What was Tenancy Tribunal case 4477024 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4477024?

Compensation: $1,600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4477024?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Leaks, Compensation.

Where can I read the official tribunal order for case 4477024?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9390858-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4477024 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4477024?

Compensation: $1,600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4477024?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Leaks, Compensation.

Where can I read the official tribunal order for case 4477024?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9390858-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 13 Penning Rd, Milford, Auckland 0622 Tenancy Tribunal Case 4477024 — Mould & damp

Claims and awards in Tenancy Tribunal application 4477024. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
being compensation of	$1,600.00		being compensation of
and the application filing fee of	$20.44		and the application filing fee of

Claims and awards in Tenancy Tribunal application 4477024. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
being compensation of	$1,600.00		being compensation of
and the application filing fee of	$20.44		and the application filing fee of

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Barfoot & Thompson Limited Milford must pay Nick Ustin $1620.44, being compensation of $1,600.00 and the application filing fee of $20.44.
No other orders are made.

Reasons

Both parties attended the hearing. There has been a prior adjournment to enable the owner to attend. Unfortunately, due to confusion regarding the method of hearing the landlord anticipated a teleconference hearing and did not appear in person. The property manager and owner joined by teleconference. Mr Ustin appeared in person
A discussion ensued as to whether to continue with the hearing or adjourn it further. I was guided by the landlord especially in this and the consensus was the hearing should continue with it to be reconsidered later if problematic. I was satisfied all parties were able to engage in the hearing which completed.
The tenant has applied for compensation of $9020.00 due to a claim the landlord failed to maintain the premises, subjecting him and his possessions to problems caused by damp or mould. This comprised $2000.00 for drycleaning of personal items and $7020.00 for: a. Renting a non "healthy homes" compliant home. b. Medical issues suffered due to the damp and mould ridden environment of the property. c. Not receiving the value of the premium rental that he paid for.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background
This tenancy commenced 18 November 2021.
The premises is on two levels with entry via an entryway at the garage level, and a basement type space used as a laundry area that adjoined the garage. Stairs lead up to the main living area. Concrete block wall and retaining construction features on the lower level. The lower level comprises a sizable cavity space in the subfloor area which had a separate access door. There is no door or airtight barrier between the front door and the main premises upstairs, meaning the lower and upper levels are one conjoined area for air movement.
Very soon after commencing the tenancy the tenant reported skin issues that he believed were caused by the environment (dampness). The skin issues remained a problem for him.
In mid-December 2021 there was a leak in the ceiling of the master bedroom. The owner attended and made some waterproofing repairs. These did not address the issue as further leaking was reported in February 2022. This time the owner engaged a roofer. It transpired the underlying cause of the leak had not been identified initially and the cause was a deck rebuild by the neighbour that had compromised the water sealing above the bedroom. Further water proofing appears to have resolved that problem. Compensation of $820.00 value was provided to the tenant for the bedroom leaking issue.
In March 2022, the tenant reported leaking through the entry door after a heavy rain event. Drainage was identified as the cause and a contractor advised the owner in June 2022 on an appropriate solution. By late June the work was completed.
In November 2022 it was realised the owner had erred in his self-assessment of there being no requirement to install a ground moisture barrier, meaning the Healthy Homes requirement for this was not compliant as previously claimed.
During the Auckland flooding in January and February 2023 there was further water ingress. The external ground saturation and shortage of contractors delayed further remedial activity according to the landlord.
In May 2023 a contractor proposed an internal waterproofing of the ground level concrete/block wall. This was approved and completed. A by-product of the work was dust through the house. After the tenant complained a professional clean was arranged. Photos evidence the extent of the coverage.
By the date of the hearing the tenant advised his health had improved, believing the installation of the ground barrier and then the internal waterproofing had contributed to this. The tenant application
It is well settled that, the landlord’s obligation under s45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenant claims that the landlord failed to remedy several repair issues within a reasonable timeframe. The tenant has been a timely communicator of problems as they arose. Mutual acceptance of all problems did not occur.
In his submissions, Mr Ustin recounted the dampness as a continuous problem, although there were specific issues during the timeline. While continuous for him, there appear to have been discrete events of differing impacts. I consider the bedroom leak to have been adequately addressed through the compensation already provided.
While mould is cited, there was a claim of a more general air quality/dampness that is also considered.
The tenant compensation claims are considered in two main parts. The first relate to claims for damage to items stored at ground/entry level, some in a wardrobe and other in the sub-floor cavity. The second are a general environmental issue where the impact was less visible, with smell being the cited indicator of an underlying issue with adverse impacts. I am also aware of the significant, and possibly unprecedented heavy rainfall experienced in Auckland. The need for further drainage enhancement due to such increasingly severe events is not unique to this property. Ground/entry
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Further, under s 13A(1CA) Residential Tenancies Act 1986, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
The tenant sought exemplary damages. He claimed in his application that “Most of my personal items stored in the subfloor area are embedded with mold and will require extreme cleaning and /or professional cleaning. Most of my items in the master bedroom closet are either moldy or have a deep mildew smell.”
There was no suggestion the premises lack appropriate resource or building consents or code of compliance.
Nick Ustin 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 considers that the landlord had failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy but in this instance, as a private rental, the premises should have complied within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. Therefore, it should have complied no later than on or around 18 February 2022. It was not laid until 29 November 2022 – meaning some 40 weeks, including the winter of 2022, was spent without a ground moisture barrier.
The moisture ingress and drainage standard requires a ground moisture barrier when there is an enclosed subfloor space.
In this case I have determined that there was a clear failure by the landlord to adhere to the HHS requirement and timeframe, and to make an inaccurate statement regarding compliance.
I find the landlord committed an unlawful act regarding the ground moisture barrier.
As I have determined that the landlord committed an unlawful act I must decide if there was intent and, if so, is it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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
In this instance, I find there was no intent on behalf of the landlord. In its submissions the landlord stated the owner attended to issues promptly. I accept this but I do consider the actual remedy to some tasks were slower as he attempted his own investigation or completion rather than engage a professional immediately. However, I cannot find he failed to be attentive and reactive.
When aware of his mistake regarding the HHS requirement it was remedied within an acceptable timeframe.
The subsequent internal waterproofing and water diversion is acknowledged by the tenant as a real improvement. It is a shame that was not identified and implemented back in June 2022 when the first remediation plan was hatched but delayed from full completion due to the high water table.
The tenant provided photos that showed the lower floor concrete and block showing some signs of distress to the finish. It is inconclusive but the suggestion it was symptomatic of damp from behind has some plausibility, especially as the subsequent waterproofing has supposedly improved the internal environment.
The tenant also claimed compensation for damage to items he stored in this area. I accept damage did occur to some items. I view that as further evidence of some environmental impact due to the missing GMB but I do not find specific compensation should be ordered for any items stored there. I conclude that as I do not find the tenant has established that area was ever proposed as a suitable storage area and the use of it was therefore at his own risk. Given his early flagging of concerns regarding dampness it seems reasonable that he might have pre-empted such damage through his ongoing vigilance and removal of the items. Internal environment
There is a dispute between the parties, and others, regarding what, if any, adverse impact the tenant was experiencing within the premises. He has consistently complained of the smell in the premises. The landlord says this has not been observed by them, as noted in routine inspection reports provided. The landlord also provided an email from the HHS contractor who attended in November 2022. He stated in that email the tenant has raised with him that the house was very damp and “the kitchen had a musty smell all the time”. The contractor told the tenant he could not find a musty smell or mildew I the kitchen. The tenant then suggested it might have come from underground as there had been no barrier. The contractor recounted the two of them went downstairs but he could not find any mould on the underground wood and that the soil was relatively dry.
I was particularly curious the tenant wanted to take some mouldy items to the property manager’s office to show them (offer declined) but he never ensured he was present at an inspection when both parties could stand in the same place and compare observations, or view such items in situ. That may have been informative.
I accept there were skin issues experienced by the tenant that required some medical assessment and treatment. As he acknowledged himself at the hearing, medical evidence supported the need for treatment but it was inconclusive regarding the underlying cause. Immediate causation of any skin or related health issues due to the premises is not readily established. The absence of any such a condition pre-occupancy and some improvement, once recent remediation at the premises was completed, was submitted by the tenant and this is noted.
I make no orders for exemplary damage but the failure to lay a ground moisture barrier, given the early and continual flagging of the tenant of health impacts he considered caused by building failures, should have prompted some more timely reflection and subsequent correction. I consider a GMB would have enhanced the internal environment. The visibly distressed finish of the lower concrete area and block, as well as the damage to the tenant’s possession in storage, point to some moisture ingress at ground or wall level. Therefore, I must consider if compensation, as sought, should be ordered. As noted above, the air movement between the floors was not impeded and I consider it more than likely that there was some detrimental impact on the internal air quality from air transfer from the exposed ground below.
Having considered the respective submissions and evidence, and regarding both the problem and subsequent improvement after building remediation I have determined further compensation to the tenant based on an approximate 40 week period of non-compliant HHS regarding the ground moisture barrier. Given the construction and surrounding slope of the ground area I consider this had an impact on the internal environment, mostly the air rather than any visible surface presence. I have awarded $40.00 per week of rent rebated for this period, making a final general compensation order of $1,600.00. That address the tenant claim regarding HHS failures and the impact on him.
I do not find it proven that any medical issues were caused by the “damp and mould ridden environment” (nor is such characterisation of the premises evidentially established).
I do not find the claim for $2000.00 for drycleaning is evidentially supported and that is dismissed.
I do not consider the tenant has established grounds for any compensation for “not getting the value of the premium rental”. The above compensation figure regarding the GMB delay incorporates some consideration of that. Other events
There were a number of other times where rainwater entered the ground floor area. Having considered the circumstances of these events, and any related impact, I do not consider grounds for further compensation exists.
During the downstairs waterproofing there was significant dust that settled throughout the living areas upstairs. This caused the tenant angst and professional cleaning was conducted after he complained. It is established the contractor failed to appropriately mitigate the spread of the dust but no specific compensation was sought for this by the tenant in his application. I do consider the spread as further evidence of the air movement between the lower ground floor and the living areas upstairs which has been compensated in the compensation order above. Main house
While the tenant claimed compensation for issues in the main living (upper floor) I do not find the problems or any loss have been established apart from the leaking ceiling in the bedroom, which has been compensated.
I do not consider there are grounds for further compensation for any issues in the living area of the house. Filing Fee
As the tenant has been substantially successful in his application I return the application filing fee. Note re the date of this order
This order is effective 11 September but it has been released earlier due to the adjudicator’s extended absence from Sunday 10 September 2023.

Tenancy Tribunal case 4477024 — Mould & damp at Unit/Flat 1, 13 Penning Rd, Milford, Auckland 0622

Tenancy Tribunal case 4477024 — Mould & damp at Unit/Flat 1, 13 Penning Rd, Milford, Auckland 0622

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions