Published tribunal order
Tenancy Tribunal case 4844265 — Mould & damp at 48A Gordon Avenue, Milford, Auckland 0620
Decided 15 Oct 2024 · Published 15 Oct 2024 · Application 4844265
- Mould & damp
Party names are redacted in the official published order.
Order
- The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) to [The tenant/s] immediately.
- [The landlord/s] must pay [The tenant/s] $1,078.00 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing on 8 th October 2024. Both parties had the assistance of a Mandarin interpreter.
- The parties attended a jurisdictional hearing on 4 th July 2024. At that hearing, it was determined that the Residential Tenancies Act 1986 (“RTA”) applied between the parties. 4844265, 49191202
- The landlord had signed a “flat/house sharing agreement” with the tenant from 21 st January 2023. The tenant had been living downstairs renting a 2-bedroom space.
- The tenant had paid $2,000.00 as bond to the landlord. Initially this amount was not paid to the Bond Centre. After the jurisdictional hearing, the bond was sent to the Bond Centre as per the legal requirement.
- From 4 th November 2023, the landlord signed a new tenancy agreement with new tenants upstairs who became the sublandlord for the tenant. The tenant started paying her rent to the sublandlord instead of the landlord until the tenant moved out in December 2023. However, other than the payment of the rent, everything else was still going through the landlord and not the sublandlord.
- On 21 st November 2023, the tenant mentioned that she was thinking about leaving to the landlord.
- On 12 th December 2023, the tenant gave a written notice to the landlord terminating the tenancy.
- The final inspection took place on 19 th December 2023. As the landlord was overseas at the time, the landlord sent a property maintenance contractor to conduct the final inspection for the landlord. The tenant moved out on 19 th December 2023.
- The tenant’s final rent covered her to 23 rd December 2023. However, this had been paid to the sublandlord and not to the landlord of this matter.
- At the end of the tenancy, the tenant applied for compensation for one of the two rooms being too damp and mouldy to be used and refund of the last 4 days of rent.
- The landlord made a cross-application seeking for compensation to repair damaged carpet fibre, house inspection fee caused by short notice of termination and rent for the full notice period.
- I deal with the tenant’s application first. Dampness and mould
- Under section 45 RTA, 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.
- Rule 15 of the Housing Improvement Regulations 1947 requires for every house to be free from dampness. This means that all rental homes must be free from dampness and mould before it is rented out. The tenant has an obligation to keep the house clean and tidy which includes the responsibility to keep it in a condition that prevents mould and damp. 4844265, 49191203
- The tenant claimed that one of the two rooms downstairs could not be used due to it being too damp. The tenant said that she had to move her desk out from that room to the living room to be able to work as the room smelled too musty to occupy.
- The tenant sought $35.00 reduction of rent per week to reflect other similar “one bedroom” rental properties. The tenant sought compensation of $1,515.00 for the 43 weeks that she had stayed at the premises.
- The tenant had reported the dampness issue to the landlord from July 2023 and the landlord provided her with a dehumidifier.
- The sublandlord was phoned during the hearing to give evidence. The sublandlord said that one of the two rooms downstairs smells mouldy but was okay if the windows were open.
- The sublandlord confirmed that the subsequent flatmate downstairs also moved the bed out from the “damp room” and used that room as a living area instead of a second bedroom.
- More importantly, the sublandlord confirmed that an insurance assessor had previously come to check out that room and commented that the carpet in that room was more damp than other areas and the assessor suspected that there may be a crack on the concrete slab on the floor that has allowed for the moisture to come up from the ground.
- Regardless of the cause of the dampness, I find on the balance of probabilities that one of the two rooms downstairs was suffering from dampness.
- I accept the tenant’s calculation as being reasonable. I order the landlord to compensate the tenant $1,515.00 for her loss of use of one of the two bedrooms. Overpaid rent
- The tenant sought refund of 4 days’ worth of rent as she had paid rent to cover until 23 rd December 2023 when she had moved out on 19 th December 2023. Subsequent tenants started living downstairs from 20 th December 2023.
- The complication at this stage is that the tenant was paying her rent to the sublandlord and not the landlord directly. This was a quasi-flatmate situation with the upstairs sublandlord.
- There is no record of the landlord having received double rent for the period between 20 th and 23 rd December 2023.
- The overpaid rent should be claimed from the sublandlord and not the landlord directly. 4844265, 49191204 The landlord’s cross-application
- Having dealt with the tenant’s application, I now consider the landlord’s cross- application.
- The landlord claimed repair costs for the damaged carpet fibre, exit inspection fees and compensation for the short-notice termination. Damaged carpet
- For damage claims, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- The Tribunal must also take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- The landlord purchased this property in 2017 and could not confirm the age of the carpet. The landlord had not replaced the carpet and did not know if it was new back in 2017. Residential carpet has a useful lifespan of 8 years.
- The landlord did not have any photos of the carpet at the beginning of the tenancy to prove that the worn carpet was caused by the tenant during the tenancy. Having seen the photos and having considered the age of the carpet, I find that the landlord has not proved that it was not fair wear and tear.
- Therefore, I decline the landlord’s claim for carpet repairs. Exit inspection fees
- Ordinarily, the landlord cannot charge exit inspection fees.
- Under the RTA, the tenant is required to give the landlord at least 28 days’ notice for termination in writing.
- The tenant gave her written notice of termination on 12 th December 2023. The exit inspection on 19 th December 2023, only a week after the termination notice was given.
- The landlord was overseas between 15 th December 2023 and 29 th January 2024. Although the landlord would have been overseas still on 9 th January 2024 even with the tenant’s full 28 days’ notice, I accept that it would have been difficult to arrange for someone to be available for the exit inspection within a 4844265, 49191205 week. It would have been easier to arrange for someone to do the exit inspection with 28 days’ notice.’
- The landlord incurred $437.00 for the exit inspection taking place before the required notice period.
- Therefore, I order the tenant to pay the landlord $437.00 as compensation. Compensation for early termination
- The landlord claimed that the tenant should pay rent for the full 28 days’ notice period.
- There is no logical basis for this claim. The landlord had received full rent from the sublandlord and there was no shortfall from the tenant having moved out on 19 th December 2023.
- This claim is dismissed. Reimbursement of the filing fee
- Because both parties were only partially successful, I do not order for any reimbursement of the filing fee.