What was the outcome of Tenancy Tribunal case 4626690?

The tribunal order states: Terry Colin May is to pay Kate Isabel Welch $690.44 from the bond, calculated

How much money was awarded in case 4626690?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4626690?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4626690?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9881319-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4626690?

The tribunal order states: Terry Colin May is to pay Kate Isabel Welch $690.44 from the bond, calculated

How much money was awarded in case 4626690?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4626690?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4626690?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9881319-Tenancy_Tribunal_Order.pdf.

17B Barton Terrace, Thorndon, Wellington 6011 Tenancy Tribunal Case 4626690 — Property damage

Order

Terry Colin May is to pay Kate Isabel Welch $690.44 from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,580.00 (3461503-006) immediately apportioned as follows: Kate Isabel Welch: $690.44 Terry Colin May: $889.56
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for compensation for failure to meet healthy homes standards and ensure the premises are not prone to damp and mould. The tenant withdrew a claim regarding failure to lodge the bond.
The landlord has filed a cross application for compensation for cleaning and repairs following the end of the tenancy.
Both parties seek refund of the bond and reimbursement of the filing fee.

Has the landlord breached their obligations?

The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (RTA).
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, and comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) and in particular the HHS ventilation standard. See sections 45(1) (a), (b) and (bb).
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The HHS does provide exemptions in specific circumstances.
Compliance dates for the HHS vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. The compliance date for this tenancy was 24 July 2023.
Breaching any of these obligations 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. Tenant case
The tenancy started on 25 April 2023. On 17 May, two flatmates moved into the second bedroom. They sublet the room from the tenant.
The tenants’ evidence is that when viewing the property on 16 April prior to the tenancy start date, the tenant noticed a very small patch of mould in the corner of the bathroom ceiling which the landlord advised she would remove. The mould was still present when he shifted into the flat on 25 April. However, he confirmed at the hearing that he did not advise the landlord that the small patch of bathroom ceiling mould was still there when he moved in.
During the first few weeks of the tenancy, the tenant notified the landlord of some problems with getting the heating to work in the living room and with the dishwasher. I am satisfied on the evidence that the heat pump was not broken, and the landlord showed the tenant how to operate it correctly. She also had the dishwasher fixed. Both issues were dealt with reasonably promptly.
On 11 June, the tenant started to feel unwell and took 2 days off work. On 20 June 2023, he noticed a small amount of mould appearing in his bedroom on the back corner wall and ceiling. On 22 June, he noticed mould had rapidly grown in the bathroom on the walls and the corners of the ceiling.
The tenant says he and his two flatmates ventilated the flat as much as possible by leaving windows open, using heaters and the extractor fans in the kitchen and bathroom.
On 22 June, the tenant sent the landlord a text giving notice to end his tenancy. They later agreed the last day of the tenancy would be 23 July 2023. The tenant sent the landlord a further text explaining that he was moving due to the rapidly growing mould as he has a compromised immune system and mould could be extremely detrimental to his health. This was confirmed in a written statement from his GP presented in evidence.
On 24 June, the tenant moved out, although his flatmates remained until 15 July. He also advised the landlord that the mould in the bathroom was serious and growing rapidly in his bedroom, especially on the ceiling and on the wall of his wardrobe behind suitcases stored there. He advised that he had to throw away the suitcases and many clothes in the wardrobe that were inside the cases, but also some that were hung up or stored on the shelves. He said small amounts of mould were elsewhere in the flat and there was a damp patch showing on the living room ceiling which may indicate a leak. He also said that his flatmates had discovered some mould in their bedroom wardrobe, and they intended to move out on 15 July. The tenant sent photos of the mould to the landlord.
On 27 June, the tenant issued the landlord with a 14-day notice to remedy the mould problem by 12 July. The landlord advised the tenant that she was shocked by the photos, noting that previous tenants had not complained of mould. She said that she would arrange cleaning with mould spray. The tenant said he had been advised by a mould specialist that it was not safe to clean off the mould and it should be done by a specialist.
There were further communications between the parties in which they could not reach agreement about ending the tenancy earlier and refund of the bond. On advice, the tenant arranged for mould testing at the property on 30 June. The testing was carried out by Noel Edwards, mould inspector from Healthy Homes Inspections. He then prepared a report for the tenant (“the mould report”). Based on that report, sent to the landlord on 13 July, the tenant advised the landlord that he was giving 2 days’ notice to terminate the tenancy on 15 July 2023. While not specifically detailed in the notice, the tenant was relying on section 59A RTA which provides: if, as a result of a breach of the tenancy agreement by a party, the premises are destroyed or are so seriously damaged as to be uninhabitable, the party who is not in breach may give notice to the other party terminating the tenancy. When a tenant gives notice of termination under this section, the period of notice is not less than 2 days.
The landlord did not clean the property and remove the mould until 13 July, one day after the 14-day notice expired.
The tenant says he sent the landlord an undated letter on 13 July giving two days’ notice to terminate the tenancy on the basis that the flat was not safe for him to live in due to his immuno-compromised health status (“the two-day termination letter”). He relied on the letter from his doctor advising that he should not live in a mouldy home. He also relied on the mould report prepared by Noel Edwards which he attached to the letter, noting that “considerable professional remediation works will be required, including deep cleaning, cut out of embedded mould (and making good), installation of forced ventilation systems, dehumidifiers and chemical treatment” He seeks refund of his bond and compensation on the basis that the premises were not free from dampness and mould, calculated as follows: a. $8,629 rent paid during the tenancy; b. $1,023 for the costs of the mould assessment; c. $70 for specialist cleaning products for clothes that could be cleaned; d. $1500 for clothes damaged by mould that could not be cleaned and were thrown out. No evidence was produced, such as photos, to show clothes damaged by mould nor to establish their value/replacement cost. Mould inspector evidence
Noel Edwards was called as a witness to explain and be questioned about the mould tests he completed and the mould report he prepared. He advised that he has completed various courses and obtained training certificates in NZ, overseas and through online courses. He has specialised in mould and bacteria testing in the last 5-6 years including for local councils. He explained that he gathers air samples which are then sent to a laboratory, Biodet Services Ltd, who analyse the samples and interpret the results.
Mr Edwards said he tested the worst area of mould where the presence of mould spores was likely to be highest, inside the tenant’s bedroom wardrobe. He also took an outside air sample for comparison. He was unable to say where that sample was taken. The laboratory findings are summarised as follows: a. the Penicillum/Aspergillus spore level was excessive inside the wardrobe when compared with the outdoor level and the Biodet database averages for a non-air-conditioned indoor environment. These fungi grow indoors in response to moisture dewing out onto surfaces that can often be due to moisture ingress issues or may be an accumulation of condensation in an area lacking good ventilation. These spore types may be allergenic to sensitive people and may cause infections in immune-compromised individuals; b. Stachybotrys spores (which Mr Edwards says is toxic black mould) were not detected; c. the Penicillum/Aspergillus spore level was also raised in the outdoor sample which may be due to the presence outside of any decomposing organic material (e.g. compost or bark gardens close to the sampling point); d. Other spore types were lower inside the wardrobe when compared to outdoor air but a low level of Wallemia was present which is considered a type of fungus able to grow in very low-level moisture environments but is often associated with damp building materials.
Mr Edwards also took indoor air samples elsewhere in the flat to measure relative humidity (RH%) which is the amount of water vapour content in the air. He said that the RH% was 82.62 and advised that anything above 65% is too high. When asked where he took this sample, he advised that he could not remember but stated that it did not matter because the flat is quite small. Reviewing his report after the hearing, it states that the testing site was in the bathroom at 9.15am on 30 June. While I did not put this suggestion to Mr Edwards, it might be reasonable to assume that the bathroom could have an excessive RH% (compared with other rooms in the flat) especially if recently used for showering and/or if the extractor fans were not used or windows were not opened for ventilation.
Mr Edwards evidence regarding the premises and testing results can be summarised as follows: a. There is less air movement in a wardrobe, so it is a collecting point for moisture; b. The cause of mould in this case is from excessive condensation and moisture unable to escape which is a common issue in rental properties. This can occur through normal activities such as cooking, sleeping, showering, and failure to use fans and open windows and doors; c. Mr Edwards’ view is that tenants generally don’t open windows as much as they should to ventilate. He recommends that all windows and doors are opened for 15 minutes twice/day to air out a property; d. Mr Edwards’ noted that although the windows in the premises were double glazed, they are not thermally broken. This allows condensation to form constantly when the temperature outside drops because the aluminium framing is the same temperature as the outdoor air. This acts as a trap for moisture and unless the windows are left constantly open, the moisture cannot escape; e. He suggests some kind of DVS or HRV system be installed to force air around the flat. A dehumidifier would also help; f. He also records the presence of algae around the back of the property which encourages mould growth. This is because water is sitting and not draining away and lack of sun in the area. g. His recommendations for dealing with mould at the flat was to clean the surfaces using warm soapy water and a cloth to wipe all hard areas that have mould and allow to thoroughly dry. What cannot be wiped off should be removed (e.g. cut out gib). He also suggested hiring an air scrubber to remove all mould spores and a commercial dehumidifier to dry out the air; h. He noted in the hearing that there are mould types that are toxic, such as stachybotris, which was not present here. He said that in relation to the presence of penicillum/aspergillus—all that is known is that it affects people who are not 100% healthy.
When questioned by the landlord, Mr Edwards agreed that the flat and its features (including multiple heaters, extractor fans, latched windows, louvres etc) was “marvellous” but he believes that lack of airflow due to the double glazing is the problem. The landlord suggested that if the tenant was ventilating, mould would not be a problem. Mr Edwards reply was to raise the issue as to whose responsibility is it to ventilate but he also said that in his experience most tenants do not vent correctly, and they need to be taught to vent more. The medical evidence
The letter from the tenant’s GP records the tenant’s condition and states: “...general advice for people with........immunocompromised state is to avoid exposure to mouldy homes. Whilst in the normal course of life, it is impossible to completely avoid entering mouldy homes, certainly one should not live in one. Its is also advised that such patients should not clean mould, and if done to wear full protective clothing, which includes N95 masks, gloves and boots, long pants and sleeves.” The landlord’s case
The landlord agrees that before the tenancy started, there was some flaking paint on the bathroom ceiling and a small area of mould, which had been missed by the cleaners. However, she says that the tenant said this was not a problem and he offered to wipe it with Exit Mould. He made no mention of his immuno-compromised health situation.
The first time the landlord was advised of a mould issue, and the tenant’s sensitivity to mould, was on 22 June when the tenant sent texts advising he wished to end the tenancy. She received no notice from the tenant about any damp/mould issues nor that mould was escalating at the property during the tenancy and prior to 22 June.
When served with the 14-day notice on 27 June, the tenant had already vacated the premises. The landlord says that he did not provide contact details for the remaining flatmates which delayed her ability to make arrangements to clean the mould and comply with the notice. The landlord was overseas at the time and her parents eventually made contact by visiting the premises several times. Contact was made and an agreement reached with the flatmates for the landlord’s parents to carry out mould removal work on 13 July.
On 13 July, the landlord’s parents attended the premises and sprayed and wiped the mould with an Exit Mould product. This was applied to mould in the wardrobes of both bedrooms, the bathroom ceiling and on some very small areas of mould on a couple of skirting boards, some windowsills and the bedroom windows. Photos showing the cleaning of the premises were provided to the tenant. As at the hearing date, and since the cleaning was done, no mould has returned. The landlord provided written statements from current tenants confirming that there has been no problem with mould or dampness during the last 5 months.
The landlord confirmed that there was no leak above the living room ceiling. Rather this was a patch of paint with a different sheen when a touch-up was done by the previous owner.
The landlord says that she received the two-day termination letter on 14 July, the day after the flat had been cleaned of mould. Contrary to the tenant’s contention, she says wiping the mould has been effective and no further damp or mould problems have arisen. Therefore, she says the mould was likely caused by the tenant (and or his flatmates) failing to ventilate the premises properly, failing to use extractor fans and failing to wipe down compensation from surfaces when necessary.
The landlord submits that Mr Edwards carried out mould testing in the tenant’s bedroom wardrobe after the tenant had moved out and it is possible that the wardrobe and room had been closed for several days without being ventilated which would contribute to the worsening dampness and mould detected in that area.
The landlord contended that some of the photos presented in Mr Edwards report to show mould were actually showing dirt, dust and fluff. Multiple photos were taken of the same areas of mould in the bedroom wardrobe and bathroom ceiling. Other photos showed very small amounts of mould. She also disputed his statement that there was a large amount of algae around the back of the property outside which encourages mould growth. She says there is a concrete area at the back which is shaded such that some moss had grown in the winter months.
The landlord’s father also gave evidence that when attending the premises to clean mould, he found a damp sponge left on the bathroom windowsill which had caused it to swell and deteriorate. He discussed this with one of the flatmates who left it there. He also said that when entering the bathroom and turning on the extractor fan, the flatmate asked what he had done, and he showed her how to turn the fan on. This indicated to him that she hadn’t been using the extractor fan in the bathroom at all.
In summary, the landlord noted that there are no defects with the premises such as leaks; she has fully complied with HHS and there is no evidence to the contrary; there has been no subsequent evidence since the tenancy ended of any dampness, condensation on windows or water pooling on sills. Current tenants have confirmed no mould or dampness issues. Finally, she suggests that the any finding of “excessive mould” in the flat is an exaggeration given that the mould test was confined to the bedroom wardrobe. She accepts at the time of the tenant vacating there was severe mould on a wall of his wardrobe and on the bathroom ceiling. However, she submits that the evidence supports a finding that the tenant and other occupants failed to ventilate properly, and wipe condensation caused as necessary. Discussion and findings
The tenant has the onus of proving their claim to the required civil standard of proof on the balance of probabilities. This means that the tenant must establish with evidence that his claim is “more likely than not.” For the Tribunal to find in his favour and consider an award of compensation, the tenant must prove that the landlord has been in breach of a legal obligation.
I am satisfied on the evidence that the landlord is not in breach of any of her obligations under the HHS. The tenant did not prove that she has failed to comply with any of the HHS regulations regarding insulation, heating, ventilation, draught stopping or moisture ingress. The landlord provided evidence that the premises are double-glazed and fitted with latching windows to allow ventilation; they have a working floor mounted heat pump in the living room; working wall mounted heaters in each bedroom; a working bathroom fan vented to the exterior; a working wall mounted bathroom fan heater, two working heated bathroom towel rails; a large opening louvre window in the bathroom; a working rangehood in the kitchen and underfloor insulation. There is no requirement for ceiling insulation due to their being another habitable space (a separate flat) on the floor above.
The issue, therefore, is whether the landlord has breached her other obligations under s45(1)(b) to provide the premises in a reasonable state of repair. The extent of the landlord’s obligation was considered in the decision of Barfoot & Thompson v Casey CIV-2005-004-001762,7 November 2007. The court noted that there is no absolute liability/responsibility obligation, so that the landlord does not have to foresee a latent and unobservable defect before it causes damage. The court stated that the landlord’s obligation under section 45 is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that time is, depends 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
In the present case, the tenant must be able to prove that there was mould at the premises because they were not in a reasonable state of repair, and that the landlord had notice of the problem and failed to repair in a reasonable time period.
After carefully considering all the available evidence and submissions from both parties, I am satisfied that the tenant has been unable to establish that the landlord was in breach of her legal obligation to repair and maintain the premises. My reasons for this finding are set out below.
As already detailed, there is no evidence of any failure by the landlord to comply with her HHS obligations. To the contrary, the evidence shows that the premises are well equipped with features to keep the premises warm and dry including heating, insulation, extractor fans, latching windows and the like.
There was no evidence of any leak and I accept that the patch on the lounge ceiling which appeared damp was merely the sheen from a different coat of paint used on the ceiling.
There is no dispute that the mould report records severe mould in the tenant’s wardrobe, and photos also show the extensive mould in the tenant’s wardrobe and on the bathroom ceiling.
The Tribunal in Semmens v Wadman [2022] NZTT Manukau 310605 noted that mould is commonly present throughout all residential dwellings in New Zealand to some degree with the Tribunal explaining that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered. The adjudicator said: “Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.”
Mould can usually be addressed by wiping with an appropriate cleaner. Where a property has an inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. As stated by the Tribunal in Hullia v Tran & Wu [2018] NZTT Manukau 4138867 the premises must be able to be used and lived in, in the normal way, without excessive mould developing. If this cannot be done, then the problem falls on the landlord to remedy under their obligations to maintain.
The presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair.
Noel Edwards gave evidence that the cause of mould in this case is from excessive condensation and moisture unable to escape which is a common issue in rental properties. While he stated a belief that double glazing which is not thermally broken (present in these premises) acts as a trap for moisture, he noted that it is also caused by normal activities such as cooking, sleeping, showering, and failure to use fans and open windows and doors. He was firm in his view that tenants generally don’t open windows as much as they should to ventilate. He recommends that all windows and doors are opened for 15 minutes twice/day to air out a property. He also said that in his experience most tenants do not vent correctly, and they need to be taught to vent more.
Noel Edwards put emphasis on the need to ventilate and he did not identify any defect in the premises. I am not persuaded that the presence of double glazing (not thermally broken) is a defect, although it may be reason to ventilate more.
It is also highly relevant that there are no reported problems with mould by other tenants since the landlord cleaned the mould in these premises and re-let them. This tends to support the landlord’s submission, that the mould was caused by a lack of ventilation and not using extractor fans by the tenant and/or his flatmates.
In summary, I find that the tenant has been unable to establish with sufficient evidence that the premises were not in a reasonable state of repair, or that there were defects in the premises which caused mould to develop. In any event, I also find that the landlord took steps to address the problem in a reasonable time period, noting they could not carry out the work as soon as they wished because they were not given the flatmates’ contact details to arrange entry into the premises. The tenant had vacated the premises less than 2 days after notifying the landlords of the mould issue. While that is understandable given his particular health condition and sensitivity to mould, the landlords do not carry any greater responsibility as a result, and notably, he did not disclose this sensitivity to them beforehand.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA.
I am satisfied on the evidence (comparing photo evidence produced by both the landlord and the tenant’s flatmates) that the tenant did not leave the premises reasonably clean and tidy, and some cleaning was required. However, I am reducing the landlord’s claim to $250 which I consider reasonable based on the evidence.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The following damage was caused during the tenancy: [list items]. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
I am satisfied on the evidence that the tenant (or his flatmates) left a wet sponge on the windowsill during the tenancy which damaged the sill causing it to become damp and swollen. The landlord’s father repaired the sill by replacing the damaged sections, and painting. The amount ordered is proved.
As the landlord has substantially succeeded with the claim, she is entitled to reimbursement of the filing fee. K Stirling, 19 February 2024

Tenancy Tribunal case 4626690 — Property damage at 17B Barton Terrace, Thorndon, Wellington 6011

Tenancy Tribunal case 4626690 — Property damage at 17B Barton Terrace, Thorndon, Wellington 6011

Order

Reasons

Has the landlord breached their obligations?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Order

Reasons

Has the landlord breached their obligations?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?