What was Tenancy Tribunal case 5006141 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5006141?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5006141?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5006141?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11542102-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5006141 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5006141?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5006141?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5006141?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11542102-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5006141 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the [The tenant/s] name and identifying details. The tenant may be referred to as [The tenant/s] in any publication.
The landlord breached s 45(1)(b) and 45 (1)(c) Residential Tenancies Act 1986 by failing to address mould issues at the property in a reasonable time.
The [The tenant/s] claim for exemplary damages is struck out pursuant to s3(2)(a) of the Law Reform Act 1936.
The [The tenant/s] claim for breach of Healthy Homes Standards is struck out.
No compensation is awarded for the landlord breach.
The bond centre is to pay the bond of $300.00 to the tenant’s family.

Reasons

[The tenant/s] was a tenant at the premises for 8 years from 8 February 2016 until his death on the 27 July 2024. Before 2016 [The tenant/s] had lived at the property for a number of years as flatmate of the original tenant.
The landlord is listed on the tenancy agreement as Colliers International New Zealand Limited on behalf of Land Information New Zealand – LINZ landbank.
This is an application by [The tenant/s ex-wife] who is [The tenant/s] ex-wife and two of his four adult children. At the hearing on the 27 February 2025, [The tenant/s ex-wife] and those two children attended. [The tenant/s] children tell me that the other children are aware and supportive of the proceedings. As [The tenant/s] died without a will and with no significant assets of any value then the family have not applied for letters of administration. They have simply closed [The tenant/s] bank account by providing a statutory declaration, which they have given to me as well.
The premises is an old three-bedroom weatherboard house at the upper end of the harbour in [Town 1]. Whilst the house is showing its age, the views and lifestyle afforded of living in the location are the draw point of the property. Both the property manager and [The tenant/s] family said that [The tenant/s] loved living at the property because of the views and his community. [The tenant/s] paid a rent of $250 per week that was reflective of the age of the property. [The tenant/s] would also offer up accommodation to those in the community who needed his help. He had one regular flatmate that lived in the property, but no one was sure whether this flatmate paid rent or not to [The tenant/s]. The flatmate had lived there for some time. The claims and issues to be determined.
[The tenant/s] family filed their claim after [The tenant/s] died. They have claimed both compensation of $91,000 (which they say they believe is all the rent back) and exemplary damages. In their application they say: [The tenant/s] lived at the property since 2017, there was no maintenance done, no inspections with regard to making sure Healthy homes compliant, he was told to not use the fireplace without giving him any other form of heating. The Lab Report shows Mould and bacteria issues that if adequately maintained would not have been an issue. [The tenant/s] went from a healthy man in his 70's to having serious lung issues in a very short timeframe that the Lab Report shows would have instigated his symptoms and his death in less than 2 weeks from being ambulanced to hospital.
The claims and issues to be determined are: a. Can [The tenant/s] family make a claim after [The tenant/s] death? b. If so, who can make the claim? c. Did the landlord fail to comply with Healthy Homes Standards? (s45(1)(bb)) d. Did the landlord fail maintain the property- (s45(1)(b)) or fail to comply with any requirement requirements in respect of buildings, health, and safety in any enactment. (s 45 (1)(c)). (i)by failing to repair or maintain the property repairing the property so that mould would not grow? (ii)By failing to address the mould problem at the property? (iii)By not repairing the fireplace. e. If so, what is the remedy? Can [The tenant/s] family make a claim after [The tenant/s] death?
In common law a cause of action (or ability to make a claim) dies with the person. 1 However, Parliament has legislated that the right to make certain claims subsists or continues after the death of person who had the right to make a claim.
Section 3 of the Law Reform Act 1936 provides: Effect of death on certain causes of action (1) Subject to the provisions of this Part, on the death of any person after the passing of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate: provided that this subsection shall not apply to causes of action for defamation or for inducing one spouse to leave or remain apart from the other. (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person— (a) shall not include any exemplary damages:
The Courts have held that the personal representatives of an estate can take or continue an action for breaches of contract claims where compensation is claimed, but have also said that the Law Reform Act does not apply where personal considerations are the foundation of the contract – for instance an employment relationship, or a claim for defamation of character.
The definition of tenant in the RTA includes where appropriate, personal representative of the deceased tenant. 2 1 The common law maxim of” Actio personalis moritur cum persona” - a Latin expression meaning "a personal right of action dies with the person". 2 Section 2 Residential Tenancies Act 1986.
The question therefore is whether it is appropriate to allow a personal representative to make a claim to the Tribunal for breaches of the RTA.
In Kipa v Housing New Zealand 3 , DCJ Sharp said As a matter of law the personal representative of the deceased person, who was the tenant, becomes the tenant but that is purely for administrative purposes and only until the tenanted property is made ready for vacancy and handed over to Housing New Zealand. There cannot be assignment automatically or otherwise to a member of the family of the deceased person.
This case occurred before the legislative amendments to include the personal representative of the deceased tenant in the definition of tenant. 4
I do not consider that Kipa limits the capacity of a personal representative to make a claim in the Tribunal, indeed the Court in that case or any similar cases did not stop the personal representatives from making a claim or made any comments about their ability to do so. There have also been other instances where the personal representative of the tenant has made claims in the Tribunal after the death of the tenant. 5
As [The tenant/s] family’s claims relate to monetary claims for a breach of the RTA (which is considered like a breach of contract) then I consider that section 3 Law Reform Act allows them to make the claim. I observe that if the claim had been for something personal to [The tenant/s], such as a breach of his quiet enjoyment of the property, then the personal representative may not be able to bring such a claim.
Pursuant to s3(2)(a) of the Law Reform Act 1936 I cannot make an award for exemplary damages and therefore the claim for exemplary damages is struck out.

Who can make the claim?

Personal representative is not defined in the RTA but is defined in s53(1) of the Limitation Act 2010 as means -a person who is the executor, administrator, or trustee of, and is making or defending a claim on behalf of, the deceased’s estate.
I do not consider that Parliament would have intended the Tribunal to insist on requiring a personal representative of a deceased tenant to obtain a grant of probate or administration for the purposes of taking such action. 6 I consider that the statutory declaration of [The tenant/s] son and the assurances given 3 Kipa v Housing New Zealand, DC Auckland CIV-2006-004-1031, 18 May 2006. 4 These amendments came into force in 2010. 5 See for example TT4209883. 6 I consider that s85 RTA applies here and that in order to allow the claim to be heard fairly and expeditious, that it is appropriate to allow a personal representative by statutory declaration and evidence. by [The tenant/s] son and daughter and [The tenant/s ex-wife] at the hearing, that they are able to represent [The tenant/s] are sufficient to allow me to consider that [The tenant/s] son is the personal representative of [The tenant/s]. I therefore consider that I can hear this claim as [The tenant/s] son told me that his mother filed the claim on his behalf. Healthy Homes standards.
As this tenancy commenced before 1 July 2021, the landlord did not have to comply with the Residential Tenancies Healthy Homes Standards until 2025 7 and therefore there can be no breach of s 45(1)(bb). The claims for failure to comply with the Healthy Homes Standards are therefore struck out. Did the landlord fail to maintain the property or fail to comply with any requirements in respect of buildings, health, and safety in any enactment.?
Colliers undertook annual inspections of the property. In November 2023 [The property manager], the property manager undertook an inspection of the property. [The property manager] provided me with the inspection report which was comprehensive. It included photographs and descriptions of the state of the property. Colliers say that it was only permitted to carry out the inspections on the property, and that any decisions regarding maintenance or repair needed to be made by LINZ on behalf of the Crown. In other words, Colliers had no power to arrange for maintenance or repair. [The property manager] said that he noted the very poor to average condition of the house 8 and noted four items that needed work (or were safety concerns), they were: a. That there were no smoke alarms in the property (they had been removed) b. That the was significant visible mould growth on the bathroom ceiling and in other areas of the home. c. That the extractor fan in the bathroom needed repair. d. That [The tenant/s] had installed a cooktop over the oven.
[The property manager] completed a work order for the property which was raised with LINZ. LINZ then instructed tradespersons to complete the work.
The smoke alarms appear to have been installed relatively soon after the inspection. The extractor fan was also repaired.
On the 22 December 2023 Colliers sent LINZ the following workorder Asset Details: Scope and quote property condition 7 The Residential Tenancies (Healthy Homes) Regulations 2019 take effect in accordance with Subpart 1AA. As this tenancy commenced before 1 July 2021 the obligation to comply with the Standards does not take effect until July 2025 8 Overall the property was determined to be in a very poor state. Location Details: Description: Please scope and quote the condition of the property for works to bring it to a tenantable status especially [Tenancy address suppressed] - I have been advised house is in a very poor condition. Property contains mold on most wall and ceiling areas based on photos from inspection report. Would be to get a mold assessment to be done. LINZ requested to investigate the cause of mould, at this stage provide quote for just clean and no re-paint.
Sometime in January 2024 LINZ sent cleaners to remove the mould. It appears that when the cleaners went to the property that they raised concerns about the mould and the ability to clean it. As a result of that LINZ asked for a report to be completed on the Mould.
On the 26 May 2024 Mould Inspections were commissioned by LINZ to sample and report on the mould. The Mould report
On or about the 20 June 2024 LINZ provided Colliers with the mould report from Mould Inspections. The report found significantly high levels of mould in a number of rooms, both airborne and on surfaces. Relevant excepts of the report are: Lounge- A variety of mould genres were present in the results from the day of testing. The lounge returned extremely elevated reading of Aspergillus/Penicillium 13,200/m3, Cladosporium 2,840/m3 and a reading of 507 for Hyphal Fragments. These levels are well above the recommended safety guidelines. The timber window sills and frames are in need of attention. ie cleaning and painting. Bedroom 1- Clear evidence of a water leak is located on the ceiling in ([The tenant/s]) bedroom. This may be from a previous roof leak but should be checked by a roofer. Bedroom 2 – extremely elevated levels of airborne mould spores were returned in bedroom. This room had the highest levels of airborne mould ecology throughout the home. The bathroom area is in need of cleaning. There is mould growth in all areas. This should be cleaned with EC3 Mould Spray following the decontamination process. The bathroom ceilings are showing extreme levels of fungal growth. These ceilings may not be able to be cleaned and may require replacement. Bedroom 3 – this room appears to be occupied. The RH was 68.4% and the air samples returned extreme readings for Asp/Pen and Cladosporium. These levels are not befitting of a healthy living environment. Bedroom 3 – the ceiling in this room has extreme levels of fungal growth. Based on experience it can be assumed that this may be Stachybotrys (toxic black mould). All areas of the home requiring cleaning using EC3 Mould Spray following decontamination. In the summary it said: The ceiling in the bathroom and bedroom 3 have excessive amounts of visible mould that may be affecting the occupant’s health. The test results show active mould growth throughout the entire home with highly elevated levels of a variety of different mould genres. The levels of mould growth in this home are not befitting of a healthy living environment. We strongly recommend EC3 Electrostatic Fogging is undertaken every 3 weeks while the tenant remains in the home. The current levels of airborne fungal spores are not befitting of a healthy living environment. Following the EC3 Electrostatic Fogging this home requires a deep clean using EC3 Mould Spray to remove all evidence of mould growth. The tenant should not be in the home while this is being undertaken. When the cleaning is being undertaken PPE should be worn to protect the cleaners. All timber joinery requires remediation – cleaning and painting. (own emphasis)
When Colliers received the report, they rang [The tenant/s] to discuss the report. [The property manager] says that [The tenant/s] was not concerned nor interested in the report, [The property manager] said that [The tenant/s] was told that Colliers/ LINZ were considering termination of the tenancy due to the mould and that [The tenant/s] told him New Zealanders had ‘gone soft’. [The property manager] said that [The tenant/s] was concerned that Colliers/ LINZ were using the report to evict him from his home.
[The property manager]’s account is disputed by [The tenant/s] family especially [The tenant/s] son who says that he had plans to build his father a home on his property in [City], and that [The tenant/s] had discussed moving to [City] with him. [The tenant/s] son says that [The tenant/s] would not have been concerned about having to move out of the property temporarily, for work to be done on the property, as he could live with family especially his son where there were already plans in progress to house [The tenant/s] in the future.
On the 26 June a copy of the mould inspections report was sent to [The tenant/s] by courier.
On or about the 13 July 2024 [The tenant/s] was admitted to [Hospital 1, relatively soon thereafter he went into a coma, was then flown to [Hospital 2] HDU and died on the 27 July 2024. The cause of death on his death certificate is listed as ‘Hypoxic Respiratory Failure From Exacerbation Of Interstitial Lung Disease’. 6 days and Interstitial Lung Disorder months.
[The tenant/s] family had no knowledge of the mould problem at the property until they were able to retrieve [The tenant/s] belongings from the property, which took some time as [The tenant/s] flatmates took over occupation of the property and would not let the family.
As [The tenant/s] death was certified by a doctor, then it was not referred to a coroner. The family are concerned that the mould at the property made [The tenant/s] ill which may have led or contributed to his death. The family gave evidence that Interstitial Lung Disorder has many causes, including environment and air borne contaminants which may include mould.
It is not the Tribunal’s place to determine what may have caused or contributed to the death of person, that can only be decided by the coroner.
The only question that can be determined by the Tribunal is whether something the landlord did or ought to have done caused the mould, and did the landlord fail in its obligations to clean the mould.

What caused the mould?

Mould is a type of fungus that lives on plant and animal matter. It reproduces by making spores. Airborne mould spores can be found both in indoor and outdoor environments. Mould will thrive in humid conditions (warm and wet). The ways to prevent mould growth include ventilation (air flow), heating (to allow drying out) removing of moisture (dehumidifying) and cleaning (stopping the mould spores from reproducing).
Mould can be caused by a lack of ventilation, but it also can be caused by leaks or water ingress.
If a tenant notices a problem with the mould which may have been caused by a defect with the property then they have an obligation to notify the landlord. This is because the existence of mould can indicate an underlying defect in the property such as roof leak, or a leaking pipe in the wall. Likewise, a landlord should investigate the cause of mould complained of by a tenant or seen at an inspection.
A tenant is required to keep premises reasonably clean and tidy during a tenancy (s40(1)(c) RTA) and, a landlord is required to maintain premises to a reasonable level taking into account their age and character (s45(1)(b) RTA). A landlord also has a responsibility under s45(1)(c) of the RTA to "comply with all requirements in respect of buildings, health and safety under any enactment as far as they apply to the premises". In that regard regulation 15 of the Housing Improvement Regulations 1947 is relevant. It states: "Every house shall be free from dampness".
Having considered all the evidence I consider it was likely that there was a defect in the building that was the cause of the mould in the house I say this for the following reasons: a. The nature and extent of the mould on the bathroom ceiling and in other areas of the house. b. That there was evidence of previous leaks in the ceiling in the bedrooms. Almost all the ceiling in each room have areas where the paint is bubbling flaking or there are holes in the ceiling. c. That the window joinery was described as ‘very poor’ in the inspection report and there is evidence of moisture ingress on the window sills. d. That the bathroom fan was not working.
I consider that the landlord was not previously aware of the mould problem until they visited the property in November 2023 9 . I consider that the landlord’s duty to address the mould problem arose from that date.
I am also satisfied that the tenant failed to report issues with the property to the landlord and that the lack of cleaning of the mould when it became apparent (before the inspection in 2023) likely caused or contributed to the problem. The landlord did a further inspection report in July 2024 shortly after the tenant died. It appears that some attempt has been made by the tenants to clean the mould themselves (I do not know if the deceased tenant did this work or not) I also note that is NOT recommended for tenants to clean the mould once it gets to this stage as that can be hazardous and that the landlord never asked the tenant to clean the area.
I also note that the tenant never reported the landlord the issues with the broken extractor fan until the inspection or any leaks in the ceilings or roof.
There is a notation in the landlord’s record of communications 10 where it shows that [The tenant/s] made enquiries about “Healthy Homes” but no further detail was noted as to what the nature of that inquiry was. It is possible that [The tenant/s] did mention issues with mould, or other issues, but that has not been recorded. The family confirmed that [The tenant/s] did not mention the issue of mould to them.
Despite the family’s reservations about the accuracy of [The property manager]’s conversation with the [The tenant/s], I was satisfied that [The property manager] gave the Tribunal an accurate recall of what [The tenant/s] said. My impression from [The tenant/s] family was that he would have put up with mould if it meant that he got to stay in his house. I also consider that [The tenant/s] likely discredited and downplayed the effect of the mould, I say this 9 The personal representative did not provide any evidence that showed that the landlord was aware of the mould problem before this date. 10 13 July 2021 because at no stage when he became ill did he mention the condition of the house or the mould report to his family or the health professionals caring for him.
In summary I am unable to definitively conclude what caused or contributed to the mould, but it is likely the mould was caused by a defect of the building that was further exacerbated by the lack of cleaning and rectification when the mould became apparent.
Despite the above finding I am satisfied that the landlord was aware of the mould problem in November 2023 and at the time of [The tenant/s] death in July 2024 had effectively done nothing to actual remove the mould or to rectify the situation. The question then is did the landlord act reasonably to address the mould issue? Put another way – did the steps that the landlord took satisfy the obligation to investigate and repair the problem? Decision.
Having considered all the evidence I am satisfied that the landlord was in breach of its obligation pursuant to s45(1)(b) and 45 (1)(c) to investigate the cause of the mould, and to remove the mould in a timely manner. I consider that the time that it took from November 2023 to July 2024 far too long to deal with this problem. Whilst work orders were made, it too long to actually get the work done. There was no evidence given as to why it had taken 5 months to get a mould report done after cleaners raised concerns, or even why it had taken 2 months to have the cleaners get to the property in the first place. The work on the bathroom extractor fan may have had to be completed first, but I’m surprised given the; extreme’ mould growth which was clearly evident on the bathroom ceiling that the contractors were prepared to work in such environments, without further investigations on the mould being conducted. The matter should have been given some urgency given the advancing age of the tenant and the other occupants in the house and that it was evident at the inspection that a young child was also staying in the home and sleeping in bedroom 3 where toxic black mould was found and where the report writer noted “The ceiling in the bathroom and bedroom 3 have excessive amounts of visible mould that may be affecting the occupant’s health.”
One of the reasons that Colliers gave for the delay, was that Colliers can only make a recommendation on the work to LINZ, it is LINZ that then determines whether or not the work should be completed and if so, what work will be completed. Colliers can see what work was ordered and if it was completed but has no power to authorise work to be done. LINZ uses a variety of contractors and their may be delays waiting for those contractors to become available.
Any delays that result from internal systems or agreements between landlords and their agents, are no excuse for landlords not complying with their legal obligations. In the recent decision of Tenant v Gralin Property Management (Auckland Central) Limited [2024] NZDC 16642 [17 July 2024] His Honour said “a property manager must meet the obligations which are imposed by the RTA on a landlord as if it was a landlord.” “What that means is it is no excuse for a property manager to blame the owner and effectively ignore requests which are made by tenants when obligations under the RTA have been breached. “ 11 The fireplace.
The family have also complained that the landlord failed to maintain the fireplace. [The tenant/s] son says that in contrast to the mould issue, which his father never mentioned, [The tenant/s] did tell his son and other family that the fireplace was not working and that when the fire was lit the ‘whole place filled up with smoke’. Although the landlord says that it was never notified of the problem by the tenant, the landlords own work orders show a work order being raised in 21 February 2024. The work order says: Wood burner fireplace – check operation of fireplace, check fire bricks (replace any broken bricks), check door handle and damper, ensure all working correctly, chimney sweep the flue, check chimney hat on top of flue, is this secure and in good condition. Check condition of fire retardant wall lining behind the fire place, is this in good condition, secure and fixed to wall (what is the product, is it fit for purpose – photo attached for reference) Take photos of condition of fireplace/flue/bricks/chimney hat. Work order type: Reactive
When the chimney and fireplace was checked on the 26 June (4 months after the work order was raised) the landlord’s contractors found a number of issues with the fireplace and recommended total replacement.
I do not know why the work order to check the fireplace was made in February but the fireplace was not checked until June. I do not know if this was because the work order arose due to routine maintenance or because of a notification by a tenant.
[The tenant/s] family do not have any evidence that proves that [The tenant/s] notified the landlord of the concerns with the fireplace. In the absence of such evidence, I cannot make any finding that the landlord knew or was told about an issue that they failure to repair or investigate.
Whilst I have concerns about the length of time that the landlord took to complete the work order especially as the work order was marked as reactive not proactive, that is not a failure to repair. 11 Paragraphs 33 and 34.
[The tenant/s] family have not proven on the balance of probabilities that the landlord failed to maintain or repair the fireplace.

What is the remedy for the breach of the failure to remedy the mould?

I have found that the landlord breached its obligation to the tenant to provide a property that was in reasonable condition and to ensure that the home was free of mould and damp.
Compensation should restore the party to the position that they were in before the breach occurred. As noted above as [The tenant/s] has died, I cannot award exemplary damages.
The family have sought the return of the rent paid by [The tenant/s] throughout the tenancy.
There has been no medical evidence or coroner’s findings that links [The tenant/s] illness and his death with the condition of the property. I accept that may be because the family were unaware of the mould issue. The absence of any medical determinations or coronial determination that the mould contributed or caused [The tenant/s] death means that I cannot make any finding that the mould affected [The tenant/s] health in a detrimental way.
[The tenant/s] rent was low and reflective of the age and character of the property. I am satisfied that [The tenant/s] got the amenity for what he paid for, in other words he got to live in the house, that he loved living in with his dogs and his spectacular views. It was his home for a long time, and he was generally very happy living there.
Whilst I have found that there was a failure by the landlord to address the mould problem at the property, I also have made findings that [The tenant/s] may have contributed to the mould problem by failing to report issues at the home and failing to clean the mould when it became apparent.
Given all the above, I have determined that no compensation should be awarded in this case. Name suppression.
I grant the tenant’s family suppression. The tenant may be referred to as [The tenant/s]. I do not grant the landlord name suppression, there is public interest in all cases where any action is brought against the Crown as the landlord.

Tenancy Tribunal case 5006141 — Mould & damp

At a glance

Tenancy Tribunal case 5006141 — Mould & damp

At a glance

Claims & awards

Order

Reasons

Who can make the claim?

What caused the mould?

What is the remedy for the breach of the failure to remedy the mould?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Who can make the claim?

What caused the mould?

What is the remedy for the breach of the failure to remedy the mould?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions