What was the outcome of Tenancy Tribunal case 4611189?

The tribunal order states: Qi Wang must pay Jivitesh Bedi and Shriya Bedi $600.00 immediately, being

How much money was awarded in case 4611189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4611189?

The primary dispute was Mould & damp. Related themes: Healthy homes, Leaks, Compensation.

Where can I read the official tribunal order for case 4611189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9594218-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4611189?

The tribunal order states: Qi Wang must pay Jivitesh Bedi and Shriya Bedi $600.00 immediately, being

How much money was awarded in case 4611189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4611189?

The primary dispute was Mould & damp. Related themes: Healthy homes, Leaks, Compensation.

Where can I read the official tribunal order for case 4611189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9594218-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 247 West Tamaki Road, Wai O Taiki Bay, Tenancy Tribunal Case 4611189 — Mould & damp

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Reasons

The Tribunal must consider an application filed by the tenants against the landlord. The tenants claims relate to primarily a water leak above a bedroom, and refund of their bond.

Both parties appeared at the hearing today.

BACKGROUND

The tenancy commenced on 5 October 2017, and ended on 15 March 2023. The two co-tenants are Mr and Mrs Bedi, and the landlord is Qi Wang by way of an agent, Street Smart Property Management Limited.

There is no dispute between the parties that there was a water leak above one of the bedrooms, but there is a sharp disagreement between the parties as to how often that occurred, and what the impact of the leak was.

It is also agreed that the landlord inadvertently put his foot through the ceiling recently when undertaking an inspection in the ceiling, that left a large hole in the ceiling plaster board. That took some weeks to repair. The parties cannot agree on the fair level of compensation that should be paid for this.

It is also the case that the tenant’s son has eczema. The tenants position is that this has been caused by dampness in the premises, that is disputed by the landlord. TENANT’S CASE

The tenants states that there was a leak in the roof above the bedroom, that would be an issue over the course of tenancy. The tenants say that they would raise the issue with the landlord, who would then arrange a contractor to come to the premises, but that would not resolve the problem.

The tenant states that in the more recent leak the landlord came to the premises, and inadvertently put his foot through the roof.

Ultimately the landlord arranged a contractor to fix the ceiling, but that was expected to take about a month causing considerable inconvenience and lack of use of the room.

The tenants say that the their son developed eczema and that was found to relate to dust mites, which the tenants say is related to dampness.

The tenants say that their dehumidifier would drain significant moisture in the premises. The tenants say that the advice they received from the doctor was that they could only open a window for one hour a day to ensure there was not a problems with pollen coming into the premises.

At the hearing the tenants confirmed they were seeking the following orders: a. Compensation for i. General dampness in the premises ii. Medical costs for their child; and iii. Being unable to use a bedroom for the last month of the tenancy. b. Bond refund. LANDLORD’S CASE

In response the landlord states that they did instruct contractors when the tenants raised an issue, and believed it was fixed. The landlord also states that an inspector was arranged to inspect the premises more recently (that report was provided to the Tribunal)

The landlord notes that even when the leak was reported at the time of the recent Auckland anniversary floods, the landlord acted to get a contractor without delay, noting delays getting contractors at the time, but the work was still completed within 2 weeks.

The landlord states that the new tenants consider the premises are comfortable.

The landlords refer to the inspection report which do not support mould or problems with the tenancy as now claimed by the tenants.

The landlord agrees that the owner did put his foot through the ceiling when inspecting the ceiling cavity, but that was not because the ceiling was damp, it was because the landlord stood where he should not have.

The landlord understands that the tenants son’s allergy condition was present prior to the tenancy commencing.

The landlord disputes that eczema is caused by dampness in the premises, or from mould.

The landlord states that the property was newly renovated.

The landlord notes that Dr Ameratunga has not visited the premises, and if he was aware of the landlord’s understanding of the facts, including any leaks being remedied when notified, he would have reached a different decision.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

ANALYSIS

There are two broad claims which have different legal issues, that is the claim for compensation, and the claim for bond refund. I will consider each separately. Compensation claim

What is notable about this dispute, is that while both parties agree there was a water leak, the parties are significantly out of alignment as to the impact of that water leak, and whether the landlord did reasonably address it.

The landlord has agreed that some level of compensation should be provided, and has already provided compensation to the tenant of $200.00. The landlord offered a further $600.00 as full and final settlement of the dispute, but that was not accepted by the tenants.

On balance, there is no evidence to support a conclusion that this is a ‘damp house’, is that term would generally be understood in New Zealand. Certainly there was a water leak intermittently, there is no dispute about that, but that does not necessarily mean that the premises are generally damp premises.

In terms of the evidence produced from the tenants, that includes a communication on 5 January 2018, which I interpret to be a report of a leak with rain.

There is then a gap in the evidence until July 2020, where the tenant states: The below picture is the right hole I referred to which leaks only during heavy rains. There used to be a leakage couple of years back when we just moved in but was fixed by your guys. We recently noticed a couple of times that the entire blanket was wet under that area when we woke up in the morning & it was raining heavily the whole night.

That description is consistent with the history has presented by the landlord – yes there was a water leak, but it had been fixed. I note also that this email followed an email conversation about a property inspection where the leak was raised by the tenant as a matter the landlord should be aware about for the inspection, but the landlords agent reporting that: I have completed the inspection yesterday and thank you for preparing the house ready. It was clean and tidy. However, I haven’t been able to find the leakage/water from the bedroom. I did see one paint peeling off from the ceiling, would you please let me know if this is the one that you mentioned?

The next documentary evidence of a water leak provided by the tenants is then not until February 2022 again in relation to an inspection from the landlord, where the tenant reports: Further I would like to bring your attention to some leakage in the main bedroom that happens every time during heavy rains (shared via WhatsApp).

I understand the landlord had the leak repaired, with the next report of a water leak being raised in March 2022, July 2022 then again on 18 August 2022. The tenant reported In the later communication that the water had fallen on the bed. The landlord responded: It’s leaking again? I thought that was all fixed up for you

With the tenants replying that “Its still leaking and was never fixed.”

I have also considered the evidence filed by the landlord, which in my assessment does not support the premises to be damp premises.

That evidence includes inspection reports. The inspections appear to be careful and thorough in terms of the detail, but there is no suggestion of mould or dampness otherwise seen during those inspections. The photographs taken from the inspections equally do not show evidence of apparent mould or dampness.

I am also minded that the landlord has produced an independent Healthy Homes Inspection report from an inspection on 14 February 2021. It is apparent the inspector went into the ceiling cavity (the inspector took photograph in the ceiling space), but nevertheless has reported that there was no moisture ingress issues.

When I step back and consider the available evidence, I am certainly satisfied that there was an intermittent water leak above the bedroom, and that was associated with heavy rain. However I am not persuaded that the premises would be considered damp premises. My impression is that when the issues were raised with the landlord, the landlord did act appropriately to get contractors to come to the premises, and it would appear that the efforts of the contractors had some effect, but the problems continued.

It is reasonable that the landlord provide some level of compensation to the tenants. The tenant seeks $600.00 in relation to the final month of the tenancy, and I can see at one point that was an offer made by the landlord. Taking into consideration the rent paid at the end of the tenancy, I consider $600 to be a reasonable level of compensation for impacts to the tenants over the duration of the tenancy, and that is ordered in relation to loss of amenity in the premises, and being unable to properly use the bedroom for periods of time. Medical costs

The tenants seeks compensation for medical costs. The tenants rely on a brief report from Immunologist Dr Ameratunga dated 3 October 2023. That states: This is to advise that [the tenants son] is suffering from inhalant allergies. This includes both asthma and allergic rhinitis. He did not have this at the time of birth, and this appears to have occurred at the time he was staying in a damp house where he was exposed to leakage for many years. It is very likely the damp conditions have contributed to these allergies. The humidity was over 70% but the family has now moved to a drier house. Any assistance which could provide the family will be much appreciated.

I find that limited weight can be placed on this report for these reasons: a. The tenants state that the specialist has not in fact been to the house, so it is not clear the basis upon which he states the premises were damp. For the reasons as I have set out above, I do not consider the evidence supports that the premises are damp. b. The specialist has not explained why there is a causal nexus between the diagnosed condition and any specific condition arising from a defect in the house. c. The specialist has not set out other potential causes for the diagnosed conditions, and explained why the likely cause of the condition would be the dwelling, as opposed to any other cause. d. If the specialist considered that dampness was an issue, he has not addressed the fact of the tenants undertaking limited ventilation. The evidence provided by the tenants was that they were instructed only to open the window one hour a day, to limit pollen coming into the dwelling. It is well recognised that ventilation is an important means to ensure dwellings are dry and healthy, and therefore whether limiting ventilation would have been relevant, has not been addressed.

Finding as I do that the tenants have not establish the link between their sons medical condition, and any defect in the dwelling, the application for compensation for medical costs must be dismissed. Bond refund

As I explained to the parties at the hearing, given the tenancy has ended, and because there is no application for compensation from the landlord, I must order the full bond be refunded to the tenants.

Section 22B of the Residential Tenancies Act 1986 applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applied to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlords counterclaim.

The effect of this provision, is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counter claim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.

This means that if the landlord subsequently wishes to pursue any claim against the tenant, the landlord is still able to do so, but if the landlord is successful in the claim, there would not be any bond that the Tribunal could order be released to go toward the landlord’s claim.

For the above reasons, in the absence of a counter claim from the landlord, the Tribunal orders that the full bond be refunded to the tenants.