What was Tenancy Tribunal case 4719715 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4719715?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4719715?

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

Where can I read the official tribunal order for case 4719715?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9897516-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4719715 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4719715?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4719715?

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

Where can I read the official tribunal order for case 4719715?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9897516-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4719715 — Mould & damp

Order

The application is dismissed.
Both parties’ details are to be suppressed.

Reasons

Two hearings were held on this matter. [The tenant/s] primarily seeks a full rent rebate as he considers the room he occupied during this tenancy breaches the law as it is cold and damp and as such posed a risk to his health. He is one of several tenants in this property but the only tenant party to this application. This is a fixed term tenancy ending today. The application to reduce the fixed term was dismissed at the first hearing.
[The tenant/s] moved into this property in February 2023. By mid-Autumn he says he started experiencing issues with mould growing and the room being very cold and damp. He decided that he could no longer live in the room and so in August took steps to vacate. At this stage he had not yet told [The property manager/s] of his concerns for the room.
On 28 September after a bad storm he awoke to his bed and pillow which were up against the wall being wet to touch. He advised [The property manager/s] of this, and she sent plumbers to investigate. They came twice and reported: i. Roof looks to be in overall good condition apart from outhouse overhang as per photo. ii. This will not be an easy/straight forward fix as there is no plumbing fixtures nearby that I can see so it is not likely to be a water pipe. iii. Unable to identify any obvious issues as per previous site visit. iv. Put sealant on the barge flashing on the left-hand side where the cover flashing sits to prevent wind blowing water through on that angle. v. I also put sealant underneath the penetrations where the two metals join together in case water is blowing up underneath the flashing and then through those penetrations. vi. There is also foam underneath the iron the ends on that joining flashing but in some areas I couldn't feel that foam.
In short, they could not ascertain why water had come into [The tenant/s] room.
[The tenant/s] moved out between the two plumber’s visits. His photos when he left show that mould had grown on his belongings, on the curtains, behind the wallpaper and on the walls of his room.
Unfortunately, [The tenant/s] was not able to find replacement tenants to assign his tenancy to. He believes this is because it is so damp and cold.
There is no insulation above or below this bedroom as there is no practicable space for that insulation underneath the house and this room has a flat roof. It is an older house with sash windows which cannot be safely left open while unoccupied.
[The property manager/s] also contracted [Trade 1] to investigate the issue after the plumber could find no leak. They initially reported in writing saying: a. They found no moisture readings of concern. b. All readings in the room were well below the dry standard. c. The room has a sunny aspect and is warm and dry. d. Any moisture was likely due to the nature of the use.
[The tenant/s] was so surprised by these findings that he contracted [Trade 2] to also undertake a report. They noted: i. Relative humidity reading of 75% (Perfect conditions for mould growth) ii. Minor mould growth behind peeling wall paper iii. Significant mould growth on roof framing timber iv. The moisture readings taken at the property indicate rising damp may be occurring, with higher moisture readings recorded low in the walls.
Both trades gave oral evidence at the second hearing of this matter after seeing each other’s reports. [Trade 1]’s oral evidence was (summarised): a. All the moisture readings in the wood in the room and roof space were well within the dry zone. b. The mould in the ceiling cavity was historical to before the roof was replaced and is no longer growing. c. The humidity ratings [Trade 2] found do not mean anything without a comparison to the humidity outside on the day. d. As the room is on a concrete slab there can be no rising damp issues. e. The only way to ascertain categorically whether there was a health issue related to the room would be to have an air quality test. f. There was no appreciative sign of any roof leak.
[Trade 2’s] evidence was: a. His testing was more comprehensive than [Trade 1’s] because it looked at other factors as well as moisture readings. b. This room had a high humidity reading, is next to the bathroom, had a window that could not be left open when vacant, there is no moisture barrier and no insulation are all factors which mean that the room is inherently prone to mould. c. He agrees the mould in the roof space is dated. d. He does not have humidity readings for outside to compare. He agrees the reading he took could have been normal depending on what it was outside at the time. e. He too took moisture readings which confirmed the walls of the room were dry. f. He did not think the room was on a concrete slab and so considered that rising damp would be an issue.
[The property manager/s] submission is that there is nothing more she could do. She had plumbers investigate twice and the room tested for moisture and no issues of concern were raised. She investigated as soon as she was made aware of the concern in September but was not advised by either of the trades to take any particular action. She says they have managed the property for four years and never had any complaints regarding mould.
She also notes that no issues regarding mould or damp were raised at the inspections prior to the notification in September however the tenants were asked on several occasions to ventilate. She has provided photos of the inspections which do not indicate issues with mould. None of the other tenants have joined in these proceedings and none of them have complained about the mould or damp to them.
She further submits that the property has a relatively new roof, was painted in October 2022, has passed a Healthy Homes assessment and is in generally good condition. She accepts there is a small amount of mould which can be seen where the wallpaper is lifting in some areas of the room. [The landlord’s representative] for the landlord considers the marks on the curtains to be sun damage rather than mould.
I must consider the parties’ submissions in light of their rights and obligations pursuant to the Residential Tenancies Act 1986 (the RTA). As [The tenant/s] is the applicant, he has the burden of proof. What this means is that he must persuade me to the civil standard of proof, that is the balance of probabilities, that the landlord has breached the RTA. The balance of probabilities, said another way, is what is more likely than not.
Section 45 of the RTA is the primary section relevant in this situation. It details the landlord’s obligations to 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. It also requires a landlord to comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. Notably, the Housing Improvement Regulations 1947 (the Regulations), specify the minimum standards of fitness for houses which include a requirement that every house be free from dampness (regulation 15). There are also obligations in the Building Act 2004 that a building is insanitary if it has insufficient or defective provisions against moisture penetration as to cause dampness in a building (section 123). Further, section 45(1)(bb) of the RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). I discuss each area of law separately. Failure to Maintain
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its 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 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) of the RTA. Therefore, a tenant must 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.
[The tenant/s] did notify [The property manager/s] of the issue on 28 September. In response she had the plumbers attend twice and obtained a report from [Trade 1]. I accept her submission that she investigated in a timely way and took the steps she was advised necessary. By the time [The tenant/s] presented his contradictory report from [Trade 2], the Tribunal proceedings had been instigated and he had vacated the flat.
[The tenant/s] also requested new curtains in early October which [The property manager/s] said she would obtain. I accept her reasoning that [The tenant/s] moved out days later as sufficient reason as to why she had not done so prior to the application being filed.
Accordingly, I do not find that the landlord has breached the requirement to adequately maintain the property pursuant to section 45 of the RTA. Healthy Homes
[The tenant/s] considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard. The moisture ingress and drainage standard requires that buildings comprising residential tenancies have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard also requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances. This room has presumably been exempted by Healthy Rentals NZ who compiled the HHS report for the home in 2020 (the Report). I say presumably because the report passes the property’s insulation requirements although there is no dispute that this room does not have a ceiling cavity, so the insulation is not above it. The requirements for underfloor insulation and a ground moisture barrier have also been exempted because there is no practicably accessible underfloor space.
As there is no practicable way to instal insulation above and below this room, or a ground moisture barrier, I accept that the room is exempt from the HHS. The HHS are limited and specific and not helpful in a situation such as this. Housing Improvement Regulations 1947
Regulation 15 of the Regulations states that every home shall be free of dampness. The Regulations are dated and basic regulations that apply to all homes throughout New Zealand. They work in conjunction with the Building Regulations and Building Code.
I accept the evidence that there is no indication of a leak into this room. There is no doubt however that mould grew in this room during this tenancy. In particular it grew on the curtains, walls, where the wallpaper is peeling and on [The tenant/s] belongings. It is how it occurred that is the issue.
Mould is problematic and will grow in a home where humidity is high. It is to be expected to some degree in most homes in New Zealand. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without significant mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
I accept the evidence of [Trade 1] that the room is not inherently prone to mould and is not damp. Both trades accepted that the mould in the roof cavity was historic and that the readings did not show moisture in the walls. I do not consider the high humidity readings of concern given they cannot be compared to the humidity outside on that day and the room was not lived in at the time so was most likely shut up. Accordingly, overall I prefer [Trade 1’s] evidence to that of [Trade 2].
Because of the layout of the room it does not have the protections others rooms in the home have in that there is no ability to insulate it (there is insulation above other rooms). [The tenant/s] was also prevented from ventilating thoroughly as he could not leave the window open when he was absent as it presented a safety risk. It would also no doubt let in cold air in winter given its size.
Given its layout, I therefore find that the room is prone to mould if not ventilated properly. What would have mitigated its propensity is a lock on the window so it could be left open safely while unoccupied, thermally backed curtains and/or a dehumidifier. The curtains provided are certainly insufficient. Accordingly, there were steps the landlord could have taken when the issue was raised with them. Had [The tenant/s] raised his concerns with the landlord earlier, they would have been obligated to remedy the issue such as affixing locks to the window, replacing the curtains and providing a dehumidifier.
The biggest challenge [The tenant/s] faces with his application however is that he did not notify his landlords about the issues he was facing in his room until well after he had told them he wanted to leave. He did raise them clearly but only after he had attempted to find a replacement tenant and could not. Accordingly, he did not give his landlord opportunity to rectify the issue before he took matters into his own hands and vacated.
[The tenant/s] submits that he could not find a replacement tenant for his room because of the state of the room, however the evidence is that none of the prospective tenants advised him directly of such concerns. In fact, only two people actually looked at the room. I consider the reason a replacement was not found more likely to be the rental market at that time of year.
[The tenant/s] has clearly faced difficulties in replacing himself on the tenancy. This is unfortunate; however I do not find it established in evidence that it is because of the state of the room. He is bound by his fixed term tenancy and was not wise to undertake another tenancy without resolving that issue first. The better course of action would have been to seek assistance from his landlord to remedy the issues he was facing at the time before he left.
Accordingly, the application must be dismissed.
Both parties have sought suppression. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful or it is in the public interest to do so. The landlord was successful in their position therefore I approve their claim. [The tenant/s] was not successful however I do not consider it proportionate to publish his details. He is genuinely concerned about the state of the room and his application only failed due to the processes he employed to deal with it. Accordingly, I also direct that his details be suppressed.

Tenancy Tribunal case 4719715 — Mould & damp

At a glance

Tenancy Tribunal case 4719715 — Mould & damp

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