What was Tenancy Tribunal case 5422707 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 5422707?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5422707?

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

Where can I read the official tribunal order for case 5422707?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13405357-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5422707 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 5422707?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5422707?

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

Where can I read the official tribunal order for case 5422707?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13405357-Tenancy_Tribunal_Order.pdf.

30A Collier Avenue, Karori, Wellington 6012 Tenancy Tribunal Case 5422707 — Mould & damp

Reasons

As a preliminary matter, I note that before the hearing Ms Whiteman advised via email that she does not support the application. However, earlier this afternoon, following the close of the hearing, she emailed the tribunal stating that she does support the application and raised various matters. This email was received after hearing closed, and therefore has not been put before Mr McIlraith. As such I can place little if any weight on this email. Furthermore, the reason stated below it matters little to the issues before me. Ms Bown attended the hearing, and acted as Mr Betham’s representative. Background
This tenancy was on foot for some five years, with tenancy renewing in January 2025. Ms Whiteman had been a tenant for some three years, with Ms Bown and Mr Betham joining the tenancy at the January 2025 renewal.
The tenancy is the upstairs flat of a subdivided 1960s two level house. The house is built set against a relatively steep hillside and has two relatively low pitch flat roofs; one covering the back section of the premises where the bedrooms are located, and a second lower roof covering the front where the kitchen and lounge are located. An internal gutter sits at the back of the front roof where it abuts the rear, uphill section of the house.
In late 2025, Mr McIlraith marketed the property for sale. As a result he was doing some maintenance work on the property, which included repainting weatherboards which had been damaged when Ms Bown’s car rolled into them.
It appears that through this process Ms Bown had some concerns which led to this application being made on 7 January 2026.
The tenancy ended on 31 January 2026.
Ms Bown’s application relates to the following alleged breaches: a. alleged healthy homes breaches relating to insulation, draught stopping, and the absence of a sub floor vapour barrier; b. various alleged building defects, including the lack of seismic restraints and lagging on the hot water cylinder, structural issues with the deck and safety fencing around the carport, a lack of fire protection is between the two units, and issues with smoke alarms; and c. allegations of breaches of quiet enjoyment. Healthy homes
The tenants have various allegations that: a. the landlord has not included insulation details in the tenancy agreement; b. the insulation does not meet healthy homes requirements; c. windows and draws have gaps in excess of the healthy homes requirements; and d. there is no sub floor vapour barrier. Installation Statement
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenants claim that the installation statement was not provided with the lease. Landlord says that the hard copy of the installation statement was provided with the lease, however he did not print out the second copy to retain his records. I note that only a partial copy of the lease was provided with the tenants’ documents. During the hearing the tenant accepted that it is possible that Ms Whiteman was provided with an insulation statement, as the landlord has said. This aspect of the tenants’ claim is not proven. Insulation standard
The tenants claim that the landlord has breached his obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where insulation is installed after 1 July 2016, as in this case, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island).
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The landlord advises that the insulation was placed in 2018 by the Sustainable Trust. He has provided copies of a building inspection report prepared as part of the sales process. This identifies that the insulation was sufficient and compliant. The one area where there is insufficient insulation is in the front section over the lounge kitchen area where there is insufficient headspace to allow for batts to be installed. However, there is loose fill in this area but it is below 120 mm in depth.
The tenant has advised that she had personally seen areas where there was no insulation, however, no photos or other evidence of the series was provided.
I must accept the landlord’s report from the building inspector. This is also backed by other emails from the purchasers of the property. This aspect of the tenants’ claim is not made out. Draught stopping and moisture ingress standards
The tenants claim that the landlord has breached his obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). They allege failure failed to comply with the HHS draught stopping, standard and the HHS moisture ingress and drainage standard.
As the tenancy commenced between 28 August 2022 but before 3 March 2025, the compliance was necessary within 120 days of the commencement of any new or renewed tenancy.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The moisture ingress and drainage standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances.
Breaching these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenant has provided copies of photos which she says show gaps in window and door joinery. The landlord has also provided the building inspector’s report and photos of various windows. The inspector says that the only noncompliant windows are a set of louvres in the downstairs tenancy. The landlord’s photos show that most windows have minimal gaps, and those windows, and the edge of the front door, where there are gaps have foam draught strips installed. This aspect of the tenants’ claim is not made out.
There is a large basement space beneath the bedrooms at the back section of the property. The landlord accepts that there is no vapour barrier. He says he is aware that the property was in technical non-compliance. However, he points out that the basement space is “bone dry”. Photos of the space confirm this. He says that when the lease was signed, he knew that he was intending to sell the property at the end of the lease term, and did not consider it necessary to install a vapour barrier. He points out that there were no complaints about moisture during this or any of the previous tenancies and sees that had there been any he would have installed the vapour barrier straight away. As evidence of this he has provided an email from another tenancy where a vapour barrier was installed a request from the tenants.
Clause 28 (2) of the Residential Tenancies (Healthy Homes Standards) Regulations 2019, states that a tenancy with a suspended floor over enclosed subspace, as in the present case must have a standards compliant vapour barrier installed. The exemption to this only applies where access is not possible, which is not the case here. I find Mr McIlwraith has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that this is not a case we exemplary damages are justified. The requirement for a vapour barrier is part of the moisture ingress standard. In this case there is no evidence of moisture ingress into the tenancy. The lack of moisture barrier had no real effect on the tenants’ rights to a dry, warm tenancy. Furthermore, I note that this issue was raised only a few weeks before the tenancy ended. Building compliance
The tenants have raised a number of issues relating to building compliance, including: a. that the raised deck at the front of the property was unsafe; b. that the fence at the edge of the carports was unsafe; c. that for most of the tenancy the hot water cylinder had no seismic restraints; d. that there was not proper fire containment between the two premises; and e. that the smoke alarms were not compliant.
The argument made was that these aspects are building compliance meant that the tenants health and safety was at risk.
This Tribunal has jurisdiction to consider matters between tenants and landlords relating to compliance obligations under the Residential Tenancies Act 1986. In some instances, the Tribunal may consider building issues such as where there is evidence that a tenancy is unsanitary, or unsafe to a level where it is untenantable. The Tribunal may also consider building issues where they are imported into the Act such as with the healthy homes regulations.
Many of the issues raised relate to the premises compliance with the Building Act 2004. However, this property was built in the 1960s, and as such is not required to be compliant with the Building Act. Rather, it was required to comply with the regulations in place when it was built. I also explained during the hearing that the law cannot consider issues of risk of harm when considering damages. 1
For the bulk of the complaints above these are issues which are outside the jurisdiction of this Tribunal. The tenants however raised the issue of fire alarms which are subject to scrutiny under the Residential Tenancies Act. The tenants argued that the smoke alarms installed were non-compliant as the upstairs and downstairs alarms were not linked, and did not have a 10 year battery life. The smoke alarms are standard photoelectric type with 9 V batteries. The smoke alarm technical requirements and the RTA are that alarms must be within 3 m of 1 Unless legislation such as the Health and Safety in Employment Act have established an obligation. bedroom doors, which does appear to be the case here, and have a long battery life. New smoke alarms must have a battery life of at least eight years, will be hardwired. However, in this case the smoke alarms were existing when the tenancy started. Therefore the 9 V alarms were compliant. Harassment
The tenants claims the landlord has harassed them. They say that the landlord visited the property without sufficient notice on numerous occasions, and they found these visits unsettling.
S 48 Residential Tenancies Act is that a landlord may only enter the tenancy with the freely given consent of the tenants or with prior notice. The tenants say that Mr McIlwraith would frequently visit to do maintenance work with no notice or without sufficient notice. Mr McIlwraith says that he would attend the property approximately monthly to do gardening work, or to check that the gutters were clear of leaves. 2 He says that his visits were during working hours on weekdays to avoid disturbing the tenants. He accepts that he did visit more frequently in the last few months the tenancy. However, this was either to do work to prepare the property for sale, or to do repairs for the weatherboards which were damaged by Ms Bown’s car. He says that he did not enter the premises on these instances. On the occasions when he did into the property, he says this was done with notice or consent.
Mr McIlraith has provided copies of emails and texts which show that notice has been given when either there was entry into the premises, or after the tenants requested notice.
I note that S 48 specific to “entry”. A landlord is only in breach if they enter into the tenancy, being on the section is not a breach of S 48 the landlord does not come into the tenancy. However, a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
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 section 38(3) and Schedule 1A RTA.
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. 2 In particular the internal gutter between the front and back roofs the blockage of which had led to an internal flood in the past.
Ms Bown says that she was unsettled by a visit where Mr McIlwraith used a ladder to clear the internal gutter and she was awoken as she was home ill. Mr McIlwraith says that Ms Bown came out and they discussed the issue and he apologised for disturbing her.
Considering the evidence I do not consider that harassment has occurred. While I accept that there may have been some level of disturbance for this visit which occurred in November 2025, this was not raised at the time. I also note that there was no pattern of behaviour. This aspect of the tenant’s application is not made out.

Tenancy Tribunal case 5422707 — Mould & damp at 30A Collier Avenue, Karori, Wellington 6012

At a glance

Tenancy Tribunal case 5422707 — Mould & damp at 30A Collier Avenue, Karori, Wellington 6012

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

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Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions