What was Tenancy Tribunal case 4724949 about?

The tribunal order states: The tenants’ application is dismissed.

How much money was awarded in case 4724949?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4724949?

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

Where can I read the official tribunal order for case 4724949?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10181092-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4724949 about?

The tribunal order states: The tenants’ application is dismissed.

How much money was awarded in case 4724949?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4724949?

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

Where can I read the official tribunal order for case 4724949?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10181092-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4724949 — Mould & damp

Order

The tenants’ application is dismissed.
The names and identifying details of the parties are suppressed.

Reasons

The Tribunal’s order made on 24 January 2024 sets out the background to the case and it should be read with this order. The landlord has carried out the inspection required by the order and filed their builder’s report.
This order is made after an in-person hearing on 24 January and a short telephone hearing on 8 March. Between the two hearings, the landlord’s builder carried out the inspection required by the order dated 24 January and the landlord filed his report.
The tenants have responded to the landlord’s report and provided further evidence from their builder.
I have considered the builder’s report and the tenants’ response and the other evidence provided by the parties. Law
I set out briefly the relevant law in my order dated 24 January. Essentially, for the tenants’ application to succeed, they must prove the following. I.That the landlord has been in breach of an obligation relating to the condition of the premises. That could be the obligation to provide and maintain the premises in a reasonable state of repair, a statutory or regulatory obligation relating to the building or health or safety of the premises including healthy homes requirements. II.For compensation to be awarded, that the breach caused the tenants loss. Loss can mean financial loss, or it could be loss of enjoyment in their use of the premises and can include inconvenience, discomfort and upset. III.The extent of any loss whether financial or otherwise. IV.For exemplary damages to be awarded, that the breach constitutes an unlawful act and was intentional and that in all the circumstances a penalty warranted.
The tenants are required to establish their claim to the civil law standard of proof, on the balance of probabilities. That means that proving that the elements of the claim are more likely than not to be true. The Additional Evidence
I wanted the landlord to conduct a further investigation into the cause of the damp (and the landlord agreed to do so) because the evidence did not establish a cause of the dampness in the tenants’ bedroom. Specifically, it did not establish a cause that constituted a breach of any of the landlord’s obligations relating to the condition of the premises. The investigation had been discussed previously and, if the cause of the mould was water ingress from outside the premises, it appeared to be the most obvious way to detect it.
The tenants’ builder had said that he had found dampness/wetness that signified moisture getting into the framing from outside. He recommended further investigation.
The mould was largely confined to the end wall, and it was worst at the top of the wardrobe on that wall.
Photographs taken on 9 February appear to show some darkening of the framing at the top of the wardrobe. The tenants’ builder said that it was quite likely that water was tracking from somewhere. He also said that it appeared that the timber framing was starting to rot. He did not inspect the framing and his opinion was based on seeing the photographs.
The landlord’s builder, after cutting out sections of the gib and inspecting the framing, is adamant that there was no sign of water ingress. Any discolouration at the back of the gib he put down to condensation from inside the room. He conducted an inspection outside the premises and said that he could see no place where water could be entering the premises.
The landlord’s builder has also said that when he cut out sections of the Gib, the tenant who was present when he did so agreed that there appeared to be so signs of moisture or mould behind the Gib. Discussion and Decision
The short point is that the evidence is inconclusive. The tenants have been in occupation of the premises and the mould in the premises is quite severe. If the cause was water ingress from outside the premises, or at least outside the main bedroom, one would expect to see clear and substantial evidence of it behind the gib. But that is not the case.
There is the possibility, arguably, that there has been some dampness in the wall cavity, but it is debatable, and it is disputed. In addition, there is no evidence pointing to a possible cause of water entering the premises. I do note that other flats in the premises have experienced some leaking and the landlord has taken steps to locate and deal with that. That may suggest some defect of the roof, but it does not establish a defect that has caused water to enter these premises.
The other point is that a landlord is not strictly liable for every defect of the premises, or every loss that arises from a defect. Landlords rely on their tenants to inform them of defects or the need for repairs. Generally, it is only when they have been so informed and have failed to respond appropriately that they become liable for any consequences. In this case the landlord has promptly responded to the tenants’ complaints.
There is an issue of whether the landlord should have conducted the further investigation that they have now done when the possibility was raised. But because I have found that the result of the investigation is inconclusive, that does not assist the tenants.
I note that a healthy homes inspection found a draught from a window. But neither the tenants nor the landlords were aware of it before the report identified it.
The burden of proof lies on the tenants, and they have not provided the evidence needed to prove that the landlords have been in breach of their obligations concerning the condition of the premises. The tenant’s application must therefore be dismissed. Suppression
The tenants have not succeeded but their application was made in good faith and was based on evidence that suggested that there could be a defect of the premises that was causing dampness and mould. I have therefore suppressed their names and identifying details. In fairness, I have done the same for the landlords.

Order

The tenants’ application is dismissed.
The names and identifying details of the parties are suppressed.

Reasons

The Tribunal’s order made on 24 January 2024 sets out the background to the case and it should be read with this order. The landlord has carried out the inspection required by the order and filed their builder’s report.
This order is made after an in-person hearing on 24 January and a short telephone hearing on 8 March. Between the two hearings, the landlord’s builder carried out the inspection required by the order dated 24 January and the landlord filed his report.
The tenants have responded to the landlord’s report and provided further evidence from their builder.
I have considered the builder’s report and the tenants’ response and the other evidence provided by the parties. Law
I set out briefly the relevant law in my order dated 24 January. Essentially, for the tenants’ application to succeed, they must prove the following. I.That the landlord has been in breach of an obligation relating to the condition of the premises. That could be the obligation to provide and maintain the premises in a reasonable state of repair, a statutory or regulatory obligation relating to the building or health or safety of the premises including healthy homes requirements. II.For compensation to be awarded, that the breach caused the tenants loss. Loss can mean financial loss, or it could be loss of enjoyment in their use of the premises and can include inconvenience, discomfort and upset. III.The extent of any loss whether financial or otherwise. IV.For exemplary damages to be awarded, that the breach constitutes an unlawful act and was intentional and that in all the circumstances a penalty warranted.
The tenants are required to establish their claim to the civil law standard of proof, on the balance of probabilities. That means that proving that the elements of the claim are more likely than not to be true. The Additional Evidence
I wanted the landlord to conduct a further investigation into the cause of the damp (and the landlord agreed to do so) because the evidence did not establish a cause of the dampness in the tenants’ bedroom. Specifically, it did not establish a cause that constituted a breach of any of the landlord’s obligations relating to the condition of the premises. The investigation had been discussed previously and, if the cause of the mould was water ingress from outside the premises, it appeared to be the most obvious way to detect it.
The tenants’ builder had said that he had found dampness/wetness that signified moisture getting into the framing from outside. He recommended further investigation.
The mould was largely confined to the end wall, and it was worst at the top of the wardrobe on that wall.
Photographs taken on 9 February appear to show some darkening of the framing at the top of the wardrobe. The tenants’ builder said that it was quite likely that water was tracking from somewhere. He also said that it appeared that the timber framing was starting to rot. He did not inspect the framing and his opinion was based on seeing the photographs.
The landlord’s builder, after cutting out sections of the gib and inspecting the framing, is adamant that there was no sign of water ingress. Any discolouration at the back of the gib he put down to condensation from inside the room. He conducted an inspection outside the premises and said that he could see no place where water could be entering the premises.
The landlord’s builder has also said that when he cut out sections of the Gib, the tenant who was present when he did so agreed that there appeared to be so signs of moisture or mould behind the Gib. Discussion and Decision
The short point is that the evidence is inconclusive. The tenants have been in occupation of the premises and the mould in the premises is quite severe. If the cause was water ingress from outside the premises, or at least outside the main bedroom, one would expect to see clear and substantial evidence of it behind the gib. But that is not the case.
There is the possibility, arguably, that there has been some dampness in the wall cavity, but it is debatable, and it is disputed. In addition, there is no evidence pointing to a possible cause of water entering the premises. I do note that other flats in the premises have experienced some leaking and the landlord has taken steps to locate and deal with that. That may suggest some defect of the roof, but it does not establish a defect that has caused water to enter these premises.
The other point is that a landlord is not strictly liable for every defect of the premises, or every loss that arises from a defect. Landlords rely on their tenants to inform them of defects or the need for repairs. Generally, it is only when they have been so informed and have failed to respond appropriately that they become liable for any consequences. In this case the landlord has promptly responded to the tenants’ complaints.
There is an issue of whether the landlord should have conducted the further investigation that they have now done when the possibility was raised. But because I have found that the result of the investigation is inconclusive, that does not assist the tenants.
I note that a healthy homes inspection found a draught from a window. But neither the tenants nor the landlords were aware of it before the report identified it.
The burden of proof lies on the tenants, and they have not provided the evidence needed to prove that the landlords have been in breach of their obligations concerning the condition of the premises. The tenant’s application must therefore be dismissed. Suppression
The tenants have not succeeded but their application was made in good faith and was based on evidence that suggested that there could be a defect of the premises that was causing dampness and mould. I have therefore suppressed their names and identifying details. In fairness, I have done the same for the landlords.

Tenancy Tribunal case 4724949 — Mould & damp

At a glance

Tenancy Tribunal case 4724949 — Mould & damp

At a glance

Claims & awards

Order

Reasons

Topics & place

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Key findings

Frequently asked questions