Published tribunal order
Tenancy Tribunal case 4391242 — Mould & damp at Unit/Flat 1, 32A Fox Street, Cobden, Greymouth 7802
Decided 9 Aug 2023 · Published 9 Aug 2023 · Application 4391242
Landlord favoured
- Mould & damp
Order
- An application for suppression has been made in this case by the landlord but no order is made as the landlord has not been the successful party. The tenant did not seek a name suppression order.
- Neil Cook to pay Craig Gary Smith $1,520.44 immediately comprising compensation of $1,500.00 for delayed maintenance and repairs and the filing fee of $20.44.
- The landlord must carry out the following work to the premises, which must be completed by 8 September 2023: a. Complete the work detailed in the building assessment done by P Wilson Builder as set out in his report dated 11 June 2023. b. Arrange for an assessment by a qualified electrician to ensure all electrical switches and fittings and the stove plugs are safe and complete any recommended repairs. c. Arrange for a mould assessment to be carried out by an appropriate professional and complete any recommended actions to treat mould at the premises.
- As an alternative to compliance with Order 2, the landlord must pay the tenant $2,000.00 immediately after 8 September 2023.
- If the landlord fails to comply with either Order 3 or 4 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $2,000.00. These costs may be set off against rent payable.
Reasons
- Both parties attended the hearing today in Greymouth. I attended by phone.
- The tenant has applied for work orders, compensation, and exemplary damages for the landlord’s alleged failure to maintain the premises in a reasonable state of repair.
- I first began hearing the application on 8 May 2023. I adjourned that hearing with a direction that the landlord obtain a report (with his consent) from a building practitioner. I posed 2 questions for the builder to address, and I specifically stated that the assessment was not a Health Homes Standards (HHS) assessment. The landlord has until 2025 to comply with the HHS.
- Despite that direction, the builder’s report is couched in terms of compliance with the HHS.
- The landlord has implemented some of the recommendations and has, for example, installed ventilation extraction fans in the bathroom and kitchen. Other work has been completed and more work is underway.
- The tenant’s litany of complaints is such that, if correct, the premises would require major renovation and the tenancy would probably have to end for that to happen.
- I noted in my last order that the onus of proof rests with the tenant. He has provided photographic evidence but no professional assessment reports to assist the Tribunal. It was for that reason I suggested that an independent objective report be obtained.
- I directed the landlord to obtain the builder’s assessment to assist the tenant as he could not afford to obtain an assessment. I was only able to make that direction with the landlord’s consent, which was given. He has paid for the report.
- As I have noted, the landlord has implemented the repair of many of the issues identified, despite some of them being HHS issues which do not yet require compliance.
- The tenant raised 2 issues which are of concern: the on-going presence of mould and faulty electrical switches and fittings including on the stove.
- I have made an order for the landlord to have the premises assessed for mould to identify whether there are other repairs required to prevent mould, or whether, as the landlord says, the mould is due to the way the tenant uses the premises.
- I have also made an order for the landlord to have an electrician assess the electrical switches and fittings including the stove and to ensure that there are no safety issues and to complete any necessary repairs.
- Those orders are not just for the tenant’s benefit. The landlord will benefit from knowing the status of the electrical fittings and whether the premises are mouldy due to required repairs.
- I have also made an order for the landlord to complete the work identified in the builder’s report since that was why it was obtained.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
- I have awarded the tenant compensation of $1,500.00 for the loss of enjoyment of the tenancy over time due to delayed repairs as detailed in Mr Wilson’s report.
- The tenant’s application for compensation of $30,000.00 so he can relocate while the premises are made HHS compliant is unrealistic. I said in my earlier order that the landlord has until 2025 to ensure compliance with the HHS.
- There can be no award of exemplary damages for the premises not being HHS compliant because the landlord has not committed any breach. Nor do I award exemplary damages for the delayed repairs and maintenance. Exemplary damages require intent to be established. The landlord was negligent by not completing repairs sooner, but I do not find he acted with intent. A work order is the best way to address those matters.
- The landlord raised issues against the tenant including rent arrears and the use of the premises for an unlawful purpose. I cannot deal with those issues on this tenant application. An application for termination of the tenancy for breaches such as rent arrears, or the unlawful use of the premises would require the landlord to make an application.
- The landlord must pay the tenant’s Tribunal filing fee on the successful application.
- The tenant did not seek a name suppression order. The landlord sought name suppression but is not entitled to an order because he has not been the successful party – see section 95A Residential Tenancies Act 1986.