What was Tenancy Tribunal case 4668031 about?

The tribunal order states: The tenant application 4668031 is dismissed.

How much money was awarded in case 4668031?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4668031?

The primary dispute was Mould & damp. Related themes: Cleanliness, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4668031?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10204740-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4668031 about?

The tribunal order states: The tenant application 4668031 is dismissed.

How much money was awarded in case 4668031?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4668031?

The primary dispute was Mould & damp. Related themes: Cleanliness, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4668031?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10204740-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 91 Waikawa Road, Picton 7220 Tenancy Tribunal Case 4668031 — Mould & damp

Order

The tenant application 4668031 is dismissed.
No orders are made for landlord application 4668031.

Reasons

Both parties attended the hearings. Alexander Gregory appeared in person. [Landlord] joined by preapproved teleconference. His [landlord] appeared alongside him. She had been approved to act as a representative.
The tenant application was not clear on what orders were sought. The application was lodged during the tenancy but it has now ended. The application was confirmed at the first hearing as seeking $28,910.00 in compensation for the landlord’s failure to maintain, comply with the Healthy Home Standards, attempting to unlawfully terminate the tenancy, and failing to ensure the exclusive use of electricity outgoings at the premises.
The landlord had applied for compensation of $21,480.00.
The adjourning order provided the following as guidance. It is repeated in this order for completeness. Evidence
For the benefit of both parties, a party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated (bold emphasis is mine): “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
The bond was returned to the tenant at the end of the tenancy. The landlord states this was done to end interaction between the parties, given the fractious relationship and concerning messaging from the tenant, rather than there being no potential landlord claim against the bond. Tenant Application
The tenant cited in his application the landlord’s failure to maintain, comply with the Healthy Home Standards, attempt to unlawfully terminate the tenancy, and to ensure the exclusive use of electricity outgoings at the premises. Failure to maintain
It is well settled that, the landlord’s obligation under s 45 RTA 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, depends on the gravity of the problem but also on the objective 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. This requirement also has application in the landlord’s counterclaim.
The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn. Leaks
The premises suffered from leaks due to heavy rainfall prior to this tenancy. The tenant claims the dampness was never remedied and a further leaking event occurred later that same year after the tenancy had commenced (November 2021). The landlord responded that the premises were remediated from the first leak, and it was intended no new tenancy commence until that had finished. After the second leak, the landlord experienced a delay in obtaining a contractor to complete the internal sealing and painting. In the end the tenant agreed to do it for payment.
There is no evidence of any ongoing issues with dampness related to leaks being raised with the landlord. Mould
In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Adjudicator there found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”.
I find some parallel here with the above determination. Photos from the end of the previous tenancy indicate a premises in fair condition. I note the accepted pre-existence of some ingrained mould in the toilet. It appears a pre-tenancy leak/flooding event was remediated, including commercial drying, under insurance. Of course, the work may not have been to a satisfactory standard as no evidence of post-remediation moisture testing was available.
However, the lack of timely and appropriate communication by the tenant to the landlord regarding any structural flaws or issues that might account for what later is clearly significant mould means behavioural contribution to the mould cannot be discounted and I dismiss the claim. Stove
It appears one element of the stove tip stopped working. I do not have sufficient evidence of the tenant notifying the landlord in a timely manner of this problem so I do not make any order regarding any failure to maintain. While the tenant maintains he did, I equally must consider the landlord’s recounting that he was only advised of this near the end of the tenancy and the tenant appeared unconcerned about any repair at that time. Healthy Home Standard
The premises appears HHS compliant, bar the bathroom mechanical extraction. This was installed during the tenancy (within the permitted timeframe) but the tenant says it was never connected. Unfortunately, he is unable to evidence that and it seems incongruous for the landlord to incur the installation cost and not complete the task. The tenant stated his preference was to have a window open when using the bathroom regardless and he did not seek the installation. Unlawful attempt to terminate the tenancy
The tenant claims this but he had no evidence to support it. The actual notice to terminate was provided by him to the landlord via a text message on or around 20 June 2023.
I do not find the landlord attempted to unlawfully terminate the tenancy. Electricity – exclusive use
This was raised at the first hearing and a variation to the tenant application allowed.
The tenant did not have evidence to support his view that other areas or attached premises were drawing off his electricity. After this was raised the landlord had an electrical contractor attend. That visit confirmed there was no other drawing on the premises metered consumption and tenant usage was exclusively accounted via the revenue meter.
As highlighted in the order commencement, the evidential burden sits with the applicant. I acknowledge the tenant is convinced he has proven his claims but I have insufficient evidence to concur.
The tenant has failed to evidence any landlord failures that should attract any orders. For that reason, his application must be dismissed. Landlord application
The landlord sought compensation. Unspecified exemplary damages were sought in the application, but I do not find any specific unlawful act (versus evidenced threatening behaviour) by the tenant that can attract any order of exemplary damages.
The landlord submitted a revised statement of claim before the continuation hearing. It sought $21,480.00 compensation.
This sum, like the tenant claim seeking a similar amount, is considered to be inflated with costs that are not applicable or were incurred in such a way that the duty to mitigate a loss (see s 49 RTA) was not met. The lapsed time to remedy the premises was lengthy and beyond what might have been expected.
Specifically, I decline all accommodation and related claims (transport, purchase of furniture and such). I find it difficult to consider compensation for the landlord staying in another premises that was vacant. Assuming it could have been rented as claimed, it seems reasonable that step would have provided cashflow for quicker remediation of these premises by professional contractors.
That leaves me to consider the landlord claims for “cleaning and painting” compensation. The bulk of these tasks were completed by the landlord directly.
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) Residential Tenancies Act 1986.
The landlord claims the tenant did not leave the premises reasonably clean and tidy. While the bond was returned in full to the tenant, the landlord stated this was to appease the tenant and avoid further issues or interaction. The tenant communication to the landlord over the bond in particular, and the issue of electricity and neighbours, was abusive and threatening and rightly raised with the police.
The landlord sought $7,200.00 compensation for cleaning and painting costs. This was based on their labour at $50/hr and 144 hours effort. A further $500.00 was sought as the approximate amount spent on paint and sundries.
In a written submission the landlord stated, “A commercial cleaner and my wife cleaned the premises.” No invoice was available regarding the commercial cleaning. He mentioned mould remover, that he had been given money to the tenant to purchase, that was unused and discovered at the end of the tenancy. This indicates some earlier discussion between the parties regarding a mould problem without determining cause.
There was limited photographic or evidence to support the effort and claims of the landlord. Extensive mould was clearly shown in photos the tenant provided in support of his application and these were also relied upon by the landlord. Apart from those, there were a limited number of photos that show the poor condition of the stove top. I was told the oven was replaced.
The vast cleaning and painting effort appears to have been mostly in remediating the extensive mould. Here, like the tenant application, I struggle to determine the other party is solely responsible for the mould as shown in the photos. The landlord did not conduct any inspections during the tenancy (I acknowledge the lock issue but I do not see compelling evidence of the landlord asserting its right of entry). In a written submission the landlord wrote, “At the time I respected Gregory’s right to privacy and acknowledged he was a private person. Because his clothes and car were clean I wrongly assumed his rented home would be similarly kept.”
Given the prior and early tenancy issues of dampness, it would have been a reasonable expectation that the landlord would inspect or have an agent do so on its behalf, as much for its own peace of mind as the tenant. Covid impacted on what would appear to have been the usual practice of the landlord of engaging a local property manager. Such an inspection, if no mould was present at that time, would have weighted more towards later tenant behaviour as the more than likely cause. In its absence, I am left uncertain as to the cause, or multiple causes, of the mould and treat the landlord claim as unproven, as I did the tenant’s. It has not been able to satisfy me to that it was more likely than not that the mould was the fault of the other party and I make no order. Even if so inclined, on the evidence at hand, I would struggle to clearly assign related costs to any such liability.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
The landlord provided text messages from the tenant that were disturbing in content. These were followed by a threatening voicemail recording left on the landlord’s phone by the tenant. The landlord’s recounting of police advice regarding his safety and approach does not appear unjustified. The tenant acknowledged prior inappropriate communication. That has no bearing of the lack of success of the tenant in his application – that was due to a lack of evidence of him informing the landlord of the problems later claimed.
A lack of evidence has also hindered the landlord’s application. The limited photos show mould and a stove top left in unclean condition. I have declined to make what would be a small compensation order towards the stovetop as it was replaced rather than cleaned. In doing this I am equally mindful of the stated stance of the landlord in releasing the bond in full previously. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, the Tribunal may, 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.
The tenant did not seek suppression.
The landlord requested suppression. While it has not been hugely successful in its application, and not therefore entitled to suppression by right, I have exercised my initiative and ordered suppression. The tone and content of communication to the landlord from the tenant during the later part of the tenancy caused great consternation, for good reason. It is considered suppression is justified for that reason.

Tenancy Tribunal case 4668031 — Mould & damp at Unit/Flat 3, 91 Waikawa Road, Picton 7220

At a glance

Tenancy Tribunal case 4668031 — Mould & damp at Unit/Flat 3, 91 Waikawa Road, Picton 7220

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions