What was Tenancy Tribunal case 4539109 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4539109?

Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4539109?

The dispute type was not classified.

Where can I read the official tribunal order for case 4539109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9409841-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4539109 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4539109?

Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4539109?

The dispute type was not classified.

Where can I read the official tribunal order for case 4539109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9409841-Tribunal_Order_Redacted.pdf.

26 Charles Street, Westshore, Napier 4110 Tenancy Tribunal Case 4539109 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4539109 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Landlord to Tenant	$20.44

Claims and awards in Tenancy Tribunal application 4539109 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Landlord to Tenant	$20.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The Peoples Property Management Limited As Agent For Oniram Investments Limited [The tenant/s]
The tenant’s remaining claims are dismissed.

Reasons

Both parties attended the hearing.
Geoffrey Clark, one of the two directors of the company that own the premises and Mary Fergusson, a representative of the property management company attended on behalf of the landlord.
The tenant’s claim is for compensation and exemplary damages arises out of the following: a. Breach by the landlord of the obligation to provide and maintain the premises in a reasonable state of repair under section 45(1)(b) of the Residential Tenancies Act 1986 (the RTA); b. Breach by the landlord of the obligation to decontaminate the premises in circumstances where the premises have been tested and found to be contaminated under sections 45(1AA) and (1AAB) of the RTA. and c. Breach by the landlord of the tenants right to have quiet enjoyment of premises under section 38(2) of the RTA. Did the landlord breach their obligation to provide the premises in a reasonable state of repair? The Law
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the RTA which provides that a landlord must provide the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 1
The landlord has an obligation under the Housing Improvement Regulations 1947, regulation 15, as follows: “Every house shall be free from dampness”. Regulation 17 provides that the materials from which a house is constructed must be sound, durable and, where subject to the effects of the weather, weatherproof. Likewise, the walls and ceilings of every habitable room, bathroom, kitchen, hall and stairway must be sheathed, plastered, rendered or otherwise treated and shall be maintained to the satisfaction of the local authority. This regulation further provides that every floor shall be kept in a good state of repair, free from crevices, holes and depressions. 1 Section 45 of the RTA
In relation to mould, the presence of toxic black mould may signify an inherent mould issue, but in a prior decision of the Tenancy Tribunal, Semmens, Hannah Louise v Wadman, Brian, 2 the Tribunal said: It is the case, that mould is commonly present throughout all residential dwellings in New Zealand to some degree. Mould is ordinary, and of itself simply having mould would not be sufficient to establish a breach on the part of the landlord for which compensation could be ordered. Rather, what a tenant must establish, is that there are defects with the premises which have caused the mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling at that meets the required building standards.
The presence of mould in a property can be caused by a variety of facts, including some form of defect in the premises, a lack of ventilation or both.
Finally, the obligation of a landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 3 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 4 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair.
Breaching the section 45 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.
The Tribunal may award compensation to a tenant for losses arising from an established breach of the landlord’s obligations. Compensation is usually awarded for actual losses or costs incurred by the tenant because of the breach. Compensation may also be awarded for less tangible effects of proven breaches such as loss of enjoyment or amenity of the tenancy and the accompanying stress.
Exemplary damages are different. They are designed to punish and deter certain acts. Exemplary damages are awarded at the Tribunal’s discretion when a party establishes that the other has committed an unlawful act, as defined in the RTA. See s109 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. 2 [2022] NZTT Manukau 4310605 3 DC Auckland CIV 2005 004 1762, at [28] 4 Section 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13]
The tenant has the onus of establishing its claims on the balance of probabilities. They must prove that it is more likely than not that the landlord has breached its obligations. The tenant’s evidence
The tenant stated that she decided to relocate to Napier after being diagnosed with breast cancer. The primary driver for the move was to be close to the beach so that she could swim in the ocean and focus on her health.
The tenant had looked at the premises when it was previously for sale and when it was later advertised for rent the parties agreed that the tenant would rent it out with the possibility of purchasing the property at a later stage.
The tenant claims that there had been a leak at the premises, and she raised the issue regarding the smell of mould seven times (7) before she ended up moving out of the premises. The tenant claims that her concerns were minimised and that there was an underlying dismissive attitude of the landlord.
The tenant viewed the premises in early March 2022 and raised concerns with the property manager regarding the smell of mould. In response, the property manager stated that the carpet and underlay in the rear wardrobe had been lifted and confirmed it was dry and there was no dangerous mould.
In late March the tenant asked if her parents could attend the premises to give the tenant reassurances that the smell of mould was gone before she entered into the tenancy. Unfortunately, the property manager was unwell and could not meet the tenant’s parents. The tenant asked if her parents could meet the owners at the premises. This request was declined but the owner confirmed (through the agent) that there was never any mould and the smell had gone.
Following that, the tenant signed a one-year fixed term tenancy agreement which commenced on 30 March 2022. The tenant claims to have raised the issue of the mould smell with the property manager over the phone on the day she moved in.
On the day after the tenant moved in, 31 March 2022, the tenant recorded a conversation with one of the landlord’s plumbing contractors at the premises in which the contractor confirmed he could smell the mould and that he thought it was likely the result of a previous toilet leak and would be coming from the walls.
The tenant claims the smell of the mould made her feel unwell and on the second day of the tenancy, Friday 1 April 2022, the tenant emailed the property manager setting out concerns regarding the smell of mould and provided the landlord with a 14-day notice. The tenant stated that she felt the 14 day notice was necessary as her concerns regarding the mould smell had previously been disregarded.
The tenant claims that she felt that she had to engage a professional herself because the landlord had continuously denied there was a mould issue. The tenant arranged a building surveyor from [Surveyors] to attend the premises to carry out moisture meter readings on Monday 4 April 2022. The tenant provided a letter of report dated 16 April 2022 from the building surveyor, which referenced five moisture meter readings over 400. The report from the building surveyor states: “Readings over 400 indicate potentially significant water entry, either from an external or internal water source.”
On the same day, the building surveyor took two samples and sent those to a laboratory in Auckland, [laboratory]. The tenant provided a detailed report from [laboratory]. The report concludes: “There were definite indications that there has likely been moisture ingress in parts of this dwelling resulting in the fungal growth usually associated with prolonged wet environments.” The report provides a number of recommendations in terms of remediation.
The tenant did not share the [Surveyor] or [laboratory] reports with the landlord. The tenant claims that she had lost faith in the landlord carrying out any remedial work and that the written reports were not received until after she had vacated the premises.
The tenant moved in with her parents on Monday, 4 April 2022 following the concerns raised by the Building Surveyor.
The tenant states that she had returned to the premises on 12 April 2022 and one of the landlord’s contractors was removing the wall linings. The tenant provided a video of the contractor removing the wall linings, carpet and underlay. During the video, the contractor makes several remarks in reference to the area, including, but not limited to: “pretty soggy”, “pretty wet”, “really damp”, “sounds like a water leak”. The tenant claims the presence of black mould is evident in the video. The tenant sent the video link to a representative of [laboratory] who states in an email dated 6 June 2023: “...it’s in my opinion that the area where the builder removed the plasterboard, peeled back carpet etc, would have been the main reservoir for the elevated fungal spore levels and bacteria...”.
The tenant removed her items and handed back the keys to the landlord on 14 April 2022. The landlord refunded the tenant her bond and all rent paid.
On 5 May 2022, the tenant wrote to the landlord requesting reimbursement of her out of pocket costs totalling $13,789.02, as follows: a. Move-in and move-out costs: $5,445.00 with supporting invoices from [moving company 1] and [moving company 2] and a cash withdrawal for a one-off payment to the transport company to move some of the owners chattels to storage on the day the tenant moved in. b. Storage and insurance costs: $2,965.15 based on six months storage and insurance supported by a statement from [Storage facility]. c. Building Surveyor consultancy costs: $1,308.12 based on two invoices from [Surveyors] for attendances and reporting findings. d. Contaminated mattress replacement: $2,978.00 based on a quotation. e. Legal costs: $1,092.75 based on an invoice from [Law firm].
The same letter referred to losses that the tenant was willing to forgo, including lost income, exemplary damages and compensation for loss of amenity, stress and impacts on her health totalling $19,410.00. The landlord did not accept the tenant’s offer. The landlord’s evidence
The property manager confirmed that the tenant had been an interested party when the property was for sale and that the issue with the mould had not been raised at that time.
The property manager did however confirm that the tenant raised concerns regarding the smell of mould before agreeing to tenant the property. The property manager stated that she had offered the tenants parents a 15-minute window in late March to attend the premises to carry out a ‘smell test’ while the property manager undertook the entry inspection, but the parents did not attend.
The property manager claims that the tenant moved into the premises and did not raise the issue of the mould smell over the phone on the day that she moved in.
The property manager claims to have opened the email containing the 14-day notice on Monday 4 April 2022 and forwarded the same to the owner. On the same day, the property manager met with the tenant to show her around a one- bedroom apartment that was becoming available. The tenant declined the offer, stating it did not suit her needs and that she would stay with family until the matter was resolved. The same day, the property manager and owner arranged for a contractor to attend the premises.
The property manager states that at no stage did the tenant advise that she had procured a building surveyor to attend the premises. The property manager claims that she attempted to discuss the issues with the Building Surveyor contracted by the tenant, but he had stated he was not able to discuss the matter with the landlord as the tenant had engaged him.
On 5 April 2022, the tenant asked if the one-bedroom apartment was available and unfortunately it had been secured by another tenant.
The property manager claims that she sought advice from Tenancy Services and that she had been advised to communicate with the tenant regarding the issue in writing.
On 8 April 2022, the property manager offered the tenant the opportunity to view alternative accommodation in the suburbs of Napier and the tenant declined.
The property manager provided an email dated 29 August 2022 from the contractor who had attended the premises on 12 April 2022 in which he states “...there was no evidence of mould.” He also states that the tenant was not wearing PPE when she videoed him working and their conversation.
The property manager confirmed that the tenant officially handed back the keys to the premises on 14 April 2022.
The property manager stated that she has managed the property for six years and that doctors have lived in the property previously. The property manager provided correspondence from the current tenant confirming that they have had no issues with mould, water ingress, odours since they had moved in.
Geoffrey Clark stated that the smell was coming from three different sources: a. the hard particle board used to pack the wall lining out when it was originally built had expanded like Weetabix; b. the hessian on the back of the pure wool carpets was starting to decompose and causing a smell; and c. the laundry sink had a benchtop over it and the water in the syphon below the sink had odour problems.
Geoffrey Clark confirmed that his contractors eventually drilled a hole in the wall where it was identified that the bottom of the walls were wet from a leaking toilet cistern. Following the issue identification, the owner contracted [Builder] to open up the walls and reinstate and paint the bottom of the bathroom wall which had swollen. Geoffrey Clark states in his email to various contractors and a property manager on 18 May 2022 that there is no odour in the property.
Geoffrey Clark has provided an email dated 18 May 2022 from [Builder] which starts “...before I reply all from your email, can you please confirm you are happy with the wording of my description...”. [Builder]’s email goes on to say that that there was black water staining but no black mould present. Findings
A party bringing a claim before the Tribunal must prove their claim on the balance of probabilities. They must prove that it is more likely than not that their version of events should be upheld.
Photographs and other documentary evidence can be useful corroborative information for a Tribunal to consider, in order to ascertain what took place.
The tenant has provided significant evidence that she complained about the issue of the smell of mould prior to and at the start of the tenancy. I accept and find that the tenant has repeatedly notified the landlord of her concerns with the smell of mould and the need for repair.
The tenant has provided significant corroborative evidence substantiating the damaged wall linings and carpet and resulting moisture ingress. The video of taken on 12 April 2022 indicates a black substance behind the wall linings and under the carpet and underlay. The conclusions in the report from [laboratory] confirmed various common black moulds were found in the samples collected, including Chaetomium, Chupplia-like spores and Aspergillus.
I am satisfied that there was a defect (the water damaged wall and flooring) and that work was required to remedy the issue. This was a significant issue that was disregarded by the landlord repeatedly. I accept that the tenant should have advised the landlord that she was arranging for a building surveyor to attend the premises on 4 April 2022, but I can see that this was done clearly out of frustration and reflects her clear belief that the mould was present and having an adverse impact on her.
I do accept that the landlord undertook to offer the tenant alternative housing once the tenant issued the 14-day notice and those option were declined, though I note that the one-bedroom apartment was on the table for the tenant for 24 hours and then withdrawn.
Despite the concerns raised by the tenant, the landlord has never sought the advice of a mould specialist. The only advice sought by the landlord appears to be from [Builder] who provides no written report other than a draft email to Geoffrey Clark in which he seeks Geoffrey Clark’s approval of its content.
Geoffrey Clark’s evidence is confusing in that on the one hand he states the smell was coming from three sources but then on the other hand he claims that there was no odour inside the premises.
Although the leak was repaired prior to the start of the tenancy, the evidence establishes that there were residual issues with dampness, mould and bacteria in the property during the tenancy. The consequences of the leak and other moisture ingress issues were not fixed, and the tenant was exposed to harmful mould and bacteria. Furthermore, the tenant was repeatedly treated as though her concerns were without basis.

Should the tenant be compensated?

The tenant’s claim for compensation is set out in detail in paragraph 28. The tenant also seeks loss of income at $2,210.00 based on her income stated in her rental application form and $3,000.00 for loss of amenity, stress and the impact on her health.
I have awarded compensation as follows: a. The cost of the move-out costs at $720.00. The tenant had to move out of the property much earlier than anticipated. I have declined to award the move in costs as the tenant as the tenant would have incurred those costs following to decision to move to Napier and has remained in Napier since. b. The cost of the Building Surveyor consultancy costs at $1,308.12. The tenant should not have been put to the expense of trying to satisfy themselves that the property was damaged and required maintenance. c. Three months’ storage and insurance at $510.15 per month. The tenant had to vacate the premises with urgency and store her items. I consider three months sufficient time for the tenant to secure another property. d. The legal costs of $1,092.75. Reasonable legal costs can be ordered under the RTA. The tenant is entitled to claim the costs of employing a lawyer to assist in presenting her claim where it has been established that the landlord breached its obligations under the RTA. The sum of money claimed is reasonable given the complexity of the case and the hours of work in preparing her claims. e. I have awarded a further $1,500.00 to reflect the added stress and inconvenience to the tenant of having to deal with the ongoing issue with the water leak and the repeated minimisation by the property manager/landlord.
The tenant withdrew her claim for compensation relating to the mattress as it was covered separately by insurance.
The claim for loss of income is uncertain, lacks evidence and is dismissed.

Should the tenant be awarded exemplary damages?

The landlord has breached its repair and maintenance obligation. I find that they have committed an unlawful act.
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.
The landlord failed to take adequate steps to be satisfied that the premises were maintained to a reasonable standard. This failure and the resulting mould and dampness issue caused significant stress to the tenant.
It concerns me that, despite the tenant’s early notification, her concerns were not addressed until after the end of the tenancy. I consider the public interest test is also met, because people should not be living in homes where mould growth is, through no fault of a tenant, allowed to exist and be disregarded. The fact the tenant had to leave the premises because she no longer considered it habitable persuades me that the conditions inside the home were unacceptable.
I award exemplary damages of $2,000 for breach of s45(1)(b) of the RTA. Did the landlord fail to decontaminate the premises in accordance with a prescribed decontamination process?
The tenant claims that the landlord breached their obligations under section 45(1AAB) of the RTA because the premises were contaminated with black mould.
Where premises have been tested and found to be contaminated with methamphetamine, or any other prescribed contaminant, the landlord cannot provide the premises to a tenant until they have been decontaminated. Where the premises have already been provided, the landlord may only continue to provide them if the premises are being decontaminated in accordance with a relevant prescribed decontamination process. See sections 45(1AA) and (1AAB) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 45(1AB) and Schedule 1A RTA.
Under section 2 of the RTA, “contaminate” is defined as follows: contaminant means any of the following: (a) methamphetamine: (b) any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of this Act.
When the RTA was amended in 2019, the abovementioned provisions relating to methamphetamine and other contaminants were included and the specific reference to "any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of the Act” was included to capture other toxic substances such as asbestos, fungal toxins and lead paint that could also put tenants’ health at risk. On that basis, I consider that black mould, which is a type of fungus that may produce toxic substances, would be considered a contaminant for the purposes of the RTA.
Whilst the tenant procured expert testing for black mould, the tenant’s claim under section 45(1AAB) fails as there is no secondary legislation made under the RTA prescribing any rules in respect of decontamination of premises containing black mould. Accordingly, the tenants claim is dismissed. Did the landlord breach the tenant’s right of quiet enjoyment?
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant claims that the owner attended the premises on 4 April 2022, after driving by and noticing a ladder lent up against the roof. At that stage, the building surveyor from [surveyors] had been at the premises taking the samples that were then sent to [laboratory].
The tenant claims that the landlord was aggressive in his manner and yelling at the tenant. The tenant claims that she spoke to the property manager about the incident and the response had been that the owner was harmless.
The landlord denies behaving aggressively or yelling. The landlord claims that he drove past the premises, he was distressed regarding the mould situation and that he should have been made aware that a contractor was attending the premises, especially to climb on the tiled roof that has been damaged in the past.
I consider that there was likely an unfortunate altercation between the parties. The landlord has a loud voice which could inadvertently be construed as yelling. The tenant did not provide sufficient evidence to prove that the landlord has breached the reasonable peace, comfort or privacy of the tenant in their use of the premises.
Having heard from both parties, I find that the event that has taken place is not in the category of the level of “harassment” as defined above.
The landlord might consider the rules around entering tenanted premises.
This aspect of the claim is otherwise dismissed. Filing fee
Because both parties have had a measure of success, I decline to make any order refunding the filing fee. Suppression
Both parties sought suppression orders.
Section 95A of the RTA provides that the Tribunal must order suppression if the party applying for it has been wholly or substantially successful in the proceedings. Neither party has been substantially successful, but they have both been partly successful.
The Tribunal may also, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published (section 95A(4) RTA).
The tenant applies for suppression of her name and identifying particulars on grounds relating to her health. Having considered the factors in this case, the Tribunal grants suppression of the tenant’s details as sought. T Lee-Lewis 13 September 2023

Tenancy Tribunal case 4539109 — Tenancy dispute at 26 Charles Street, Westshore, Napier 4110

At a glance

Tenancy Tribunal case 4539109 — Tenancy dispute at 26 Charles Street, Westshore, Napier 4110

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenant be compensated?

Should the tenant be awarded exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenant be compensated?

Should the tenant be awarded exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions