What was Tenancy Tribunal case 4949374 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4949374?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4949374?

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 4949374?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10910638-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4949374 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4949374?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4949374?

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 4949374?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10910638-Tribunal_Order_Redacted.pdf.

15 Toru Street, Mapua, Mapua 7005 Tenancy Tribunal Case 4949374 — Mould & damp

Order

The application is dismissed.

Reasons

Both parties attended the hearing. The agent and owner were both present. The tenant had a support person for the initial part of the hearing.
The applicant made claims regarding Healthy Homes Standards, writing, “Mould & damp. No Insulation or sufficient ventilation. Overgrown garden/grapevine blocking exits and doors. Water leaks and flooding not inspected.” She also claimed exemplary damages for: Invalid notice. Maintenance, not maintaining premises to a reasonable state of repair - No working oven or toilet for a prolonged period. Quiet enjoyment, bullying and misleading information during and post tenancy. Inflated water-bills due to flooding and leaks. Mould & no insultaion. Leaving section blank on tenancy agreement. Unreasonable Garden maintenance responsibilities. Infestations.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, do not infer that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
This premises was previously the home of the owner. The tenancy would have ended through the landlord so a family member could move in, except the tenant left earlier through her own notice.

TENANT CLAIMS

Notice to terminate

From late 2023, the landlord requested in writing, multiple times, sufficient advance notice regarding renewing her fixed term tenancy (11 April 2024). Prior renewal anxiety at prior renewal anniversaries were recounted. It was cited as a reason for some issues not been raised at the time of occurrence.
The landlord provided advice via a text message on 14 February 2024 and followed up on that via email on or around 19 February 2024. These massages confirmed no further fixed-term would be sought by the owner.
It is apparent to me in the messages and subsequent email that the tenancy would convert to a periodic tenancy with the owner intending to have possession return in August 2024, as he had family intending to relocate to the area and move in – or it would end via tenant notice.
Given that uncertainty and a desire for longer-term stability, the tenant gave 28 days’ notice to end the tenancy on 11 April 2024.
The tenant asked for an early release to save a week of rent. This was declined. The owner appears to have expressed to the tenant his own financial loss due to the exit as the premises would remain vacant until the family member moved in later in August.
I do not understand the tenant’s claim that the landlord gave notice. I consider the repeated requests for information regarding the future intentions of the owner were honestly answered. The answer may not have been what the tenant hoped for but I consider her ability to move when she did was advantageous compared to if the landlord had remained silent (which was open to them).
A later 63-day notice to terminate notice to end the tenancy in August would have presented mid-school year challenges to the tenant, but reduced the landlord’s exposure to a loss of rent. Effectively, assuming a 63-day landlord notice served in late June was superseded by a shorter tenant 28-day notice, the income downside to the landlord would be approximately five weeks (or $2,800.00 in this case), lesser than what eventuated.
The tenant claim regarding invalid landlord notice is dismissed. Failure to maintain
It is well settled that, the landlord’s obligation under s 45 RTA 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, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn. Oven
On the evening of 20 October 2023, the tenant informed the landlord about the malfunctioning oven, which would not turn on. The message stated the main oven was not working. The tenant claimed at the hearing that concerns or failures with all four stovetop elements meant she had no use of the oven. The tenant borrowed an air-fryer from her neighbour.
This was the evening before the three-day Labour holiday weekend. On Tuesday, 24 October 2023 an electrician attended and advised a replacement oven was needed. A new oven was installed two days later (Thursday).
The tenant claimed she was advised of a prior recommendation to the owner that the oven should be replaced. This was denied by the owner and I have no evidence of such a recommendation. There was an earlier callout due to stovetop elements not working. Toilet
The toilet had backed up during the heavy August 2022 flooding in the region. The cause of this was understood by the tenant and a plumber attended. She raised a second issue, being that on or around 21 September 2023.
While the first issue was “downstream” due to flooding/blockage, the second issue was “upstream” insomuch as the cistern ceased to function and flushing of the toilet in the usual manner was not possible.
The plumber attended 21 September 2023 and made a repair to the internal mechanism of the cistern. The tenant said she was advised the repair may not be sufficient. The advice was correct. The flushing capability failed soon afterwards.
The tenant arranged for a separate plumber to come out on 22 September 2023. The advice was that the cistern required replacement. She incurred a callout fee of $150.00. The first (and preferred) plumber returned 24 September 2023 and replaced the cistern.
The tenant claimed “unsanitary living conditions” prompted the unilateral calling of her plumber so soon after the first plumber.
There was some confusion at the hearing regarding what repair/replacement was required and what the impact was. While the cistern and flushing function may not have been working, I pondered why an alternate means of flushing (eg, a bucket of water poured into the toilet bowl) was not adopted. Suspected water leaks
The tenant suspected a water leak after a very high water invoice was received. No obvious signs of a leak of such significance as indicated by the invoiced volume was apparent. There had been a leaky outdoor tap (ficed by a plumber) but that is not considered the cause.
