What was Tenancy Tribunal case 4712511 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 4712511?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4712511?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Leaks.

Where can I read the official tribunal order for case 4712511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770099-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4712511 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 4712511?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4712511?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Leaks.

Where can I read the official tribunal order for case 4712511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770099-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4712511 — Mould & damp

Reasons

Both parties attended the hearing.
[The tenant/s] claims that the landlord has breached its obligations under sections 45(1)(b) and (c) of the Residential Tenancies Act 1986 (“RTA”) and has claimed compensation.
Under section 45(1)(b) RTA, a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.
Under section 45(1)(c) RTA, a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
The tenant specifically claimed that the landlord failed to: a. Make adequate repairs to leaks in the bathroom so that mould could not grow in that room, the toilet area and a bedroom. b. Fix the leaking roof in the conservatory. c. Investigate and fix a leaking pipe in the laundry. Standard of proof and evidence
In considering the tenant’s claims, the “standard of proof” is “on the balance of probabilities.” In other words, the tenant must establish with evidence that her claim is “more likely than not.” I consider her claims bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding her claims, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
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.” Background
The following chronology sets out the relevant facts as presented to the Tribunal by both parties and which I have determined are proven on the balance of probabilities: a. In September 2018 the landlord detected that there was a moisture issue in relation to the flooring of the bathroom, toilet and hallway. The landlord arranged for the floor coverings to be lifted so that the areas could be dried out in October 2018. b. In October 2018 a leak from the cistern in the toilet was repaired. c. A leak was noticed in the laundry in October 2018 and the tub was removed and replaced. d. The bathroom vanity was replaced in March 2019 due to water damage. e. In September 2019 the landlord noticed an area of mould in one of the bedrooms and had a plumber investigate this and the moisture issue in the bathroom, toilet and hallway. f. The plumber reported that the water issue was caused by water from the shower over the bath coming into the space between the bath and the wall. Extensive renovations were completed in the bathroom by the end of 2019. This included replacing all of the wall linings which were damaged. g. The bedroom that had mould damage evident and from which a large portion of the wall had been removed to investigate its cause, was redecorated in June 2020. h. In August 2020 repairs were carried out to the conservatory roof and panels were replaced. i. In January 2021, the landlord obtained quotes to make further repairs to the conservatory and these were completed in March or April 2021. j. The tenancy ended on 21 April 2023.
This chronology is supported by the landlord’s record of tradespersons’ invoices paid and work orders raised.
The tenant provided in evidence photographs of mould and the uncovered area under the laundry tub, together with video evidence of the conservatory leaking.
Three of the landlord’s property managers gave evidence that to the best of their knowledge, the tenant never complained by phone or email or text of any of these issues.
One of the property managers explained that they have no record of the tenant making any complaints or making any contact at any time between the regular three-monthly inspections. She advised that the tenant made requests about repairs at these inspections and that it was the property manager who noticed the mould in the bedroom and initiated investigations.
The tenant provided evidence of a report emailed to the tenant on 20 December 2019 by the Palmerston North City Council after an inspection on 7 November 2019. The tenant accepted that she did not provide this to the landlord because by this time the landlord was completing repairs to the bathroom.
The tenant confirmed that her approaches to the landlord were made in person or by telephone. The tenant could not provide any evidence of phone calls, texts or emails to the landlord.
The landlord advised that it had made a thorough search of its records and it did not have any record of telephone calls, texts or emails from the tenant regarding these issues.
The landlord believes that it attended to the issues within a reasonable timeframe and that the tenant’s application was the first it knew that the tenant was unhappy with its response.
I note that it was over four years since the bathroom repairs and two years since the conservatory repairs before the tenant filed her application in the Tribunal for compensation.
Of particular concern to the tenant was the fact that the landlord did not replace all of the linings in the bathroom. The tenant maintained that this meant that mould was still present in the walls of the bathroom. She was unable to provide any evidence in support of this claim. As noted, she provided photographs of mould in the bathroom.
The landlord advised that its contractors were satisfied that there was no need to remove and replace any more of the bathroom linings as all the affected areas had been remedied.
At the hearing, the landlord provided a report from an appropriate professional confirming that from his inspection the presence of aspergillus/penicillium and stachybotrys moulds were not detected.
The landlord advised that its tradesperson has confirmed that the pipe in the laundry wall was not leaking. The tenant did not provide professional evidence that it was leaking and was the cause of any dampness in the laundry. Decision: failure to maintain and mould
Under section 40(1)(d) RTA the tenant has a responsibility to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.
In the absence of corroborating evidence from the tenant that she repeatedly brought these matters to the attention of the landlord and the landlord did nothing or took an unreasonably long time to undertake the reapirs, I am not persuaded on the balance of probabilities that the landlord has failed in its duty to maintain the property. On the evidence before the Tribunal, the landlord took the appropriate and sometimes extensive steps to undertake the required repairs within a reasonable timeframe upon discovering or being made aware of the issues.
The tenant produced photographs of mould in the bathroom and toilet. A landlord must provide premises not prone to mould, but responsibility for combating mould is a joint responsibility between landlord and tenant: the landlord must provide a means of heating and the tenant must properly ventilate and keep clean the premises. There is no failure to repair by a landlord where mould is remedied by cleaning with soapy water, drying, a dehumidifier or electrical heating, or where mould is not caused by the state of the premises or mould is caused by a lack of ventilation of the premises by the tenant.
The tenant has not persuaded the Tribunal that the mould issue was due to a failure by the landlord to adequately repair the linings in the bathroom and was not just mould which is inevitable in almost any bathroom.
The tenant’s claim is dismissed. Decision: failure to comply with statutory requirements
The only relevant HHS standard is in relation to the maintenance of gutters, downpipes and drains. The tenant did not argue nor provide any evidence that the water issues she experienced in the property were caused by these items. The tenant has not therefore proved on the balance of probabilities that the landlord has breached the HHS.
I note also that the HHS do not apply to this tenancy as it started on 24 November 2017.
The Housing Improvement Regulations 1947 provide in Regulation 15 that every house shall be free of dampness and in Regulation 17(1) that “the materials of which each house is constructed shall be sound, durable, and, where subject to the effects of the weather, weatherproof, and shall be maintained in such a condition.”
Both parties agree that there were water issues with this property during the tenant’s five and a half years occupation. I accept that the landlord has established that those issues were matters of maintenance and that they were dealt with in a reasonable timeframe once they were brought to the landlord’s attention or the landlord discovered them.
The landlord is not obliged to guarantee that the property will never leak. That is impossible. The landlord’s obligation is to repair any weatherproofing issues as within a reasonable timeframe, once the landlord has become aware of them.
As noted above, the tenant has not proven on the balance of probabilities that the landlord has failed to maintain the property free of dampness in the bathroom, toilet, bedroom and laundry; nor that the landlord has failed to maintain the conservatory in a weatherproof condition.
The tenant has not established that the landlord has not complied with the relevant statutory requirements and so the tenant’s claim is dismissed. Suppression
As the tenant’s application has not been successful, it is appropriate that the landlord’s name and identifying details be suppressed.
Having considered the tenant’s ongoing health issues, it is appropriate to exercise the discretion in section 95A(4) RTA and order suppression of her name and identifying details.

Tenancy Tribunal case 4712511 — Mould & damp

At a glance

Tenancy Tribunal case 4712511 — Mould & damp

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions