What was the outcome of Tenancy Tribunal case 4596972?

The tribunal order states: The landlord must carry out the following work to the premises, which must be

How much money was awarded in case 4596972?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4596972?

The primary dispute was Mould & damp. Related themes: Property damage, Healthy homes.

Where can I read the official tribunal order for case 4596972?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9530009-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4596972?

The tribunal order states: The landlord must carry out the following work to the premises, which must be

How much money was awarded in case 4596972?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4596972?

The primary dispute was Mould & damp. Related themes: Property damage, Healthy homes.

Where can I read the official tribunal order for case 4596972?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9530009-Tenancy_Tribunal_Order.pdf.

74 Peach Road, Glenfield, Auckland 0629 Tenancy Tribunal Case 4596972 — Mould & damp

Order

The landlord must carry out the following work to the premises, which must be completed by 23 December 2023: a. Repair and/or replace the house’s roofs as required to a reasonable standard of repair. b. Repair the guttering and downpipes to a reasonable standard of repair.
The weekly rent abates by 10 percent from 21 October 2023 until the work orders referred to in the previous paragraph are completed.
KHMG Investment Management Limited as agent for the landlord must immediately pay Nikaya Jahmal Harris and Filisi Viliamu $7,353.09 immediately, calculated as set out in the table below: DescriptionTenant Loss of amenity from 1/09/22 - 18/08/23 15% rent$5,958.86 Loss of amenity 19/8/23 onwards 10% rent$643.29 Baby mattress damaged by mould$159.00 Hall table damaged by moult$149.00 Cost of HHS report Additional power cost $50.00 per month x 5 Filing fee $172.50 $250.00 $20.44 Total award$7,353.09

Reasons

Nikaya Harris attended the hearing for both tenants with her father as support person.
Sydney Wan attended the hearing for the landlord.
The tenants claim the landlord failed to comply with the Healthy Homes Standards (HHS), failed to maintain the premises to a reasonable standard of repair, and failed to provide HHS information upon request. For remedies the tenants seek orders for compensation, exemplary damages, and work orders. Background
The tenancy began on 4 June 2021. The tenancy was for a fixed term ending on 3 June 2022. The tenancy was renewed on 4 June 2022, which meant the premises needed to comply with the HHS by 1 September 2022.
On 21 March 2022, the tenant emailed Ms Wan asking about the adequacy of the bathrooms’ ventilation and black mould underneath silicone in the vicinity of the bathtub: I just want to check in an ask for an update on the bathroom ventilation and when this would be put in or if it is exempt. Also were noticed when we first moved in the black mould that had been siliconed over on the bathtub however new spots are starting to show up & we are getting concerned that this will affect ourselves and our children’s health. I have tried a number of cleaning solutions however nothing has helped remove the mould.
On 2 November 2022, the tenant expressed concerns about black mould in bathroom may have rotted the roof: I am wondering if you could ask the landlord if he or we could organise a building inspector or a tester to see if the black mould in the bathroom has rotted the timber in the roof as it’s cracking, our doctor has some concerns about the black mould potentially being the cause of our children’s ongoing health issues.
On 8 November 2022, Ms Wan emailed the tenant: He will get the roof inspected first and decide what to do next afterwards.
The tenant replied: Thank you, will you also arrange for a toxic mould test or is this something we will need to arrange?
On 18 May 2023, the tenant again emailed about mould: I have emailed a few times about the mould in the house...I have cleaned the walls/roof and a week later it returns. The main bedroom is showing signs of condensation in the walls as the paint is bubbling. The damp air has now caused by daughters mattress to have mould and a cabinet downstairs covered in mould. I open the windows for 10-15 minutes every morning ad curtains are open during the day so it is not from air circulation. We have no issues of mould in the lounge only the 3 bedrooms up stairs and the bedroom downstairs. I wonder if the landlord should get a building surveyor in to make sure there isn’t anything underlying that is causing these issues. Healthy Homes Standards assessment reports
On 21 May 2021, (shortly before the tenancy starting on 6 June 2021) Ms Wan made enquiries with AR Insulation, an insulation services company that had undertaken an HHS assessment for the landlords in May of 2021. AR Insulation reported that the premises were HHS compliant except for: 1 There is currently no extraction in either bathrooms.
AR Insulation quoted a cost of $1,955.00 to install the extractor fans and the landlords accepted the quote and paid the requested deposit of $977.50. However, the landlords say that “during a subsequent visit [AR Insulation] informed us that due to the cladding structure , installing 2 fans was not feasible. In light of this, he agreed to issue the Healthy Home certificate and waived the remaining invoiced amount”.
On about 20 June 2022, after the tenant had complained about mould issues, the landlord’s agent got a different company to install extractor fans in the bathrooms at a cost of $1,665.20. That demonstrated AR Insulation’s report that installation was not feasible was wrong.
On 28 June 2023, at the tenant’s request, Cosy Spaces NZ assessed the premises for HHS compliance. It found the premises non-compliant with four of the five standards: a. Drainage standard: the main issue detected was broken off downpipes. b. Insulation: the polystyrene underfloor insulation in the vicinity of the garage had gaps. “Insulation is falling out of place(s)...not installed to HHS requirements...not in reasonable condition”. c. Heat standard: Required capacity in kilowatts, 10.6. Current capacity
2. d. Draught-stopping: bedroom 2’s window and Bedroom 4’s window and external door had gaps greater than 3mm. 1 Email from Alex Shepherd of AR Insulation dated 22 May 2021.
Cosy Spaces had a placeholder-type “fail” for the extractor fan in bathroom 2, based on the need for evidence: “Please proof this is a 12v Fan. Otherwise it is a fail”. (However, Ms Wan produced an invoice for the installation of two extractor fans in both bathrooms dated 20 June 2022. The invoice states compliance “with the Healthy Home ventilation standard”).
On 7 July 2023, at the landlord’s agent’s request, All Clear Healthy Homes Compliance Service also assess the premises for HHS compliance. All Clear agreed with Cosy Spaces that: a. Drainage standard: non-compliant due to “multiple drainage system failures”, including that the spouting was blocked by debris and missing downpipes. b. Heat standard: non-compliant because “[t]he existing heat pump does not meet the requirements for the main living area”. The total heating capacity was only 5.2 kilowatts, less than half the required heating capacity of 11.9 kilowatts to heat the 51.5m 2 floor area. c. Draught stopping: “Gaps of 3mm or more detected at the property”. The lounge windows and sleepout door had excessive gaps.
All Clear found that the insulation standard was met. Cosy Spaces’ photographs indicate that the polystyrene insulation needed some tidying up. However, Cosy Spaces (unlike All Clear) did not access the hatch area which shows that a large part of the underfloor had recently been insulated. I am not satisfied on that the underfloor insulation was non-compliant in light of All Clear’s assessment. 2
I am satisfied that the premises did not meet the HHS in following respects: a. The drainage standard: broken/missing downpipes; gutter debris needing cleaning out. b. Heating standard: the living room heat pump had less than half the required capacity. c. Draught stopping: most notably, the lounge windows had excessive gaps. Builder’s report on mould
The landlord’s agent also commissioned a professional builder to investigate the factors that might be contributing to mould in the premises and make recommendations. 2 I note that AR Insulation stated in an email to Ms Wan dated 22 May 2021, “The underfloor insulation is excellent”.
The assessment was conducted on 31 May 2023. The report notes that the house has an uninsulated rafter roof and a steel roof “in poor condition”. While there were no leaks, “the design flaws have created an environment conducive to mold growth”. The builder found: High moisture readings in the high ceilings of the house...making them susceptible to mold growth
Among other things the report noted the wall cladding had signs of peeling, which might allow moisture to penetrate the walls, the iron roof was not leaking but were rusted which could be contributing to moisture ingress and mould growth.
The builder recommended installing insulation in the skillion roof, improving ventilation, repairing, or replacing the compromised cladding and the iron roof, and removing a bird’s nest. Recent work
The landlord has undertaken further work at the premises including: a. Drainage: the gutters were cleaned, and the roof was treated for moss, mould, and lichen on about 15 August 2023. The guttering had not been fully repaired on the date of hearing, the landlord said, due to seeking multiple quotes and poor weather. b. Heating: a new heat pump was installed on about 18 August 2023. c. Draught-stopping: gaps and holes attended to on about 1 August 2023.
In my assessment, the work most likely to reduce the premises’ propensity to mould is repairing the cladding and the steel roof and completing repairs to the downpipes and guttering. Issues for determination
The issues arising for determination are: a. Did the landlord fail to maintain the premises to a reasonable standard of repair? b. Did the landlord fail to comply with the HHS? c. Did the landlord fail to provide HHS information upon request? d. What remedies, if any, should the Tribunal order?

Did the landlord fail to maintain the premises?

Legal principles

Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 3 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 4 “...the obligation of the landlord, under s 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, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 5 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... 3 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 5 See n 3. Discussion
The tenants first raised concerns about mould and ventilation on 21 March 2022. The landlord did install extractor fans in the bathroom soon afterwards, but the problems persisted.
On 2 November 2022, he tenants again raised concerns about mould in the bathroom that had “rotted the timber in the roof” and that their doctor had concerns “about the black mould potentially being the cause of our children’s ongoing health issues”.
The problems were still occurring when the tenants emailed again on 18 May 2023. They did state in that email they were only ventilating the rooms “10 – 15 minutes in the morning”, which would be inadequate airing that would have contributed to mould and moisture in the house. At the hearing, the tenant said the tenants were adequately air the premises although the landlord disputed that.
The landlord has taken significant steps to remediate the mould issues in the house, but the builder’s report indicates that further work is required. Conclusion
I am satisfied on the balance of probabilities that the landlord did not maintain the premises in a reasonable standard of repair.
While the landlord has made good strides towards eliminating the house’s mould problems, there is further work to be done. In particular the roof, cladding, and guttering repairs should be finalised.
Remedies for the breaches will be discussed below.

Did the landlord fail to comply with the HHS?

The tenants claim that the landlord has breached their 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).
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(1A).
The landlord had until 1 September 2022 to comply with the standards. Heating standard
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
In this case, the premises did not meet the heating standard until 18 August 2023. Draught-stopping standard
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 HHS reports confirm that the premises did not comply with draught standard.
That problem appears was resolved on about 1 August 2023. Moisture ingress and drainage standard
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The main drainage issues have been addressed but the landlord is still in the process of completing guttering and downpipe repairs. The ventilation standard
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The landlord installed extractor fans in 2022. It therefore appears the property complied with the ventilation standard by the compliance date. Conclusion
The premises did not meet the HHS for drainage and water ingress, draught- stopping, or heating within the due dates.
The landlord has addressed the draught-stopping and heating issues by 18 August 2023. Some guttering has not yet been fully repaired.
Remedies for the breaches are discussed below.

Did the landlord fail to disclose healthy homes information?

The tenants claimed the landlords breached their obligations under s 45(1AC) of the RTA to supply HHS information within 21 days of request. If the tenant makes a request the landlord must supply “the records or other documents that relate to the landlord’s compliance with the healthy homes standards and that are prescribed by regulations”. 6
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00: s 45(1AD)(a) and Schedule 1A of the RTA.
At the time of the request on 6 June 2023, the landlord did not yet have the All Clear HHS report of 7 July 2023, but they did have the builder’s report.
Ms Wan did not interpret the request for information as including the builder’s report, however.
In my view the builder’s report contained HHS information because it addressed issues such as potential water ingress, ventilation, and insulation all of which are relevant to the HHS.
Therefore, I find that the landlord did not supply the requested the information within 21 days in breach of s 45(1AC).
public interest requires a condign award to deter these and other landlords from breaching their obligations under this section.
I order the landlords to pay the tenants $562.50 in exemplary damages, which is 75 per cent of the maximum.
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. 7 6 RTA, s 123A(1)(e) 7 Remedies for breach are discussed below.

What remedies, if any, should the Tribunal order?

I have found the landlord breached their obligations to maintain the premises in a reasonable standard of repair and comply with the HHS by 1 September 2022.
The heating capacity being less than half the required standard, the inadequate draught-stopping and probably also the drainage issues led to a loss of amenity. The living area was not as warm as it should have been. The bedrooms also suffered. I find it probable that the cladding and roof deterioration contributed to and is continuing to contribute to damp, cold, and mould in the upstairs area and have not been fully remediated.
The tenants should be compensated for the loss of amenity due to the premises being maintained to less than a reasonable standard and being in breach of the HHS.
The starting date for assessment of compensation is 1 September 2022, the date at which the premises ought to have complied with the HHS. I set the loss of amenity at 15 percent of the weekly rent from that date until 18 August 2023, by which date the landlord had addressed the heating and draught-stopping standards and some of the drainage defects. From 19 August 2023, I set the loss of amenity at 10 percent of the weekly rent.
Work orders for remediation of the steel roof, guttering, and downpipes is ordered also. The 10 percent rent abatement is to continue until the work order is completed.
The tenants spent more on power as consequence of the breaches. I set compensation at $50.00 per week for five months, being the colder months of the year.
The tenants’ baby mattress, and a hall table were damaged by mould. The landlord does not oppose the tenants’ application for compensation for those, or for the cost of the HHS assessment report which helped establish that the property did not meet the required standards. Orders are made for those costs in favour of the tenants.
I have carefully considered whether exemplary damages should be ordered. 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 interests of the other party, and the public interest. 8 8 RTA, s 109(3).
I do not find it proven that the landlords failures to maintain, to comply with the HHS, or to provide the HHS information were intentional. The landlord commissioned an HHS report before the tenancy began and the assessor assured them that the property was compliant with the HHS. The mould issue is related to a number of factors that the landlord is addressing. There is deterioration in a section of cladding and some roofing iron. Serious issues like these must be carefully handled. I accept Ms Wan’s evidence that she did not consider the builders report was a relevant HHS document.
I am not satisfied it would be just to order exemplary damages in addition to compensation. Filing fee
The tenants having been substantially successful in their claim, the Tribunal orders the landlord to reimburse them for the filing fee.

Tenancy Tribunal case 4596972 — Mould & damp at 74 Peach Road, Glenfield, Auckland 0629

Tenancy Tribunal case 4596972 — Mould & damp at 74 Peach Road, Glenfield, Auckland 0629

Order

Reasons

Did the landlord fail to maintain the premises?

Did the landlord fail to comply with the HHS?

Did the landlord fail to disclose healthy homes information?

What remedies, if any, should the Tribunal order?

Property management

Order

Reasons

Did the landlord fail to maintain the premises?

Did the landlord fail to comply with the HHS?

Did the landlord fail to disclose healthy homes information?

What remedies, if any, should the Tribunal order?

Property management