of good faith. An employer’s obligations as PCBU under the Health and Safety at Work Act 2015 to protect its staff and others would be paramount in these circumstances.

Disclaimer:
We have taken care to ensure that the information given is accurate, however it is intended for general guidance only and it should not be relied upon in individual cases. Professional advice should always be sought before any decision or action is taken.