Published tribunal order
Tenancy Tribunal case 4550677 — Tenancy dispute at 12B Garmons Way, Castor Bay, Auckland 0620
Decided 27 Nov 2023 · Published 27 Nov 2023 · Application 4550677
- Healthy homes
- Leaks
- Mould & damp
- Property damage
- State of repair
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the tenants’ names and identifying details.
- The Bond Centre is to pay the bond of $1,680.00 (5488229-009) to the tenants immediately.
- Cooper & Co Real Estate Limited As Agent For Mary Young must pay [The applicant/s] $7,395.94 as follows:
Reasons
- Both parties attended the hearing. Bond
- The tenants have applied for refund of their bond.
- Section 22B(2) Residential Tenancies Act 1986 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. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenants.
- Despite there never having been a suggestion that the landlord had any claim against the tenants’ bond, the bond has not been released by the landlord and has remained at the Bond Centre since the tenancy ended on 16 April 2023. The tenants sent the signed bond refund form to the landlord, who has retained it. Although the property manager assures me that is not the case, the obvious inference is that the landlord has chosen not to release the bond, to keep financial pressure on the tenants because they filed this application. If so, that is inexcusable. Water Damage
- [The tenant/s] claim that the landlord has breached its obligation under section 45(1)(b) of the Residential Tenancies Act 1986 to, “.....provide and maintain 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.”
- The tenants say that in failing to address a leak at the premises, the landlord breached that obligation causing them loss in terms of: a. Damage to their property; and b. Loss of use of part of the premises.
- The premises are a 1 bedroom flat underneath another dwelling. Its’ walls are of block construction, parts of which are below ground level.
- The tenancy began on 13 September 2022. The tenants say they had been given an assurance before moving in that there was no mould in the premises.
- The tenants’ evidence is that in early November they noticed mould on some belongings. They did not worry too much and cleaned the mould off.
- Over following weeks, they noticed mould on a lot more of their belongings and on 23 November they lodged an urgent report via the landlord’s maintenance manager app that, “Have found the start of a large mouldy infestation in the bedroom on the back wall. It looks like there has been a leak down the bottom of the wall and mould has begun to grow on the carpet and our belongings”.
- The tenants followed initial advice to move all their furniture away from the affected wall. They bought a bug screen so they could leave windows open to give maximum ventilation.
- After a plumber had been sent to inspect, the plumber’s findings were relayed to the tenant by the landlord as follows: “We have had a handyman/plumber check the property and his findings were: Both walls showed very high moisture content readings. Meaning water is getting into the block work. Best fix (in my opinion) would be to get a drain layer to dig away soil on side wall and re do drain. Flint coat or similar.”
- Essentially, nothing was done at that time by the landlord to address the issue.
- With the heavy rain events in January 2023 more water (and flatworms) came into the bedroom and the carpet was visibly wet.
- The owner filed an insurance claim for the flooding. It is not clear from the evidence whether the insurer was informed there was a pre-existing problem with water ingress into the property.
- The tenants continued to experience mould growth on their belongings.
- On 15 February 2023 a Chem-Dry contractor visited to inspect the premises. He replaced the smooth edge to the carpet which had rotted and advised that the tenants move all their belongings from the bedroom and not sleep there.
- The tenants continued to raise their concerns with the landlord and on 16 March asked for a rent reduction because effectively the bedroom at the premises was unusable and the tenants were sleeping on the couch in the living space. No meaningful offer of rent abatement or compensation has been made
- The tenants gave notice of termination and moved out on 15 April 2023.
- After requesting the bond refund forms again on 17 April 2023 the tenants received them on 28 April. The tenant completed and returned the forms the dame day but, as noted, the landlord has retained them since.
- The evidence persuades me that the landlord breached its obligations to ensure that the premises were provided and maintained in a reasonable state of repair. There was obvious water ingress, as discovered by the plumber, which diminished the tenants’ use and enjoyment of the premises from November 2022 and caused damage to their belongings. While the landlord did take some late steps to assess the problem and mitigate its effects (for example an industrial fan was used to dry the room on 13 March 2023 and an antimicrobial treatment was applied on 17 March 2023) the landlord took no effective steps to address the causes, until it was able to be the subject of a flooding insurance claim, which further delayed remediation steps being taken. Compensation sought
- The tenants seek compensation of for the loss of the following items: - Mattress, $1,749.00 - Bed base, $399.00 - 2x Side tables $50.00 - Kitchen Block $78.00 -Couch $2,499.00 - Bathroom unit $60.00
- Their evidence shows that there was damage to many other items as well. Their evidence, which I accept, is that even after moving out of the premises the affected items (and only the belongings which were with them at these premises) have continued to grow mould.
- The figures noted are the replacement values for those chattels, which they say were bought immediately prior to this tenancy (in the case of the couch it was bought during the tenancy). The values are supported by evidence of the replacement cost of those or equivalent items.
- The damage to their property is shown from photographs provided.
- I find it proved on the balance of probabilities that: a. The landlord breached its obligation to provide and maintain the premises in a reasonable state of repair; b. the landlord’s breach caused damage to the tenants’ property, listed above, to the extent that those items needed to be replaced, causing the tenants loss; and c. give the age of the items, 90% of their replacement values is an appropriate measure of that loss.
- The tenants also seek compensation by way of rent abatement for loss of use of the bedroom.
- In terms of s.59: “Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly; and (b) either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent.”
- I find it proved by the tenants that in terms of the impacts on their health and the Chem Dry contractor’s advice, they were justified in treating the bedroom as uninhabitable from 15 February 2023.
- Section 59 shows that in such a situation, where there is no fault on the part of a tenant, the tenant is entitled to an abatement of the rent.
- This was a 1 bedroom flat. I find that the availability of the bedroom represents at least 40% of the amenity value of the flat. I accordingly award rent abatement equal to 40% of the rent paid for the (approximately) 8 weeks from 15 February 2023 to 15 April 2023.
- In my view dealing with the effect of the water ingress and mould had a additional detrimental impacts on the tenants’ right to the quiet use and enjoyment of premises they continued to pay full rent for throughout the tenancy. Those impacts include having to clean their belongings of mould, report and follow up with the landlord about remedial steps, moving belongings away from the effected area, having the intrusion of visits from assessors and tradespeople, dealing with the health impacts of living in a damp and mouldy environment, increased power costs and, not least, having to find another place to live much earlier than they would have chosen otherwise. Compensation for those factors is necessarily general in nature and I fix compensation at 4 weeks’ rent.
- Because [The applicant/s] have succeeded with the claim I must reimburse the filing fee.