What was the outcome of Tenancy Tribunal case 4535309?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4535309?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4535309?

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

Where can I read the official tribunal order for case 4535309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9487342-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4535309?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4535309?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4535309?

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

Where can I read the official tribunal order for case 4535309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9487342-Tribunal_Order.pdf.

18A Furneaux Way, Remuera, Auckland 1050 Tenancy Tribunal Case 4535309 — Mould & damp

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Reasons

Both parties attended the hearing on 2 nd October 2023. Claims

The tenant claimed that the landlord has breached their obligations under sections 45 and 46 of the Residential Tenancies Act 1986 (“RTA”).

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.

Breaching this obligation 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 RTA.

Under section 46, a landlord must provide and maintain locks to ensure that the premises are reasonably secure. See section 46(1) and RTA.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 46(3) and Schedule 1A 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.

Specifically, the tenant sought compensation of $1,429.00 for the tenant’s belongings that had been damaged by mould and exemplary damages for the landlord’s failure to maintain and for failure to secure the premises.

The tenant also raised the issue that the rented premises was unconsented and therefore an unlawful dwelling. Background

The tenancy was originally for a fixed term starting on 15 th April 2022 and ending on 14 th April 2023. At the request of the tenant, the landlord released the tenant earlier without penalty and the tenancy ended on 24 th March 2023.

The tenant had stored her shoes, drying rack, a suitcase and some wool felt hats in a storage cupboard. The storage cupboard was located behind a sofa and it seemed that the tenant did not access it for the majority of the tenancy.

In January 2023, when the tenant accessed the cupboard to grab a blanket for her partner, the partner suffered a severe asthma attack from the blanket and as a result the tenant found that there was a trail of mould inside the cupboard.

The tenant contacted the property manager who came and confirmed the existence of the mould in the cupboard.

Has the landlord failed to maintain the premises?

The landlord provided evidence of the premises having been provided without mould at the beginning of the tenancy.

The storage cupboard was located by an exterior wall and also had the heat pump piping running through it. This may have contributed to mould forming inside.

However, it is important to note that mould is the joint responsibility of both the tenant and the landlord.

The landlord must first provide the premises free from mould and the tenant needs to maintain the premises free from mould. Section 40(1)(d) RTA states that the tenant must keep the premises reasonably clean.

If the mould persists despite the tenant cleaning the mould, then there is a chance that the premises suffers from a structural defect.

However, in this case, there is no evidence of the tenant ever having cleaned the mould.

Leaving used shoes, hats and drying rack in a storage cupboard and not airing it for several months can cause mould to grow.

In the circumstances, I cannot find that the landlord has failed to maintain the premises. Any loss caused by the mould cannot be attributed to the landlord.

Furthermore, I note that with depreciation the items would not have any value left.

The tenant also said that the landlord failed to ensure that repairs were done in a timely manner. The tenant had raised issues with the washing machine, LED light bulbs, towel rail, patio door and a window in October 2022.

The landlord said that the landlord did attend to the premises in October 2022 to have a look. The landlord found that the towel rail was still fixed to the wall and functioning, one of the two window latches were working without issue, the washing machine needed cleaning and that the patio door was working properly.

By the end of the tenancy, everything had been fixed by the landlord.

Regarding failure to secure the premises, the landlord could not find anything wrong with the patio door lock and found that it just needed some jiggling and spraying. The living room window had 1 working latch and 1 faulty latch. The tenant said that the screws were loose but the landlord said that it was still secure.

Having heard the explanation, I do not find that the tenant has proven that the premises was unreasonably insecure.

Those claims are not proven. Unlawful dwelling

The tenant claimed that the rented premises was unconsented.

After having investigated the matter, the landlord accepted that the premises was not consented as a tenantable dwelling.

As the premises had not been built to its original consented specifications, it is an unlawful residential premises.

The landlord explained that the premises was purchased new and no further work had been done on the premises.

If a premises cannot lawfully be occupied for residential purposes and the landlord has failed to take all reasonable steps to ensure that there is no legal impediment to the occupation of the premises for residential purposes, then the premises is an unlawful residential premises as defined in section 78A(2) RTA.

In this case, I accept that the landlord would not have known that the tenanted portion of the premises was unconsented.

As the landlord now knows that the premises had not been built according to the original specifications, the landlord should take steps to ensure that the consent issue is sorted with the council.

I do not make any orders in relation to the unlawful dwelling. As the landlord is now aware, I leave it up to the landlord to take all reasonable steps to ensure there is no impediment to legal occupation of the premises. Name suppression

As the tenant had not wholly or substantially succeeded in the proceedings, the tenant is not entitled to any suppression orders.

I see no reason to depart from the established principle of open justice.

Therefore, no suppression orders apply to the publication of this decision.