What was Tenancy Tribunal case 5049268 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 5049268?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5049268?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 5049268?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11257613-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5049268 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 5049268?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5049268?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 5049268?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11257613-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5049268 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details, and the names of the witnesses.
The application is dismissed.

Reasons

The tenant appeared and was supported by [The tenant’s representative/s]. At the commencement of the hearing, [The tenant’s representative/s] was identified as support person. As the hearing proceeded, [The tenant’s representative/s] requested to address the Tribunal, which was declined. Later, the tenant called [The tenant’s representative/s] to give evidence relating to one of the claims. Others also attended with the tenant and sat in the public gallery. When asked if they were to be witnesses, the tenant advised that they were not. [The landlord’s representative/s] appeared for the landlord.
The tenant’s claims the landlord failed to: i. Comply with the Healthy Homes Standards Regulations 2019 (“HHS”), ii. Maintain the property in a reasonable condition, iii. Provide an HHS compliance statement with the tenancy agreement, iv. Provide information about the HHS when requested, v. Interfered with the tenant’s reasonable peace comfort and privacy amounting to harassment.
The tenant seeks exemplary damages.
The onus of proving these claims rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Background
The tenant began employment with the landlord in November 2023. On 01 December 2023, the parties entered into a periodic tenancy agreement. The tenancy is not a service tenancy and was separate to the tenant’s employment. The tenant resided at the property with her young daughter.
The property was constructed in 1910 and is located on the second storey. Beneath the property are premises used for commercial purposes. The property consists of three bedrooms, a bathroom, and an open plan kitchen / dining / lounge area. The landlord states that shortly before the tenancy an upgrade was completed. The tenant questions the scope of the upgrade.
In July 2024, the tenant became unwell. On 30 September 2024, the tenant states they were given medical advice that they should cease work.
On 01 October 2024, the tenant resigned from their employment.
On 22 October 2024, the landlord gave notice that they intended to increase the rent, effective 21 December 2024.
On 24 October 2024, the tenant filed their application.
On 25 October 2024, the tenant gave 28 days’ notice to end the tenancy on 16 November 2024. The tenant vacated the property on 08 November 2024. Failure to maintain and HHS claims.
Dealing with the claims that the landlord has failed to comply with the HHS and failed to maintain the property in a reasonable condition.
Under section 45(1)(b) of the Act, the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the premises.
The landlord has an obligation to investigate and repair any defect brought to their attention within a period which is reasonable in the circumstances.
In Collins and Bertoni v Professionals Hutt City Limited, DC Wellington CIV 2009 085-001431, 24 February 2010 the Court stated: “I consider that the obligation of the landlord, under section 45, is to investigate and repair the 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”.
Section 45(1) (bb) requires the landlord to comply with the HHS, which set out the minimum requirements for heating, insulation, ventilation, drainage, and draught stopping for residential rental properties.
The HHS standards for insulation and smoke alarms have applied to all rental properties since 01 July 2019.
The remaining HHS for heating, ventilation, drainage, and draught stopping for this tenancy came into effect on 30 March 2024, which was 120 days after the commencement of the tenancy.
A breach of section 45 is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded, see section 45(1A), section 109, and schedule 1A of the Act.
Under s 13A(1CA) Residential Tenancies Act 1986, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
Under section 45(1AC) of the Act, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlord’s compliance with the Healthy Homes Standards within 21 days after receiving the request.
Section 45 (1AC) states: “If the tenant requests the landlord to provide information described in section 123A(1)(e) (relating to the healthy homes standards) to the tenant, the landlord must, within 21 days after the date of receiving the request, provide the information to the tenant.”
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A of the Act. Tenant’s position
The tenant stated that shortly after the commencement of the tenancy, they discovered mould on windows and walls. The tenant emailed advising the landlord on 13 February 2024 and again on 15 March 2024. The tenant states that shortly afterward, a builder visited the property and sprayed the mould. However, the mould reappeared in June / July 2024. The tenant states that her and her daughter became unwell. The tenant states their health improved after they left the property.
On 14 November 2024, the tenant arranged for a mould investigation. On 15 November 2024, the investigator reported the presence of harmful mould spores called Stachybotrys. A copy of the report has been produced.
The tenant claims that the presence of mould was more likely than not the cause of their unwellness.
The tenant has produced photographs dated 14 November 2024, showing some areas of the interior with what appears to be surface mould on walls and windows.
Around the same time the tenant reported the mould they also raised concerns about a leak in one of the bedrooms occupied by their daughter. The tenant states that when it rained, water leaked through the ceiling, and the lights stopped working. The tenant states that the builder who visited in March 2024 also investigated the leak and the lights but did not find any obvious fault. Despite this, the tenant states that water continued to leak through the ceiling when it rained, and the lights ceased working.
On or around 14 May 2024, the tenant noted that the tap behind the bath was dripping and that the polished wooden floor had deteriorated. The tenant advised the landlord. Shortly afterward a plumber attended and fixed the leak.
The tenant states that the delay between raising the issues and investigation in March was unacceptable.
The tenant states that at the start of the tenancy the landlord advised that the property was not HHS compliant, and that this was reflected in the modest rent of $300.00 per week. Following notice of a rent increase from $300.00 to $500.00 per week, the tenant questioned whether the increase was justified, give the landlord’s earlier statement about the properties non-compliance and that a market rent could not be charged.
On 23 October 2024, the landlord responded, stating that they believed the property to be HHS compliant. The tenant then asked for a copy of any HHS report. The landlord advised that they could not locate one on file and that they would arrange for an assessment to be completed. Later that day, an HHS assessment was arranged for 06 November 2024. The relationship between employee and employer then deteriorated, and on 05 November 2024, the tenant informed the landlord that they were “cancelling the assessment” and that it could take place after they had vacated. Landlord’s position
The landlord denies telling the tenant at the commencement of the tenancy that the property was not HHS compliant. The landlord states that the rent was set below market rent due to the tenant’s employment, and not because of the condition of the property, noting that upon the tenant’s resignation they were obliged to increase the rent. The landlord states that prior to the tenancy they had spent between $20,000 and $30,000 bringing the property up to standard, although their long-term plan was to demolish the building.
The tenancy agreement includes an HHS compliance statement. The landlord states that they believed there was an HHS assessment on file, however, upon receiving the tenant’s request and making inquiries with the previous property manager they discovered that none existed. The landlord confirmed that they had arranged for an assessment during the tenancy, but that at the request of the tenant, it had been deferred until after the tenancy.
The landlord states that no one entered the property between the end of the tenancy and the HHS assessment on 20 November 2024. The report produced by the landlord shows that the property complies with the HHS.
The landlord has produced an email from the builder dated 24 November 2024, responding to the allegations that the property had mould and the leak. The builder states that the used exit mould spray and that spraying the mould did not take long. That they attended the property with an electrician. Both checked for leaks but were unable to locate any. The builder concluded that it may have occurred in a severe weather event. The builder states the electrician checked the wiring and did not find any fault.
The builder states that they were not informed of the mould returning or any ongoing leaks.
Upon receiving the tenant’s mould investigation report, the landlord sought an expert opinion. In a letter dated 21 November 2024, the expert confirms that the laboratory responsible for testing the sample provided by the mould investigator was accredited and that the results were reliable.
However, the expert noted that the report lacked key contextual information. The expert states that the testing should have been accompanied by an outdoor reference. That a reliable mould report would also typically include additional details such as smells, odours, visible mould, water ingress and damage, temperature, humidity, and moisture levels, which were all absent. The expert also emphasised the importance of any health conditions suffered by the occupants. The expert stated: “None of this information was included in the report you were provided which severely limits the ability to make solid conclusions.”
The expert states the only fungal species they felt able to pass comment on was the presence of Stachybotrys, often referred to as black mould. Stating that its presence indoors at any level is concerning. The expert explained that unlike other mould, Stachybotrys required “a lot of moisture and saturation to proliferate,” and suggested that the reported level of 53 spores per cubic metre warranted further testing and investigation.
In an email dated 21 November 2024, the expert further states, “Using our categories we would say that to the general population, there should be no immediate health risk, although there should be an investigation into the potential sources and an effort to introduce fresh air and ventilation”.
The landlord states the photographs taken by the tenant on 14 November 2024 show the property was unoccupied and that the windows appeared to be closed, suggesting a lack of ventilation may have been a contributing factor.
The landlord states that following the builders visit in March 2024 that they were not informed of the mould returning or any continuation of the leak in the bedroom.
The tenancy was of a short duration lasting just 11 months. The landlord stated that a property inspection planned for around the middle of the year had not gone ahead. Decision on failure to maintain and HHS.
I am not satisfied that the landlord failed to provide an HHS compliance statement with the tenancy agreement. One is attached. When a request is made for information about the HHS, and it is in the landlord’s possession, they are obliged to disclose it within the required time period. A landlord is not obliged to provide information that they do not possess.
The landlord had until 30 March 2024 to comply with the HHS. Although the HHS assessment was completed after the end of the tenancy, there is no evidence to suggest that the findings would not have applied in March.
Although there are questions raised by the expert about the methodology of the mould investigation, black mould spores were detected. However, at the levels detected it appears there may have been no risk to health. Although, the matter should be investigated further.
There is no medical evidence confirming that the occupants unwellness was caused by mould.
There are no photographs showing the mould or the leak at the time they were reported in February 2024, or at any other time during the tenancy.
The photographs produced have been taken by the tenant on 14 November 2024, after they had vacated the property on 08 November 2024, but before the tenancy ended on 16 November 2024. Although the photographs show some surface mould on walls and windows, there is no evidence identifying this as Stachybotrys or black mould.
In the photographs, the tenant refers to high moisture readings which they state were noted by the mould investigator, although this evidence has not been produced.
A significant issue in this case is that the tenant did not advise the landlord that the mould had returned or that the leak persisted. When asked why they had not raised the matters again, the tenant stated that they “could not see the point.”
Section 40(1)(d) places an obligation on the tenant to notify the landlord of any damage or need for any repairs. A tenant who fails to do so may be liable for any further damage.
Unless ongoing leaks and mould were brought to the attention of the landlord or were in fact so obvious that they would have had to have been blatantly ignored by the landlord, I find it difficult to conclude that the landlord has failed in their obligations.
The claims concerning the HHS and maintenance are dismissed. Interference with reasonable peace comfort and privacy amounting to harassment.
There are two occasions where the tenant claims there has been an interference with their reasonable peace comfort and privacy amounting to harassment. The rubbish bin issue.
The property has a rubbish bin which is placed on the footpath for collection. The collection service is not included in the rates and those wishing to have their bins emptied must purchase tickets from the council and attach them to the bin.
The tenant states that the occupiers of the commercial premises below the property requested that the bin not be placed on the footpath. Arrangements were made to place the bin at the rear of the property with other bins used by the landlord.
There appears to have been a misunderstanding about where the tenant was to put their rubbish. Consequently, the tenant requested that their bin be returned.
On 21 October 2024, the tenant received a message from a friend waiting outside, stating that a rubbish bin had been placed in front of their door. The tenant states they could not open the door without first moving the bin.
The landlord states they could not differentiate the tenant’s bin from the others at the rear of the property and had arranged for a replacement bin to be delivered. The landlord states, to their knowledge, it was not placed directly in front of the tenant’s door, but that someone else may have moved it there. The rent increase incident
The tenant states that on 22 October 2024, they returned to their former place of employment to support two associates who had been made redundant clear their offices. While at the offices, the tenant states that the landlord entered and said, “did you get the letter, we are putting the rent up from $300.00 to $500.00”. The tenant states they replied that they had sent an email to the landlord. The tenant states the landlord laughed and said, “Sorry, market value doll” before leaving.
The tenant states that this was inappropriate behaviour aimed at belittling them and had breached their privacy, as it occurred in front of others, including [The tenant’s representative/s].
As stated at the commencement of the hearing [The tenant’s representative/s] had not been identified as a witness and remained in the hearing. Unsurprisingly, [The tenant’s representative/s] confirmed the tenant’s account. [The tenant’s representative/s] is a former employee of the landlord and one of those the tenant had supported. There is clearly animosity between [The tenant’s representative/s] and the landlord.
The tenant produced and unsigned statement from another associate who was present during the incident, dated 27 November 2024.
In the fifth paragraph of the statement the witness refers to having observed bullying behaviour toward the tenant on multiple occasions. These allegations are strongly denied by the landlord. However, they appear to have been in an employee / employer context rather than arising from the tenancy, which places them outside the jurisdiction of the Tribunal.
The witness states “.... One such instance occurred when [tenant] and I were supporting former staff members who were leaving the organization. The emotional stress of the situation was already overwhelming, and [landlord] approached us during this time, asking [tenant] if she had received the message or email regarding her rent increase, then laughing sarcastically about the matter. The entire interaction was unprofessional and bullying, particularly considering the emotional state [tenant] and the other staff members were in at that moment.”
The landlord admitted that they had asked the tenant if they had received the notice of rent increase, but denied saying, “Sorry market value doll.” The landlord stated the tenant then turned away. The landlord stated as they were leaving, they noticed [The tenant’s representative/s]’s partner holding what appeared to be a box of toys, and had jokingly commented, “that’s a big box of toys.”
[The tenant’s representative/s] stated her partner was in the office helping move, that she did not have any children’s toys but did have a couple of soft animals. Law
Under section 38(2) of the Act, a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See s 38(3) and Schedule 1A of the Act.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary defines harassment as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: “...although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.” Decision on interference.
I am not satisfied the landlord is responsible for placing the bin against the tenant’s door. Even if this were the case, I do not believe it constitutes an act that significantly impaired the quality of the tenancy. The bin was empty, had wheels, and could have easily been moved aside by the visiting friend.
Regarding the incident at the office, it is evident that emotions were running high within the employee / employer context. In the circumstances a prudent landlord would have considered the appropriateness of mentioning tenancy related matters in the presence of the tenant’s friends and associates.
However, at the material time the tenant had responded to the notice querying the justification for the rent increase and gave notice four days later. [The tenant’s representative/s] and the other witness were already aware of the rent increase. The tenant had already expressed the opinion that the property had contributed to their unwellness.
Although the landlord erred by raising the matter in front of others and had likely made light of the situation, I am not satisfied that the incident significantly worsened the already diminished quality of the tenancy in the tenant’s mind.
The claim that the landlord has interfered with the reasonable peace comfort and privacy of the tenant is dismissed. Name suppression.
Both parties seek name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The landlord has been wholly successful defending the claims made against then and is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95A (4). The Tribunal also orders suppression of the tenant’s name. The names of the witnesses are also suppressed.

Tenancy Tribunal case 5049268 — Mould & damp

Tenancy Tribunal case 5049268 — Mould & damp

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions