Published tribunal order
Tenancy Tribunal case 4504631 — Mould & damp at 3 Pungaere Road, Waipapa 0295
Decided 8 Sept 2023 · Published 8 Sept 2023 · Application 4504631
- Mould & damp
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 name and identifying details.
- Hewson Real Estate Limited t/as Ray White Kerikeri (as agent for Taeho Kang) must pay [The tenant/s] $920.44 immediately, calculated as shown in table below:
Reasons
Background
- The tenancy began in May 2021.
- The tenant’s application seeks compensation and exemplary damages in respect of maintenance issues.
- The hearing took place in [Event location suppressed] on 3 August 2023. Both parties attended the hearing. Mr Brandt and Ms Barker represented the landlord.
- The maintenance issues set out in the application are: a. Ensuite bathroom leak, and related carpet damage. b. Gutters and downpipes. c. Mould. d. Ensuite extractor fan. e. Lawns and gardens. f. Oven. g. Driveway potholes. h. Roof leak. i. Water supply. Maintenance obligations – general principles
- Landlords have a duty to provide the premises in a reasonable state of repair, having regard to the age and character of the premises 1 .
- If the landlord fails to meet this duty, the Tribunal may award compensation to the tenant.
- In addition, the Tribunal may award exemplary damages of up to $7,200.00 if the landlord has intentionally failed to meet its duty 2 .
- Tenants must make the landlord aware of the need for repairs 3 . Ensuite bathroom leak and carpet damage
- On or around 7 April 2022, the tenant became aware of an area of wet carpet in the master bedroom wardrobe, which is next to the ensuite bathroom. She informed the then property manager (Ms Bacon) by email.
- The landlord contacted a plumber, [The Plumbing Services], who attended on 19 April. 1 Section 45(1)(b) Residential Tenancies Act 1986 (“RTA”) 2 Section 45(1A) RTA 3 Section 40(1)(d) RTA
- [The Plumbing Services] cleared the waste trap in the ensuite shower.
- In May, [The tenant/s] informed the landlord that the problem was recurring.
- The landlord arranged for another contractor, [The Handyman Services] to investigate. Mr Wright concluded that the leak was coming from the shower, and it was tracking underneath the tiles to the master bedroom wardrobe.
- [The tenant/s] was told not to use the shower in this bathroom.
- After discussions with the owner, Mr Brandt proposed, and [The tenant/s] accepted, a rent reduction of $50.00 until the ensuite shower became usable again.
- The rent reduction took effect in early June 2022, and it remains in place. At the hearing, Mr Brandt submitted that the bathroom has floor to ceiling tiles, so repair of the leak will involve large scale and messy work. Mr Brandt submitted that the owner plans to have the work done in November this year.
- In April 2023, Mr Brandt attempted to arrange for the water damaged section of carpet in the wardrobe to be replaced. He contacted [redacted] to do the job. There were some difficulties with access, and ultimately the job was cancelled when it was discovered that the section of carpet was wet again.
- The landlord’s response to the ensuite shower leak problem has been sensible and professional. I was provided with a copy of an email from Mr Brandt to the owner dated 18 May 2022 which contains an entirely correct statement of the legal position: I am concerned that should the tenant decide to make a Tenancy Tribunal complaint we will be in the position of her paying full rent and not being able to utilise the entire property. I would recommend we address this with a temporary rent reduction, as it is likely if a complaint was made she would be awarded the reduction and it could be applied retrospectively.
- The rent reduction that the parties agreed, $50 per week, is appropriate.
- The only dispute was about when the reduction took effect. [The tenant/s] asked for it to be backdated to 7 April. The landlord did not accept this, and it took effect in early June 2023.
- I understand that [The Plumbing Services] told [The tenant/s] to stop using the shower for a period of time to allow the area to dry, then to use the shower and monitor the area closely. [The tenant/s] did this.
- Therefore, between mid-April and early-June 2022, there was a period of time when [The tenant/s] was not using the shower and a period of time when she used it again (briefly) before letting the landlord know that the leak was recurring.
- The basis of the $50 reduction is that the tenant has suffered a loss of amenity by not being able to use the ensuite shower. The same principle should apply to the pre-June period.
- A reasonable estimate of the time that [The tenant/s] was without the use of the shower over that period is four weeks.
- Therefore I will award [The tenant/s] additional compensation of $200.00. Gutters and downpipes
- The house is on two levels. There are large trees on the section, some of which are near the house.
- [The tenant/s] submitted that some parts of the guttering were in a poor state of repair at the beginning of her tenancy, and that the gutters were not cleared until earlier this year.
- Mr Brandt submitted that there was a section of damaged spouting that was picked up in the Healthy Homes report in September 2021. This was repaired. Mr Brandt could not confirm the date of repair, but he stated that it was done before he took over management of the property in April 2022.
- Mr Brandt submitted that there is now a plan in place for routine clearing of the gutters.
- It is the landlord’s responsibility to clear the gutters and maintain the spouting in a reasonable state of repair.
- Given the factors that are present here (two storey house, large trees nearby, house on tank water supply) it would have been appropriate for the landlord to have a regular program for clearing the gutters throughout the tenancy. Unfortunately, this did not begin until February this year.
- A failure to clear / maintain the gutters has been the basis for an award of compensation in the Tenancy Tribunal when the failure resulted in overflow of the gutters and water ingress into the house 4 , and when a property on tank water supply ran out of water during the tenancy 5
- [The tenant/s] has not run out of water during her tenancy. [The tenant/s] has experienced problems with mould in the house and with leaks (both of which are discussed below), but there is no evidence of any water ingress from overflowing gutters. 4 Raj v Ludwig Feigenbaum Properties Ltd [2014] NZTT North Shore 1142 5 Mid North Real Estate Ltd v Williams TT Whangarei TT819/00, 15 November 2000
- I am satisfied that the landlord has now met its obligation by having a plan for regular gutter cleaning / inspection in place. I will not make an award of compensation in respect of this issue. Mould
- [The tenant/s] submitted that she has had problems with mould development in the house since the beginning of her tenancy. She began sending messages to Ms Bacon about mould during her first winter in the property, in 2021.
- The healthy homes standards for heating and ventilation do not apply to this tenancy because it began before 1 July 2021.
- It is not possible to have sub-floor or ceiling insulation because of the design of the property. Mr Brandt submitted that the property is likely to have wall insulation, but the details are unknown.
- At the beginning of the tenancy there was no fixed means of heating in the main living area. Earlier this year, the landlord had a heat pump installed.
- Also earlier this year, the landlord arranged for the property to have a professional mould clean / treatment. The work was carried out by [The cleaning services]. [The cleaning services] provided a written statement, which reads: On the 21 st of March, we finally made it to the property, it was worse than I first thought, the walls and ceilings in the stairwell, hallway, bedroom, and a small patch in the lounge were covered in black mould. The worst areas were around the dryer [...]
- Mr Brandt and Ms Barker submitted that to the extent that [The tenant/s] has experienced problems with mould it is due to her failing to ventilate the premises adequately. They submitted that: a. There are no proven on-going leaks apart from the ensuite shower, which cannot contribute to mould unless [The tenant/s] uses the shower. b. The fact that the worst area is around the dryer shows that [The tenant/s] is failing to ventilate that area when using the dryer. c. Tenants should reasonably expect some amount of mould in houses in the far north.
- [The tenant/s] submitted that: a. She has worked from home for long periods during her tenancy. b. She ventilates the home when she is there. c. Because of the absence of security stays on the windows, she does not keep the windows on the bottom floor of the house open when she is not there.
- The extent and persistence of mould in the house is evidenced by [The tenant/s]’s regular emails to the property since the early stages of her tenancy, and is confirmed by the statement from [The cleaning services].
- The landlord’s confidence that there are no leaks in the house is not justified. The tenant has a reasonable suspicion that the roofing is leaking. Further investigation is required, and this must be done by the landlord as a matter of urgency. This issue is discussed in more detail below.
- There can be multiple factors that contribute to the development of mould in a property. It is very difficult to determine whether the presence of mould is a “property problem” or whether it is due to the way that the tenant is using the property.
- Tenants must take reasonable steps to mitigate “normal” moisture, such as ventilating the property. Tenants must also avoid contributing unnecessarily to environmental moisture (use extractor fans if they are provided, not dry clothes inside, etc).
- Landlords must: a. Keep water outside of the building – repair leaks, ensure that stormwater does not pool around or underneath the house, maintain windows, gutters, etc. b. Take reasonable steps to ensure that the building is warm and dry – insulation, heating, etc.
- In this instance: a. The landlord has taken proactive steps this year, including installing a heat pump, clearing the gutters, and carrying out professional mould treatment. b. The possibility that there are continuing roof leaks at the property has not been entirely eliminated.
- As discussed in more detail below, the landlord intends to have a roofer inspect the roof and provide a report.
- The evidence available to me establishes that there is more than “usual” mould problem at the premises. The evidence is not yet sufficiently clear to support a finding that the mould problem is due to some fault / defect with the property that can be linked to a failure by the landlord to maintain the premises in a reasonable state of repair.
- [The tenant/s] submitted that her clothes and shoes in the master bedroom wardrobe became mouldy due to the ensuite bathroom leak. [The tenant/s] provided photographs of this. The mould developed despite [The tenant/s] purchasing and running a dehumidifier in this area (at Ms Bacon’s suggestion, on the understanding that she would be reimbursed for the cost of the dehumidifier and for power).
- It is reasonable to conclude that the mould on [The tenant/s]’s clothing and shoes is a consequence of the ensuite shower leak.
- [The tenant/s] has not presented a detailed claim for the affected clothing and shoes. I will make a general award of compensation for this mould damage and for additional power costs from using the dehumidifier.
- I will award $300.00. Leaks
- There was one undisputed leak during the tenancy, in a “TV nook” in the lounge.
- Mr Brandt submitted that this leak has now been repaired, although there has been no repair of the roof or of the cladding. The origin of the leak is not known. The landlord has repaired the resultant water damage around the TV nook area, and it seems that the damage is not recurring.
- [The tenant/s] submitted there are other leaks, and that the landlord has been aware of leaks and of the need for substantial repairs to the roof since early 2022.
- In support of this, [The tenant/s] provided: a. An email to the landlord attaching a photograph showing a recent (July 2023) new leak in the lounge ceiling. b. An email from herself to Ms Bacon dated 7 April 2022. In that email [The tenant/s] states: Further to our phone conversation on 25 March 2022, I would like to discuss my current position as a tenant. You have brought to my attention the roof is going to cost $40,000.00 to repair. Have the owners received multiple quotes for this? I am asking as my [redacted] is a qualified LPB builder who would be happy to provide a quote and complete the repairs if this is of any interest to them. Ideally I would love to continue my tenancy here, but I do need to ensure my family are living in a safe and healthy home. Could you please indicate what the owner’s intentions are and whether or not they intend on addressing the repair work?
- Mr Brandt accepted that a quote was provided for repairs to the roof some time in early 2022, but he had no information about that quote.
- [The tenant/s] submitted that Ms Bacon took her up on the suggestion of involving her cousin, and that he discovered multiple issues with the roof, which he informed both herself and Ms Bacon about.
- It is puzzling that there seemed to be information available in early 2022 indicating that the roof was in need of substantial repairs if not replacement, but no action was taken, and the landlord now takes the position that the roof is sound, and no repairs are necessary.
- Mr Brandt submitted that he intends to arrange for a roofer to inspect the roof and provide a report in light of [The tenant/s]’s recent complaint about new leaks in the lounge. Mr Brandt noted that it is difficult to find roofers in the local area. He has found a qualified and experienced roofer, currently working for a carpeting business, who is prepared to do the work.
- It is essential that the landlord obtain a detailed and comprehensive report as a matter of urgency. The landlord should also share the findings in that report with the tenant.
- As with the mould, this is an on-going investigation and there is not yet sufficient evidence to justify a finding that the landlord failed to meet its maintenance obligation.
- I will not make any orders at this time. Electrical issue (ensuite extractor fan)
- A fault developed with the extractor fan whereby it would switch itself on and off and it could not be switched off manually.
- [The tenant/s] notified the landlord about the problem 18 July 2022.
- Mr Brandt and Ms Barker submitted that an electrician was sent around that time, but the electrician could not replicate the fault and no work was done. I was not provided with any evidence of this attendance.
- [The tenant/s] raised the issue again, and the fan was ultimately replaced 18 April 2023.
- The timeframe for remedy of this problem was longer than ideal, but I acknowledge that intermittent faults can be difficult to confirm and diagnose.
- The random operation of the fan was an annoyance for the tenant, but the issue was not particularly urgent given that the tenant was not able to shower in this bathroom because of the leak.
- The landlord took reasonable steps in response to this issue, and it was not a significant enough loss of amenity to justify an award of compensation. Lawns / gardens
- Per the terms of the tenancy agreement the landlord was responsible for the upkeep of lawns and the tenant was responsible for gardens.
- [The tenant/s] submitted that the landlord did use a lawnmowing contractor, who more or less took care of the lawn at the front of the house. [The tenant/s] submitted that the contractor did not tidy up the edges of the lawn, his visits were sometimes sporadic, and he simply mowed around anything that was on the lawn.
- The landlord did not carry out any work on the land at the back of the house until May this year.
- [The tenant/s] submitted that this was part of the section that she expected to be mowed. Mr Brandt submitted that it was an “overgrown area”.
- It was certainly an overgrown area by the time that the landlord’s contractor got to it in May this year.
- [The tenant/s] provided copies of emails showing that she raised questions / concerns about maintenance of the lawns / gardens, as early as October 2021.
- [The tenant/s] had a reasonable understanding that the landlord would take care of the area at the back of the house. There was an opportunity for the landlord to clarify what areas [The tenant/s] was responsible for and what areas they were responsible for, but the issue seemed to ‘drift’, despite [The tenant/s] raising it several times.
- The landlord has now taken steps to tidy up and maintain the back section.
- [The tenant/s]’s application includes a copy of a receipt for the hire of a weedeater. The cost was $64.00. [The tenant/s] incurred this cost, as well as her own time, attempting to maintain this area.
- I will award [The tenant/s] compensation of $250.00. Oven / hobtop
- [The tenant/s] first raised issues with the stove in October 2022.
- Some of the elements were not working. The oven was not reaching temperature, and there was a problem with the digital display which meant that she was not able to change functions.
- The landlord sent an electrician. The electrician confirmed that the hob was faulty. It was replaced in December 2022. The electrician was not able to replicate the fault that [The tenant/s] experienced with the oven.
- [The tenant/s] continued to raise concerns about the oven. In July 2023 another contractor ([redacted], an appliance repair person) was at the property to check the dishwasher. He also checked the oven at that time. [The appliance repair/s]’ invoice for the job includes the following statement about the oven: Found the oven to be working. Measured temperatures with thermostat and was getting up to temp and dropping temp as it should. Also run on all mode settings digital display working fine.
- Ms Barker submitted that she also checked the display on the oven when she was carrying out an inspection and she could not see any problems.
- My findings are: a. The timeframe for replacement of the hob was not unreasonable. b. The landlord took reasonable steps to investigate the oven fault, but has not been able to establish that a fault exists. In these circumstances a landlord could decide, for purely practical reasons, to replace the stove. However, the landlord is not legally obliged to do this until there is sufficient evidence to establish the alleged fault.
- The landlord did not breach its maintenance duty in respect of hobtop and oven. Driveway
- The property has a shared entrance area, on the shoulder of Pangaere Road, near the intersection of Pungaere Road with State Highway 10.
- It is not disputed that this entrance area has substantial, and potentially dangerous, potholes in it.
- It is not clear who the legal owner of this area is.
- Mr Brandt speculated that it could be the local Council, but the Council strongly rejected this idea. The Council directed Mr Brandt to the Ministry of Education on the grounds that this is a collection and drop-off point for school children. [The tenant/s] submitted that she has never seen a school child or a school bus there, but it is a place where other more anti-social activity occurs at night.
- Mr Brandt took the sensible view that he is unlikely to make much headway with the Ministry of Education, and he has taken it upon himself to arrange a contractor to do some work to improve the area.
- I acknowledge that the poor condition of this area impacts upon [The tenant/s]’s use of the premises.
- However, I am satisfied that this area is not within the legal boundaries of the tenanted property. Landlords do not have a legal responsibility to maintain areas beyond the tenanted premises.
- Therefore I will not make any orders in respect of this issue. Water supply
- The property is on tank water.
- [The tenant/s] experienced a problem with loss of water pressure, and sometimes loss of water entirely. She first notified the landlord of this problem in August 2021.
- [The tenant/s] submitted that the problem was caused by plastic shavings in the system that were clogging the water filters.
- [The tenant/s] submitted that after the landlord investigated the problem, she was told that the filters would be replaced every three months. She submitted that this was not done, and on multiple occasions (at least six) she contacted the landlord to inform them about loss of water pressure.
- Mr Brandt submitted that the problem was not caused by plastic shavings, but by the fact that the outtake pipe on the water tank was too low, such that it was in the debris / sediment layer of the tank. The debris / sediment would rapidly clog the filters.
- The solution, which was put in place earlier this year, was to fit a floating outtake pipe, which draws water from just below the waterline, well above the debris layer.
- Mr Brandt submitted that there was never any agreement to replace the filters every three months. He submitted that they would replace the filters as soon as [The tenant/s] let them know that the pressure dropped.
- The problem was due to poor design rather than failure to maintain. However, I acknowledge that it caused inconvenience for [The tenant/s]. Where a property is not on a reticulated water supply the landlord has a duty to provide an adequate household water supply 6 . In this instance, there was an inadequacy in the system.
- Having regard to the inconvenience that [The tenant/s] experienced, balanced against the fact that the landlord took reasonable and appropriate steps to find a solution to the problem, my finding is that it is appropriate to award a small amount of compensation for loss of amenity.
- I will award $150.00. Filing fee, name suppression
- The tenant has been substantially successful in this application.
- The request for name suppression is granted 7 .
- The tenant is awarded the filing fee for the application 8