The tenant requested an investigation onto the leak was arranged through the council. This did not occur.
The tenant also cited a “buckling kitchen floor” as evidence of water leaks. The owner pointed out this was a concrete floor with lino lifting. He stated the problem was with the lino adhesive and not any water ingress. No water has been observed at that location.
For a reason that is unclear, the tenant also links the serious regional flooding of August 2022 as a possible cause of a leak. I do not find that proven.
The large water bill was eventually resolved by the tenant agreeing to pay $150.00 and the owner carrying the balance of $464.00. While the tenant is aggrieved by the process, the owner’s conclusion that the inflated invoice was due to a metering error seems plausible and it is uncertain what any leak investigation would have found. Ultimately, the cost apportionment of that high invoice, based on other invoices, was skewered in favour of the tenant. Shower/Mould
The tenant first raised an issue with the shower cubicle in 2022. At the first inspection, the tenant pointed some mould growth in the corners of the shower. She also pointed out the painted shower floor was peeling off. The tenant emphasised how the paint hindered cleaning efforts and obstructed drainage. She states she had to scoop paint out of the drain by hand to avoid blockages. No evidence of this was available but logically some paint would have found its way into the shower drain, whether it was to such an extent that “scooping” was necessary is not clear.
Nothing was done at the time. Later in 2022 the tenant sought advice from both Tenancy Services and her cleaner. She stated she did not pursue an alternative flooring solution (tiling being the preferred option) due to the pending fixed-term renewal. I did ask why nothing was raised after the second fixed-term was inked. The issue was revisited after the Health Homes Report in late 2023.
The owner stated he had painted the shower floor. He acknowledged the product had not performed well. The photos provided are consistent with paint failure. There is some deterioration at the base of the shower walls shown in photos but it did not appear to be higher than the shower base lip, meaning water ingress behind is unlikely to have occurred.
The later HHS inspection raised a possible issue of slip risk in the shower due to the failure of the paint. Insulation
The tenant claimed the property has no insulation. This suspicion appears linked to mould appearing at the base of her bedroom curtains (late 2023). The HHS inspector noted that despite the tenant's efforts to maintain ventilation and manage condensation, their view was that any wear and tear of the curtains was due to the premises inadequate insulation, ventilation and damp conditions. I note the tenant described the problem as “what looked like the beginnings of black mould growth at the base of her [white] bedroom curtain”. This was some 18 months into the tenancy and after two winters.
In Xiao and Zhao v Dong [2021] NZTT North Shore 4219619 at [26], the Adjudicator found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”.
There is no landlord claim relating to possible mould related damage.
I find the insulation was evidenced or a plausible exception provided. Garden maintenance
The owners liked the “overgrown look” in what is shown in photos as a “busy” garden area with significant plantings, paved areas and a raised vegetable garden.
The message below was from the owner to the property manager and forwarded to the tenant around the time of the 2023 fixed-term renewal.
The landlord attended to the larger scrubs and trees, as well as the bamboo. An ongoing issue for the tenant was a vigorous grapevine. Photos taken by the tenant in late summer show an extensive overreach from it that reached some buildings. A general discussion at the hearing as to who is responsible for maintaining such a plant ensued. There is no definitive rule and each case must be considered on its merits. In the case of a fruit tree or vine, some consideration of the beneficiary of any fruiting may influence apportionment of responsibility. In this case, I was curious why, if the grapevine growth was a concern, prior pruning before its vigorous growth phase was not untaken. The task at such a time would have been substantially lesser than as required in late summer. I do not have evidence of any definitive agreement regarding the grapevine, nor any specific request by the tenant for that to be maintained. Such a request, in a timelier manner, would have forced some clarity of demarcation at that time. Pest control
At the commencement of the tenancy an infestation of cockroaches was observed by the tenant. The landlord arranged a pest treatment which was effective. The tenant revisits that episode, believing the landlord/owner was aware of the infestation prior to the tenancy starting. The owner denied any prior knowledge. There is no evidence of such prior knowledge.
There was an ongoing problem with some small, unidentified bugs entering the bathroom and dying in the bath. This would have required the tenant or her cleaner to remove these. While uncertain as to the type of bug, I do not share the tenant conclusion that these bugs were due to leaks or moisture behind the walls because of a landlord’s failure to maintain.
The tenant also had to manage a mouse problem, primarily outside and suggested due to the grapevine. She incurred pest management costs in doing so but I do not find the pest issue was due to any specific landlord failure and such pest treatment as evidenced is a reasonable expectation of the tenant in these circumstances.
I consider the landlord maintained the premises is a reasonable manner. Issues appear to be addressed as required, albeit not always as desired by the tenant. Quiet enjoyment
The tenant recounted her concerns regarding the interactions around, and after, the end of the tenancy.
In her written submission she recounts a series of discussions between her and the landlords. Having considered the submissions and evidence, I do not consider there was any breach by the landlord of quiet enjoyment for the tenant. A difference of opinion regarding liability for cleaning to a reasonable standard, or repair is not unusual, and the communication at the time was consistent with such. Recourse to the Tribunal for any unresolved dispute was open to each. I note the landlord had indicated an application may be made but none has been made to date and the landlord indicated a preference to settle all matters via this hearing.
I dismiss the claim regarding any landlord breach of quiet enjoyment.

Should compensation be awarded?

In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
The concern I have with a number of the tenant claims is an apparent overstated or unrelated impact, certainly when dispassionate assessed on the evidence. Some impacts might have been better mitigated in a timely manner. Other circumstances may have amplified the impacts on the tenant at the time. Overall I consider she was happy at the premises and desired a continuation.
Persistent requests for advanced notice of landlord intentions were answered. Unfortunately, the answer did not suit the tenant. That, combined with an incorrect conclusion of the answer being a notice to terminate appears to have set in train this application. A number of historic issues have been revisited in this application when it was open to raise them at a more appropriate time. I say this mindful of the anniversary of fixed-term tenancies and a desire to not “rock the boat”. This is balanced against the lack of subsequently formal action even after such security of tenure was obtained. I do not find any obvious reproach to the tenant from the landlord when issue required attention.
I acknowledge there have been some inconveniences during the tenancy but I do not believe any specific compensation should be ordered. This is concluded after considering the nature, duration and impacts of such issues. I have also consider other factors. There were costs that could have been pursued by the landlord but declined, and secondly, I consider the owner’s loss of potential rent through the advance notice of his family’s intentions merits some consideration from an overall equitable perspective. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenant requested suppression in her application. She has not been successful, so suppression is not ordered due to any success. I heard submissions from both parties regarding a possible discretionary suppression order. The application was well constructed but factually flawed. Not withstanding that, there was no serious issues regarding the tenant and the tenancy. She was a good tenant. The landlord made a supportive submission in favour of tenant suppression.
Having considered the generally positive history of the tenancy and the current circumstances of the tenant. I have decided, by a fine margin, that the tenant’s interests outweigh any public interest at this time and order suppression. Date of order
This order is released after 5pm so the date of sealing is recorded as at tomorrow, 4 October 2024.

Tenancy Tribunal case 4949374 — Mould & damp at 15 Toru Street, Mapua, Mapua 7005

At a glance

Tenancy Tribunal case 4949374 — Mould & damp at 15 Toru Street, Mapua, Mapua 7005

At a glance

Claims & awards

Order

Reasons

TENANT CLAIMS

Should compensation be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

TENANT CLAIMS

Should compensation be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions