What was the outcome of Tenancy Tribunal case 4768139?

The tribunal order states: As agreed by the parties during the hearing, the landlord must carry out the

How much money was awarded in case 4768139?

Mply With Order 1 Above, Then The Te…: $10,000.00 awarded to landlord

What type of tenancy dispute was case 4768139?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4768139?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10172877-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4768139?

The tribunal order states: As agreed by the parties during the hearing, the landlord must carry out the

How much money was awarded in case 4768139?

Mply With Order 1 Above, Then The Te…: $10,000.00 awarded to landlord

What type of tenancy dispute was case 4768139?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4768139?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10172877-Tenancy_Tribunal_Order.pdf.

79 Lake Road, Belmont, Auckland 0622 Tenancy Tribunal Case 4768139 — 14-day notice

Claims and awards in Tenancy Tribunal application 4768139. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
mply with Order 1 above, then the tenant may undertake the work and charge the landlord the costs of this work up to	$10,000.00		mply with Order 1 above, then the tenant may undertake the work and charge the landlord the costs of this work up to

Claims and awards in Tenancy Tribunal application 4768139. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
mply with Order 1 above, then the tenant may undertake the work and charge the landlord the costs of this work up to	$10,000.00		mply with Order 1 above, then the tenant may undertake the work and charge the landlord the costs of this work up to

Order

As agreed by the parties during the hearing, the landlord must carry out the following work to the premises at its expense, which must be completed by 19 April 2024: a. The entire carpet in Mr Sapwell’s bedroom is to be commercially cleaned by a professional carpet cleaning company and the water stain on the carpet removed to the fullest extent possible without having to replace the carpet. Mr Sapwell has agreed to move all of his belongings and furniture out of the room while it is cleaned, and the carpet dried out and to stay at a friend’s place for a few days while the work is undertaken. He has also committed to not unreasonably withholding his consenting to this work being undertaken in a timely manner; b. After the carpet has been cleaned, the landlord must use a commercial dryer to ensure the carpet is dried out in a timely manner; c. Prior to the carpet being cleaned the corner of the carpet in Mr Sapwell’s bedroom, that is in the water damaged area of the carpet, is to be lifted and the underlay tested for the presence of mould. The swabs taken must be sent to a professional laboratory that can report if any mould is present and identify the type of mould if any is found to be present. A copy of the laboratory report is to be sent in a timely manner to the tenant; d. The power point below Mr Sapwell’s bedroom window is to be pulled away from the wall by a professional contractor, the insulation tested for any moisture and a swap taken of the wall behind the insulation which is to be sent to a professional laboratory that can report if any mould is present and identify the type of mould if any is found to be present. A copy of the laboratory report is to be sent in a timely manner to the tenant. e. The perimeter of exterior window of Mr Sapwell’s bedroom must have new silicone inserted between the joinery and plaster cladding to improve weathertightness, as per Whats Up House Inspections report.
If the landlord fails to comply with Order 1 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $10,000.00. These costs may be set off against rent payable.
The landlord must pay the tenant $20.44 immediately to reimburse him for the filing fee.

Reasons

Both parties attended the hearing.
The tenant has applied for a work order, compensation, exemplary damages and reimbursement of the filing fee. Work Orders
The tenant claims that the landlord did not meet its obligations to maintain and repair the premises to a reasonable standard when it did not fully investigate whether the bedroom walls and carpet underlay contained mould contaminants after a leak above his room caused water to flow down the wall and flood around one third of the carpet in his room. He claims that he has suffered bronchial issues that he has never experienced prior to the flooding of his bedroom on 14 April 2023 and does not experience when he is away from his bedroom for periods of time, such as when he was overseas for 2 weeks and when he stays at his partner’s place for periods of time. He produced a medical report that confirms he has never suffered bronchial issues before and that the health issues he has suffered since his bedroom floor and walls were flooded are consistent with an allergic reaction to an allergen that could be mould.
The tenant has tried to get the landlord to conduct mould tests on the wall behind the insulation and of the carpet underlay as he wants the problem fixed that he says is causing ongoing respiratory issues for him when he is at home.
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds, the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
The landlord has proven that it has undertaken moisture tests of the walls in Mr Sapwell’s bedroom but it has not had moisture tests conducted on the carpet that was sodden during the flood. It was satisfied that the carpet dried out completely in a short timeframe by the use of towels and a dehumidifier and had been completely dry to the touch since its mid-May 2023 property inspection. It also produced evidence that Mr Sapwell’s flatmate considered the actions it had taken to be sufficient to dry the room out.
For rental properties, mould is classed as a contaminant under the Residential Tenancies Act, so ensuring a home is free from harmful mould is a requirement for landlords.
Some species of mould have little effect on health whilst others can have significant health effects. The tests ordered will ascertain if any mould exists in the underlay or behind the insulation in the wall and if it can be causally linked to Mr Sapwell’s respiratory problems. Where these tests show the presence of harmful mould, Mr Sapwell is free to make a further application to the Tribunal.

Has the landlord failed to comply with their s45 obligations?

