What was Tenancy Tribunal case 5260219 about?

The tribunal order states: The Tribunal orders suppression of the tenant name and identifying details.

How much money was awarded in case 5260219?

Compensation: loss of amenity (showe…: $150.00 awarded to tenant; Compensation: Rent abatement 1-16 Ma…: $1,287.14 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5260219?

The dispute type was not classified.

Where can I read the official tribunal order for case 5260219?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12078565-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5260219 about?

The tribunal order states: The Tribunal orders suppression of the tenant name and identifying details.

How much money was awarded in case 5260219?

Compensation: loss of amenity (showe…: $150.00 awarded to tenant; Compensation: Rent abatement 1-16 Ma…: $1,287.14 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5260219?

The dispute type was not classified.

Where can I read the official tribunal order for case 5260219?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12078565-Tribunal_Order_Redacted.pdf.

Room Suite 15, 60 Courtenay Place, Te Aro, Wellington Tenancy Tribunal Case 5260219 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5260219 — net $1,464.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent abatement 1-16 May 2025	$1,287.14	Rent abatement 1-16 May 2025
Compensation: loss of amenity (shower) and power use	$150.00	loss of amenity (shower) and power use
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,464.14
Total payable by Landlord to Tenant	$1,464.14

Both parties attended the hearing with Ms Lynch representing the landlord.

The tenant seeks compensation for alleged failure by the landlord to provide the premises in a reasonable state of repair and rent abatement due to the premises becoming uninhabitable. Background facts

The premises are a 2-bedroom unit on the third floor of a multi-storey apartment complex. The tenancy began on 14 March 2025 for a fixed term to end on 15 September 2025. The tenant vacated the property on 16 May 2025 after serving a termination notice on the landlord under sections 59, 59A and 59B Residential Tenancies Act 1986 (RTA) on the grounds that the premises were rendered uninhabitable.

Shortly after the tenancy began, the landlord sent the tenant the entry inspection report with photos. The tenant says that she took her own photos and sent them with her comments on the report, including that the main bedroom had a musty smell. She also says that she telephoned Ms Lynch on or about 21 March to report a mouldy, musty smell. Ms Lynch does not recall the conversation and the tenant was unable to provide evidence of her complaint to the landlord in writing.

On 29 March, the tenant reported a leak from the shower mixer using the TAPI reporting system (the first leak) which flooded the bathroom floor. The plumber instructed by the landlord found that a hot water pipe had ruptured behind the shower wall causing a leak that also flooded the unit below. Chemdry was instructed to set up drying equipment for 5 days. A plumber also repaired the shower mixer/pipe. From the landlord’s records and copies of invoices supplied, the repairs were completed by 31 March. The shower could not be used during that time. After this, the tenant says that the mouldy smell in the unit got worse.

On 21 April, the tenant was still concerned about the damp, mouldy smell in the bedroom and she contacted a house survey company for their opinion as to the cause of the smell. The company replied that they were sure that the building had a “direct fix plaster of the type that causes weathertightness issues” and it would cost $690 to investigate and report. However, the tenant did not commission a report. The landlord produced evidence that the tenant submitted a request on TAPI for a new skirting board in the bathroom which had been removed after the flood. The landlord generated a work order for this on 22 April which also includes a note to investigate the smell at the premises reported by the tenant. However, the date the smell was reported is not recorded. It seems nothing was done to investigate the smell, and the skirting was not repaired before the tenancy ended. (Photos taken by the Tenancy Compliance and Investigations Team on 15 May show it was still missing then. See paragraph 13 below).

On or about 30 April, during stormy weather conditions, a major leak through the main bedroom window occurred at the premises saturating the curtains, bed and the carpet (the second leak). The tenant immediately reported this via TAPI. During the clean-up, the tenant pulled back the carpet in the bedroom and discovered signs of black mould on the carpet and the underlay.

The landlord actioned work orders for a contractor to attend and investigate the leak on 2 May. The contractor identified a leak between the window reveal and architrave. The suspected source of the leak was the area above the exterior aluminium joinery. It was noted that external rope access would be required to access the area.

The landlord organised a flooring company to quote to replace the carpet. However, the tenant says that the landlord did not contact her about the timeline and plan for repairs. She emailed them for an update on 8 May asking them to advise about the repairs; how long they would take; and whether rent would be reduced. She stated that she thought 14 days was a reasonable time for repairs to be concluded from the date she reported the issue. She advised that if it was likely to be longer then 14 days, she would like to terminate the tenancy due to mould making the property uninhabitable. The landlord did not respond until 13 May when they acknowledged the tenant’s concerns and advised that the carpet company had been trying to contact the tenant to arrange access for a carpet replacement quote.

On 8 May, the tenant also contacted Wellington City Council (WCC) who offer a free mould inspection service. By this time the tenant and her 3-year-old child had been very sick. The tenant gave evidence about respiratory issues they were both experiencing. She said that the mouldy musty smell seemed to be worse after the first leak on 29 March. On 12 May, their Doctor issued a medical certificate recording that they were suffering respiratory problems and that it was urgent and essential for the tenant’s child to be housed in a warm, dry home.

Given the Doctor’s certificate, by email dated 12 May the tenant issued a notice to terminate the tenancy on 16 May under s59, 59A & 59B RTA because the premises were uninhabitable.

In the meantime, a Senior Environmental Health Officer from WCC and an investigator from the Tenancy Compliance and Investigations Team (TCIT) inspected the premises on 15 May 2025. Following that inspection, WCC issued a Health Nuisance notice dated 21 May 2025. The notice records: “My inspection found significant mould growth over different areas at the unit, specifically under the carpet at both bedrooms. I also noted a strong odour of mould and dampness in the air. This clearly meets the criteria of Health Nuisance as specified in s29(d) of the Health Act 1956 29 (d) where any premises are so situated, or are in such a state, as to be offensive or likely to be injurious to health It is my opinion that this building poses a significant health risk to anyone who lives at this property. Wellington City Council has the following recommendations.......

Engage the services of a competent mould decontamination provider.....

Follow the decontamination plan........

.......water ingress through the bedroom cladding has not been resolved. I am seeking reassurance that the issue causing this second leak event has been remedied. Please ensure that you do not allow anyone to live in this property until the above 3 requirements have been completed.....”

TCIT also documented the mould at the premises with their photo template report dated 15 May 2025. Their photos show water damage and severe mould on the carpets and underlay in both bedrooms not just the bedroom where the window leak occurred. Mould was also visible on window frames, sills, and skirtings. Mould on the exterior cladding was observed as infiltrating the window frame. TCIT issued the landlord with a letter on 19 May 2025 requiring the landlord to produce specified documents showing compliance with their obligations under the RTA regarding maintenance, repairs, and healthy homes compliance.

The landlord provided evidence that a specialist company attended the premises on 19 May. to treat the bedroom floor for mould. The scope of the work in their invoice appears to cover one bedroom only. The landlord also produced an invoice evidencing that the carpet in only one bedroom was replaced on 21 May.

Ms Lynch first submitted at the hearing that the landlord did not think it was necessary for the tenant to vacate the premises and she moved out prematurely because the remedial work was completed by 21 May. However, I note that the landlord has not produced any evidence to prove what (if anything) has been done to remedy the flooring in the second bedroom and to remedy the cause of the leak into the main bedroom through the exterior cladding, as recommended in the WCC notice.

In any event, Ms Lynch conceded at the hearing that the landlord does not dispute the WCC nuisance notice and does not dispute the tenant’s notice to terminate the tenancy on the grounds that the premises were uninhabitable. Tenant claims

The tenant claims a rent rebate from 30 April to 16 May for the second leak event because the premises were uninhabitable. However, she also claims the premises were uninhabitable from the start and should not have been rented out. Therefore, she seeks a rent abatement from the start of the tenancy.

The tenant also claims that the landlord breached their obligations under sections 45(1)(b) and (c) RTA to provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health, and safety. In particular, the tenant claims that the mould discovered at the premises after the second leak looked historic and built up over some considerable time, before the tenancy started. Given, that she had complained about a mouldy musty smell from the start of the tenancy, she says this must have been obvious to the landlord as well but they did nothing about it and rented the premises in that condition. Therefore, the tenant claims that the mould at the premises (in both bedrooms) was caused by the landlord’s failure to investigate the cause of the smell and identify and repair leaks prior to the tenancy starting in breach of their obligations under s45 for which the tenant seeks compensation as follows: a. Compensation for alternative accommodation x5 nights between 15-25 May—$470.42 b. Removal costs—$488 c. Storage costs—$322 d. Doctor’s appointments, subscriptions, and medicines—$313.58 Total $1,594.00

In addition, the tenant seeks reimbursement of electricity costs used by Chemdry after the first leak of $100.

How much should the rent abate and from what date?

The first issue to determine is whether the premises were destroyed, or so seriously damaged (in whole or in part) as to be uninhabitable and from what date. The second issue is the degree to which rent should abate.

The RTA does not define the word uninhabitable but the Tribunal has the guidance of District Court cases that were decided on appeal following the Christchurch earthquakes both as to the meaning of the word uninhabitable and how the issue of rent abatement should be decided. 1

The principles that emerge from the cases are these: • Whether premises are uninhabitable will be decided on a case-by-case basis. There is no statutory definition or test of uninhabitability; • The Tribunal will want to know what damage was caused to the premises by the event and what effects it has had on the tenant; • In making its finding on uninhabitability, the Tribunal should take a liberal approach; 1 First Avenue Property Ltd v Malik DC Christchurch (VIC-2011-009-001539) 23 November 2011; Watkin v Brazier Property Investments Ltd DC Christchurch (CIV-201-009-001006) 28 November 2011; Mauger v Kennard Real Estate Limited, DC Christchurch (CIV-2011-009- 001428) 28 November 2011 • Uninhabitability should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time; • If services such as water, sewerage and electricity are cut off the premises will probably be considered uninhabitable for the period the services are unavailable; • The Tribunal must have regard to the personal circumstances of the tenants. Are they young and/or robust and better able to cope with what has happened? Or are they vulnerable, elderly or a family and less able to cope; • In some cases, the Tribunal will need to decide whether it would be unreasonable to require the landlord to reinstate the property or to require the tenant to continue with the tenancy even at a reduced rent; • If the premises are uninhabitable but the tenancy continues, a 50% rent abatement is often considered reasonable, although the individual circumstances of the parties might mean that the Tribunal sets a higher or lower amount by which the rent should abate.

I have carefully considered the evidence, including the photos taken by the tenant immediately after the second leak; the health impact on the tenant and her young child and the WCC and TCIT evidence. In particular, the WCC notice is clear that no one should be living at the premises until their recommendations have been completed. Therefore, the premises were uninhabitable. However, the date the premises became uninhabitable and the amount of an appropriate rent rebate is in dispute.

I have no difficulty finding on the evidence that the premises were uninhabitable at least from the date of the second leak into the main bedroom on 30 April 2025 as the tenant’s photos show significant mould underneath the carpet at that stage. The tenant was particularly concerned about the impact of mould at the house on her young child. They certainly could not use the main bedroom after the second leak and slept in the lounge. The WCC and TCIT reports support this finding.

The damp and mould on the second bedroom carpet was only discovered when WCC and TCIT investigated on 15 May and there is no evidence to establish the cause of the damage in that room. The tenant advised that this room is used infrequently, so it may be that water ingress occurred during the same stormy weather on 30 April and went unnoticed. Alternatively, as suggested by the tenant, it may be related to the first leak with water seeping through to this second bedroom, also unnoticed. However, there is insufficient evidence to establish exactly when damp and mould occurred in the second bedroom and whether it was prior to the second leak.

The very nature of leaks is that they often result from a latent defect, that is, a defect within a building that is not readily apparent and difficult to detect. They may only become evident overtime, potentially causing significant damage before being discovered.

After considering all the evidence and the tenants’ particular circumstances including that of her young child, I find that the premises were uninhabitable from the date of the second leak on 30 April 2025, and it was not reasonable to expect the tenant to continue living at the premises from that point onwards. There is insufficient evidence for me to conclude that the premises were uninhabitable before this date. In those circumstances, I consider rent should fully abate by 100% from 30 April until the tenancy ended on 16 May. The tenant paid rent up to 16 May, so is entitled to be reimbursed $1,287.14 for 17 days rent.

Did the landlord fail to provide and maintain the premises in a reasonable state?

While both parties accept that the premises were uninhabitable, there is dispute as to whether the leak and resulting damage was caused by the landlord’s failure to comply with their obligations under s45 or whether it was a one-off event that they could not have foreseen and for which fault cannot be attributed to them.

Where residential premises are destroyed or so seriously damaged as to be uninhabitable, and the damage or destruction occurs other than through a breach of the tenancy agreement, rent shall abate and either party may give notice to terminate the tenancy under s59 RTA. Compensation for any loss suffered by the tenant as a result of the damage to the premises cannot normally be awarded under s59 because there is no breach.

Where the damage or destruction of premises results from a breach of the tenancy agreement, different rules apply. If the tenant is not in breach, the rent abates, and the tenant may be entitled to compensation for loss suffered as a result of the landlord’s breach causing the premises to be damaged and uninhabitable. See section 59A RTA.

A landlord is required to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises, and must also comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises under sections 45(1)(b) and (c) RTA.

It is well settled that, the landlord’s obligation under section 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, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

The tenant says she complained about the musty mouldy smell at the premises in a telephone call to the landlord on or about 21 March but Ms Lynch says she does not recall the conversation. The tenant says she also communicated it in writing to the landlord but was unable to find a copy of that message. In the evidence before the Tribunal, the smell is only recorded in a TAPI diary entry on 22 April.

In summary, the tenant believes that there was already a problem that the landlord knew or should have known about (because of the smell) which would get worse if not addressed. She says that the landlord obviously failed to take reasonable steps to investigate and remedy the cause of the smell at the premises.

The landlord’s argument is that it sometimes takes a big leak event to discover a defect. In other words, she suggests that there was a latent defect that was not obvious and could not be detected until the obvious leak occurred. She denies that the landlord failed to maintain the premises.

After carefully considering the available evidence, I find that the tenant has not proved on the balance of probabilities that either leak occurred because of some breach by the landlord of their obligations to maintain and repair the premises. There is insufficient evidence to link the first or second leaks and resulting damage to any failure by the landlords prior to the leaks occurring. The first leak was caused by a ruptured pipe hidden behind the shower wall which was repaired in reasonably quick time. The mould in the main bedroom was not obvious until the carpet was lifted up on 30 April. The problems in the second bedroom were not discovered until the WCC and TCIT inspection on 15 May. Other than the report of a smell on or about 22 April, there were no physical or visible signs reported such as damp and mould until the second leak occurred and the main bedroom carpet was lifted. The pre-tenancy entry report showed that the premises were in reasonable condition. In particular, backs of the curtains in both bedrooms look clean with no signs of mould spots that might indicate dampness in the rooms. There was no evidence from a suitably qualified expert to establish that the mould damage was historic and/or that it ought to have been obvious to the landlord prior to the tenancy starting. Therefore, I conclude that the second leak likely occurred gradually due to a latent defect and only became obvious after the major weather event that caused water ingress on 30 April.

In summary, I find on the evidence that both leaks were a one off, unforeseeable event that was not caused by the landlord breaching their obligations in s45 RTA.

Are the tenants entitled to be compensated for their losses resulting from the leaks?

The only financial remedy available under s 59 is to refund any rent paid in advance for premises that are rendered uninhabitable. Compensation would only be payable if it was established that there was a breach of the tenancy agreement. In Khorozova v A J McPherson & Associates Ltd Christchurch TT 09/02957/CH, 5 August 2009, a severe rat infestation had caused substantial damage to water pipes in the roof and walls rendering the premises uninhabitable. Accordingly, the Tribunal found that the tenancy could be terminated and rent ought to abate accordingly. However, the Tribunal dismissed the tenant’s claim for compensation for inconvenience and other costs because it found no breach by the landlord of any obligation in the Act or the tenancy agreement.

It follows that because I find the leaks were not caused by any breach of s45, the landlord is not liable to compensate the tenant for any loss suffered as a result of the premises becoming uninhabitable. Therefore, the tenant’s claims for removal costs, storage, alternative accommodation, and medical expenses are dismissed.

In relation to the first leak (which I find did not cause the premises to be uninhabitable) I accept that the tenant suffered a loss of amenity for which she paid rent because the shower could not be used for 2 days. The tenant also incurred extra power costs from Chemdry’s drying machines over a 5-day period. No specific evidence was presented regarding the cost of the power. However, I award $150 to cover the loss of amenity (the shower) and extra power costs.

As the tenant has largely succeeded with her claims, she is entitled to suppression of her name and identifying details and to reimbursement of the filing fee. K Stirling, 07 July 2025

Reasons

Claims and awards in Tenancy Tribunal application 5260219 — net $1,464.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent abatement 1-16 May 2025	$1,287.14	Rent abatement 1-16 May 2025
Compensation: loss of amenity (shower) and power use	$150.00	loss of amenity (shower) and power use
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,464.14
Total payable by Landlord to Tenant	$1,464.14

Both parties attended the hearing with Ms Lynch representing the landlord.

Given the Doctor’s certificate, by email dated 12 May the tenant issued a notice to terminate the tenancy on 16 May under s59, 59A & 59B RTA because the premises were uninhabitable.

Engage the services of a competent mould decontamination provider.....

Follow the decontamination plan........

In addition, the tenant seeks reimbursement of electricity costs used by Chemdry after the first leak of $100.

How much should the rent abate and from what date?

Did the landlord fail to provide and maintain the premises in a reasonable state?

In summary, I find on the evidence that both leaks were a one off, unforeseeable event that was not caused by the landlord breaching their obligations in s45 RTA.

Are the tenants entitled to be compensated for their losses resulting from the leaks?

As the tenant has largely succeeded with her claims, she is entitled to suppression of her name and identifying details and to reimbursement of the filing fee. K Stirling, 07 July 2025

Tenancy Tribunal case 5260219 — Tenancy dispute at Room Suite 15, 60 Courtenay Place, Te Aro, Wellington

At a glance

Tenancy Tribunal case 5260219 — Tenancy dispute at Room Suite 15, 60 Courtenay Place, Te Aro, Wellington

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much should the rent abate and from what date?

Did the landlord fail to provide and maintain the premises in a reasonable state?

Are the tenants entitled to be compensated for their losses resulting from the leaks?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much should the rent abate and from what date?

Did the landlord fail to provide and maintain the premises in a reasonable state?

Are the tenants entitled to be compensated for their losses resulting from the leaks?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions