Published tribunal order
Tenancy Tribunal case 4420340 — Tenancy dispute at 249D Wright Road, Dairy Flat, RD 4, Dairy Flat 0794
Decided 19 Oct 2023 · Published 19 Oct 2023 · Application 4420340
- Cleanliness
- Healthy homes
- Mould & damp
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
- Wiskay Limited as agent for Sandra & Mark Steinbery is to pay [The tenant/s] the sum of $3160.44 immediately, as shown in the table below. Compensationmould$2,900 CompensationFireplace$240 Filing fee$20.44 Total$3,160.44
Reasons
- Both parties attended the hearing.
- This tenancy commenced on 26 February 2022 and was for a fixed term of one year. According to the tenant, it had to be brought to an earlier than then because of the extent of the mould at the property. When the tenant raised this with the landlord, the landlord agreed to release the tenant. The end of the tenancy was therefore on 23 September 2022.
- According to the tenant, due to having to vacate the premises earlier than expected, she incurred moving costs of $1704.06.
- The tenant is claiming this sum from the landlord.
- The tenant is also claiming compensation of $200 per week over an 8 week period as a result of the fireplace requiring replacement in early June and not replaced for 8 weeks.
- The issue raised in this case is therefore whether the landlord complied with its obligations under section 45 of the Residential Tenancies Act 1986 (RTA), which provides that a landlord must: provide the premises in a reasonable state of cleanliness, and provide and maintain the premises in a reasonable state of repair Background
- The premises are a barn house, made of corrugated iron and timber. The roof is curved. The photos show that it has a lot of windows. The exterior cladding is corrugated iron and some timber. The house was built in around the early 2000’s.
- The landlord has been managing the property since the end of 2020. The mould
- The tenant and her daughter first inspected the property in early February 2022. At that stage it was warm and dry. This was understandable, given it was at the height of summer. The tenant did not then notice the condition of the window sills. She now realises they have sustained a lot of damage over the years as a result of the build up of water from condensation dripping down the windows.
- The tenant moved in and the property seemed fine, except that the tenant noticed that mould would appear on the inside of the windows regularly and she would have to wipe it away.
- The tenant endeavoured to keep the house well ventilated, but, during the day, when she worked, she did not want to leave the windows open because there were no security latches.
- It was around May 2022 that the tenant first noticed mould growing in the bathroom. It was noticed appearing over toiletries, shelving, baskets and other items. Then, the tenant noticed mould appearing on picture frames in the kitchen. She produced corroborating photographs in this regard. She also noticed it on the skirting boards of her bedroom, which was the colder of the bedrooms occupied by her and her daughter. From there, the mould began to spread to other parts of the house.
- The tenant would wipe mould off the windows daily and from other parts of the house, weekly. A photograph was produced showing the inside of windows, dense with condensation.
- The tenant said her room, which was one of the worse areas in the house, had a smell of mould.
- The tenant raised the question of release with the landlord for the first time on 17 July 2023 as a result of all this mould.
- From there, the landlords were accommodating. The owners came out to view the property and the tenant showed them where the mould was. The owners agreed they would release the tenant from the fixed term tenancy. The parties agreed the tenancy would end on 23 September 2023.
- The tenant then began the process of packing up and it was at that point that she discovered the full extent of the mould.
- She produced photos showing mould over the skirting board behind her bed, and mould on the base of her bed.
- In such a short amount of time, a significant amount of mould has built up.
- The tenant got the bed commercially cleaned for around $180. Other items were thrown out.
- She claims the cost of moving out from the premises earlier than expected.
- The landlord’s evidence is that once the presence of mould was pointed out to them, the landlord took steps to address this, including repairing the bathroom fan, checking the gutters, checking the moisture barrier, and providing security latches on the windows.
- The landlord is not complaining that the tenant did not clean away mould. The landlord says it has not had this issue with the prior tenant or the subsequent tenant and can only assume the tenant was not ventilating the property properly. The landlord also says that this being a newer house, it needs to breathe more, and that the windows should be left open often. The broken fireplace
- The chimney flue split in around early June 2022. The tenant went to light a fire one night and the house filled with smoke.
- The tenant reported this to the landlord. It took around 8 weeks for it to be fixed. The whole fireplace and chimney had to be replaced. The landlord had to obtain a consent. During the following 8 weeks the house was freezing. The tenant said this added to her monthly power bill by around $120 per month.
- The landlord says there was still a heat pump upstairs. The landlord offered to provide a portable heater, which was declined by the tenant. Relevant law relating to breach of the landlord’s obligations of maintenance and repair
- Under s 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. 1
- The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 2 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 3 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 4
- In relation to mould, the presence of toxic black mould may signify an inherent mould issue, but in a prior decision of the Tenancy Tribunal, Semmens, Hannah Louise v Wadman, Brian, 5 the Tribunal said: It is the case, that mould is commonly present throughout all residential dwellings in New Zealand to some degree. Mould is ordinary, and of itself simply having mould would not be sufficient to establish a breach on the part of the landlord for which compensation could be ordered. Rather, what a tenant must establish, is that there are defects with the premises which have caused the mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling at that meets the required building standards.
- The presence of mould in a property can be caused by a variety of facts, including some form of defect in the premises, a lack of ventilation or both. The fact that mould is present in a house is not in and of itself enough to show that it was not in a reasonable state of repair, and the opinion of unqualified persons is often not persuasive: Repia v Walsh Trust. DC Waitakere, CIV-2011-090-00056, 27 April 2011. Analysis 1 Section 45 of the RTA 2 DC Auckland CIV 2005 004 1762, at [28] 3 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15] 5 [2022] NZTT Manukau 4310605
- I find that the property suffered from an undue amount of mould. The extent of the mould shown in the photos of the tenant’s bedroom, is far too much for such a short period of occupation.
- This must have been caused by something other than the tenant simply not keeping the window open. The problem has not been caused by the tenant.
- I accept that the landlord was accommodating to release the tenant early but this did not extinguish its obligations under section 45.
- The obligation to provide and maintain premises in a reasonable state of repair is on the landlord. I find that that obligation was breached when it provided premises to the tenant which were prone to and suffered from excessive amounts of mould.
- The tenant claims the moving cost $1704.06. I am not prepared to allow the moving costs, because at some point the tenant would have had to incur those costs anyway, but I do allow the tenant $100 compensation per week for the 29 weeks she resided at the premises, as ordered above.
- In relation to the fireplace, the landlord breached its obligations by not providing a fireplace which was in working order over a critical 8 week period in the middle of winter. The tenant was claiming compensation of $200 per week. I am satisfied however that the landlord swiftly moved into action to repair this. I allow the tenant compensation of $240 in total, being the excess in her power bill over the two month period.
- Lastly, I comment that I appreciated the professional way in which the parties presented their cases today.
- Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.