Published tribunal order
Tenancy Tribunal case 4979383 — Property damage at Unit/Flat Flat 4, 707 St Aubyn Street East, Parkvale,
Decided 10 Dec 2024 · Published 10 Dec 2024 · Application 4979383
- Property damage
- Exemplary damages
- Cleanliness
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the tenant’s name and identifying details.
- Property Brokers Limited, Craig & Vanessa France must pay [The tenant/s] $5,878.39immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. The tenant was assisted by an approved representative. The Claims
- [The tenant/s] tenant claims that the landlord has breached its obligations to: a. provide and maintain the premises in a reasonable state of repair (s.45(1)(b); b. lodge bond payments within 23 working days for receipt (s.19(1)(b)) c. give due notice before entering the premises (s.48(4)(a)) Background
- This was a periodic tenancy which began on 1 October 2019. It was ended by notice from the tenant on 25 October 2023.
- The tenant’s bond has been refunded in full. Bond
- The tenant paid a bond of $1,480.00 when the tenancy began which was duly lodged with the Bond Centre.
- In October 2022 the rent was increased by $10.00 per week and a further bond payment of $40.00 was requested from the tenant in accordance with s.18(2) RTA.
- The tenant paid that additional bond on 21 October 2022. To her surprise the landlord e-mailed on 22 November 2022 asking about the bond top up payment. The tenant confirmed it had been paid on 21 October 2022. That bond payment was not lodged with the Bond Centre until 23 March 2023.
- Section 19(1)(b) requires that, “...the landlord shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.”
- Failure to meet that obligation is an unlawful act for which exemplary damage of up to $1,500.00 may be awarded.
- By failing to lodge the tenant’s bond payment within the required period, the landlord has committed an unlawful act. The time limitation in s.109(2) for bringing an exemplary damages claim does not apply to that breach.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- Here, the additional bond payment clearly shows on the landlord’s ledger records. More fundamentally, when queried, the tenant confirmed the date on which that payment was made. In those circumstances it is hard to see a justification for the bond payment not having been lodged.
- I take into account that the sum involved was $40.00, the tenant’s main bond had been lodged and the top up was eventually lodged and refunded so there has been no actual loss caused.
- Given that the tenant specifically confirmed the payment, I do consider it just to make a minor award of exemplary damages to recognise that an unlawful act was committed. Unlawful Entry
- Under s.48, a landlord may only enter premises in prescribed circumstances. In general terms, except in case of emergency, it requires consent or appropriate notice.
- On 18 November 2018 a new property manager knocked on the door then entered the premises with her key. She queried why the tenant was there and seems to have taken some persuading that the tenant was entitled to be there in her home and that the property manager was at the wrong address.
- While the property manager committed an unlawful act by entering the premises without consent and without notice, the evidence does not persuade me that it was other than a genuine error on the property manager’s part for which I would not consider it just to award exemplary damages or compensation. Repair/ maintenance obligations
- The main focus on the hearing was on the tenant’s claims that the premises were not kept in an adequate state of maintenance and repair.
- It is helpful to begin by noting that being a periodic tenancy beginning before 1 July 2021, the landlord was not required to have the premises compliant with Healthy Homes standards until 1 July 2025.
- The landlord did nevertheless have an obligation under s.45(1), to: a. 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; b. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016; and c. comply with any relevant enactment in relation to buildings, health and safety.
- Breaching any of those 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 tenant has provided a comprehensive history of the problems with the premises, supported by photographs showing the effect of those problems and records of correspondence with the landlord about remediation/ repair of them.
- The tenant says that there were issues with the premises arising from: a. pre-existing mould; b. condensation and poor window ventilation; c. leaking doors; d. ongoing failure of the gate to be functional and secure; e. failure to clean the gutters.
- The evidence satisfies me that the tenant was diligent in meeting her obligation under s.40(1)(d) to notify the landlord about those repair and maintenance issues. Mould
- There had been a previous leak in the hot water cylinder at the premises. Photographs show significant evidence of current mould as well as earlier water damage in that space.
- The tenant’s timeline shows concerns about mould growth at the premises having been brought to the landlord’s attention from very early 2020 and continuing throughout the tenancy.
- The tenant gave detailed evidence of the steps taken by her to ensure that the premises were occupied in a way that minimised the conditions for mould growth with assiduous drying of the premises, vacuuming the condensation build up inside the windows with a window vac, regular wiping of sills, not drying laundry inside and minimising cooking vapours. She bought and used a dehumidifier as well as using the heater and heat pump.
- That being so, I find it more likely than not that the recurring mould problems at the premises were not as a result of any failure on the tenant’s part.
- Photographs provided appear to support the tenant’s view that there must have been mould growing beneath wallpaper and painted surfaces before the tenancy began, suggesting the presence of established mould spores, painted or papered over.
- The flooding from the water cylinder leak should not have been a major contributor if properly dried. There is however no evidence of invasive moisture testing having been undertaken of wall linings and framing in that area to ensure it was properly dried.
- The tenant has also provided photographs from the listing in 2019 which appear to show at that stage “ghosting” ie stain patterns on walls and ceilings that can be consistent with excess humidity. Significant mould growth is apparent in cupboards, around internal and window joinery and on curtains.
- An insulation assessment undertaken in October 2018 report the ceiling insulation as having a minimum thickness of 120mm and as being in reasonable condition. However, the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (like the current Healthy Homes Standards Regulations) prescribed a minimum insulation rating of R2.9. The tenant has provided a photograph of the label staple to the ceiling rafters from the insulation product installed, which shows it to have a rating of R1.8.
- That evidence suggests that the premises may not be be adequately insulated.
- The tenant has carefully documented the significant mould damage caused to her more important belongings. From the extent of damage to the possession for which the tenant claims compensation, I accept her evidence that several other possessions were damaged and had to be discarded when she left the tenancy, which are not included in her claims.
- The tenant’s compensation claims, which were considered individually during the hearing are not exaggerated and are supported by evidence proving the loss incurred by the tenant as a consequence of her possession being mould damaged during the tenancy and having to be discarded.
- I find that the tenant is entitled to be compensated for loss of those belongings on the basis that the loss was more likely than not to have been caused by deficiencies in the premises themselves, resulting from unremediated causes of dampness and high humidity levels, not from any cause over which the tenant had control. Extractor fans
- The tenant says that from the beginning of the tenancy the bathroom extractor fan was inadequate and there was no opening window in the bathroom.
- Her evidence is that the extractor was replaced in August 2022, 2 ½ years later.
- The evidence suggests that having an inadequate mechanical extraction in a bathroom with no other means of ventilation, and owners’ decision not to install an HRV system, will have contributed to the dampness, mould and humidity issues in the premises.
- Extraction requirements for bathroom extractors are specified in the Healthy Homes standards. However, during this tenancy the premises were not required no meet those standards.
- That claim, as a separate issue, is declined. Gate
- The tenant’s evidence satisfies me on balance that the rear gate was not provided in an adequate state of repair during the tenancy despite the tenant having brought the need for repair to the landlord’s attention.
- Compensation for that breach of the landlord’s obligation is include within the general compensation warded. Condensation
- Dealing with condensation in older homes with single glazed windows is a challenge for many occupiers.
- The photographs provided show that the tenant had to deal with quite severe condensation. The window joinery developed mould that had to be managed and there was rot in some of it.
- Again, the evidence provided satisfies me on balance that those condensation issues did not result from any fault on the tenant’s part in terms of how she occupied the premises.
- The evidence does not show however that those condensation issues were caused by any breach of the landlord’s obligations. That obligation is to 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
- The landlord is not required to change the nature of the premises. The evidence does not prove a breach of any maintenance or repair obligations causing those condensation issues. Gutters
- The tenants the gutters were not cleaned in 4 years. The photographs show some mould around the gutters but the gutters themselves appear to be free from obstruction and able to conduct rainwater into the drains.
- I do not find it proved that lack of maintenance of the gutters caused loss to the tenant. Door leak
- Photographs show significant water leakage into the premises though glass door panels
- That leaking was first notified to the landlord early in the tenancy.
- In February 2021 a handyman added seal strips to the door frame and applied silicon to the window glass. That made the door very difficult to close and some seal was removed.
- In July 2022 the tenant emailed the landlord saying that the front door was still leaking. Later in July the tenant contacted the owners direct about the issue.
- In August 22 two the owners indicated that a new door would be obtained but then in September the owners contacted the tenant saying that replacing the door was too expensive so another fix would need to be found. The tenant followed up with the owners again in February 2023 and later that month a beading was placed around the door frame and putty was applied to stop the leaking. 53 Preventing leaking though the door is a fundamental repair and maintenance issues which the tenant notified the landlord about. The response does not appear to have been particularly timely or effective.
- As a result the tenant had to deal with that leak issue which caused additional inconvenience, compensation for which is included in the order for general damages made. What compensation/ exemplary damages should be awarded.
- My findings are that the landlord breached maintenance and repair obligations with regard to the recurrence of mould growth in the premises, failure to repair the gate and an inadequate response to the leaks through the door.
- I have noted my finding that the tenant is entitled to compensation for the direct loss of her property through mould damage.
- The tenant has given extensive evidence about the consequences for her of those breaches in terms of the concerns about the effect of mould and damp on her health vulnerabilities and the feelings of disregard and frustration from the issues not being addressed.
- On balance, I do not it proved that it would be just to make an award of exemplary damages against the landlord in addition to the compensation awarded. The premises are, of their nature, more difficult to manage from a dampness/ mould prevention point of view and there have been responses from the landlord to the concerns raised by the tenant.
- I note too that s.109(2) prevents an application for exemplary damages being brought later than 12 months after the date on which the unlawful act took place. Here, the tenancy ended on 22 August 2023 and the application was not brought until 22 August 2024 so the actions (or lack of actions) complained of are largely outside that 12 month window.
- The tenant has however, in addition to the direct losses suffered from the destruction of her belongings, suffered a loss in terms of her in her use and enjoyment of the premises, from the concerns about impacts on her health and with the stress and frustration of very regularly having to raise and follow up issues with the condition of the premises.
- The tenant was required to live in a unsuitably damp and mould prone environment with consequences for her health, the extend of cleaning and mould management required, her relationship with the property managers and her use in enjoyment of the premises to the extent that she ultimately felt unable to remain living there. I fix those general damages at $2,500.00. Rent Increase
- The tenant claims that she should be reimbursed the rent increases applied during the tenancy because of those repair and maintenance issues.
- Landlords are able to increase rents in accordance with s.24. If a tenant believes that the amount to which the rent is being increased is substantially more than market rent, for whatever reason, they can apply to have a market rent assessed by the Tribunal. No such application is made here. The rent paid and the tenant’s entitlement to compensation for the issues raised, are separate matters. Rent Reduction
- The tenant has applied for a rent reduction to compensate for the issues raised.
- In my view it would be appropriate to consider a global award of general damages to take into account the matters raised by the tenant in support of her claim to a rent reduction. Electricity costs
- The tenant’s evidence is that during the tenancy the tenant used the heat pump, heater and 2 dehumidifiers to dry and warm the premises and minimise the conditions for mould growth.
- I am persuaded that it is more likely than not that the repair/ maintenance issued with the premises, did cause the tenant a loss through inflated electricity costs.
- The tenant has set out comprehensively the basis on which she has calculated her loss, which I find reasonable. Relocation costs
- The tenant seeks compensation for relocation costs on the basis that those costs were incurred because she left the premises due to the issues addressed in this Order.
- As this was a periodic tenancy, there was no certainty for either party as to its duration. Those costs would have been incurred by the tenant on any relocation and I do not find the landlord’s breaches to be a sufficiently direct cause of those costs, to support an award of compensation.
- Because [The applicant/s] has substantially succeeded with her claim I reimburse the filing fee.