Published tribunal order
Tenancy Tribunal case 5116749 — Property damage at 12 Moana Street, Hokowhitu, Palmerston North 4410
Decided 5 Mar 2025 · Published 5 Mar 2025 · Application 5116749
- Property damage
- Cleanliness
- Mould & damp
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case and the Tribunal orders suppression of the landlord’s name and identifying details.
- Amjad Nazeer Amjad and Amina Bibi are to pay the landlord $1,540.14 from the bond being: a. Carpet cleaning $390.14 b. Wallpaper repairs $950.00 c. Mould cleaning $200.00
- The balance of the bond of $259.86 is to be paid to the tenant.
- The tenant’s claims are dismissed.
Reasons
- Both parties attended the hearing.
- The landlord has applied for compensation for cleaning the carpets and curtains, and repairs to and painting of the walls.
- The tenant has applied for exemplary damages and compensation for the landlord’s failure to maintain the property and failing to comply with the Healthy Homes Standards (“HHS”) in relation to ventilation, draught stopping, moisture ingress and insulation. Standard of proof and evidence
- In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, each party must establish with evidence that their claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.
- The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
- While this decision has not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.
- By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
- It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.
- Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the parties’ applications with this requirement in mind. The landlord’s claim for carpet cleaning
- The landlord provided the following evidence: a. An Exit Report dated 4 November 2024 (“the Exit Report”). b. An Entry Report dated 29 June 2023 (“the Entry Report”). c. An invoice from Gold Carpet Cleaning for treating stains for $339.25 plus GST. d. The Exit Report provided photographic evidence of staining in the lounge and spot stains in the two bedrooms.
- The tenant accepted that the staining had occurred during the tenancy but challenged the amount of the landlord’s claim.
- The Tribunal is satisfied that the amount claimed by the landlord for the staining is fair and reasonable given the invoices for similar work which it reviews in this locality.
- The landlord’s claim for carpet cleaning is proven. The landlord’s claim for wall repairs
- The landlord provided the following evidence: a. Photographic evidence in the Exit Report of damage to the wallpaper in the kitchen, hallway, bedrooms and lounge. The landlord claimed that the wallpaper had been torn and drawn on by the tenant’s children. b. Photographic evidence in the Exit Report of extensive mould on the walls of the bedrooms and living area. c. At the start of the tenancy the walls had been freshly painted over the old wallpaper. d. The tenant had accepted responsibility for repairing the damage to the wallpaper. e. An invoice from Clearview Property Ltd for $2,610.50 for “tenant damage repairs”, together with a quotation for all the work the landlord was to have done in repairing and repainting the property, which included the amount Clearview had determined was the tenant’s responsibility, including the washing and rehanging of curtains.
- The tenant accepted responsibility for the damage caused in five areas by their children in tearing the wallpaper and drawing on it.
- The tenant rejected liability for damage which the landlord claimed was due to the tenant’s failure to control mould in the property. He provided quotes for the repair of the five areas and pointed out in the Entry Report some damage which was present at the start of the tenancy. He disputed the amount claimed by the landlord and denied responsibility for any damage caused by mould, as discussed further below.
- The damaged caused by the tenant’s children is intentional damage because it was caused by the tenant’s children and the tenant allowed the situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- The Tribunal accepts that the tenant is responsible for the costs of repairing the torn wallpaper and repainting over the areas. Having the quote obtained by the tenant from a tradesperson who inspected the damage but who did not include painting, it is appropriate that the landlord be compensated in the sum of $950.00. Included in this sum is a small deduction for betterment and depreciation. The landlord’s claim for mould cleaning and repairs
- The landlord claimed that the tenant did not take appropriate and reasonable steps to reduce and control the mould in the property during the tenancy. Because of this failure by the tenant to keep the premises reasonably clean and reasonably tidy, the mould required cleaning at the end of the tenancy and the walls required repainting. See section 40(1)(c) Residential Tenancies Act 1986 (“RTA”).
- The landlord provided photographic evidence in the Exit Report of the extent of the mould at the end of the tenancy. Both parties provided copies of the email exchange between the landlord and tenant regarding mould at the property from the tenant’s email on 25 June 2024 to a reinspection that occurred on 8 August 2024.
- The landlord’s evidence regarding mould was as follows: a. There was no evidence of a mould problem at the routine inspections on 24 April 2024. b. The landlord emailed the tenant on 26 June 2024 confirming that the property was HHS compliant and setting out steps the tenant could take to minimise the mould issue. c. At the inspection on 24 July 2024 there were issues regarding mould in the bathroom, both bedrooms, hall and lounge. A 14-day notice was issued by email on that date and at the reinspection on 8 August 2024, these issues had been remedied. d. There had been no mould issues with the property over the five years that the landlord had owned and rented out the property. e. The tenant caused the mould issue by: i. Failing to ventilate the property by keeping windows shut. ii. Failing to allow sunshine into the property by keeping the curtains closed. iii. Both living and sleeping in the lounge which was kept at a high temperature. iv. Not cleaning mould away as it arose with an appropriate cleaner. f. As requested by the tenant, the landlord arranged to have the roof and gutters checked for leaks and provided a report from McKendry Property Maintenance confirming that there were no leaks and providing the opinion that the dampness and mould issue was caused by a lack of ventilation. g. At a further inspection on 9 September 2024 mould had regrown and the tenant had taken none of the steps recommended to inhibit its growth and did not clean it away. h. The tenancy was terminated by notice for “extensive renovations”. These renovations were the installation and reconfiguration of a new kitchen.
- The tenant gave evidence that: a. He allowed the mould to develop so that the landlord could see the extent of the problem. The mould covered the walls and ceilings as well as the tenant’s personal possessions. b. He believes the issue was caused by the landlord’s breaches of the HHS: i. The absence in the kitchen of a ventilation fan. ii. The absence of underfloor and ceiling insulation. c. He requested a remedy to the cold and damp he and his family experienced in the property and the landlord failed to take adequate steps to remedy these issues. d. The tenant believes that this was an issue present at the start of the tenancy and that the landlord should have taken steps to remedy it. The Entry Report confirms the presence of spots of mould, specifically in the lounge, on a water tap and outside the property. The Entry Report notes that wallpaper was “tearing off on its own”. e. The mould was not cleaned off at the end of the tenancy as the tenancy was terminated for extensive renovations and he did not therefore see any point.
- To consider the landlord’s claim, it is necessary to consider the tenant’s claims for failure to maintain and breaches of the HHS. It will then be possible to consider the mould situation in its entirety and determine each party’s claims arising out of the mould issue. The tenant’s claims for failure to maintain and breach of HHS
- The tenant claimed that: a. The landlord had agreed to install an extractor fan in the kitchen at the start of the tenancy but one was not installed. He has claimed compensation for the landlord’s failure to provide the fan. b. The landlord failed to maintain the property because it remained cold and damp and had a mould problem. c. The landlord breached section 45(1)(bb) RTA by not complying with the HHS in relation to ventilation, draught stopping, moisture ingress and insulation. d. The landlord’s HHS Statement was incomplete and compliance was not completed by the 28 October 2023 as required.
- The landlord gave evidence as follows: a. It was intended to install an extractor fan in the kitchen to comply with the HHS. However, a report from Laser Electrical supplied in evidence confirmed that it was not reasonably practicable to install either a rangehood or an extractor fan. b. Confirmation from Brightr (Smart Energy Solutions) that the ceiling was too low to allow access for insulation and that the underfloor is too low to access and install a moisture barrier. c. An invoice from HCM Blasting and Maintenance Ltd dated 12 July 2023 confirming that draught stopping had been completed to HHS standards. d. The report mentioned above from McKendry Property Maintenance confirming that there were no leaks. e. In October 2024, in response to the tenant’s complaints, the landlord installed “blow in” insulation to the ceiling.
- The Tribunal accepts that the premises complies with the HHS in relation to draught stopping as evidenced by the invoice for this work.
- The HHS provides exemptions where it is “not reasonably practicable” to install insulation (Regulation 19), an extractor fan (Regulation 24) and a ground moisture barrier (Regulation 29).
- On the evidence before the Tribunal, it is satisfied that these exemptions apply to this property. It follows that the landlord did not have a legal obligation to comply with those specific regulations and was not therefore in breach of its obligations under section 45(1)(bb) RTA.
- The Tribunal is persuaded on the evidence that the landlord’s intention to supply an extractor fan in the kitchen was pursuant to its obligation to comply with the HHS. Having discovered on a tradesperson’s report that it was not reasonably practicable to install a fan in the kitchen and that an exemption applied, the landlord’s obligation to install the fan ceased.
- The landlord is not under any legal obligation to inform the tenant when the HHS have been met. A tenant can request a copy of the HHS information under section 45(1AC) RTA. The tenant did not provide any evidence that such a request was made.
- The tenant’s claims for breach of section 45(1)(bb) RTA and the HHS are dismissed. Discussion and decision regarding mould
- As noted during the hearing, mould is commonly present throughout almost all residential dwellings in New Zealand to some degree. Simply having mould in the premises is not sufficient to establish a breach by the landlord of its obligation to maintain the premises in a reasonable state of repair for which compensation can be ordered. A tenant must establish that there are defects with the premises which have caused mould to develop.
- Mould can usually be addressed by wiping with an appropriate cleaner. Where a property has an inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. The premises must be able to be used and lived in, in the normal way, without excessive mould developing. If this cannot be done, then the problem of mould falls on the landlord to remedy under their obligations to maintain the property.
- Tenants have a responsibility to take reasonable steps to mitigate normal moisture that can lead to mould which includes ventilating the property and not acting carelessly to introduce moisture in the air (using ventilation fans when available, not drying clothes inside). However, tenants do not have to take extreme measures to combat a problem that is caused by the manner of construction of the property, a lack of adequate heating or insulation, or a fault in the property that is allowing water inside the premises.
- The landlord’s evidence in relation to the tenant’s claims for breaching the HHS shows that there was no inherent defect in the property causing the mould: there was no leak, the gutters were clear and the landlord qualified for exemptions under the HHS.
- The tenant claimed that the landlord should have installed a heat transfer or ventilation system. The landlord has no legal obligation to do so and gave evidence that because of the minimal roof space, it would not have been reasonably practicable to do so.
- The Entry Report indicated that there were some spots of mould. This does not persuade the Tribunal on the balance of probabilities that the property was any more prone to mould than another 80-year-old property in the Manawatu. It does not prove that the property had any inherent defects that the landlord had a legal obligation to fix.
- The evidence submitted by the tenant indicates that he first raised the mould issue with the landlord by email on 25 June 2024, a year after the start of the tenancy. It became a significant issue at the inspection on 24 July 2024 which led to the landlord issuing the 14-day notice on 25 July 2024.
- The landlord’s evidence of how the tenant and his family were living in the property was not contested by the tenant. It is likely that the fact that he and his family were living and sleeping in the living area, did not open windows and ventilate the property, kept the curtains drawn and did not combat the mould on a regular basis were contributing to the issue.
- In summary, the Tribunal does not find on the evidence before it that the tenant has proven his claims for compensation and exemplary damages to the required standard. The tenant’s claims are dismissed.
- It remains to consider whether the landlord has proven its claim for the cleaning, repairs and repainting.
- Having determined that the tenant contributed to the mould issue, it is appropriate that the tenant contributes to the cost of cleaning the mould. However, the amount included in the landlord’s estimate was for cleaning preparatory to painting the interior. This is a higher standard than the tenant’s responsibility to leave the premises reasonably clean and tidy on termination under section 40(1)(e)(iii) RTA. The landlord claimed that the tenant’s failure to combat the mould problem had caused damage to the walls for which he should be liable.
- The landlord accepts that the mould issue only became evident and serious after the inspection on 24 July 2024. The tenancy ended on 2 November 2024. On the evidence before it, the Tribunal does not accept that the tenant’s actions and inaction over a period of just over three months can have caused such a deterioration in the property as to require a complete repaint of the interior.
- The landlord’s claim for repairs and repainting over the amount already awarded for wallpaper repairs is dismissed.
- However, the landlord is entitled to an amount for the cleaning of the mould from the walls, ceilings and curtains. Based on similar claims which the Tribunal sees in this area, a sum of $200.00 is appropriate being equivalent to an eight- hour day at $25.00 per hour. Suppression
- Because the landlord has been substantially successful in its claim, it is appropriate that its name is suppressed.