What was Tenancy Tribunal case 4904475 about?

The tribunal order states: An application for suppression has been made in this matter and I order

How much money was awarded in case 4904475?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4904475?

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

Where can I read the official tribunal order for case 4904475?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11530148-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4904475 about?

The tribunal order states: An application for suppression has been made in this matter and I order

How much money was awarded in case 4904475?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4904475?

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

Where can I read the official tribunal order for case 4904475?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11530148-Tribunal_Order_Redacted.pdf.

Unit/Flat 9, 145 Howe Street, Freemans Bay, Auckland Tenancy Tribunal Case 4904475 — Mould & damp

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Reasons

This is a reserved decision. The hearing for this matter took place on 16 January 2025. Following the hearing, the parties filed submissions with the last submission being filed on 26 February 2025.

The tenant attended the hearing with a support person. A representative of the landlord attended the hearing.

The tenant claims that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986 (the “RTA”). Initially, the tenant asserted that the landlord had failed to comply with the Healthy Homes Standards (the “HHS”). However, the tenancy ended prior to 01 July 2024 which is the date on which all of the landlord’s properties must comply with the HHS.

The tenant claims that the landlord has breached: a. Subsection 45(1)(b) of the RTA by failing to maintain the premises in a reasonable state of repair; b. Subsection 45(1)(c) of the RTA by failing to comply with regulation 15 of the Housing Improvement Regulations 1947 (the “1947 Regulations”).

The tenant is seeking compensation and exemplary damages in respect of these breaches. Relevant legal considerations:

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. This includes that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that the party bringing the application must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. Summary of relevant background facts:

On 09 March 2022, the tenant moved into the premises. The premises is part of a complex which is made up of multiple units with mixed ownership between the landlord and private owners.

On 27 September 2022, the tenant sent a text message to the landlord advising of issues relating to excessive moisture at the premises including mould in the laundry, the kitchen cupboards and bumps on the kitchen floor. The landlord visited the premises and established that work was required to fix these issues. This work was completed in February 2023.

In early May 2023, one of the tenant’s young children was admitted to Starship hospital suffering from croup and bronchiolitis.

On 12 May 2023, the tenant sent a text message to the landlord about the excessive mould in the premises and the difficulties she was experiencing in keeping the house warm and dry. In this message, the tenant advised that her children had been suffering from respiratory issues and one of them had been admitted to hospital for these health conditions.

On or about 28 June 2023, the tenant provided the landlord with a letter from her family GP of 26 June 2023 to the landlord saying: The children have both been suffering from recurrent respiratory infections. They live with their mother in KO accommodation, and the house is quite cold and has mould growing on the windows. This is likely to be contributing ot their health conditions. Request to be moved.

On 01 September 2023, the tenant provided the landlord with another letter from her GP. The letter referred the humidity readings taken by the tenant of 80% humidity. The GP said that the conditions in the premises were “almost certainly” exacerbating one of the children’s health conditions.

On 06 September 2023, an Asset Manager for the landlord visited the premises.

On 06 October 2023, the Asset Manager provided his report to the landlord. A number of maintenance issues were noted including cracked glass on a window, and the shower well wall lining being cracked. However, the report went on to state that there were: [n]o other obvious sources of moisture or dampness identified during the visit. The tenants will need to continue to manage normal condensation on windows with appropriate housekeeping measures including ventilating property and wiping down surfaces as necessary.

In relation to the tenant’s request to be moved on health grounds, he wrote: I understand that the tenants have raised concerns regarding their children’s health conditions and would like to be moved however as we are unable to link their illnesses to major property defects I would suggest exploring transfer options on other grounds if this is the preferred outcome and if they meet the eligibility criteria.

In March 2024, a new Case Manager for the landlord visited the tenant. She requested a moisture report.

On 08 March 2024, Morecroft Hazardous Materials Management issued its Mould/Moisture Inspection Report (the “Mould/Moisture Report”). In the Mould/Moisture Report it was recorded that the front door, part of the kitchen all of the upstairs (including the stairs themselves, the bathroom and both bedrooms) had “Extremely High or High Warning Moisture content. The report went on to state: [t]he property is NOT suggested to be fit for tenancy due to excessive Humidity and Moisture Readings. Most walls showed or were dripping visually. From being in the apartment for 15-20mins I was drenched, shower rooms humidity was excessive. There was noted to be a baby in this house and that kind of moisture could possibly affect comfort & health of this child, due to Humility and Mould growth hazard.

The landlord took steps to move the tenant to another premises shortly after the Mould/Moisture Report was issued.

The tenancy ended on 11 April 2024. The tenant’s evidence:

The tenant accepts that after raising her concerns in September 2022, the landlord carried out repairs to the premises. However, she says that the repairs took a long time and that part of the repairs to the hot water cylinder floor consisted of the landlord simply placing a board on top of the mouldy floor.

The tenant said that since raising the issue of mould in the premises in late September 2022 up until she received the Mould/Moisture Report she has continuously raised the issue of excessive mould in the premises with the landlord. The tenant says this was done by calling the landlord on its 0800 number, messages and emails. Many of these messages and emails were supplied to the Tribunal.

The tenant said that she spent approximately 2 hours each day on top of her usual housekeeping addressing the mould. The tenant said this included wiping the windows and the window frames, changing the sheets on the beds and lifting the mattresses off the beds.

The tenant said the curtains were full of mould and had to be changed. The tenant said that having dried every window in the house in the morning, by lunchtime the condensation on the windows would have returned and she would need to start again.

The tenant says that the visit from the landlord’s Asset Manager on 06 September 2023 was very quick and that he did not appear to measure the moisture levels in the premises.

The tenant said that since moving into the new premises in April 2024, her children’s health has improved significantly. The tenant’s GP provided a letter of 2 September 2024 saying that the “improved living environment has resulted in less visits to our medical centre for viral infections”. The landlord’s evidence:

The landlord says that repairs relating to the tenant’s complaint of 27 September 2023 were completed in February 2023. The landlord says that this was due to the time of the year, the number of resources and different tradespersons required. The landlord says that given the amount of work required, this was a reasonable timeframe for the repairs.

The landlord also asserts that following the Assets Manager’s report of 06 October 2024, it believed that the property was in a reasonable state of repair and not further investigations were required.

The landlord referred to the timely manner in which it acted once the Mould/Moisture Report was requested by the new case worker.

Has the landlord breached section 45 of the RTA?

Subsection 45(1)(bb) of the RTA provides that landlords shall comply with the HHS. The HHS require landlords to comply with minimum standards in regard to heating, insulation, moisture ingress and drainage and draught stopping. The HHS has been phased in over a period of time. The landlord had until 01 July 2024 to comply with the HHS. The tenancy ended before that date.

However, that is not the end of the matter. Section 45 of the RTA provides that the landlord shall: ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and ...

Regulation 15 of the 1947 Regulations provides that “every house shall be free of dampness”.

On a number of occasions, the Tribunal, along with the District Court, have recognised that mould and condensation are difficult issues and that it is often not easy to point to a single cause or allocate responsibility to one party only when mould is present.

In Warwick Todd Ltd v Tapper TT1381/02, Christchurch, 14/089/2002, the Tribunal found that a tenant can be responsible for mould problems if they fail to air and heat premises sufficiently, and a landlord can be responsible if they do not provide sufficient means to air and heat the premises or if the premises are damp.

In Repia v Walsh Trust DC Waitakere, CIV-2011-090-00056, 27 April 2011, the District Court recognised that the presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair.

In the Mould/Moisture Report, a number of required repairs were identified including further investigations and mould remediation works. The report provided that the moisture content in the premises made it uninhabitable. A house that is uninhabitable due to the moisture content cannot be said to be in a reasonable state of repair or to be free from dampness.

While I cannot say for certain what was causing the mould, on the evidence presented to me, I find that the tenant was not responsible for the mould. This was stated in the Mould/Moisture Report.

That said, where there is a need for repair, the tenant also has obligations under the RTA. Section 40(1)(d) of the RTA provides that the tenant must: Notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs.

The landlord cannot be expected to carry out repairs if the landlord is not reasonably aware of the issue. In Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2010, the District Court held: ... the obligation of the landlord, under s 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, I think, 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.

In order to have breached subsections 45(1)(b) and (c), the tenant must have told the landlord about the issue. I find that the tenant did all she could reasonably do to notify the landlord of the issue. The written correspondence provided by the tenant shows that following her complaint in late September 2022 until she received the Mould/Moisture Report, there were several written requests for help with the moisture and mould levels in the premises. There were also two letters from the tenant’s GP saying that the house was affecting the heath of the tenant’s children. Furthermore, the tenant says, and I accept, that she made frequent calls to the landlord’s 0800 line asking for help with the issue.

I accept that once the landlord received the Mould/Moisture Report it took prompt steps to resolve the issue. However, when a tenant raises concerns of extreme mould and moisture in a premises, a landlord is obliged to carry out investigations and repairs within a reasonable period of time.

In this case, I consider the damage that was reported in late September 2022 was not repaired within a reasonable period of time. I accept that the work involved different tradespeople and that the Christmas New Year holiday period may have delayed some of that work. However, a period of over 4 months to complete the work is excessive. I consider that a reasonable period would have been 2 months.

I also find that the landlord should have carried out investigations into the complaints of excessive mould in the premises once it become clear that the repairs that were finished in February 2023 had not resolved the issue. I consider the Landlord would have been aware that the issue had not been resolved by no later than 12 May 2023 when the tenant sent a detailed text message regarding the excessive mould. The Asset Manager provided his report in October 2023. This was a period of almost 5 months which, given the number of complaints from the tenant and medical evidence that her child’s health was being impacted by the state of the premises, cannot be said to be a reasonable period of time.

Furthermore, the requirement to investigate defects is to investigate them properly. I find that the report carried out by the Asset Manager was inadequate. The landlord essentially says that it was reasonable to rely on its Asset Managers findings of 06 October 2023. I disagree. The Asset Manager was an employee of the landlord. The landlord is responsible for the actions of its employees. The Asset Manager’s failure to carry out an adequate investigation is the landlord’s failure. Should the tenant be awarded compensation/damages for the breaches of section 45 of the RTA and, if so, how much?

The tenant is seeking the following compensation/damages: a. A rent rebate of $12,346.40 calculated as follows: 80% of rent paid for the duration of the tenancy: 80% of $152.00 a week over a 2 year period. b. Compensation for her time. The tenant says she spent two hours per day above her normal cleaning dealing with the mould. She claims $33,799.00 calculated as follows: 2 hours per day at $23.14 per hour. c. Compensation of $10,000 for her time trying to be heard by the landlord. d. Compensation of $3,000 for emotional harm; e. Compensation of $249.60 for travel costs to and from the doctor; and f. Exemplary damages of $7,500.00. Rent rebate:

I find this is a case where a significant award for loss of amenity or rebate in rent should be made. I find the appropriate period of time for compensation should be: in respect of the period of time after which the landlord should have completed the original appears until when the repairs were completed (approximately 60 days); and in respect of the failure to investigate and take appropriate action should be from when it became clear that the tenant made it clear that the issues with moisture mould were not resolved (12 May 2023) to the end of the tenancy: 11 April 2024: 335 days.

The weekly rent was $152 per week or $21.70 per day.

I award compensation for loss of amenity of $6,857.20 ($5,815.60 being 80% of the rent for the period from 12 May 2023 until the end of the tenancy; and $1,041.60 being 80% of the rent for the period of 60 days after which the repairs should have concluded). d) Compensation for emotional harm:

At the hearing, the tenant advised that the impact on her was significant. When describing how the matter affected her the tenant became tearful and said she felt like she was “failing her children”. The tenant said that when the new case worker listened to her concerns and suggested the landlord obtain a moisture report it felt like a “godsend”.

The evidence provided from the tenant’s GP was that the state of the premises was causing or contributing to her children’s health issues. This possibility of harm to the youngest child from the premises was also recognised in the Mould/Moisture Report. I find that it is more likely than not that the landlord’s failure to maintain the premises at least contributed to her child’s poor health.

While it is not open to me to award damages for personal injury, I find that knowing that the premises were at least contributing to her children’s poor health and having her complaints fall on deaf ears, would have contributed to the tenant’s emotional harm.

I find that the emotional impact on the tenant of the landlord’s breaches of section 45 of the RTA was significant and award $3,000 for emotional harm. Claims for compensation for the tenant’s time and travel costs:

I accept that the tenant has spent a significant amount of time cleaning to manage the mould and trying to be heard by the landlord. I award $5,000.00 as compensation for the tenant’s time. I recognise that this is not compensation per hour at the minimum wage as claimed by the tenant. While I find the tenant to be an honest and reliable witness, as far as I am aware temporaneous records were not kept of this work. I consider it is virtually impossible to accurately recount the time spent within maintaining such records. I also consider there is some overlap between the claim for loss of amenity and stress/emotional harm and these claims.

I decline to award compensation for travel costs to and from the doctor as I am not satisfied of the dates of the doctor’s visits or the reasons for them. Exemplary damages:

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA. This section provides that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.

The maximum levels of exemplary damages are set out in Schedule 1A of the RTA. The maximum award for a breach of subsections 45(1)(b) and (c) is $7,200.00.

In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the District Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.

Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 1 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.

Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore, there was no basis to order exemplary damages.

A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698. The dispute in that case was included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. The District Court accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently thorough to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.

I cannot make an order for exemplary damages unless I find that the landlord’s acts (or failures to act) were intentional. I find that while the landlord’s acts (or failures to act) were negligent they were not intentional. I do not believe that the 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 landlord intentionally delayed the initial repairs to the premises or that they deliberately decided not to carry out the required investigations once it was obliged to do so.

There are insufficient grounds to award exemplary damages against the landlord. Filing fee and suppression.

The tenant has been substantially successful in her claims. For this reason, I award reimbursement of the filing fee and order suppression of the tenant’s name.