Mr Sapwell claims that the landlord has breached their obligations under sections 45(1)(b), (bd) and (c) of the Residential Tenancies Act 1986.
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 and ensure it is free for contaminants, such as black mould.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The parties gave extensive evidence that proves: a. The bedroom wall and carpet were flooded on 14 April 2023 because of a broken pipe in the room above; b. The broken pipe was fixed on the same day by PlumQuick, and the landlord dried the carpet out by soaking up the water with towels and using the dehumidifier in the room for the next month; c. On 22 April 2023, the landlord followed up with another tenant to see if the room was drying out and if any further action such as a carpet cleaner or commercial dryer was necessary. That tenant told the landlord the room was drying out and no further action was necessary; d. The landlord conducted a property inspection on 29 May 2023 and found the walls and carpet in Mr Sapwell’s bedroom to be dry to the touch and no evidence that the wall had any soft spots on it; e. Mr Sapwell returned to New Zealand after an overseas deployment on 22 June 2023. He found the room to have an odour that he claims is conducive to it being mouldy but that the room was not damp. He raised his concerns with the landlord and asked for the walls and carpet to be tested for the presence of mould. The landlord did not see any reason to conduct this type of investigation when prima facie the walls and carpet were dry and there was no evidence of mould but offered to undertake this test on the condition that the tenant reimbursed the landlord for the cost of the tests if they were negative for harmful mould. The tenant did not agree to this condition; f. On 25 June 2023, the landlord agreed to engage a professional carpet cleaner to clean the carpet and it says to take swabs from underneath the underlay to be tested for mould. Mr Sapwell says he was never informed that the carpet cleaner would also lift the carpet, take the swabs, refix the carpet, clean it and send the swabs to a laboratory for testing. As such, the evidence shows that he was not proactive is facilitating access to his room for the carpet cleaner. From June 2023 to January 2024, Mr Sapwell was away, unavailable, did not return the carpet cleaners call, said he didn’t need the carpet cleaned and then asked for it to be cleaned. The landlord says his behaviour made it confused about whether he wanted the carpet cleaned and tested or not, Consequently, as at the date of the hearing the carpet had not been cleaned and mould testing had not been carried out; g. The moisture reading taken from Mr Sapwell’s bedroom walls in March 2024 by the landlord’s building contractor showed the same results that the tests Mr Sapwell’s building contractor had done around 23 March 2024, the moisture readings in the bedroom walls were within normal range. Mr Sapwell claims this test should have been undertaken much earlier to ascertain if the walls had fully dried out in May 2023 and that the same readings should have been done on the flooring. The landlord did not agree as there was no evidence of soft walls or dampness in the room; h. Mr Sapwell’s 23 March 2024 builders report does not show that there is a gap in the internal window frame that is letting in draft, as he claims, but it does show that the external window frame needs silicon in it to fully seal it to ensure no further moisture can come into the room.
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
I am satisfied that the landlord undertook reasonable investigations into the concerns raised by the tenant and did so in a reasonable timeframe.
On 14 September 2023, the tenant issued the landlord 14 days’ notice to remedy the alleged breaches of the RTA and in good faith the landlord took all reasonably practicable steps to remedy any real and significant concerns and did so in a timely manner 2 .
There is no evidence to support a claim that the repairs carried out by the landlord were ineffective, non-complaint or unsafe 3 .
The tenant continued claiming the room was unsafe to live in and was causing him ill health and as such there must be mould in the walls or under the flooring and the landlord’s response was always that there was no evidence provided to it that justified the expense of mould testing the internal walls and underlay under the carpet.
I am satisfied that the landlord met its obligations to investigate the tenant’s concerns in a timely manner and that it took reasonable steps to remedy any issues that were identified, other than those it was advised by its building contractors were not required. It was entitled to rely on the registered master builder advice it received.
The tenants claims for failure to repair and maintain the property to a reasonable standard, failure to repair, failure to comply with all requirements in 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 may 202 at [13]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. respect of contaminants imposed on the landlord by regulations made under section 138C(3)(c); and failure to comply with all requirements in respect of buildings, health, and safety under any enactment, so far as they apply to the premises has not been proven or has been disproven by the landlord and is therefore dismissed.

Has the landlord breached its healthy homes standards obligations?

Euan Sapwell claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Euan Sapwell considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard based on the Kiwi House Inspections Report dated 22 September 2022.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The moisture ingress and drainage standard require that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenancy commenced on 25 May 2022. The landlord had a healthy homes assessment report completed in April 2022, just before the tenancy commenced. This report shows the premises met all of the healthy home’s standards, including the ground moisture barrier requirement. It also shows that there were fans in both bathrooms, that the tenant’s evidence proves were not installed in the premises until 15 August 2022. This led the tenant to question the accuracy and authenticity of the report.
The tenant had concerns about the property and so engaged a contractor at his own expense to conduct a healthy homes assessment in late September 2022. This assessment found that the ground vapour barrier was non-compliant, and a polythene ground vapour needed to be installed over the sub floor earth as the base was enclosed.
The landlord produced evidence that by 25 October 2022, the ground vapour barrier had been installed sand paid for and the premises were fully complaint with the healthy home’s standards.
When the issue of the bathroom fans was raised with the landlord on 3 August 2022, the landlord had these installed by 15 August 2022, even though they had an exemption because the plaster cladding of the house was such that any cuts to the outside of the house could result in leaks.
In this case I have determined that the landlord was entitled to rely on the healthy homes assessment report it had completed in April 2022, and it was entitled to have the report updated after the installation of the bathroom fans. As soon as the issue with the ground vapour barrier was brought to its attention it was remedied. Therefore, I am satisfied that the landlord has met its obligations under s45(1)(bb) of the RTA. The evidence shows it complied with its health homes compliance obligations. Therefore, the tenant’s claim for exemplary damages and compensation for breaches of the healthy homes standards is dismissed. Reimbursement of the filing fee
Because Euan Sapwell has substantially succeeded with the claim, I must reimburse the filing fee.

Tenancy Tribunal case 4768139 — 14-day notice at 79 Lake Road, Belmont, Auckland 0622

Tenancy Tribunal case 4768139 — 14-day notice at 79 Lake Road, Belmont, Auckland 0622

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord failed to comply with their s45 obligations?

Has the landlord breached its healthy homes standards obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord failed to comply with their s45 obligations?

Has the landlord breached its healthy homes standards obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions