What was Tenancy Tribunal case 4916033 about?

The tribunal order states: The Tribunal orders suppression of the landlord’s name and identifying details.

How much money was awarded in case 4916033?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4916033?

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

Where can I read the official tribunal order for case 4916033?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10659270-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4916033 about?

The tribunal order states: The Tribunal orders suppression of the landlord’s name and identifying details.

How much money was awarded in case 4916033?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4916033?

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

Where can I read the official tribunal order for case 4916033?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10659270-Tribunal_Order_Redacted.pdf.

82 Keith Street, Roslyn, Palmerston North 4414 Tenancy Tribunal Case 4916033 — Mould & damp

Order

The Tribunal orders suppression of the landlord’s name and identifying details.
The tenant’s application is dismissed.

Reasons

Both parties attended the hearing.
The Tribunal was advised just before the start of the hearing that the tenant asked an employee of the Manawatu Tenants’ Union, who had assisted her in the preparation of her application, to represent her.
The landlord was offered the opportunity to adjourn the hearing if it wished to arrange its own representation. The landlord agreed to the hearing proceeding. In the event, it did not appear that the landlord was disadvantaged by the tenant having an advocate and the Tribunal was assisted by his advocacy.
In this Order I have referred to the owner’s property manager as the landlord during the period when he was responsible for managing the tenancy. Where the owner herself took responsibility for the tenancy, I have referred to her as the owner. The tenant’s application
The tenant’s application to the Tribunal was for compensation for the landlord’s: a. Failure to provide the premises in a reasonable state of cleanliness. See section 45(1) Residential Tenancies Act 1986 (“RTA”). b. Failure to 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. See section 45(1)(b) RTA. c. Failure to comply with the Healthy Homes Standards (“HHS”) in relation to insulation, ventilation draught stopping and moisture ingress. See section 45(1)(bb) RTA. d. Issuing a retaliatory notice. See section 54 RTA.
The tenant’s application included claims for exemplary damages for the alleged breaches of sections 45(1)(b), (bb) and 54 RTA. Standard of proof and evidence
In considering the tenant’s claims, the standard of proof is “on the balance of probabilities”. In other words, the tenant must establish with evidence that her claim is more likely than not. I have considered each of the claims bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding each claim, I have considered all the evidence presented, including oral testimony. I have weighed this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.
While I have not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, I have referred in this Order only to the most relevant or important evidence.
By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the necessary evidence. It is not the Tribunal’s responsibility to extract evidence.
Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the tenant’s application with this requirement in mind. Failure to provide the premises in a reasonable state of cleanliness
The tenant claimed that the landlord did not provide the premises in a reasonable state of cleanliness.
The tenant’s specific complaint was that the carpet and the lower kitchen cupboards were contaminated by cat urine.
The landlord provided evidence of her notifying the landlord of her concerns just over a month after the start of the tenancy on 27 December 2023 and then repeatedly over the following months.
The landlord advised that the carpets had been cleaned at the start of the tenancy and relied on its pre-tenancy report accepted by the tenant at the start of the tenancy that did not reveal any odour issue with the carpets or other areas of the premises.
Upon the tenant’s insistence, the landlord agreed to have the carpets cleaned commercially and this was completed on 9 April 2024.
The tenant continued to complain of the odour and health impacts on her family from 11 April 2024.
On 7 May 2024, Mid-Central Health’s Healthy Housing Programme wrote to the landlord (“Mid-Central’s letter”) and advised: “The presence of historic cat urine is evident and pervasive throughout the carpets in the home, as well as in the lower kitchen cupboards which are currently unusable due to the extreme odour. The tenant advised the carpets had been professionally cleaned and the cupboards have been repeatedly washed with both vinegar and bleach – these measures are not sufficient to address the issue. Cat urine poses a significant health risk since prolonged exposure to the ammonia released as it evaporates is linked with adverse health outcomes - including respiratory illnesses and bacterial skin infections. The youngest child in the home has, at this point, been hospitalised repeatedly with bronchitis and pneumonia and has had repeated skin infections since moving into the home. The health of the rest of the family has also been negatively impacted with increased respiratory issues and infections.”
The tenant provided a letter from the tenant’s doctor stating: “This letter is to confirm/support that since moving on 24 November 2023 [to the property] we have had an increase in the number of doctor and nurse presentations from [the tenant’s family].”
The tenant provided a copy of a letter from a Family Start Worker stating that the tenant believes that her family’s health issues are a result of living in the property and the urine contamination. The letter states that the writer is unable to confirm that these issues are linked to the whanau’s health issues. The writer confirms that on visits to the property there was “a lingering smell of cat urine”.
The tenant maintained that the contamination could not be fixed by further carpet cleaning and obtained an email from the landlord’s commercial carpet cleaner on 30 May 2024 which provides the opinion: “We have treated many houses with this issue and the only way to stop the odour is to seal the timber boards with a stain and odour blocker sealant.”
The tenant advised that this email was not forwarded to the landlord.
The tenant had email correspondence with the landlord about having the carpet replaced. The landlord advised that the owner was not in a financial position to replace the carpets.
The landlord gave evidence that there was no indication of a smell of cat urine during the routine inspection on 22 March 2023 while the tenant’s evidence is that the odour was present “all the time” but that she became accustomed to it so that it was mainly noticeable upon entering the property.
The tenant has not persuaded the Tribunal on the balance of probabilities that the issue was present at the start of the tenancy. The landlord had the carpets cleaned before the tenancy started and there was no indication for over a month that an issue had arisen.
Nor has the tenant persuaded the Tribunal that the landlord’s failure to take more steps was a breach of its obligation to maintain the property by undertaking necessary repairs. Despite having cleaned the carpets before the tenancy started, the landlord had the carpets commercially cleaned again some five months later.
The tenant’s claim was not for the inconvenience of the smell of cat urine. Indeed, the tenant did not emphasis this aspect of the issue at the hearing or in her evidence. Her claim was based on the contamination having caused her family’s health problems.
The Tribunal receives many applications where a tenant believes the house property has caused illness. It is the applicant’s responsibility to prove on the balance of probabilities that it did so. This requires scientific or medical evidence of causation. Evidence that a family became sick in a house is only circumstantial. There needs to be proof of a direct causal link between the state of the house and the illness.
The tenant’s evidence does not on the balance of probabilities support the tenant’s contention that the state of the carpet caused her and her family’s illnesses. This is not a case where a specific disease was caused by a specific contaminant that always causes the specific disease. There can be many reasons why skin infections and bronchial illnesses increase. These cannot be disregarded.
The tenant’s claim is dismissed. Failure to maintain
The tenant acknowledged that other items she brought to the attention of the landlord were resolved in a reasonable timeframe. The Tribunal has already considered whether her claim based regarding urine contamination is a breach of the landlord’s duty to maintain the property and has determined that on the evidence before the Tribunal, it was not.
The tenant’s claim is dismissed. Failure to comply with HHS
The tenant has claimed that the landlord was in breach of the HHS by not meeting the ventilation, insulation, draught stopping, and moisture ingress standards.
Breaching any of these standards is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) RTA.
The tenant produced in evidence Mid-Central’s letter which stated: a. “Guttering requires repair and maintenance, particularly by the front door. b. Evidence of historic and possibly ongoing moisture issues, causing visible marks through the paintwork in the lounge and hallways. c. Loose window latches throughout the home require maintenance to ensure they close properly and form a tight seal. The bottom left-hand window in the lounge (along the driveway) is particularly concerning and opens with minimal pressure even when the latches are closed. d. The front door requires draught stopping. e. Extractor fan requires repair/replacement in the bathroom as it does not appear to be operating effectively.”
The tenant had no knowledge of the gutter repairs required nor of any issues with the fan in the bathroom. She advised that the house was “very cold” and that there were issues with condensation in the bathroom and mould.
The tenant produced a number of photographs showing moisture on internal walls. The tenant gave evidence that the walls felt cold and clammy. She had no opinion on the source of the dampness and was not aware of any leaks. Mid- Central’s letter refers to “historic and possibly ongoing moisture issues”. It does not conclusively indicate the exact issue nor whether it was in fact present.
As recently noted by the Tribunal in Semmens v Wadman [2022] NZTT Manukau 310605, mould is commonly present throughout all residential dwellings in New Zealand to some degree. Adjudicator Woodhouse explained that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered: “Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.”
The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair and the opinion of unqualified persons is often not persuasive. See Repia v Walsh Trust DC Waitakere, CIV-2011-090- 00056, 27 April 2011.
The tenant was not certain whether she raised these issues with the landlord. The landlord advised that it had no record of these issues being raised, despite the tenant having raised other issues successfully through its computer notification system.
The landlord provided the tenant with the HHS Summary Statement completed by an independent professional at the start of the tenancy on 24 November 2023. The report confirmed that the property complied with all the HHS except for the ceiling insulation which required “topping up”.
A new HHS Summary Statement was completed showing that the property now complied with the HHS and was sent to the tenant on 31 January 2024.
The landlord has therefore provided evidence that it had complied with all the HHS within the required 120 days from the start of the tenancy.
The tenant has not persuaded the Tribunal on the balance of probabilities that the landlord failed to comply with the HHS. Her claim was based on Mid- Central’s letter that was not specific in relation to some items and contained no photographic or other evidence that might suggest that the landlord’s HHS report was incorrect.
The tenant’s claim is dismissed. Retaliatory notice
On 18 May 2024 the owner instructed the landlord’s agent to give the tenant notice to terminate the tenancy on 11 July 2024 pursuant to section 51(1)(a) RTA.
The tenant moved out and the tenancy ended on 10 June 2024 and the owner’s property manager’s duties ceased on that day.
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) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
The owner gave evidence that: a. She was living outside the Manawatu with her partner but decided to move back into her house with her terminally ill sister. It was intended that the owner would be able to care for her sister and be closer to the hospital. b. The bathroom walls required repairs and while these were carried out over a period of a couple of weeks, she was unable to use the bathroom and so did not move into the property. c. Boxes of her possessions were moved into the house but only partially unpacked. This was supported by an email from her real estate agent. d. Sadly, the owner’s sister died suddenly and unexpectedly so that they did not live in the property together. e. She became engaged to her partner and they decided to sell her property rather than rent it out again. f. An appraisal of the property for sale was undertaken on 16 June 2024 and it was listed the next day. g. The sale of the property became unconditional on 12 July 2024.
It is significant that the property was sold and not re-tenanted. The disadvantage to the tenant is that the landlord gave only 63 days’ notice and not 90 days as required under section 51(2) RTA. However, the tenant ended the tenancy a month earlier than required under the landlord’s notice. The tenant has not therefore suffered any detriment.
The tenant has not proven on the balance of probabilities that the landlord’s notice that she was to occupy the property was motivated by the tenant’s complaints about the property. The Tribunal is not satisfied that the landlord issued its termination notice simply to get rid of the tenant because of the tenant exercising her rights under the RTA. The Tribunal accepts that it was the landlord’s intention to live in the property but that her circumstances changed and she changed her mind and decided to sell the property.
The tenant’s claim is dismissed. Summary
The tenant’s occupation of the property has been an unhappy experience for her and her family due to their ill health. While the Tribunal has sympathy for their experience and does not doubt the significance of their illnesses, it has no ability to award compensation for damages unless the tenant has proven that the landlord has not met its legal obligations under the RTA. The evidence before the Tribunal has not persuaded it that the landlord has breached its legal obligations. This means that the tenant’s claims must be dismissed. Suppression
As the tenant has not been successful in her application, she is not entitled to name suppression.
Conversely, it is appropriate to suppress the name of the landlord as no award has been made against it or the owner.

Tenancy Tribunal case 4916033 — Mould & damp at 82 Keith Street, Roslyn, Palmerston North 4414

At a glance

Tenancy Tribunal case 4916033 — Mould & damp at 82 Keith Street, Roslyn, Palmerston North 4414

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions