What was Tenancy Tribunal case 4432582 about?

The tribunal order states: An order for suppression is made for the tenant’s name and the identifying

How much money was awarded in case 4432582?

Compensation: belongings destroyed b…: $3,000.00 awarded to tenant; Compensation: loss of amenity from 1…: $4,914.00 awarded to tenant; Property Damage: $4,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4432582?

The primary dispute was Healthy homes. Related themes: Mould & damp.

Where can I read the official tribunal order for case 4432582?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9684043-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4432582 about?

The tribunal order states: An order for suppression is made for the tenant’s name and the identifying

How much money was awarded in case 4432582?

Compensation: belongings destroyed b…: $3,000.00 awarded to tenant; Compensation: loss of amenity from 1…: $4,914.00 awarded to tenant; Property Damage: $4,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4432582?

The primary dispute was Healthy homes. Related themes: Mould & damp.

Where can I read the official tribunal order for case 4432582?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9684043-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4432582 — Healthy homes

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New Zealand Tenancy Tribunal Case 4432582 — Healthy homes | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4432582 — net $11,934.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity from 17 July 2022 - 10	$4,914.00	loss of amenity from 17 July 2022 - 10
Exemplary damages: maintenance and HHS drainage	$4,000.00	maintenance and HHS drainage
Compensation: belongings destroyed by mould	$3,000.00	belongings destroyed by mould
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$11,934.44
Total payable by Landlord to Tenant	$11,934.44

Claims and awards for application 4432582 — net $11,934.44 NZD. Verify on MoJ.

Compensation: loss of amenity from 17 July 2022 - 10

Amount: $4,914.00
Awarded to: Tenant
Reason: loss of amenity from 17 July 2022 - 10

Exemplary damages: maintenance and HHS drainage

Amount: $4,000.00
Awarded to: Tenant
Reason: maintenance and HHS drainage

Compensation: belongings destroyed by mould

Amount: $3,000.00
Awarded to: Tenant
Reason: belongings destroyed by mould

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $11,934.44

Total payable by Landlord to Tenant

Tenant $11,934.44

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

An order for suppression is made for the tenant’s name and the identifying details.
The landlord’s application is dismissed.
Three Z Investments Limited must pay [The tenant/s] $11,934.44 immediately, calculated as shown in table below:
The other claims made by the tenant are dismissed.

Reasons

Both parties attended the hearing. The tenant was represented by her lawyer, [The tenant’s representative] from [redacted]. The landlord was represented by the company directors.
The tenant moved into the tenancy premises in November 2021. The weekly rent was $680. The tenant had problems with damp and mould from the start of the tenancy. On 10 October the kitchen ceiling collapsed due to a leak in the roof. The landlord engaged a property manager soon after, who arranged for an independent mould and moisture assessment of the house. [Consulting company] found the house was uninhabitable and the tenant and her family moved out at short notice. As well as the leak, the house was found to contain mould and fungal spores that was hazardous to their health.
The tenant brought a claim in the Tenancy Tribunal. The Tenancy Tribunal heard and finalised matters. Somewhere in this process the tenants separated. One tenant successfully applied for a rehearing and the original claim filed by the tenants has been heard again by me. This time the landlord has also filed an application. I have heard different evidence and I have come to a different conclusion from the previous adjudicator. This is not unusual when matters are heard afresh, with different evidence.
The tenant has claimed compensation and exemplary damages because of breaches by the landlord and because belongings were damaged by mould. The tenant is also concerned the house was not properly maintained, was not free from damp and did not meet Healthy Homes Standards.
The landlord has also filed an application. The landlord claims that the tenant knew about the damp and leaks but failed to tell them at inspections. As a result, the house became uninhabitable, and the landlord had to pay a lot of money for repairs. The landlord wants compensation from the tenant.
The questions the Tribunal has to decide are: •Did the landlord know about the mould and damp before the tenancy started? •Should the landlord have checked the roof during the tenancy to see if it was watertight? •What happened at the inspections and did the tenant keep contemporaneous notes about the inspections? •Did the landlord fail to repair and maintain the house? •Did the house meet the HHS? •Should the landlord pay exemplary damages? Should the landlord pay for the belongings destroyed by damp and mould?

Did the landlord know about the mould and damp before the tenancy started?

The submission by the tenant’s lawyer is that the landlord knew the house was damp and mouldy from the start of the tenancy. The landlord does not agree.
The tenant commented on a strange smell at the very beginning of the tenancy, which the landlord attributed to new carpet. The tenant’s daughter gave evidence as a witness and her evidence about a bad smell in the house when they moved in was credible.
There was also supporting evidence from the tenant who lived in the house before this tenant moved in, [Previous Tenant]. The tenant found [Previous Tenant] on social media and the pair exchanged messages about their experiences with the landlord and photos of the house when [Previous Tenant] lived there. [Previous Tenant] also provided a written statement. She said the house was mouldy and damp during her tenancy. [Previous Tenant] did not give evidence at the hearing as a witness. This means we could not ask questions and I could not establish credibility. The landlord has an email from [Previous Tenant] – which is not dated – asking if she could move back into the house because she and her family missed the area. I accept the landlord’s point, that she would not ask to move back into the house if her experience of the house and the landlord was as bad as she made out.
I find [Previous Tenant]’s credibility is affected by the email to the landlord. I find there’s insufficient evidence to prove that the landlord knew that the house leaked before the tenancy started.
In its defence the landlord also relied on a builder’s report done in September 2021, when the landlord was considering selling the house. The report was a visual inspection of the house including the subfloor, the roof space and the roof. Moisture readings were taken of some spots. The report is careful to exclude weathertightness, but the builder found no obvious signs of leaking. The landlord took this to mean there were no issues at the house.
This is the tenant’s claim to prove. I am not persuaded by the evidence from [Previous Tenant]. I am more persuaded by the builder’s report which supports the landlord’s submission the house was in a good condition at the start of the tenancy. The tenant has not proved the landlord knew there were problems with damp and mould before she moved in. This part of the claim is dismissed.

Should the landlord have checked the roof to see if it was watertight?

The same builder’s report sets out that the particular type of roof on the house is susceptible to cracking. The report also states that the builder did not check the roof, and that he only observed the roof from a ladder because of safety. The report writer did not give evidence, but my reading of the report is that he climbed a ladder and looked at the roof from the edge. He also looked inside the roof space, and presumably there were no obvious signs of water ingress at that time. The report advised that the particular type of roof needs checking every year.
Despite this, the landlord did not check the roof. When I asked why not, the landlord replied that the builder had checked the roof in September 2021 and checking it again would mean a bi-annual check, which was not the advice they were given.
I do not agree that the builder checked the roof. In fact, the builder was very clear that he had only observed the roof from a ladder and he specifically said “...this type of roof needs checking every year for cracking...”. Given that it was the roof that failed, leading to the kitchen ceiling collapse in October, it is clear the roof needed repair at some point during the tenancy.
I find the landlord was on notice from September 2021 to check the roof. The check should have been done in September or October 2021, and a qualified person should have checked the roof tiles for cracks. At the very least the checks should have been carried out before winter 2022. What happened at the inspections and did the tenant keep contemporaneous notes about the inspections?
There were two inspections during the tenancy, one in January and one in July. The landlord also went to the house in September 2022 to trim some trees.
The tenant said she raised the issue of mould in the January inspection because there was a smell and because her daughter was having problems with clothes going mouldy. There is nothing in writing apart from her contemporaneous notes to show she raised the issue with the landlord. The landlord likewise does not have notes taken at the inspection. The tenant agreed she did not raise the issue at all between January and July.
The tenant said she raised the issue again during the July inspection. She said they walked around the house and she noted that belongings were mouldy. The only supporting evidence for the tenant are her contemporaneous notes.
In reply the landlord submitted that the tenant never raised the mould and damp with them at the inspections. The landlord does not have any written notes as a record of what was discussed at the inspection.
This is the tenant’s claim to prove. The tenant’s daughter gave credible evidence. Her evidence was persuasive. She described how the house smelled, and how her wardrobe could not be used because all her clothes went mouldy. She explained how she had migraines and how the family was sick when they lived in the house. The daughter was not present at either of the inspections.
The contemporaneous notes are the new evidence that was not on the original file and these were not available for the first Tenancy Tribunal decision. The notes are not from a diary but are notes relevant to the tenancy that the tenant said she wrote during the tenancy. The tenant and her daughter said it was usual practice for the tenant to note down important things and to write notes of things she had to remember. They described the books she uses for these notes. The tenant said she is a self-reflective practitioner in her job and it is normal for her to make notes of things to think about later. The tenant provided notes from before the tenancy started, and notes around the time of three visits by the landlord.
The landlord does not believe these notes were written during the tenancy. The directors think the tenant fabricated the notes after the tenancy ended so that her application to the Tribunal would succeed. The landlord submitted that the tenant should share the whole diary with the Tribunal.
I have considered the notes, the tenant’s submission and her daughter’s evidence. I am more persuaded by the tenant’s submission and supporting evidence. I find the testimony about the notes to be credible. I find I can rely on the notes as supporting evidence about the inspections.
The tenant’s oral testimony about what was said at the January inspection is vague. In the notes she took at the time she records a smell and a question about why the carpet feels wet in summer. Taken together I am not persuaded the landlord knew about the mould in January.
However, it seems likely that the issue of mould was raised at the July inspection. The tenant has good notes about the issues she intended to raise with the landlord, including a number of questions about mould, a bad smell in the house, her excessive power bills, the pump not working, clothes and furniture being wrecked, water under the house, and that her son’s bedroom and bed were mouldy.
I’m not sure how good the landlord’s English is. It is possible from my observations at the hearing that the tenant’s concerns were misunderstood. Having inspection notes in writing from the landlord would confirm if they understood what they were told at the two inspections. The landlord told the tenant to use the home ventilation system at the inspection in July. This advice was repeated when they were there in September to trim the trees, because of the amount of condensation on the windows. This suggests the landlord had concerns about moisture in the house in July and in September.
I find the tenant has proved she did tell the landlord about the mould in the house during the July inspection and that she told the landlord about their belongings being ruined with mould. I find there was an unlawful act by the landlord.
This finding means the landlord’s claim that the tenant failed to notify them about the damp and mould, leading to increased costs for repairing the house, must fail and it is dismissed.

Did the landlord breach the duty to repair and maintain the house?

A claim was made that the landlord breached section 45(1)(c) RTA because there was a breach of the Housing Improvement Regulations 1947, namely that the house should have been free from damp. I find this claim is best dealt with as a breach of section 45(1)(b) RTA. I can only allow one lot of compensation and exemplary damage for the same breach. See section 45(1)(b),(1)(c) RTA.
The tenant claims the landlord breached the obligation to repair and maintain and to provide the premises in a reasonable state of cleanliness and to provide and maintain the premises in a reasonable state of repair. Given my findings about the inspections, I find the landlord breached its duty to repair and maintain after the inspection on 17 July 2022. This is because the landlord failed to check the roof, even though they were concerned at the condensation in the house, and even though the tenant raised her concerns about mould and damp.
The tenant has claimed compensation because the mould in the house caused physical and mental harm to the tenants. They were all unwell with migraines and skin issues, and one child had pneumonia four times during the tenancy. The report done by [Consulting Company] is corroborating evidence of the extent of the mould throughout the whole house, and that the high level of fungal spores was highly likely to cause adverse health effects to the occupants. [Consultant of Consulting Company] gave evidence at the hearing and his evidence was credible and helpful.
There was also a loss of amenity because the tenant was paying rent for a warm, dry home for her family, and this is not what she got. On the other hand, they had shelter and a place they could live together as a family. I find the landlord should pay compensation from the July inspection until 10 October 2022 in the amount of $400 a week.
The monetary order from 3 March 2023 has been taken into account. I have ended this award of compensation on 10 October because the Adjudicator who first heard this matter ordered a 100% rent abatement from 11 October and $680 compensation for distress, and this was paid by the landlord. I find this was an appropriate award of compensation once the house became uninhabitable. I further note the landlord paid the cost of moving in the amount of $860. I decline to award further general compensation.
The tenant’s lawyer submitted that it was open to me to make awards for the breach of quiet enjoyment and general compensation for stress. It is usual for a claim to be made for a breach of quiet enjoyment when the application is filed, and that was not done here. I note this has not disadvantaged the tenant because any stress and breach of quiet enjoyment was the result of the lack of maintenance, which I have compensated for.

Did the house meet the HHS?

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant submitted that the landlord has failed to comply with the HHS moisture ingress and drainage standard because there was water pooling outside and moisture under the house.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances. See section 45(1A) RTA.
The tenant said that every time it rained water would pool under the house because the drains would not cope with the amount of water. There was no ground moisture barrier.
She arranged for an eco design advisor from the local Council to assess the house. This was done early in October. The advisor wrote a statement which noted that there was damp soil under the house and that a ground moisture barrier would stop moisture from the subfloor area from evaporating into the house. Underfloor insulation had been installed.
The mould and moisture report done by [Consulting Company] for the landlord identified water pooling under the house because of sloping concrete at one end of the house, and found this was likely to be a contributing factor to dampness inside the house. Extra drainage at the north of the house was recommended in the report. The lack of a ground moisture barrier was also noted in the report. The underfloor insulation was noted.
The landlord submitted that it had carried out a very detailed inspection themselves and were sure the house was HHS complaint when they rented it to the tenant. They noted there is no requirement to have an independent assessment carried out. They said the builder’s report was better than an independent HHS assessment because it shows the moisture testing as well. They said all they were required to have for the drainage standard was gutters plus a downpipe plus drains and they had all of those. They said the drains have not been changed and the house has now been independently assessed as being HHS compliant. They also provided a letter from a business that said there was insufficient room under the house to install a ground moisture barrier. This information was disclosed on the HHS statement in the tenancy agreement. They acknowledged a barrier has been installed since the tenant moved out.
I agree that there is no requirement for landlords to pay for an independent HHS assessment. I do not agree that the builder’s report is better than an independent assessment because the information collected is for quite different purposes. I find the landlord was entitled to rely on the advice that a moisture barrier could not be installed under the house. I note the advice from the Council’s eco design advisor submitted for the tenant is general and no one has given me measurements to show the subfloor is more than 400mm high. This part of the claim is dismissed.
However, it seems likely to me that the landlord knew or should have known about the sloping concrete and the water pooling around and under the house. It is not sufficient for the landlord to have gutters, pipes and drains. The HHS standard states the house must have efficient systems to drain storm water, surface water and ground water. The landlord should have checked the systems as part of their HHS assessment before the tenancy started. I am not persuaded that the current HHS certificate means the house was compliant when the tenant lived there. I find there was a breach by the landlord by failing to comply with the HHS. I find there was an unlawful act.

Should the tenant get exemplary damages?

The tenant has claimed exemplary damages. The maximum award of exemplary damages for the breaches of section 45 is $7,200. This includes the unlawful acts of failing to repair and maintain and the breach of the HHS. See section 45(1A) and Schedule RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I find the landlord acted intentionally because it was on notice to check the roof. The kitchen ceiling collapsed in October 2022, more than a year after the landlord was advised to check the roof annually. I also find the landlord acted intentionally when it did not check there was effective drainage for the HHS compliance. The effect on the tenant was huge. The house was not safe to live in. The family had to move at very short notice. They had to throw out belongings that were contaminated with mould and fungal spores. It is in tenants’ interests that landlords provide safe houses and there is public interest that landlords are penalised when they breach the RTA.
The lawyer for the tenant submitted that the maximum award should be made to remove the profit motive from renting houses that do not comply with the minimum standards. I am not persuaded by this submission. I find exemplary damages in the amount of $4,000 to be fair. I have started at the lower end of the scale because I am not aware of previous, similar orders against the landlord, and added an extra penalty because the house became totally uninhabitable as a result of their inaction.

Should the landlord pay for the belongings destroyed by damp and mould?

The tenant needed to throw out a number of belongings during the tenancy and at the end of the tenancy because they were damaged or destroyed by mould, or because they were contaminated with fungal spores. Leaving at very short notice meant many items could not be decontaminated before moving into the new rental and had to be thrown away to prevent contaminating another house.
I was provided with photos and short videos showing the damaged belongings. These show clothing, shoes, beds and mattresses, lounge furniture, a TV and electronics. [Consultant of Consulting Company] explained the need to carefully decontaminate belongings. Some could be hot washed or wiped down and saved. Many contained fabric and had to be thrown away. The tenant did not have insurance for the family’s belongings.
The air ventilation system spread the mould and fungal spores all through the house. At the end of the tenancy the landlord had to remove the gib from most of the rooms in the house because of mould. I find there is plenty of evidence to support the submission the tenant lost many belongings. Her claim is for $15,000 and for the costs of doing hot washes at the laundromat.
Tenants can be compensated for loss. The adjudicator that made the case conference directions in June 2023 asked that the tenant provide receipts or evidence of purchase for the items claimed, and evidence of the age of any item which had to be replaced. The tenant has not provided this information. This information is important so the Tribunal can ensure that any compensation allowed is fair.
The tenant has provided copies of bank information and some receipts for items which have been purchased. There is no information about the age of the items which were disposed of, so there is no way I can calculate depreciation. The photos and the videos are not helpful when it comes to assessing the age of the items either.
Having considered the submissions and the evidence I find the tenant has proved there was at least a $3,000 loss and this is allowed for the belongings and the laundry costs. Other orders
Because the tenant has wholly succeeded with the claim I must reimburse the filing fee.
The tenant’s application for suppression is allowed because she is the most successful party.
The landlord’s application for suppression is not allowed because there is public interest in landlords being named where they have been ordered to pay compensation and exemplary damages. Costs
The lawyer has made an application for costs. The lawyer from [redacted] acted pro bono but submitted that the Tribunal should allow costs, even though the tenant had not incurred any costs. The lawyer’s submission is that the Tenancy Tribunal’s jurisdiction is similar to that of the Employment Court.
I was referred to the decision of the Employment Court in Innovative Landscapes v Celia Popkins [2020] NZEmpC 96. The Court considered costs for the defendant who succeeded in an appeal. It was an employment matter where the defendant was the employee. The Court noted the defendant was represented by a lawyer from [redacted]. The Court noted that while [redacted] had incurred costs in making its lawyers available, the defendant had incurred no costs. The Court decided it could award costs where no costs had been incurred.
What is also relevant to review is the following statement: The Employment Relations Act contains a number of what Kirby J would term “peculiarities”, reflecting the special nature of the jurisdiction, the unique dynamics inherent in employment relationships and the way in which the employment institutions in New Zealand are expected to support industrial relations. Relevant too is the statutory directive that the Court exercise its jurisdiction consistently with equity and good conscience.
Of the pro bono work done by [redacted] the court noted: ... declining to have regard to the costs associated with the provision of pro bono representation would likely inhibit the willingness of counsel to act on such a basis and would, in turn, detract from the Court’s ability to support the broader legislative purpose of the empowering statute. Pro bono arrangements, it was said, were of assistance to the Court.
The court concluded: A review of the Employment Relations Act, the role of the Court and the applicable statutory objectives leads inexorably to the conclusion that the mere fact that a litigant has been represented on a pro bono basis is not an impediment to a contribution to the costs of their representation.
The overarching purpose of the Employment Relations Act - to promote “good faith in all aspects of the employment environment and of the employment relationship”- extends to addressing the inherent power imbalance that exists between employers and employees. The imbalance of power is often (though not always) characterised by an imbalance in financial power, which manifests in disparate levels of access to legal services and resources. [Redacted] and lawyers acting on a pro bono basis have an integral role to play in supporting access to the Employment Court in those circumstances. An inability to recover costs would likely disincentivise the provision of such services and impede access to the Court, in turn reinforcing, rather than addressing, the imbalance that the Employment Relations Act seeks to address.
I am not persuaded the Tenancy Tribunal has a comparable jurisdiction to the Employment Court. As reflected above, the Employment Court is a specialist court, and their approach is not directly transferable to other jurisdictions. The Tenancy Tribunal’s usual approach taken for costs would be to follow contract law cases, which Tenancy disputes invariably are. This approach does not support costs being ordered unless they have in fact been incurred by a party.
As an example, the law was summarised by the District Court in Woolf v ACC [2018] NZACC 55 as follows: [27] I accept Mr McBride's submissions that the only entitlement to costs is that of a party, in accordance with Campbell [Campbell v Accident Compensation Act [2013] NZACC 197 ]. 2 An advocate or advocacy entity or lawyer is not a party. There must be an invoice from a party for representation. 3 In the general law, the Court of Appeal's decision in Joint Action Funding Ltd 4 [Joint Action Funding Ltd v Eichelbaum [20 17] NZCA 249, paragraphs [27] - [43]] is on point.
Furthermore, in the Court of Appeal judgment of Re Collier [1996] 2NZLR 438, the Court of Appeal confirmed that the traditional approach is that representation costs are not awarded to litigants in person, because the person has not incurred any costs, and similarly in this case the tenant has not incurred any costs, so there is nothing to compensate as far as the costs claim is concerned.
For these reasons the application for costs is not allowed.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4432582 — net $11,934.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity from 17 July 2022 - 10	$4,914.00	loss of amenity from 17 July 2022 - 10
Exemplary damages: maintenance and HHS drainage	$4,000.00	maintenance and HHS drainage
Compensation: belongings destroyed by mould	$3,000.00	belongings destroyed by mould
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$11,934.44
Total payable by Landlord to Tenant	$11,934.44

Claims and awards for application 4432582 — net $11,934.44 NZD. Verify on MoJ.

Compensation: loss of amenity from 17 July 2022 - 10

Amount: $4,914.00
Awarded to: Tenant
Reason: loss of amenity from 17 July 2022 - 10

Exemplary damages: maintenance and HHS drainage

Amount: $4,000.00
Awarded to: Tenant
Reason: maintenance and HHS drainage

Compensation: belongings destroyed by mould

Amount: $3,000.00
Awarded to: Tenant
Reason: belongings destroyed by mould

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $11,934.44

Total payable by Landlord to Tenant

Tenant $11,934.44

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

An order for suppression is made for the tenant’s name and the identifying details.
The landlord’s application is dismissed.
Three Z Investments Limited must pay [The tenant/s] $11,934.44 immediately, calculated as shown in table below:
The other claims made by the tenant are dismissed.

Reasons

Both parties attended the hearing. The tenant was represented by her lawyer, [The tenant’s representative] from [redacted]. The landlord was represented by the company directors.
The tenant moved into the tenancy premises in November 2021. The weekly rent was $680. The tenant had problems with damp and mould from the start of the tenancy. On 10 October the kitchen ceiling collapsed due to a leak in the roof. The landlord engaged a property manager soon after, who arranged for an independent mould and moisture assessment of the house. [Consulting company] found the house was uninhabitable and the tenant and her family moved out at short notice. As well as the leak, the house was found to contain mould and fungal spores that was hazardous to their health.
The tenant brought a claim in the Tenancy Tribunal. The Tenancy Tribunal heard and finalised matters. Somewhere in this process the tenants separated. One tenant successfully applied for a rehearing and the original claim filed by the tenants has been heard again by me. This time the landlord has also filed an application. I have heard different evidence and I have come to a different conclusion from the previous adjudicator. This is not unusual when matters are heard afresh, with different evidence.
The tenant has claimed compensation and exemplary damages because of breaches by the landlord and because belongings were damaged by mould. The tenant is also concerned the house was not properly maintained, was not free from damp and did not meet Healthy Homes Standards.
The landlord has also filed an application. The landlord claims that the tenant knew about the damp and leaks but failed to tell them at inspections. As a result, the house became uninhabitable, and the landlord had to pay a lot of money for repairs. The landlord wants compensation from the tenant.
The questions the Tribunal has to decide are: •Did the landlord know about the mould and damp before the tenancy started? •Should the landlord have checked the roof during the tenancy to see if it was watertight? •What happened at the inspections and did the tenant keep contemporaneous notes about the inspections? •Did the landlord fail to repair and maintain the house? •Did the house meet the HHS? •Should the landlord pay exemplary damages? Should the landlord pay for the belongings destroyed by damp and mould?

Did the landlord know about the mould and damp before the tenancy started?

The submission by the tenant’s lawyer is that the landlord knew the house was damp and mouldy from the start of the tenancy. The landlord does not agree.
The tenant commented on a strange smell at the very beginning of the tenancy, which the landlord attributed to new carpet. The tenant’s daughter gave evidence as a witness and her evidence about a bad smell in the house when they moved in was credible.
There was also supporting evidence from the tenant who lived in the house before this tenant moved in, [Previous Tenant]. The tenant found [Previous Tenant] on social media and the pair exchanged messages about their experiences with the landlord and photos of the house when [Previous Tenant] lived there. [Previous Tenant] also provided a written statement. She said the house was mouldy and damp during her tenancy. [Previous Tenant] did not give evidence at the hearing as a witness. This means we could not ask questions and I could not establish credibility. The landlord has an email from [Previous Tenant] – which is not dated – asking if she could move back into the house because she and her family missed the area. I accept the landlord’s point, that she would not ask to move back into the house if her experience of the house and the landlord was as bad as she made out.
I find [Previous Tenant]’s credibility is affected by the email to the landlord. I find there’s insufficient evidence to prove that the landlord knew that the house leaked before the tenancy started.
In its defence the landlord also relied on a builder’s report done in September 2021, when the landlord was considering selling the house. The report was a visual inspection of the house including the subfloor, the roof space and the roof. Moisture readings were taken of some spots. The report is careful to exclude weathertightness, but the builder found no obvious signs of leaking. The landlord took this to mean there were no issues at the house.
This is the tenant’s claim to prove. I am not persuaded by the evidence from [Previous Tenant]. I am more persuaded by the builder’s report which supports the landlord’s submission the house was in a good condition at the start of the tenancy. The tenant has not proved the landlord knew there were problems with damp and mould before she moved in. This part of the claim is dismissed.

Should the landlord have checked the roof to see if it was watertight?

The same builder’s report sets out that the particular type of roof on the house is susceptible to cracking. The report also states that the builder did not check the roof, and that he only observed the roof from a ladder because of safety. The report writer did not give evidence, but my reading of the report is that he climbed a ladder and looked at the roof from the edge. He also looked inside the roof space, and presumably there were no obvious signs of water ingress at that time. The report advised that the particular type of roof needs checking every year.
Despite this, the landlord did not check the roof. When I asked why not, the landlord replied that the builder had checked the roof in September 2021 and checking it again would mean a bi-annual check, which was not the advice they were given.
I do not agree that the builder checked the roof. In fact, the builder was very clear that he had only observed the roof from a ladder and he specifically said “...this type of roof needs checking every year for cracking...”. Given that it was the roof that failed, leading to the kitchen ceiling collapse in October, it is clear the roof needed repair at some point during the tenancy.
I find the landlord was on notice from September 2021 to check the roof. The check should have been done in September or October 2021, and a qualified person should have checked the roof tiles for cracks. At the very least the checks should have been carried out before winter 2022. What happened at the inspections and did the tenant keep contemporaneous notes about the inspections?
There were two inspections during the tenancy, one in January and one in July. The landlord also went to the house in September 2022 to trim some trees.
The tenant said she raised the issue of mould in the January inspection because there was a smell and because her daughter was having problems with clothes going mouldy. There is nothing in writing apart from her contemporaneous notes to show she raised the issue with the landlord. The landlord likewise does not have notes taken at the inspection. The tenant agreed she did not raise the issue at all between January and July.
The tenant said she raised the issue again during the July inspection. She said they walked around the house and she noted that belongings were mouldy. The only supporting evidence for the tenant are her contemporaneous notes.
In reply the landlord submitted that the tenant never raised the mould and damp with them at the inspections. The landlord does not have any written notes as a record of what was discussed at the inspection.
This is the tenant’s claim to prove. The tenant’s daughter gave credible evidence. Her evidence was persuasive. She described how the house smelled, and how her wardrobe could not be used because all her clothes went mouldy. She explained how she had migraines and how the family was sick when they lived in the house. The daughter was not present at either of the inspections.
The contemporaneous notes are the new evidence that was not on the original file and these were not available for the first Tenancy Tribunal decision. The notes are not from a diary but are notes relevant to the tenancy that the tenant said she wrote during the tenancy. The tenant and her daughter said it was usual practice for the tenant to note down important things and to write notes of things she had to remember. They described the books she uses for these notes. The tenant said she is a self-reflective practitioner in her job and it is normal for her to make notes of things to think about later. The tenant provided notes from before the tenancy started, and notes around the time of three visits by the landlord.
The landlord does not believe these notes were written during the tenancy. The directors think the tenant fabricated the notes after the tenancy ended so that her application to the Tribunal would succeed. The landlord submitted that the tenant should share the whole diary with the Tribunal.
I have considered the notes, the tenant’s submission and her daughter’s evidence. I am more persuaded by the tenant’s submission and supporting evidence. I find the testimony about the notes to be credible. I find I can rely on the notes as supporting evidence about the inspections.
The tenant’s oral testimony about what was said at the January inspection is vague. In the notes she took at the time she records a smell and a question about why the carpet feels wet in summer. Taken together I am not persuaded the landlord knew about the mould in January.
However, it seems likely that the issue of mould was raised at the July inspection. The tenant has good notes about the issues she intended to raise with the landlord, including a number of questions about mould, a bad smell in the house, her excessive power bills, the pump not working, clothes and furniture being wrecked, water under the house, and that her son’s bedroom and bed were mouldy.
I’m not sure how good the landlord’s English is. It is possible from my observations at the hearing that the tenant’s concerns were misunderstood. Having inspection notes in writing from the landlord would confirm if they understood what they were told at the two inspections. The landlord told the tenant to use the home ventilation system at the inspection in July. This advice was repeated when they were there in September to trim the trees, because of the amount of condensation on the windows. This suggests the landlord had concerns about moisture in the house in July and in September.
I find the tenant has proved she did tell the landlord about the mould in the house during the July inspection and that she told the landlord about their belongings being ruined with mould. I find there was an unlawful act by the landlord.
This finding means the landlord’s claim that the tenant failed to notify them about the damp and mould, leading to increased costs for repairing the house, must fail and it is dismissed.

Did the landlord breach the duty to repair and maintain the house?

A claim was made that the landlord breached section 45(1)(c) RTA because there was a breach of the Housing Improvement Regulations 1947, namely that the house should have been free from damp. I find this claim is best dealt with as a breach of section 45(1)(b) RTA. I can only allow one lot of compensation and exemplary damage for the same breach. See section 45(1)(b),(1)(c) RTA.
The tenant claims the landlord breached the obligation to repair and maintain and to provide the premises in a reasonable state of cleanliness and to provide and maintain the premises in a reasonable state of repair. Given my findings about the inspections, I find the landlord breached its duty to repair and maintain after the inspection on 17 July 2022. This is because the landlord failed to check the roof, even though they were concerned at the condensation in the house, and even though the tenant raised her concerns about mould and damp.
The tenant has claimed compensation because the mould in the house caused physical and mental harm to the tenants. They were all unwell with migraines and skin issues, and one child had pneumonia four times during the tenancy. The report done by [Consulting Company] is corroborating evidence of the extent of the mould throughout the whole house, and that the high level of fungal spores was highly likely to cause adverse health effects to the occupants. [Consultant of Consulting Company] gave evidence at the hearing and his evidence was credible and helpful.
There was also a loss of amenity because the tenant was paying rent for a warm, dry home for her family, and this is not what she got. On the other hand, they had shelter and a place they could live together as a family. I find the landlord should pay compensation from the July inspection until 10 October 2022 in the amount of $400 a week.
The monetary order from 3 March 2023 has been taken into account. I have ended this award of compensation on 10 October because the Adjudicator who first heard this matter ordered a 100% rent abatement from 11 October and $680 compensation for distress, and this was paid by the landlord. I find this was an appropriate award of compensation once the house became uninhabitable. I further note the landlord paid the cost of moving in the amount of $860. I decline to award further general compensation.
The tenant’s lawyer submitted that it was open to me to make awards for the breach of quiet enjoyment and general compensation for stress. It is usual for a claim to be made for a breach of quiet enjoyment when the application is filed, and that was not done here. I note this has not disadvantaged the tenant because any stress and breach of quiet enjoyment was the result of the lack of maintenance, which I have compensated for.

Did the house meet the HHS?

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant submitted that the landlord has failed to comply with the HHS moisture ingress and drainage standard because there was water pooling outside and moisture under the house.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances. See section 45(1A) RTA.
The tenant said that every time it rained water would pool under the house because the drains would not cope with the amount of water. There was no ground moisture barrier.
She arranged for an eco design advisor from the local Council to assess the house. This was done early in October. The advisor wrote a statement which noted that there was damp soil under the house and that a ground moisture barrier would stop moisture from the subfloor area from evaporating into the house. Underfloor insulation had been installed.
The mould and moisture report done by [Consulting Company] for the landlord identified water pooling under the house because of sloping concrete at one end of the house, and found this was likely to be a contributing factor to dampness inside the house. Extra drainage at the north of the house was recommended in the report. The lack of a ground moisture barrier was also noted in the report. The underfloor insulation was noted.
The landlord submitted that it had carried out a very detailed inspection themselves and were sure the house was HHS complaint when they rented it to the tenant. They noted there is no requirement to have an independent assessment carried out. They said the builder’s report was better than an independent HHS assessment because it shows the moisture testing as well. They said all they were required to have for the drainage standard was gutters plus a downpipe plus drains and they had all of those. They said the drains have not been changed and the house has now been independently assessed as being HHS compliant. They also provided a letter from a business that said there was insufficient room under the house to install a ground moisture barrier. This information was disclosed on the HHS statement in the tenancy agreement. They acknowledged a barrier has been installed since the tenant moved out.
I agree that there is no requirement for landlords to pay for an independent HHS assessment. I do not agree that the builder’s report is better than an independent assessment because the information collected is for quite different purposes. I find the landlord was entitled to rely on the advice that a moisture barrier could not be installed under the house. I note the advice from the Council’s eco design advisor submitted for the tenant is general and no one has given me measurements to show the subfloor is more than 400mm high. This part of the claim is dismissed.
However, it seems likely to me that the landlord knew or should have known about the sloping concrete and the water pooling around and under the house. It is not sufficient for the landlord to have gutters, pipes and drains. The HHS standard states the house must have efficient systems to drain storm water, surface water and ground water. The landlord should have checked the systems as part of their HHS assessment before the tenancy started. I am not persuaded that the current HHS certificate means the house was compliant when the tenant lived there. I find there was a breach by the landlord by failing to comply with the HHS. I find there was an unlawful act.

Should the tenant get exemplary damages?

The tenant has claimed exemplary damages. The maximum award of exemplary damages for the breaches of section 45 is $7,200. This includes the unlawful acts of failing to repair and maintain and the breach of the HHS. See section 45(1A) and Schedule RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I find the landlord acted intentionally because it was on notice to check the roof. The kitchen ceiling collapsed in October 2022, more than a year after the landlord was advised to check the roof annually. I also find the landlord acted intentionally when it did not check there was effective drainage for the HHS compliance. The effect on the tenant was huge. The house was not safe to live in. The family had to move at very short notice. They had to throw out belongings that were contaminated with mould and fungal spores. It is in tenants’ interests that landlords provide safe houses and there is public interest that landlords are penalised when they breach the RTA.
The lawyer for the tenant submitted that the maximum award should be made to remove the profit motive from renting houses that do not comply with the minimum standards. I am not persuaded by this submission. I find exemplary damages in the amount of $4,000 to be fair. I have started at the lower end of the scale because I am not aware of previous, similar orders against the landlord, and added an extra penalty because the house became totally uninhabitable as a result of their inaction.

Should the landlord pay for the belongings destroyed by damp and mould?

The tenant needed to throw out a number of belongings during the tenancy and at the end of the tenancy because they were damaged or destroyed by mould, or because they were contaminated with fungal spores. Leaving at very short notice meant many items could not be decontaminated before moving into the new rental and had to be thrown away to prevent contaminating another house.
I was provided with photos and short videos showing the damaged belongings. These show clothing, shoes, beds and mattresses, lounge furniture, a TV and electronics. [Consultant of Consulting Company] explained the need to carefully decontaminate belongings. Some could be hot washed or wiped down and saved. Many contained fabric and had to be thrown away. The tenant did not have insurance for the family’s belongings.
The air ventilation system spread the mould and fungal spores all through the house. At the end of the tenancy the landlord had to remove the gib from most of the rooms in the house because of mould. I find there is plenty of evidence to support the submission the tenant lost many belongings. Her claim is for $15,000 and for the costs of doing hot washes at the laundromat.
Tenants can be compensated for loss. The adjudicator that made the case conference directions in June 2023 asked that the tenant provide receipts or evidence of purchase for the items claimed, and evidence of the age of any item which had to be replaced. The tenant has not provided this information. This information is important so the Tribunal can ensure that any compensation allowed is fair.
The tenant has provided copies of bank information and some receipts for items which have been purchased. There is no information about the age of the items which were disposed of, so there is no way I can calculate depreciation. The photos and the videos are not helpful when it comes to assessing the age of the items either.
Having considered the submissions and the evidence I find the tenant has proved there was at least a $3,000 loss and this is allowed for the belongings and the laundry costs. Other orders
Because the tenant has wholly succeeded with the claim I must reimburse the filing fee.
The tenant’s application for suppression is allowed because she is the most successful party.
The landlord’s application for suppression is not allowed because there is public interest in landlords being named where they have been ordered to pay compensation and exemplary damages. Costs
The lawyer has made an application for costs. The lawyer from [redacted] acted pro bono but submitted that the Tribunal should allow costs, even though the tenant had not incurred any costs. The lawyer’s submission is that the Tenancy Tribunal’s jurisdiction is similar to that of the Employment Court.
I was referred to the decision of the Employment Court in Innovative Landscapes v Celia Popkins [2020] NZEmpC 96. The Court considered costs for the defendant who succeeded in an appeal. It was an employment matter where the defendant was the employee. The Court noted the defendant was represented by a lawyer from [redacted]. The Court noted that while [redacted] had incurred costs in making its lawyers available, the defendant had incurred no costs. The Court decided it could award costs where no costs had been incurred.
What is also relevant to review is the following statement: The Employment Relations Act contains a number of what Kirby J would term “peculiarities”, reflecting the special nature of the jurisdiction, the unique dynamics inherent in employment relationships and the way in which the employment institutions in New Zealand are expected to support industrial relations. Relevant too is the statutory directive that the Court exercise its jurisdiction consistently with equity and good conscience.
Of the pro bono work done by [redacted] the court noted: ... declining to have regard to the costs associated with the provision of pro bono representation would likely inhibit the willingness of counsel to act on such a basis and would, in turn, detract from the Court’s ability to support the broader legislative purpose of the empowering statute. Pro bono arrangements, it was said, were of assistance to the Court.
The court concluded: A review of the Employment Relations Act, the role of the Court and the applicable statutory objectives leads inexorably to the conclusion that the mere fact that a litigant has been represented on a pro bono basis is not an impediment to a contribution to the costs of their representation.
The overarching purpose of the Employment Relations Act - to promote “good faith in all aspects of the employment environment and of the employment relationship”- extends to addressing the inherent power imbalance that exists between employers and employees. The imbalance of power is often (though not always) characterised by an imbalance in financial power, which manifests in disparate levels of access to legal services and resources. [Redacted] and lawyers acting on a pro bono basis have an integral role to play in supporting access to the Employment Court in those circumstances. An inability to recover costs would likely disincentivise the provision of such services and impede access to the Court, in turn reinforcing, rather than addressing, the imbalance that the Employment Relations Act seeks to address.
I am not persuaded the Tenancy Tribunal has a comparable jurisdiction to the Employment Court. As reflected above, the Employment Court is a specialist court, and their approach is not directly transferable to other jurisdictions. The Tenancy Tribunal’s usual approach taken for costs would be to follow contract law cases, which Tenancy disputes invariably are. This approach does not support costs being ordered unless they have in fact been incurred by a party.
As an example, the law was summarised by the District Court in Woolf v ACC [2018] NZACC 55 as follows: [27] I accept Mr McBride's submissions that the only entitlement to costs is that of a party, in accordance with Campbell [Campbell v Accident Compensation Act [2013] NZACC 197 ]. 2 An advocate or advocacy entity or lawyer is not a party. There must be an invoice from a party for representation. 3 In the general law, the Court of Appeal's decision in Joint Action Funding Ltd 4 [Joint Action Funding Ltd v Eichelbaum [20 17] NZCA 249, paragraphs [27] - [43]] is on point.
Furthermore, in the Court of Appeal judgment of Re Collier [1996] 2NZLR 438, the Court of Appeal confirmed that the traditional approach is that representation costs are not awarded to litigants in person, because the person has not incurred any costs, and similarly in this case the tenant has not incurred any costs, so there is nothing to compensate as far as the costs claim is concerned.
For these reasons the application for costs is not allowed.

Tenancy Tribunal case 4432582 — Healthy homes

At a glance

Tenancy Tribunal case 4432582 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord know about the mould and damp before the tenancy started?

Should the landlord have checked the roof to see if it was watertight?

Did the landlord breach the duty to repair and maintain the house?

Did the house meet the HHS?

Should the tenant get exemplary damages?

Should the landlord pay for the belongings destroyed by damp and mould?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord know about the mould and damp before the tenancy started?

Should the landlord have checked the roof to see if it was watertight?

Did the landlord breach the duty to repair and maintain the house?

Did the house meet the HHS?

Should the tenant get exemplary damages?

Should the landlord pay for the belongings destroyed by damp and mould?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions