What was Tenancy Tribunal case 4477063 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 4477063?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4477063?

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

Where can I read the official tribunal order for case 4477063?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9306427-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4477063 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 4477063?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4477063?

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

Where can I read the official tribunal order for case 4477063?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9306427-Tenancy_Tribunal_Order.pdf.

57A Bruce Road, Glenfield, Auckland 0629 Tenancy Tribunal Case 4477063 — Mould & damp

Tenantcheck Insights

Reasons

Both parties attended the hearing. Nerissa Cui represented the landlord. [The tenant/s] attended via teleconference and represented himself with the assistance of a Mandarin interpreter.

The tenant seeks refund of his bond.

He also seeks compensation and exemplary damages against the landlord for what he says was a breach of the landlord’s obligation to provide premises that are free from damp and mould. General Approach in the Tribunal

I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.

This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

In this case, the hearing lasted approximately two hours. In addition, both parties had filed a substantial amount of documentary evidence.

For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. First Claim - Bond

The tenant has applied for refund of the bond. The landlord today said she has a claim against the bond but acknowledges she has not filed a counterclaim with Tenancy Services.

Section 22B(2) Residential Tenancies Act 1986 (“the Act”) provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.

This is couched in mandatory terms, which means I have no discretion in the matter. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant. Second Claim – Mould, Moisture and Dampness

The tenant says that there was mould present in the home. He says this is a breach of the landlord’s obligations.

Issues to do with mould and moisture can be part of the Healthy Homes Standards (“HHS”) but they also fall within a landlord’s general obligation to maintain the premises and/or to comply with relevant legal standards under section 45(1)(b) or 45(1)(e) of the Act.

Regulation 15 of the Housing Improvement Regulations 1947 provide that “every house shall be free from dampness.”

Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.

Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided.

A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.

A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.

In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem.

If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem. Summary of Tenant Evidence

The tenant said that they lived in the property from the 12th of October 2021 and the tenancy ended on the 25th of December 2022. He said that when he and his family first moved in they purchased a full set of furniture.

The tenant said that on 11th of May 2022 he first noticed a large area of what he described as a black stain on the ceiling

At the time, he said they did not realise that it was mould, but they notified the property manager immediately.

On the 8th of June 2022, the tenant says that he and his wife noticed severe mould in the closet of the main bedroom. He said that this had caused serious mould issues on many of his wife’s bags and clothing, which included expensive luxury items.

The tenant also said that from June onwards, he and his entire family all suffered what he called adverse health reactions. He said that the property manager had provided some sort of cream to his wife to put on their skin. He said that this was evidence that the property manager knew there was a problem.

Later in August the tenant advised the property manager that there was a leak in the ceiling around one of the light fixtures. He notified the property manager who promptly arranged for this issue to be resolved and the tenant confirmed that the issue was resolved within a couple of days.

He accused the property manager of not advising him that the property had deafness issues, and said that her only response to their concerns was to advise them to get anti mould products and sort it out themselves

The tenant said that the property was located on the lower part of a slope and on one side of the property there was a lot of plants and greenery he said that during the winter months particularly he had a dehumidifier running in the property all day long.

He also said that every morning the very first thing he did was to open all the windows and doors to allow ventilation in the property. He said that when he woke up every single morning there was condensation on the windows and on the tracks of the doors, which showed that the house was damp.

In response to the landlord’s evidence (below) the tenant said that he had to close windows during the summertime particularly because of the mosquitoes and flies that would come in. He said that he had asked the landlord for a screen on the windows and doors but there this was said to be too expensive. Summary of Landlord Evidence

The landlord says that there were no issues with mould and moisture in the property per se.

She provided a document from a company called API which is said to be a “weathertightness report”. I do note however that this report was completed on 24 January 2023, which is after the tenants had vacated the premises. Having said that, there is no evidence that any significant work was done between the tenant vacating and the date of the report.

There was also a healthy homes assessment dated 25 September 2021. That report confirms that the premises is healthy homes compliant and there are no identified moisture issues.

The landlord denied giving any cream to the tenant’s wife for any kind of medical issue to do with mould. Rather she says that she had a relatively friendly personal relationship with the tenant’s wife, and that she had on at least one or two occasions given his wife some deep heat cream or similar for muscular aches that she had.

She also said that the tenants never raised any issues to do with mould and moisture until after the end of the tenancy when she was asking them to complete the cleaning of the house.

She said the only actual moisture issue was a small leak which occurred in August. This was repaired promptly, within a few days of it being notified to her.

She also pointed to evidence that during the routine inspections at the property it was noted on multiple occasions that the tenants had not opened curtains or windows. She said that she took care to explain that Auckland had a particularly humid climate and that they needed to treat the property differently than they may have done in their hometown in China.

The landlord said that the tenant comes from the same town in China as her own husband and it is an extremely dry climate and she understood therefore that the tenants may need some advice on how to manage the property. She said she provided this advice.

The landlord also said that she was aware that the tenants had complained about mosquitoes and flies as well as a smell coming from a neighbour's garden.

She also said that various neighbours had confirmed that the tenant’s windows were closed a lot of the time. The landlord said that she personally visited the property, not necessarily in her capacity as property manager but as a friend of the tenant’s wife, around five times.

She said that every single time she visited the windows and curtains were shut tightly even during the day times and said that any mould that might have occurred was due to the tenant’s failure to adequately ventilate. Findings

As noted above, the cause of mould and moisture problems can often be hard to identify.

I observe that the tenant accepted that he only opened windows when it was not windy, raining or cold. Given the weather in Auckland I am not sure then how often windows were realistically left open.

The tenant also accepted that he had closed windows during the summertime particularly because of the mosquitoes and flies that would come in.

He also acknowledged that despite a heat pump being provided in the property he had never used the heat pump in terms of heating in the winter or air conditioning in the summertime. He also agreed that he would regularly shut the windows when a smell was emanating from his neighbour’s property.

The tenant did provide photographs which do show some mould in the property although the mould appears to be mainly up high which suggests some degree of warm air rising as opposed to generalised dampness in the property.

Ultimately, I am left with a sense of uncertainty around the mould issues. The tenant and the landlord have given evidence that is diametrically opposed. I do not feel that I can resolve this conflict between their evidence given that there is, at least on the face of it, independent evidence that the house has no moisture issues and is compliant with the healthy homes’ standards.

Bearing in mind that it is the tenant who bears the burden of proof in this case, I am not satisfied that the burden has been met and therefore this claim is dismissed. J R Smith 29 August 2023

Reasons