What was the outcome of Tenancy Tribunal case 5032489?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5032489?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5032489?

The primary dispute was Mould & damp. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5032489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11477499-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5032489?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5032489?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5032489?

The primary dispute was Mould & damp. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5032489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11477499-Tenancy_Tribunal_Order.pdf.

54B Fruitvale Road, New Lynn, Auckland 0600 Tenancy Tribunal Case 5032489 — Mould & damp

Order

The application is dismissed.

Reasons

Both parties attended the hearing. Anna Jones appeared on behalf of the landlord, Eilianna Properties Limited.
The tenant claims the property does not comply with the healthy homes standards or Building Code. The tenant seeks compensation and reimbursement of the filing fee.
As the applicant, the tenant must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they 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 of 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 complete 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 than not.

HEALTHY HOMES STANDARDS

Section 45(1)(bb) RTA requires a landlord to comply with the healthy homes standards.
The standards are contained in the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The tenant claims the property does not comply with insulation requirements contained in Regulations 13 – 20.
In support of their claim, the tenant gave evidence that they experienced persistent black mould in the property. The tenant gave evidence that there was black mould on the ceilings and walls. The tenant claims that they purchased a new chest of drawers and within two weeks it had mould on it. The tenant also claims that the clothes in their wardrobe had mould on them.
The tenant gave evidence that they would constantly clean the mould, but that it would appear again two weeks later.
The tenant submitted photographs of the mould but could not recall the date these were taken.
The tenant states that they brought the issue to the landlord’s attention verbally during one inspection in late 2023/early 2024.
The tenant did not follow up in writing with the landlord about the mould. The tenant sent the landlord two 14-day notices to remedy regarding other issues with the property, but not the mould.
The landlord gave evidence that the mould was not as bad as the tenant claims. The landlord gave evidence that they never saw the mould appear as badly as it appears in the tenant’s photographs. The landlord claims the mould was only brought up once verbally by the tenant during a property inspection. The landlord states the tenant pointed to some mould on the bathroom ceiling and said that they [the tenant] needed to clean it.
The landlord gave evidence that the property was professionally cleaned at the end of the tenancy and has not been occupied since. The landlord claims there has not been any mould since the tenancy ended.
The landlord claims the property is compliant with the healthy homes standards and referred to a photograph taken from underneath the house. The landlord states this photograph shows that the underfloor insulation is compliant. In respect of the ceiling, the landlord claims that the roof is a skillion roof with limited ceiling space and therefore qualifies for an exemption under Regulation 19(1).
The landlord gave evidence that their settlement of the property was delayed for a number of reasons, one of which was to ensure that it was compliant with the healthy homes standards. The landlord claims they investigated this issue as part of their due diligence when purchasing the property.
Neither party submitted any expert reports from an appropriately qualified building inspector.
Eilianna Properties Limited purchased the property on 11 August 2023 subject to the tenant’s tenancy. Neither party submitted a copy of the original tenancy agreement, which was completed with the previous owner and landlord.
The tenant bears the onus of proving that the property does not comply with the healthy homes standards on the balance of probabilities. The photographs of mould submitted by the tenant are of concern however, in the absence of any expert evidence to confirm the presence, type and quality of insulation in the premises, I am uncertain whether it is compliant or not.
The tenant has not proven that the property does not comply with the healthy homes standards on the balance of probabilities.
This claim is dismissed.

BUILDING CODE

Section 45(1)(c) RTA requires a landlord to “comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.”
The tenant claims that there is no firewall between the tenancy address at 54A and 54B Fruitvale Rd, New Lynn, Auckland. Therefore, the tenant claims that the property does not comply with the Building Code.
The Building Code is contained in Schedule 1 of the Building Regulations 1992. It sets the minimum performance standards buildings must meet in relation to: a. Structural stability; b. Fire safety; c. Access; d. Moisture control; e. Durability; f. Services and facilities; and g. Energy efficiency.
Clause C3 states of the Building Code states: Clause C3 – Fire affecting areas beyond the fire source Functional requirement C3.1 Buildings must be designed and constructed so that there is a low probability of injury or illness to persons not in close proximity to a fire source. C3.2 Buildings with a building height greater than 10m where upper floors contain sleeping uses or other property must be designed and constructed so that there is a low probability of external vertical fire spread to upper floors in the building. C3.3 Buildings must be designed and constructed so that there is a low probability of fire spread to other property vertically or horizontally across a relevant boundary.
The tenant claims that the previous owner and landlord intended to build a firewall between 54A and 54B Fruitvale Rd, New Lynn, Auckland and applied for building consent to do this. The tenant submitted an email from the Auckland Council confirming that a building consent for a firewall had been granted on 13 July 2023.
The tenant claims that the previous owner and landlord sold the property when they discovered how much it was going to cost to build the firewall.
The tenant claims that they spoke with Nicola Parsons at the Auckland Council who advised them that a firewall was required in between 54A and 54B Fruitvale Rd, New Lynn, Auckland.
The tenant did not submit any written communication from the Auckland Council to this effect.
The landlord gave evidence that 54B Fruitvale Rd, New Lynn, Auckland had a kitchen added to it many years ago before the previous owner purchased the property. The previous owner updated the kitchen some time before the landlord purchased the property.
The landlord accepts that the kitchen does not have a building consent but claims that a Certificate of Acceptance (COA) has been issued by the Auckland Council.
A COA is an acknowledgement that building work, or part of it, complies with the Building Code.
The landlord claims that the COA is for the whole property, not just the kitchen.
The landlord gave evidence that the adjoining wall between 54A and 54B Fruitvale Rd, New Lynn, Auckland is solid concrete.
The landlord submitted a copy of the COA to the Tribunal. The “Building Work” referred to as being authorised by the certificate was completed by the previous owner and landlord, and is described as follows: Building work issued by the COA – A kitchen was added into what was a hallway in the middle house, many years ago before I bought the property. I replaced this kitchen 5 years ago as the old one was not fit for purpose. I have also applied for a BCO10358532 for the adjoining wall between the two dwellings.
Under the heading “Acceptance of Compliance”, the COA states: Auckland Council is satisfied to the best of its knowledge and belief on reasonable grounds, that, insofar as it can ascertain, the building work complies with the following building Code clauses: B2 – Durability F7 – Warning Systems G3 – Food Preparation and Prevention of Contamination G4 – Ventilation G12 – Water Supplies G13 – Foul water
No reference is made to C3 – Fire affecting areas beyond the fire source.
In my view, it seems likely that the COA relates solely to the kitchen and not the entire property as claimed by the landlord. Notwithstanding this, I consider it unlikely that the Auckland Council would have granted a COA for the kitchen of the tenancy address if the adjoining wall in between 54A and 54B Fruitvale Rd, New Lynn, Auckland, did not meet the requirements under C3 of the Building Code.
The tenant bears the onus of establishing that the property does not comply with C3 of the Building Code on the balance of probabilities. The landlord claims it does and has submitted a COA from the Council. The tenant has not submitted any evidence directly from the Auckland Council or a building inspector to suggest that it does not comply. The tenant claims this is what Nicola Parsons from the Auckland Council told them, but the tenant did not submit any written communication from Ms Parson’s to this effect. The email sent by Ms Parson’s to the tenant simply states that a building consent for a firewall was granted on 13 July 2023. It does not state that a firewall is absent or that the concrete wall in place does not comply with the Building Code.
In all of the circumstances, the tenant has not proven on the balance of probabilities that the tenancy address does not comply with C3 of the Building Code.
This claim is dismissed.

FILING FEE

The tenant has not been wholly or substantially successful in their claim and therefore, I do not order the landlord to reimburse the filing fee.
Neither party applied for name suppression.

Tenancy Tribunal case 5032489 — Mould & damp at 54B Fruitvale Road, New Lynn, Auckland 0600

At a glance

Tenancy Tribunal case 5032489 — Mould & damp at 54B Fruitvale Road, New Lynn, Auckland 0600

At a glance

Claims & awards

Order

Reasons

HEALTHY HOMES STANDARDS

BUILDING CODE

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

HEALTHY HOMES STANDARDS

BUILDING CODE

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions