What was Tenancy Tribunal case 5014149 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 5014149?

Compensation: $2,874.29 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Property Damage: $284.79 awarded to landlord

What type of tenancy dispute was case 5014149?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5014149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11559439-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5014149 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 5014149?

Compensation: $2,874.29 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Property Damage: $284.79 awarded to landlord

What type of tenancy dispute was case 5014149?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5014149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11559439-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 2, 37 Peter Buck Road, New Windsor, Tenancy Tribunal Case 5014149 — Property damage

Claims and awards in Tenancy Tribunal application 5014149 — net $2,616.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lock/key replacement	$284.79		Lock/key replacement
Compensation for loss of amenity		$2,874.29	Compensation for loss of amenity
Filing fee		$27.00	Filing fee
Total award	$284.79	$2,901.29
Net award		$2,616.50
Bond		$1,780.00
Total payable by Landlord to Tenant		$2,616.50

Claims and awards in Tenancy Tribunal application 5014149 — net $2,616.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lock/key replacement	$284.79		Lock/key replacement
Compensation for loss of amenity		$2,874.29	Compensation for loss of amenity
Filing fee		$27.00	Filing fee
Total award	$284.79	$2,901.29
Net award		$2,616.50
Bond		$1,780.00
Total payable by Landlord to Tenant		$2,616.50

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name. 2. 3.
The Bond Centre is to pay the bond of $1,780.00 ([Bond number suppressed]) immediately to the tenant.
The tenant’s claims for breach of the Healthy Homes Standards are dismissed.

Reasons

This is a reserved decision. The hearing for this matter took place on 20 February 2025.
Mr Leyland, the director of Trailblazer Holdings Limited, and Mrs Fenwick, the owner of the premises at the relevant time, attended the hearing for the landlord. The tenant also attended the hearing.
This is a cross application. The tenant has applied for refund of the bond, breach of section 45 of the Residential Tenancies Act 1986 (“RTA”) and reimbursement of the filing fee following the end of the tenancy.
The landlord has applied for compensation (for replacement of locks), refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The landlord had applied for compensation for damage to the carpet. However, this claim was withdrawn at the hearing. A. RELEVANT LEGAL CONSIDERATIONS:
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that the applicant 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 particular 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. B. THE LANDLORD’S CLAIM:
Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The landlord said that the tenant did not return all of the keys. The landlord is claiming $284.79 to replace the locks. The landlord has produced an invoice for this sum. The tenant said she is not disputing this claim.
This amount is proved, and I award $284.79 (including GST) for replacement of the locks. C. THE TENANT’S CLAIMS: a) Did the landlord breach the healthy homes standards?
The tenant claims that the landlord has breached section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (the “HHS”).
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy. ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy was a fixed term tenancy which started on 17 February 2019 and was due to end on 20 November 2020. The tenancy did not end at the end of the fixed term, instead it because a periodic tenancy on and from 21 November 2020 until it ended on 15 August 2024.
The tenancy commenced prior to 01 July 2021. Therefore, the landlord had until 01 July 2025 to comply with the HHS and the tenant cannot pursue claims for breach of the HHS.
The tenant’s claims for breach of the HHS are dismissed. b) Did the landlord fail to maintain the premises and/or fail to provide a home free from dampness?
Section 45(1) 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 ...
Of relevance to section 45(1)(c) above is the Housing Improvement Regulations 1947 (the “1947 Regulations”). Regulation 15 of the 1947 Regulations provides that every house shall be free from dampness.
The tenant claims that the landlord has breached section 45(1)(b) and (c) of the RTA by failing to maintain the premises with regard to moisture and failing to ensure that the premises was free from 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.
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.
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. The tenant’s evidence:
The tenant said she raised the issue of leaks with the landlord during the tenancy. The tenant said that the landlord would fix those leaks within a reasonable time frame.
The tenant said that during the tenancy she had laid mats on the carpets. She said she was unaware of the moisture and mould issue until at the end of the tenancy when the mats and her other belongings were moved revealing that the carpet underneath the mats was covered in black mould. The tenant had arranged for a professional carpet cleaner to clean the carpets. The tenant provided a letter from the carpet cleaner’s company saying that the carpet was: ... fully rotten due to an apparent severe flood in 2021 and appears to be continually leaking through the wall as noted by technician [name], which in his opinion is not due to negligence by the tenant, rather the property manager for ailing to inspect the property for damage.
The tenant says that in September 2023 there was a leak which affected the bathroom. She said the plumber who attended said there would need to be an investigation to see if the wall had been affected. The tenant said this never happened and, despite requesting a copy of the plumber’s report from the landlord, it was not provided to her.
The tenant says that the premises were prone to dampness and mould and the landlord should have been aware of the issue for the following reasons: a. There were several leaks. While the tenant acknowledges that the leaks were fixed by the landlord in a reasonable period of time, the tenant said the landlord should have carried out investigations such as a moisture level reading after the leaks to see if they had caused dampness. b. The tenant said she told the landlord about that the bathroom vanity drawers were warped from a leak and that this was from moisture behind the wall of the bathroom. c. The tenant said that the property manager inspected the property every 3 months. The tenant said that one of these inspections was conducted following the flood in 2021 and that the property manager should have taken moisture level readings and moved the mats to assess the carpets to see if the moisture levels were acceptable. d. She had told the landlord that she was airing the premises so he should have known that there was an issue. e. The tenant said the landlord started telling her to ventilate the premises shortly after she moved in. The tenant says this indicates that the landlord either knew or ought to have known that there was an issue with the mould / dampness in the premises. f. The tenant said she was using two dehumidifiers during the tenancy which the landlord could see. The tenant said that this should have indicated to the landlord that there was an issue with mould/dampness.
The premises is the downstairs unit of a house consisting of two units. The landlord was the landlord for both units. The tenant has provided a copy of the Tribunal’s Orders of [The applicant/s] v the Trailblazer Holdings Limited As Agent for Ms Su Fenwick [2023] NZTT 4379980 (the “2023 Orders”) in respect of the unit above the premises. In this Order, the landlord was found to have breached section 45(1)(b) and (c) of the RTA and the landlord was ordered to pay compensation for loss of amenity. In this case, the Tribunal found that the tenant had advised the landlord of the issues and the landlord had failed to address the issue. The landlord’s evidence:
The landlord said the first time they became aware of the mould issue was when at the end of the tenancy, the tenant had the carpets cleaned and notified them of the issue.
The landlord said that at inspections there was no visible mould, and this was because the mould areas on the carpet were covered by the tenant’s mats and other belongings.
The landlord said there was no link between the leaks and the moisture damage because the majority of the leaks were on the outside of the premises and away from the rooms where the carpet had the most moisture damage.
The landlord said that the plumber who dealt with the bathroom leak told the property manager that the damage was to the outside. The landlord said they were not told about any damage internally.
The landlord said that the damage to the vanity unit in the bathroom could have been caused from water from the sink.
The landlord says that the mould under the mats was caused by the mats which the tenant had placed on the carpet, the tenant placing a significant amount of belongings on top of the mats and the tenant failing to ventilate the premises adequately.
The landlord acknowledges that he started telling the tenant to air the premises shortly after she moved in and continued to do so during the tenancy. He said this was because of how the tenant kept the premises. He said the curtains were often shut, there was a lot of belongings in the premises, and it smelled like it needed to be aired.
The landlord said that the premises have been sold and that the building report commissioned by the purchasers did not reveal any issues with mould. This report was not provided to the Tribunal. Analysis:
I find that the premises were damp and required repair. To have breached subsections 45(1)(b) and (c), the tenant must have told the landlord about the issue or there must be some compelling evidence that the landlord knew or deliberately turned a blind eye to the damage or the dampness.
This is not a case where the tenant was complaining of defects to the premises and/or dampness during the tenancy and the complaints were falling on deaf ears. The tenant did not raise the issue with the landlord because the tenant was not aware of the issue until she removed her belongings at the end of the tenancy.
The carpet cleaner whose company provided a letter stating that the property manager had been negligent for failing to inspect the premises, did not attend the hearing. Had he done so, the landlord would have had been entitled in accordance with section 93(1) of the RTA to examine, cross-examine, and re- examine him. I would also have had some questions for this witness. As he did not attend the hearing as a witness, I place limited weight on his evidence.
I accept the tenant’s evidence that she aired the premises regularly. I find that while the tenant’s laying of the mats and the amount of belongings on top of the mats is likely to have contributed to the extent of mould in the carpet, the mould occurred because the premises were prone to dampness.
I do not accept the tenant’s claims that the landlord should have been aware of the mould / moisture issue due to the factors referred to in paragraphs 28 b) to f) above.
However, I do find that after the Tribunal had issued the 2023 Orders, the landlord was on notice that the unit above the premises was prone to dampness and mould. In my view, given the leaks that had occurred in both the premises and the upstairs unit and the findings in the 2023 Order, the landlord was on notice there was a significant risk that the premises were also prone to mould/dampness. At that point, the landlord should have carried out investigations including moisture readings to determine if the premises were free from dampness.
I find that the landlord’s failure to investigate at that stage was a breach of section 45(1)(b) and (c) of the RTA. c) Should the tenant be awarded compensation?
I have found that the landlord breached section 45(1)(b) and (c) of the RTA. Section 45(1A) and Schedule 1A of the RTA provides that breaching any of the obligations under section 45 of the RTA is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
Where a party has committed an unlawful act intentionally, section 109(3) of the RTA provides that 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.
However, the tenant has not applied for exemplary damages so it is not necessary for me to consider whether exemplary damages should be awarded in this case.
The tenant is seeking a rebate of her rent for loss of amenity. The tenant says that the premises were unhealthy due to the dampness and mould. The attributes her periods of sickness during the tenancy to the mould. The tenant has provided a letter from her general practitioner after the tenant became aware of the mould issue saying that her symptoms of coughing and shortness of breath: ... have been significantly impacted by the poor housing conditions at her previous rental property. The presence of mould and inadequate ventilation in that environment has exacerbated her respiratory problems.
I accept that the tenant suffered from poor health during the tenancy and required a significant amount of time off work. However, I have some reservations about the tenant’s claims that all her periods of poor health and time off work during the tenancy can be attributed to the premises. The tenant’s medical records which were recorded before the tenant became aware that the premises were damp, refers to at least one other potential cause and says that one of the symptoms suffered by the tenant was “likely multifactorial”. That said, I accept that the state of the premises did contribute to the tenant’s poor health.
I find that there has been a loss of amenity for the period from 01 April 2023 1 until the tenancy ended on 15 August 2024, which is a period of 71 weeks. The rent for this time was $580.00 per week and I find that a reduction of $40 per week during that time as loss of amenity to be appropriate. 1 This is the period from the 2023 Orders allowing for a further period during which investigations and remedial work could have been expected to be completed.
I award compensation for loss of amenity of $2,874.29. D. OTHER MATTERS:
The tenant has been substantially successful in her claims. For this reason, I grant the application for suppression and order reimbursement of the filing fee.
The landlord has had some success with their claim. However, I do not consider the landlord’s success has been substantial. For this reason, the landlord’s application for suppression and reimbursement of the filing fee are dismissed.

Tenancy Tribunal case 5014149 — Property damage at Unit/Flat Flat 2, 37 Peter Buck Road, New Windsor,

At a glance

Tenancy Tribunal case 5014149 — Property damage at Unit/Flat Flat 2, 37 Peter Buck Road, New Windsor,

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions