Published tribunal order
Tenancy Tribunal case 5312526 — Mould & damp at 2A Kingsland Avenue, Kingsland, Auckland 1021
Decided 31 Oct 2025 · Published 31 Oct 2025 · Application 5312526
- Mould & damp
- State of repair
- Cleanliness
- Healthy homes
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 tenant’s name and identifying details.
- Barfoot & Thompson Property Limited Epsom As Agent For Hong And Ken Lai Serena Mormon must pay [The tenant/s] $1,500.00 in compensation on or before Friday 7 November 2025. Attendance:
- Both parties attended the hearing. Background:
- The applicant entered into this tenancy in September 2024 by way of a variation, replacing a previous tenant at the property.
- In early December, she travelled overseas until mid-January, a period of approximately six weeks. Upon returning to the property, she immediately developed severe health symptoms, including swelling, skin aggravation, and other issues which she says, and I accept, affected her ability to work and to live her life normally. She has provided supporting evidence of this, which I accept.
- In June, the applicant, who is from Canada, returned home. Within a few days of arriving, her symptoms disappeared. A medical report confirms that her doctor believed her severe eczema was caused by allergens. Upon returning to New Zealand on 13 July 2025, she reports that her symptoms returned within one day of re-entering the property. She immediately vacated the premises and stayed in Airbnb’s. She notified the landlord of the issue on 18 July 2025 and was formally released from the tenancy on 6 August 2025.
- The applicant seeks compensation totalling $9,332.47, made up as follows: a) Rent refund for her portion: $6,207.50 b) Accommodation (hotels and Airbnb’s): $716.25 c) Medical expenses: $908.72 d) Medicine: $1,500.00
- She also seeks compensation for lost income, sick leave, stress, sleep loss, pain, and emotional distress. She submits that the landlord breached their obligations under section 45(1)(b) of the Residential Tenancies Act 1986, and further alleges a breach of the Healthy Homes Standards. Was the mould caused by the landlord’s failure to provide or maintain the property in a reasonable state?
- The issue I must determine is whether the mould present in the room and bathroom was caused by a failure to maintain on the part of the landlord, or by a failure on the part of the tenant.
- Mould is a common issue in New Zealand homes, which have a natural propensity for dampness and mould growth. Mould can be extremely harmful and detrimental to health. The extent to which individuals are affected depends on their personal constitution, immunity, and any predisposition to eczema, asthma, or allergies. When mould and fungi reproduce, they release countless microscopic spores that become airborne. Health problems can occur when these spores are inhaled, ingested, or come into contact with the skin.
- Responsibility for mould prevention and management rests with both landlords and tenants. The Healthy Homes Standards establish baseline requirements that all rental properties must meet; however, these standards are not exhaustive. Every property is different. Where structural issues or known defects contribute to a recurring propensity for mould, the landlord bears responsibility to identify and remedy those issues. Where a landlord is aware, or ought reasonably to be aware, of a recurring issue, they must take proactive steps to ensure the property is provided in a reasonable state at the commencement of any new tenancy. Reasonable in this context means that it can be reasonably managed through routine wiping and opening the windows from time to time.
- The question I must determine is the cause of the mould in this case, and whether it can be attributed to a failure to maintain under section 45(1)(b) of the Residential Tenancies Act 1986, as alleged by the tenant. The burden of proof rests with the tenant. In a civil proceeding of this nature, I must be satisfied on the balance of probabilities, that is, that it is more likely than not (51% or more), that a breach has occurred.
What the respondent told me?
- The respondent states that upon being notified of the issue, they took immediate steps to assist the tenant. They believe that the landlord acted promptly and fulfilled their obligations in response to the matter.
- They state that these steps included the immediate requirement for the tenant to advertise her room and to re-tenant it as soon as a new occupant was secured. The tenant was released on that date, and in their view, no delays were caused by the respondent.
- With respect to their maintenance obligations, they assert that they were required to take action upon being notified of the issue, and that they complied by installing an DVS system and remedying the mould problem. Those steps were appropriate once the issue was raised.
Did the landlord fail to provide and maintain the property in a reasonable state?
- In assessing this issue, I must consider all the circumstances. It is clear that as soon as the tenant returned to the property after her summer break, she became immediately unwell. I am satisfied on the balance of probabilities that the cause of her illness was the dampness, moisture, and mould present in the room she was occupying.
- There is sufficient medical and photographic evidence to support this conclusion. The photographs show mould growth on the tenant’s duvet, shoes, and cupboard, the applicant tells me she ran a dehumidifier in her room which filled daily and that there was visible mould on the roof of the bathroom and bedroom. Photographs were provided to support this.
- At that time, however, the landlord was neither notified of nor aware of any problem. This is understandable, as the tenant initially did not connect her symptoms with the dampness and mould in the property and she tells me that her kiwi flatmates were rather casual about it stating that it was normal in kiwi homes. She did state that they were very sympathetic and supportive of her during this period.
- It was only after returning to her home country, recovering there, and subsequently becoming unwell again upon her return to the property that she recognised the connection. Once the landlord was notified, the tenant vacated the property, and the tenancy ended within a few weeks.
- Section 45(1)(b) of the Residential Tenancies Act 1986 imposes two separate obligations on landlords: first, to provide the premises in a reasonable state of repair at the commencement of the tenancy; and second, to maintain it in that state throughout the tenancy.
- After the landlord was notified of the issue, it appears the landlord took steps to remedy a draught at the front door and installed a DVS system. The respondent, who has managed the property for approximately 20 years, stated that she regularly arranges mould remediation every one to two years due to recurring build-up. She said this was the landlords responsibility due to the high ceilings it was unreasonable to require tenants to do this cleaning. She also expressed the view that the tenant could have done more to ventilate the room and questioned why other tenants had not experienced similar problems.
- However, the effects of mould exposure vary according to an individual’s constitution, immunity, and susceptibility to allergens. The absence of complaints from other tenants does not establish that no issue existed. On the contrary, the landlord’s acknowledgment that mould remediation is routinely undertaken demonstrates that the property has an inherent and recurring mould problem that cannot be maintained fully and adequately by tenants. This indicates that the landlord knew, or ought to have known, of the issue and that the property was not provided in a reasonable state of repair at the commencement of this tenancy.
- The steps taken once the problem was identified, including the installation of a ventilation system, were appropriate and demonstrate compliance with the landlord’s maintenance obligations. However, the recurring nature of the mould problem shows that the property was not in a reasonable state at the start of the tenancy, and that the landlord failed to meet their obligation to provide the premises in such a condition.
- I have reviewed photographs of the tenant’s room and her account of the steps she took. She reports that she regularly opened windows and operated a dehumidifier, which she emptied daily. I am satisfied that the tenant took reasonable steps to ventilate and maintain the premises and that she complied with her obligations.
- To be clear, I do not suggest that the presence of mould in any property necessarily requires a landlord to install a ventilation system. However, section 45(1)(b) of the Residential Tenancies Act 1986 requires that the premises be both provided and maintained in a reasonable state of repair, having regard to the age and character of the property.
- In this case, I am satisfied that the age and character of the building, combined with the respondent’s own evidence, demonstrate that the property has a known propensity to develop mould that cannot be managed by tenants. It was therefore appropriate in these specific circumstances that a ventilation system be installed, as occupants could not keep mould at bay by simply wiping surfaces or opening windows for short periods each day which is what can reasonably be expected of them.
- The landlord appears to have reached the same conclusion when, upon becoming aware of the tenant’s symptoms, they immediately installed a DVS system. I consider that to have been an appropriate and effective step. However, it was the failure to recognise the need for such a system before this tenancy commenced that constitutes the breach found in this case.
- Accordingly, I find that while the landlord took reasonable steps once notified of the issue, they failed to provide the premises in a reasonable state of repair at the commencement of the tenancy, in breach of section 45(1)(b) of the Act. Having found that the respondent failed to provide the property in a reasonable state, in breach of their obligations under section 45(1)(b) of the Act, is any compensation payable?
- In the absence of intent or maliciousness on the part of the respondent, a nominal award is appropriate. In Birch v Otautahi [2020] NZDC 17667 (CIV-2018-009- 002094), the District Court considered an appeal from a Tenancy Tribunal decision where a breach had occurred without intent or malice. The Tribunal awarded a nominal sum of $200.00 in that case.
- While the District Court upheld the Tribunal’s finding of breach, it found the $200.00 award derisory and increased it to $2,500.00. The decision illustrates that while such awards are nominal in that they are not compensatory for the applicants actual loss and does not make them whole, it must still appropriately acknowledge the breach and resulting harm.
- In the present case, the landlord’s failure, though unintentional, had a significant impact on the applicant. Consistent with the approach in Birch v Otautahi I consider an award of $3,000.00 appropriate. H Ben Fayed 20 October 2025