What was Tenancy Tribunal case 4760932 about?

The tribunal order states: Barfoot & Thompson Property Limited - Greenlane as agent for Michael & Julia

How much money was awarded in case 4760932?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4760932?

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 4760932?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10086037-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4760932 about?

The tribunal order states: Barfoot & Thompson Property Limited - Greenlane as agent for Michael & Julia

How much money was awarded in case 4760932?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4760932?

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 4760932?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10086037-Tribunal_Order_Redacted.pdf.

Unit/Flat 4, 91 Bassett Road, Remuera, Auckland 1050 Tenancy Tribunal Case 4760932 — Mould & damp

Order

Barfoot & Thompson Property Limited - Greenlane as agent for Michael & Julia Plaut must pay [The tenant/s] $2,050.00 immediately.

Reasons

Background

Both parties attended the hearing. The tenant was accompanied by a support person. The landlord was represented by Mr Walsh as property manager and Ms O’Callaghan as counsel.
This case concerns the tenancy of a three-bedroom terrace apartment set over three levels and constructed in approximately the 1970’s.
The tenancy was for a period of just over two years, beginning on 11 February 2022 and ending on 27 February 2024.
The tenant says that right from the beginning of the tenancy there were repairs and maintenance issues such as doorhandles falling off, smelly drains and a leak. However by the beginning of the first winter, June 2022, she realised that the property was draughty and damp, that there was a large area of bubbling paint in one room and that extensive mould began to grow on the ceilings of two rooms. She said that she and her children became sick and needed time off work and school.
The tenant says that the repairs were not seen to promptly. She says that she had four different property managers over the course of the tenancy and that her concerns went largely unanswered. She ultimately wrote to the landlord on 15 November 2023 outlining all her concerns.
On 23 November 2023 the landlord served the tenant with a 90 day notice, terminating the tenancy on the basis that the landlord intended to do extensive renovations.
The tenant says further that after notice was given the landlord sought access for tradespeople even though the tenancy was ending to allow renovations and repairs were no longer required.
The tenant’s application alleges that the landlord: a. Did not lodge the bond within the required time frame; b. Did not provide a Healthy Homes certificate as required; c. Failed to properly maintain the property/breached Healthy Homes Standards; d. Served them with a retaliatory 90-day termination notice (such notice being without cause) when they made a formal written complaint; and e. Entered without notice.
The tenant seeks compensation of $50,000 made up as follows: a. A 50% rent reduction from $860 to $430 per week for the period June 2022 to February 2024 (being 92 weeks at $430 per week, totalling $39,500); b. $5,000 for the property not being Healthy Homes compliant; c. General damages in the amount of $5,400 for damaged assets and emotional distress; and d. Exemplary damages. Onus and evidence
This is a claim by the tenant and so the tenant has the onus to prove their claim to the civil standard (on the balance of probabilities).
There was a considerable amount of evidence filed in this case. The tenant also provided a helpful summary of claims and the landlord provided a chronology. For the sake of brevity I have not referred to all of the evidence in this decision but the parties should be assured that I have carefully considered all of the evidence in making my decision. Failure to lodge bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986 (“RTA”).
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The landlord received the bond from the tenant on 9 February 2022 and lodged the bond on 2 May 2022, a period of 55 working days (excluding public holidays). The landlord did not lodge the bond within the statutory period.
The landlord produced evidence showing that they delayed lodging the bond as the tenant had not signed the bond lodgement form. They produced emails dated 30 March 2022 and 27 April 2022 asking the tenant to sign and return the bond form urgently. Ultimately it appears that the tenant did not do so as the landlord proceeded to lodge the bond with the bond lodgement form unsigned.
In my view exemplary damages are not warranted. There was no intention on behalf of the landlord to delay lodging the bond. The delay appears to have been caused by the tenant failing to sign and return the bond form. The bond was lodged and has now been returned to the tenant in its entirety. Failure to provide a Healthy Homes Compliance Statement
claims that the landlord has breached their obligation to provide a Healthy Homes Compliance Statement.
Under s 13A(1CA) RTA, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information prescribed by regulations (in this case The Residential Tenancies (Healthy Homes Standards) Regulations 2019 made under Section 138B RTA).
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
The only copy of the tenancy agreement provided to me was unsigned and did not include a Healthy Homes compliance statement. A signed copy could not be located.
I consider that it is more likely than not that the tenancy agreement did not include a Healthy Homes compliance statement as required.
However I do not consider that exemplary damages can be awarded in this instance because section 109(2)(b) RTA provides that a tenant may not apply for an order for exemplary damages later than 12 months after the commission of the alleged unlawful act. As the tenancy agreement was prepared in March 2022, the tenant is now out of time.
I note for completeness however that the home was in fact Healthy Homes compliant. The landlord provided a Healthy Homes report together with invoices which relate to the compliance work done. Failure to maintain/Breach of Healthy Homes Standards
The landlord has already provided evidence showing that the home is Healthy Homes compliant. I therefore consider that the maintenance issues raised by the tenant are best considered solely under section 45 RTA.
Section 45 of the RTA states that a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.
The tenant claims that the landlord failed to properly maintain the property as she experienced the following issues during the tenancy: i. There was a leak from the bathroom upstairs into a light fitting in the hallway; ii. There was a rangehood but there was no available socket to plug the rangehood into; iii. The drains were blocked on their arrival and for several weeks; iv. The door handles on two doors broke leaving them trapped; v. The carport was old and rusty and left debris on the their car. vi. There was black mould on the ceilings in two of the bedrooms; vii. The windows were drafty and some of the curtains became mouldy; and viii. The property was damp. Various maintenance issues
The leak from the bathroom upstairs, rangehood socket, blocked drains and door handles were all issues experienced by the tenant but these were dealt with promptly by the landlord as soon as they were notified by the tenant. The landlord produced a copy of their work orders showing the work done.
The rangehood had previously been plugged into the stove but when the stove was replaced nobody identified that there was nowhere to plug the rangehood into. Once this issue was identified it was promptly rectified.
I accept that the tenant found the door handles breaking very inconvenient and distressing. On one occasion, shortly after moving in, the tenant’s children became trapped upstairs and the door had to be taken off its hinges.
Ultimately however I consider that the landlord has met their obligations regarding the maintenance of these issues. Ongoing maintenance issues are to be expected in all properties and particularly in a property of this age. Carport
The tenant provided photos of the carport which they explained left rust and debris on their car. The photos showed some some dust on the tenant’s car, which may have included some small particles of rust. At the hearing it appeared that the photos of the carport, taken from above to show the condition, were in fact photos of the neighbour’s carport. In my view, taking into account the age and character of the property, the carport has been adequately maintained. Damp, draughts and mould
The tenant’s claim for compensation was primarily focussed around her claim that the property was damp, draughty and had black mould.
The tenant produced photos showing extensive mould on the ceilings of bedroom 3 (which was the bedroom used of one of her two sons) bedroom 1, (which used by the tenant and her young daughter). There was also extensive bubbling paint on the wall of bedroom 3, which is a concrete block wall.
The tenant said that the mould appeared in around June 2022 and that the rooms were largely unusable from that time. She says there was always condensation on the windows, mould around the window frames, and draughts. She said that she did not use a heater as she did not want to add to the moisture in the air, and that she and her children would have cold heads and night and often got sick.
The tenant provided photos from the end of the tenancy which show very extensive mould over the ceilings in bedrooms 1 and 3, and also in bedroom 2 to a lesser extent.
Mr Walsh began acting a property manager for this property in early 2023. He explained that as soon as he was made aware of the tenant’s concerns he engaged a contractor to install draught stopping around the windows and provided the tenant with a dehumidifier. He said that to the best of his knowledge the bubbling paint was the result of a historic leak.
With respect to the mould on the ceilings, Mr Walsh said that: a. Bedrooms 1 and 3 are both under areas of skillion roof and as such are exempt from the insulation standards; and b. The tenant failed to heat and ventilate the rooms so as to prevent the growth of mould.
However despite his views as to the cause Mr Walsh explained that he made a work order and had a builder and then roofing contractor come to look for possible leaks on the roof. He said that it was a difficult time to engage roofers as Auckland had just suffered a very extreme weather event and so it was not possible to have a roofer attend urgently. Although the work order in respect of the roof was made in June 2023, and Mr Walsh followed up, full investigations and quotes were not provided until 3 and 7 November 2023, which ultimately recommended a complete re-roof.
I accept that Mr Walsh was proactive in his efforts to get to the bottom of the cause of the mouldy ceilings.
It was difficult to establish what steps the property managers before him had taken however as the landlord’s document management system changed during the tenancy and not all of the relevant information was available.
From the evidence available it appears that the ceiling mould was first identified as an issue in a routine inspection which was undertaken in October 2022. The photos from that inspection show minor mould on the ceilings. The report from that inspection suggests that the property manager considered the mould to be a tenant issue. The tenant was given advice around ventilation.
Further inspections were done as follows: a. 16 March 2023 which shows small amounts of mould on the ceilings in both bedrooms; b. 13 July 2023 which shows moderate mould on the ceilings in both bedrooms; c. 12 October 2023 which shows very extensive mould on the ceilings in both bedrooms.
Mould is a common issue seen in the Tenancy Tribunal. Sometimes mould can be the result of the tenant not hearing or airing rooms, and other times it can be the result of leaks and blocked gutters.
In this case I consider that, while it is possible that there may have been some contribution on the part of the tenant (as she said that she did not use the dehumidifier or heat pump, which might well have reduced the amount of mould), the pattern of mould on the ceiling reveals the framing, which leads me to conclude that the dampness has come from above.
Ultimately the roofer has recommended a full re-roof to resolve the problem so that underlay and insulation can be installed as the roof will need to be replaced in the next ten years and it would be more economical to do all the work together rather than in stages. This is a major renovation which the landlord intends to complete without delay and which has led to the landlord giving the tenant notice as outlined I the section below.
In my view the tenant is entitled to some compensation for loss of amenity she was paying a rental of $860 per week for a house where at last two of the bedrooms were very prone to ceiling mould, and by the end of the tenancy had very extensive mould.

What compensation should be awarded?

The tenant has sought compensation of $39,560 as outlined above.
In her letter of 23 November 2023 the tenant sought a rent reduction from $860 to $600 per week. However, as the tenancy was ending, the parties agreed to a rent reduction to $430 per week for the remainder of the tenancy (total compensation of $5590).
Mr Walsh explained that the landlord did not consider that a 50% rent reduction was necessary or appropriate, but that he rent was reduced to that amount going so as to provide total compensation to the tenant.
With regard to the tenant’s current claim for compensation Mr Walsh disputed that the bedrooms had been unusable. He provided inspection reports throughout the entire tenancy showing those rooms set up and being used as bedrooms as usual.
Ms O’Callaghan submitted that if any compensation were to be awarded it should take into account that the mould increased slowly over the tenancy and that compensation of $5590 has already been made.
In deciding what compensation the tenant is entitled to I agree that a staged approach is appropriate. Having considered all of the evidence, and in particular the photos and loss of amenity to the tenant given the size of the entire property, I determine that the tenant is entitled to total compensation as follows: a. A reduction in rent from $860 to $760 from 16 March 2023 to 12 July 2023 (being $100 per week, a total of 17 weeks at $100 per week, a total of $1,700); b. A reduction in rent from $860 to $680 per week from 13 July 2023 to 11 October 2023 date (being $180 per week for 13 weeks, a total of $2,340); and c. A reduction in rent from $860 to $500 per week from 12 October 2023 to 27 February 2024 (being $360 per week for ten weeks a total of $3,600).
The total compensation required is $7,640. The tenant has already received compensation of $5,590, and so the further compensation required is $2,050.
I have not made any additional compensation for time taken off work due to illness or emotional distress. I have taken all of those issues into account when determining the level of compensation required as set out above. I note that the medical information provided did not specifically refer to the health issues suffered by the tenant and her family or the cause but I accept that the mould would have affected them. Retaliatory notice
The tenant claims that the notice given on 23 November 2023 to end the tenancy was retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
Usually where notice is given within a short time frame of a tenant asserting their rights there will be a presumption that the notice is retaliatory. In this case there was only 7 days between the tenant’s letter and the notice terminating the tenancy.
Barfoot and Thompson however produced extensive evidence dated between the property manager (Mr Walsh) and the owners and contractors between 4 April 2023 and 23 November 2023 outlining discussions and concern over the mould and related maintenance and the best way to proceed. The quote for re- roofing was obtained on 21 November 2023. The correspondence shows that the owners decided that the property required an extensive renovation including replacing the roof and remodelling of the kitchen.
The decision to renovate and give notice to the tenant had all but been made when the tenant sent her letter.
This claim is dismissed. Breach of Quiet Enjoyment/entering without notice 47.
The tenant says that during the 90 day period she received two notices of entry, one on 14 December 2023 and another on 19 December 2023, so that the property manager and a kitchen designer could enter to measure the new kitchen. She said that she was moving out and so no kitchen repairs were required.
Mr Walsh explained that he and the kitchen professional simply wanted to measure up the kitchen so that it could be built offsite and prepared ready for installation when the tenancy had ended.
I have considered this claim carefully. I understand the tenant’s concerns that she might be disturbed during the last 90 days of her tenancy, particularly when she was preoccupied with finding a new tenancy and celebrating her son’s birthday.
Having considered the notices served by the property manager however l find that the landlord gave notice in accordance with section 48(1) and (2) Residential Tenancies Act 1986 and was entitled to enter.
This claim is dismissed. Filing fee and name suppression
As the tenant has only been partially successful in her claim I have not reimbursed the filing fee.
However the tenant has been awarded some further compensation, and accordingly I consider it appropriate to exercise my discretion to make an order for name suppression pursuant to Section 95A RTA.

Tenancy Tribunal case 4760932 — Mould & damp at Unit/Flat 4, 91 Bassett Road, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 4760932 — Mould & damp at Unit/Flat 4, 91 Bassett Road, Remuera, Auckland 1050

At a glance

Claims & awards

Order

Reasons

What compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions