What was Tenancy Tribunal case 4743409 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 4743409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743409?

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

Where can I read the official tribunal order for case 4743409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9902177-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4743409 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 4743409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743409?

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

Where can I read the official tribunal order for case 4743409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9902177-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4743409 — Mould & damp

Reasons

Both parties attended the hearing. [The landlord’s representative] represented the landlord. [The tenant/s] attended with a friend as support person who was also provided opportunity to give evidence.
This tenancy commenced in April 2023 when [The tenant/s] was in need of supported housing. Several days into the tenancy [The tenant/s] noticed a noxious smell emanating from the walls.
She advised her landlord but says they did not send a plumber for several months. She obtained her own plumber’s ([The tenant’s plumber]) advice who found there to be “a smell of moisture and potentially sewage...and...moisture to be building with the corner of the room parallel to the shower”, and identified two possible leaks. As [The tenant/s] understands it, there are two potential leaks: one from the shower which is the reason for the damp corner of the wall and the other from the upstairs apartment which is the sewerage smell.
Her evidence is that [The landlord’s representative] had said she would pay for her plumber’s call out fee if they found an issue but reneged on that when their advice was provided. She says the landlord has had their own plumbers look at it, but they have not found any problems and so no action has been taken. She considers the issue was not adequately investigated which has impacted her physical and mental health.
[The tenant/s] evidence is that she would have to evacuate the apartment and stay with a friend, at times leaving in the middle of the night, and for periods of up to two months. She says she barely lived in the property because of the smell. Due to the physical and psychological impact of these issues [The tenant/s] left the tenancy in December 2023.
[The tenant/s] doesn’t think her landlord believed her and the constant distress of being told that what she was experiencing was not real, had a cumulatively devasting impact on her health. This is ironic she says given she was in the property for health-related reasons. She says she was treated as mentally ill rather than with a genuine maintenance need.
For this experience [The tenant/s] would like acknowledgement of what she went through, her rent refunded given she barely stayed at the property and for others to not have to experience what she has.
[The landlord’s representative’s] evidence is that they did all they could to but could not identify a problem with the property. She says they came to visit multiple times with multiple people including various support workers of [The tenant/s] but could not smell the smell or see any damp spots. They even offered to attend immediately when the smell was present including after hours towards the end of the tenancy, but this was not taken up on. Unfortunately, she said many visits were cancelled and it was difficult to arrange a time with [The tenant/s] to attend.
They also spoke with the apartment owner directly above and with the Body Corporate who in turn spoke to other tenants in the building, but no one reported issues relating to a possible leak. They had a plumber attend twice and neither time could they find any moisture, signs of a leak or smell and as such they were reluctant to take more invasive action. They also brought in [healthy homes adviser] who could not find any evidence of a leak or other damp issues.
She spoke to [The tenant/s] plumber who confirmed they had detected moisture which is why she sent the plumber the second time. She explains that they have contracts with certain plumbers given the nature of their trust (they are a social housing provider) and cannot engage external plumbers. This is why they could not pay [The tenant/s] plumber’s cost and did not undertake to.
[The landlord’s representative] says they genuinely wanted to fix the problem but there was insufficient evidence of an issue to warrant ripping out the bathroom or walls. She explains that they are a trust working to support people and do not have excess funds to undertake invasive investigations when they are not necessarily warranted.
It is accepted that the next step to any further investigations would be to remove sections of the bathroom and/or wall. [The landlord’s representative] submits that given the walls are concrete this would likely be extremely intensive and cost prohibitive.
She also points to other events such as when [The tenant/s] called the fire brigade who did not observe anything amiss. Also, when she advised other occupants in the building of a gas leak. She further noted that [The tenant/s] had a number of other concerns about this property and wished to leave it just days into the tenancy.
[The tenant/s] explanation is that she did initially consider the smell was a gas leak because of the effect it was having on her and how pervasive it was. She therefore considered the right action to take was to advise others who might also be affected and call the fire brigade. She notes that the fire brigade told her they could smell something that was probably a plumbing issue.
[The tenant/s] has provided two letters from her doctor who states that she has reported to him her concerning symptoms which correlate to her times in the house. He says the smell appears to “clearly be having an impact on her health”. [The tenant/s] evidence is that the doctor treated her symptoms with paracetamol but did not obtain further tests such as blood tests.
She has also provided a letter from her therapist who states that the plumbing issues have impacted her ability to attend the therapy she very much needs. She says the impact on her physical health is interfering with her mental health recovery needs. Specifically, the therapist states “I have investigated whether there is a psychological element to the physical problems and it does seem that medical investigation is needed due to the concern about toxic reactions and she is exploring these.” [The tenant/s] feels she has lost a year of her life to these issues which has set her psychologically back and as such would like some recognition of that. The law
The relevant law is section 45 of the Residential Tenancies Act 1986 (RTA). Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety. In particular this section requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) and the Housing Improvement Regulations 1947 (the Regulations).
Regulation 15 requires all properties to be free from damp and the HHS has minimum standards preventing moisture ingress.
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, 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.
Section 45 of the RTA does not impose absolute liability on a landlord, and the courts and Tribunal have adopted a “common sense” approach when assessing a landlord’s responsibility for maintenance issues. Bearing on this approach is how any issue affects a tenant but also that the landlord, as owner of the property, is entitled to choose their own tradespeople, provided they are of a professional standard.
In the Tenancy Tribunal, applicants are required to establish their case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. In this case, there is evidence that is either contradictory or calls for the Tribunal to draw inferences. In that case the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence. All evidence and submissions provided by the parties has been considered in this light to form this decision, even if it has not been expressly mentioned in the decision. Discussion
There is no evidence that the home is HHS incompliant. A HHS report has been provided and there is no evidence that anything has changed in respect to those HHS requirements.
The question therefore for me is whether the landlord adequately maintained the property and, in that respect, whether they adequately investigated the issue. As stated earlier, the burden of proof rests with [The tenant/s] as applicant. Therefore, in order for her claim to be successful, [The tenant/s] must establish in evidence firstly that there was a maintenance issued and secondly the landlord failed to investigate and remedy it.
I do not find it proven that the home is inherently damp. A moisture metre has been used and did not detect and moisture in the walls and there is no evidence of mould which is the usual indicator of issues with damp.
I am satisfied that [The tenant/s] was experiencing issues with a spontaneous smell and a minimal amount of damp coming through the wall in one corner of the property at one stage. These issues were certainly negatively impacting her and have disrupted a number of months of her life.
Legally, she correctly discharged her burden in advising the landlord of what she was experiencing and subsequently sent several 14-day notices to remedy. She therefore met her responsibility pursuant to section 40(1)(d) of the RTA.
The landlord did investigate. Their process was to firstly attempt to experience the issue themselves and subsequently send plumbers. [The tenant/s] argues that the landlord did not need to experience it themselves before they sent the plumbers and that the delay between her first reporting and the plumbers attending was unacceptable. She considers that she has been discriminated against because of her particular challenges which is why they did not take her concerns seriously.
I accept their reasoning of checking the issue themselves first before incurring cost as reasonable given the status of their organisation but also the lack of clarity surrounding the complaint.
[The landlord’s representative’s] evidence is that given it was a smell and there was no specific evidence of a leak, it was very hard to tell what the issue was. She says the reports of the smell were unspecific as the reports moved in location, they could not be described and there appeared to be no pattern. Therefore, she says it was impossible to tell where it was coming from or what it even was and as such, they had nothing tangible to tell the plumber. She says that as soon as she got the photo purportedly showing a damp spot, she sent the plumbers, and as soon as [The tenant’s plumber] advised her of an issue she called and spoke to them and then sent the plumbers a second time. Both visits were warranted and the appropriate response by the landlord.
[The landlord’s representative] submits that they did take [The tenant/s] concerns seriously and did everything they could including allowing her to leave the tenancy without abiding by the usual notice period.
Having considered the evidence very carefully, I find that [The landlord/s] have not failed in their s45 obligations. They adequately investigated and I accept their decision to not undertake further invasive investigations given the level of evidence they had. Their own plumber did not recommend more work at that point, and they were entitled to rely on that evidence.
It is perplexing why the plumbers came to different conclusion. [The landlord’s representative’s] suggestion is that perhaps [The tenant’s plumber] wanted the work. Whatever the reason, I accept the landlord’s decision to proceed on the basis of their plumber’s advice. This is a company they work extensively with, and which has undergone all the rigorous checks of it required by [The landlord/s]. There is also no evidence available to me that they are anything but a professional organisation.
In coming to this decision, I have also taken into account [The landlord’s representative’s] evidence that the previous tenants and current tenants of this apartment have not reported that they have experienced this issue, nor have others in the building. I have also considered [The tenant/s] doctor’s response which seemed minimal in that he only prescribed paracetamol and did not refer her for any other investigative tests.
Accordingly, this claim must be dismissed.
It is important to note that in dismissing the claim I am not denying what [The tenant/s] went through. I accept and understand she has had an extremely difficult time in this tenancy, and I empathise with her on that. I am however only charged with applying the RTA to situations such as this and in doing so here, I have not found that [The landlord/s] failed in their obligations. 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 and allows discretion if in the public interest.
Both parties seek suppression. As the landlord was successful in defending the claim, I approve their application. I also approve [The tenant/s] application for suppression as this decision covers matters of a sensitive nature for her, and I consider it disproportionate to her to allow her details to be published. Accordingly, all party identifying details are to be redacted from the published order.

Tenancy Tribunal case 4743409 — Mould & damp

At a glance

Tenancy Tribunal case 4743409 — 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