Published tribunal order
Tenancy Tribunal case 4584291 — Healthy homes
Decided 12 Nov 2023 · Published 12 Nov 2023 · Application 4584291
- Healthy homes
Party names are redacted in the official published order.
Order
- The parties’ names and identifying details, including the premises’ address must not be published.
- [The landlords] must pay [he tenant] $1,223.30 immediately, as calculated in the table below.
Reasons
- The tenant attended the hearing in person.
- Liam Collett, a property manager, appeared for the landlords with one of the landlords in attendance.
- The tenant claims that the tenancy agreement falsely claimed the premises’ bathroom complied with the Healthy Homes Standards (HHS) regulations ventilation standard, and that the premises were damp and mouldy in breach of the landlords’ provided and maintenance and repair duties. Background
- The tenancy was for a fixed term, beginning on 15 April 2023 and ending on 14 December 2023. However, the tenant moved out after about five weeks because of her concerns about damp and the landlords’ refusal to accept there were any dampness issues.
- The premises are a basement flat. The flat is part of a house. The landlords live in the upstairs part of the house. The house is built into a slope. The flat’s floor and walls are concrete.
- The flat’s bathroom has a shower and a basin. The toilet room is located in a separate room off the bathroom. The toilet room has a door that closes it from the bathroom but does not have its own basin. There is an extractor fan in the toilet room, but not in the bathroom.
- When the tenant had first inspected the premises, she had noticed a dank smell, but she put that down to the previous tenants not airing the flat. However, when she moved in, she found the dankness was still there despite her ventilating the flat.
- On 27 April 2023, about two weeks into the tenancy, she texted the landlords:
- The landlords responded:
- The tenant texted that it smelt really strongly. Later, the tenant and one of the landlords ended up arguing about whether there was a moisture problem or not. The tenant was adamant that there was, but the landlord insisted there wasn’t.
- The landlords refused to have the premises assessed. Because of the breakdown in the relationship, the landlords did not provide the dehumidifier.
- On 29 April 2023, the tenant arranged for All Clear, a company that conducts forensic testing of buildings for mould and other substances, to undertake a mould and moisture assessment at the premises.
- On 8 May 2023, the tenant and the landlords agreed that the tenancy would end two weeks later on 22 May 2023.
- On 12 May 2023, All Clear came to the premises and evaluated the flat for moisture and mould.
- On 15 May 2023, the tenant vacated the premises.
- All Clear issued its report on 19 May 2023, which found one area of moderate mould and elevated levels of moisture including in the air, some skirting boards, carpets, and windows. Issues for determination
- The tenant acknowledges that the landlords were not required to ensure the premises complied with the HHS until 120 days after the tenancy began but nonetheless the landlord still had to provide HHS information in the tenancy agreement and the premises still had to be provided and maintained in a reasonable state of repair under s 45(1)(b) of the RTA and to be free from dampness under regulation 15 of the Housing Improvement Regulations 1947.
- The tenant seeks compensation and exemplary damages.
- The issues for determination are: a. Did the landlords breach their HHS disclosure duties by stating that the bathroom complied with the ventilation standard? b. Did the landlords breach their duties to provide and maintain the premises in a reasonable state of repair and free from dampness? c. What remedies, if any, should be ordered?
Did the landlords breach their HHS disclosure duties?
- The tenant claims that the tenancy agreement wrongly states that the bathroom has mechanical ventilation in breach of the landlords’ duties under s 13A of the Residential Tenancies Act 1986 (RTA).
- A landlord must include a signed statement in the tenancy agreement that that the landlord will comply with the healthy homes standards on or after the commencement of the tenancy.
- The tenancy agreement states that “each room...with a bath or shower [has] an extractor fan that vents to the outside and is in good working order”, recording “YES – ALL ROOMS”.
- The agreement asked the landlords to, “State the diameter or exhaust capacity of each extractor fan and which room(s) they are located in.” However, the landlords did not fill that section out. Legal principles
- Under s 45(1)(bb) of the RTA landlords must “comply with the healthy homes standards”. Landlords have a corresponding but independent duty under s 13A(1CA) of the RTA to include in the tenancy agreement a signed statement that “on...the commencement of the tenancy the landlord will comply with the healthy homes standards as required by s 45(1)(bb).”
- The HHS ventilation standard requires bathrooms to have an extractor fan or qualifying ventilation. The fan and all exhaust ducting must have a diameter of at least 120 mm or the fan and all exhaust ducting must have an exhaust capacity of at least 25 ℓ/s. A bathroom need not have an extractor fan it is not reasonably practicable to install an extractor fan, not having an extractor fan was lawful when the premises were built and the room met alternative ventilation requirements at the time.
- Under regulation 36 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019, the landlord’s s 13A statement should include the extractor fan’s diameter or exhaust capacity. Discussion
- The landlords considered the toilet room was part and parcel of the bathroom as a whole. Therefore, the toilet room’s extractor fan counted as being an extractor fan for the bathroom. The fact the toilet had a door that could be closed was not significant. Nonetheless, the landlords failed to state the extractor fan’s diameter or exhaust capacity.
- Mr Collett says the bathroom is actually exempt from having a fan because it is not reasonably practicable to install one, and the other requirements of the extractor fan exemption are met. However, that is not what the tenancy agreement says.
- However, it is looked at, the landlords failed to provide the information required by s 13A. The tenancy agreement itself clearly sets out the required detail for extractor fans but it is left blank.
- The technical detail required under the HHS provisions such as this may be exacting, but it must nonetheless be obtained and included in the tenancy agreement. Otherwise compliance with the HSS cannot be assured.
- If the landlords had gotten expert input, they may have found the bathroom was exempt from having an extractor fan as Mr Collett submits. However, they did not obtain that input and the tenancy agreement does not say that.
- I find the landlords failed in their duty to provide information about ventilation in the tenancy agreement as required. Remedy
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. 1
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that 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. 2
- I find it more likely that not that the landlords intentionally failed to fully fill out the premises ventilation details. The landlord’s failure was likely based on not knowing the requested details. They would have needed a professional to tell them what the toilet fan’s details were, or that the bathroom was exempt. It is in the public interest that landlords fully explore even pesky details required by the HHS. It is in the tenant’s interests that the breach is recognised.
- Having regard to the required factors, I consider it is just to award exemplary damages of $250.00, which is one-third of the maximum.
Did the landlords fail to maintain and to keep the premises free of dampness?
Legal principles 1 See RTA, s 13(1F)(a) and Schedule 1A. 2 RTA, s 109(3).
- Under the Housing Improvement Regulations 1947 Regulation 15, “Every house shall be free from dampness.”
- Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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... 39. Breaching these obligations are an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 3
- Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 4 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 5 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
- Landlords also have an obligation to repair things that are apparent from observation: 6 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
- After the landlords disputed the premises had a dampness problem, the tenant instructed All Clear to conduct moisture and mould tests. The report’s author concluded: 3 RTA, s 45(1A) and Schedule 1A. 4 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 5 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 6 See n 4. All Clear identified active mould growth and elevated moisture content within the Property, considered to be caused by a water intrusion event within the property. Remediation is therefore required to return the property to a pre-event condition and prevent further mould growth.
- All Clear used a moisture meter to measure moisture in the premises. It considered there was excessive moisture in places including on a kitchen window, the entry skirting, entry carpet, living room wall, kitchen cabinet skirting, bedroom wall, bedroom carpet, and bedroom skirting. Mould was also observed in multiple locations. Analysis of five mould samples found that a sample taken from entrance area contained a moderate amount of an undesirable mould, ulocladium. The humidity levels were also higher than desirable, at over 70 percent.
- The tenant works as a property manager, so she has experience in assessing whether premises are excessively damp or not.
- Mr Collett says All Clear’s evidence cannot be fully relied upon. Soon after the tenancy ended, a builder inspected the premises and found that they were in generally in good order and not excessively damp. There were no signs of any current leaks in the premises. The builder considered All Clear’s moisture testing was incorrectly conducted. Humidity readings of over 65 per cent are common in New Zealand homes and do not mean there is anything wrong with the premises. Nor does mould in itself mean that premises are in need repair. Mould is a normal occurrence. In the case of this premises it was just a matter of cleaning the mould off. The builder did however find that a nearby exterior drain was crushed, which could have contributed to dampness in the premises.
- I find that the premises were relatively damp and mouldy. The leaking events from several months earlier are likely to have contributed to the dank smell and residual moisture in places such as the skirting boards. At the time of the flooding, the premises’ carpets and underlay were not replaced, and commercial dryers were not used to dry the flat out. In addition, a nearby drain had got crushed and the additional moisture in the vicinity is likely to have affected the premises.
- All Clear’s report scientifically supported the tenant’s firm belief that the flat was damp and mouldy.
- I find it proven that the premises were not maintained to a reasonable standard of repair in respect to damp and was not free from dampness. Remedies
- As discussed, the Tribunal may award exemplary damages where a party has committed an unlawful act intentionally and it considers it just do so after considering relevant criteria. 7
- I am not satisfied that the landlords intentionally committed the unlawful acts. I accept the attending landlord’s evidence that there had been a leak into the wardrobe years before but that had been fixed. I also accept that the January flooding was an isolated event. The tenants previously living in the premises after the flood did not complain. The landlords’ own perception was that premises were adequately dried out and in good order. Mr Collett inspected the premises soon after the tenancy ended and did not find the premises excessively damp. However, the landlords were unaware that there was a crushed drain in the driveway that could have contributed to dampness in the flat until the builder located the problem after the tenancy had ended.
- I accept the landlords genuinely believed at the time of the tenancy that the premises were not leaking or excessively damp. That being so, the unlawful acts were not committed intentionally, and exemplary damages are not available.
- The tenant also seeks compensation. I find it proven on the balance of probabilities that the tenant suffered loss of amenity in the premises due to dampness. I assess that loss as being 25 per cent of the total amenity, which will be reflected by a 25 per cent reduction in the total rent paid.
- The tenant moved out early due to the problems. It is appropriate to order the landlord to reimburse her for her moving costs of $410.00.
- The tenant proceeded with the All Clear report even though the landlords had agreed to end the tenancy early. I infer the purpose of the report was connected to the proceedings in the Tribunal, which were filed five days after the report was issued. The Tribunal does not have the power to award a party’s costs incurred in connection with the proceeding. Therefore, the cost of the All Clear report cannot be ordered against the landlords. Filing fee
- The Tribunal orders the landlords to reimburse the tenant for the filing fee because the tenant has been partly successful in her claim. Non-publication order 7 RTA, s 109(3).
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The parties have each substantially succeeded in the proceedings: the tenant by the findings against the landlords; the landlords by successfully defending part of the claim and in respect to the quantum of damages sought.
- I do not consider the landlords wilfully breached their obligations and they now have Mr Collett’s competent assistance to guide them in complying with all of their duties.
- Having regard to the public interest, the parties’ conduct, and the other circumstances of the case, non-publication is appropriate.