Published tribunal order
Tenancy Tribunal case 5315783 — Mould & damp
Decided 30 Sept 2025 · Published 30 Sept 2025 · Application 5315783
- Mould & damp
- State of repair
- 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 the tenancy address.
- The landlord shall credit the sum of $1,140.00 against the tenant’s liability for weekly rent by way of rent rebate.
- The landlord must pay the tenant the filing fee of $28.00 immediately.
- The landlord must obtain a written report from a building surveyor, registered drainlayer, or licensed building practitioner to confirm that the stormwater drainage is working efficiently and whether its capacity can be increased. The report must be obtained by 30 November 2025 and a copy provided to the tenant.
Reasons
- Both parties attended the hearing on 25 September 2025. Background
- The parties signed a residential tenancy agreement for a fixed term from 4 June 2022 to 4 June 2023. The tenancy is continuing.
- The weekly rent of $730.00 was increased with effect from 11 November 2023. The current weekly rent is $760.00.
- The tenant applied to the Tribunal on 31 July 2025. The tenant says there have been three flooding events at the premises on 9 May 2023, 21 May 2024, and 5 June 2025.
- The tenant said the flooding in May 2023 caused the ground floor level to be under 9 inches of water. A photograph was sent to the property manager by text message on 9 May 2023: “...the garage and downstairs of the property flooded during the heavy rains but its subsided now”.
- The tenant reported flooding on 21 May 2024. In an email, he said there had been an hour of heavy rain, and this was enough to overflow the storm water drains and flood the house. The tenant said the bedroom downstairs could not be used for accommodation because it was being flooded regularly. It would take about a week to clean and dry. At the hearing, the tenant said the water was up to knee-deep.
- On or about 21 May 2024 a drainlayer attended at the property and cleared a blockage in the back drain.
- The tenant reported flooding on 5 June 2025. In an email, he noted that the drain in front of the garage door “...was overloaded and pooled to knee height...”. The garage, bedroom, and bathroom were affected. At the hearing, the tenant said there was no storm warning, and the rain was not that heavy.
- On 10 July 2025 the landlord acknowledged the recurring flooding issue and proposed a rent reduction of $50.00 per week, until drainage improvements or upgrades to the garage area were completed. The email referred to the landlord having consulted a plumber to potentially install a wider drain in front of the garage. At the hearing, the owner said he had been advised verbally by a plumber that the drainage could not be improved.
- The tenant seeks work orders for drainage improvements and compensation for time off work, loss of income and power use totalling $1,147.00. The tenant also claims a rent reduction of $60.00 from 5 June 2025 until 12 months after completion of drainage work. Relevant Law
- Section 59 of the Residential Tenancies Act 1986 (the Act) provides that the rent abates accordingly when, without breach by either party, part of the premises is so seriously damaged as to be uninhabitable.
- The Residential Tenancies (Healthy Homes Standards) Regulations 2019 include a “moisture ingress and drainage” standard. This requires the premises to have a drainage system that “efficiently drains storm water, surface water, and ground water to an appropriate outfall.”
- A Tenancy Services guide about the moisture ingress and drainage standard states: “The drainage system must ensure the rental home, including the land that it sits on, is not subject to periodic flooding during or after normal rain.”
- Regulation 14 of the Housing Improvement Regulations 1947 provides: The site of every house shall, to such extent as the local authority deems necessary, be provided with efficient drainage for the removal of storm water, surface water, and ground water. No house shall be occupied which is built on land which is not adequately drained or which is subject to periodic flooding in times of normal rain.
- The Building Act 2004 requires all building work to comply with the Building Code. Clause E1 (surface water) of the Building Code specifies performance standards for the protection of property from damage. Surface water caused by an event having a 2% probability of occurring annually (a one in 50-year storm) must not enter buildings (clause E1.3.2).
- Landlords must comply with the Building Act 2004 so far as it applies to residential premises (section 45(1)(c) of the Act). Analysis
- There have been 3 flooding events at the premises over the last 3 years. It seems inevitable that there will be another flooding event in the not-too-distant future. The landlord blames the increased incidence of flooding on changes in climate and increased subdivision in the surrounding area. The premises are close to a flood zone but not actually inside it.
- It is unclear whether clause E1 of the Building Code has been breached. The Tribunal would require evidence from an expert such as a building surveyor to establish whether the drains meet the performance standard in the Building Code. However, if the drains complied with building regulations when the property was constructed, then in my view, the landlord cannot now be in breach of the Building Code and the Building Act 2004. That is because legislation does not usually apply retrospectively. Different considerations apply when there is a “change of use”, “extension of life” or subdivision under sections 115-116A of the Building Act 2004, but that is not the case here.
- There is no evidence that the landlord has failed to maintain the drainage in a reasonable state of repair. Although a blocked drain was cleared in 2024, it was not suggested that the landlord had delayed addressing this issue once he knew about it, or that the blockage was caused by a failure to maintain. The blockage was caused by foreign objects inside the drain.
- It is difficult to determine whether the Healthy Homes Standards have been breached. A Healthy Homes Assessment report obtained on 20 May 2022 identified compliance with the drainage standard, although the report stated that the drainage inspection was limited (presumably, because it was not possible to check inside the drains). The drainage standard is not prescriptive. On one view, all that the standard requires is “efficient” drainage. A dictionary definition of this word is “operating quickly and effectively in an organised way.” The drains may not be efficiently draining storm water if they are being overwhelmed once every year.
- The landlord provided media reports about heavy rain warnings said to relate to the dates of the flooding. One of the articles, which may relate to the flooding on 21 May 2024, referred to a torrential downpour in Auckland overnight, causing houses to flood. Another article referred to “damaging” amounts of rain to some spots of Auckland and Coromandel, and “near-record” rainfall in northern parts of Auckland. An undated article referred to surface flooding around Pakuranga Plaza, with North and East Auckland “bearing the brunt” of the downpours. Another report, dated 4 June 2025, warned Aucklanders to be prepared for heavy rain and strong winds.
- The landlord’s view, I presume, is that these were not incidents of “normal” rain. However, they may be developing into the “new normal”. The tenant’s evidence was that the latest flooding event in 2025 came as a surprise, because the rain had not seemed especially heavy. He said the flooding in 2024 occurred after only an hour of heavy rain.
- In the end, I am not satisfied that the Healthy Homes Standards have been breached. The evidence does not establish that the drainage is generally insufficient, and it appears to require periods of heavy, rather than normal, rainfall to overwhelm the stormwater drainage. The drainage appears to be efficient most of the time.
- As to a rent rebate, I find that the premises were probably uninhabitable each time the premises flooded. The entire lower level of the house was flooded on each occasion. The tenant’s photographs show significant flooding by large volumes of dirty water.
- In my view, section 59 of the Act does not enable the Tribunal to award compensation. There must be a breach of the Act or the tenancy agreement before compensation can be awarded. Section 59 applies when the premises are so damaged that they become uninhabitable without breach of the tenancy agreement. On the view of the law that I have taken, it is not possible for the Tribunal to award compensation, because no breach by the landlord of the Healthy Homes Standards or the Act has been established.
- The property manager indicated that she visited the premises soon after the flooding in 2024 and 2025 and found the property in a normal condition. The photographs provided do give a sense of normality. However, I accept the tenant’s evidence that it took at least 4 days after each event for the property to be dried out and cleaned, and the tenant indicated that the premises remained cold (because they had to be aired out) with an enduring smell. The tenant said the premises were still wet when the landlord took photographs on two occasions after the flooding.
- I find that the downstairs part of the premises was so badly damaged by flooding that it was uninhabitable for approximately 3 weeks in total. Of the 4 bedrooms, one is downstairs, together with the garage and a bathroom. The main bathroom, kitchen, and remaining bedrooms are upstairs. I consider it is appropriate to abate the rent by 50% for this period pursuant to section 59 of the Act, a rent refund of $1,140.00. Landlord to Obtain Report
- I have directed the landlord to obtain a report from a registered drainlayer, building surveyor, or licensed building practitioner to establish whether the drainage is working efficiently and whether its capacity can be increased.
- While the landlord has obtained a healthy homes assessment, as noted above, the inspection of the drainage was limited. I consider that this further step is required to confirm compliance with the drainage standard. Filing Fee and Suppression
- The tenant has been partly successful and is awarded the filing fee. I also grant name suppression to the tenant as requested.