Published tribunal order
Tenancy Tribunal case 4625550 — Mould & damp at 28 Poutini Place, Manurewa, Auckland 2102
Decided 4 Dec 2023 · Published 4 Dec 2023 · Application 4625550
Dismissed
- Mould & damp
- Healthy homes
- Exemplary damages
Order
- By consent, the landlord must carry out the following work to the premises, and be completed by the following dates: -Relocate the heat pump in the property by 8 December 2023; -Repair the gaps in the front and back door frames by 10 November 2023
- As an alternative to compliance with Order 1, the Landlord must pay the Tenant $5,000.00 immediately.
- If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $5,000.00. These costs may be set off against rent payable.
Reasons
- Both parties attended the hearing. The Tenants attended with their representative, Ms Tait.
- The Tenants have applied for Work Orders, breach of Healthy Home Standards, compensation, exemplary damages and reimbursement of the filing fee.
- It is noted that the Landlord filed some evidence on or about 21 November 2023 however this evidence should have been provided at the hearing so that the Tenant had notice of it and time to respond. For this reason and out of fairness to the Tenant, the evidence has not been considered in making these Orders.
- The tenancy began on 21 July 2022 and was fixed to 21 July 2024.
- At the hearing, the Tenants withdrew the following claims: a) Compensation for the bond being refunded outside of 23 working days; b) Rent to the end of the fixed term July 2024 being $32500.00 c) Moving costs; d) Exemplary damages.
- By consent, the Landlord agreed to: a) Relocate the heatpump in the property by 8 December 2023; b) Repair the gaps in the front and back door frames by 10 November 2023.
Has the landlord failed to comply with Healthy Home standards?
- The Tenant has claimed the Landlord failed to comply with Healthy Home Standards which led to the Tenant being unable to use three bedrooms due to the excessive mould and dampness. The Tenants submitted their blankets frequently became cold and wet because of the mould and dampness. Every morning they would hang their blankets outside because they were dripping wet and smelly. They eventually had to purchase new beds, linen and a dehumidifier because it was an ongoing issue.
- The Tenants submitted they first discovered the mould on 26 June 2023 and they told the Landlord around July 2023. They received no response from the Landlord.
- When the Tenants received no response from the Landlord, they contacted Healthy Homes NZ and showed them a photo of the roof insulation. They provided a copy of the written correspondence to Healthy Homes NZ which showed the Tenant stating: ‘its like being in a ice block in the morning and our blankets are always wet in the morning and we are getting black mold coming through the paint on the ceiling’. The representative at Healthy Homes NZ replied: From that photo there’s a possibility that the ceiling insulation is not..’ The rest of the text message was not provided.
- The Tenant did not provide any photographs of the mould, dripping blankets or receipts for the new bed, dehumidifier and linen they had to purchase. They did not provide evidence of their complaints to the Landlord or what they paid for their original bedding and linen which they had to dispose of.
- The landlord submitted they only discovered after the Tenants moved in that the property was not compliant with Healthy Home Standards. They had lived in this property prior to the Tenants moving in. The Landlord organised a Healthy Homes assessment on 10 August 2023. The result of the assessment indicated the heating, ventilation and draught stopping were not compliant and this was submitted as evidence. Since the assessment, the Landlord submitted they had completed the necessary repairs to make it compliant and the only task remaining was the heat pump installation. Due to financial reasons, they agreed to do this by 8 December 2023. The law
- The Healthy Homes regulations provide that all tenancies commencing from 1 July 2021, must comply with the Healthy Home Standards (‘HHS’) within 120 days of any new or renewed tenancy.
- When coming before the Tribunal, the Tenant as the Applicant has the job of proving their case on the balance of probabilities. This means, they need to provide the evidence to prove that their claims, ie that the home was in breach of Healthy Home Standards are more likely than not to be correct.
- In considering the evidence, there is admission by the Landlord that the property was not compliant when the Tenancy started. However they have submitted that they have taken steps to make the property compliant since having the assessment conducted in August 2023. The issue with the Tenants evidence is that there is nothing to confirm when the Tenant first discovered the issue, when they notified the Landlord of the issue and the impact of the Landlords inaction. I find that whilst the Tenant is correct that the home was in breach of HHS, at time of this hearing the door frames and heat pump were all that kept the property from being fully compliant. The Landlord has undertaken to make these repairs by 8 December 2023. Whilst the Landlord is in breach, they have taken steps to remedy this. Compensation- Breach
- The Tenant claimed they should be compensated because the Landlord gave them an illegal notice to vacate on 2 June 2023 despite the tenancy being fixed term to 21 July 2024. The Landlord at the time, advised the Tenant they were going to sell the property and sought to end the tenancy on 31 August 2023.The Landlord advised, they were not aware that they were not allowed to end the tenancy early. This was their first time renting out privately. They only discovered they were in breach at mediation.
- The Tenant claimed $10,000.00 plus a loss in rent of $32,500.00 which was calculated as the rent from 31 August 2023 to 31 July 2024. The difficulty with this breach is that the Tenant suffered health problems and the notice to vacate exasperated her symptoms. She submitted she had to attend hospitals and specialists regularly because of all the issues caused by the lack of insulation in the winter time. She was always cold in the house. The notice to vacate made everything worse. There was stress on her relationship because they had to find somewhere to move, she could not work sometimes because of her health and her partner had to leave work early to help care for her or to look for a new property to relocate to. It was a struggle to find a new house and the whole ordeal left them mentally broken.
- The Tenants submitted they attended a couple of viewings for properties in Tauranga which meant they spent approximately $1000.00 on petrol costs driving from Auckland to make the viewings. It was hard to find new places in Auckland with only one of the Tenants working.
- The Landlord submitted this was his first time renting privately so he was not always sure he was doing the right thing. He had made the decision to sell the property as a last resort because he was struggling financially.
- In considering the evidence, whilst the Tribunal sympathises with the Tenants position, the Tenants did not provide any independent evidence of how the notice to vacate impacted on their lives. For example, medical evidence was not provided that the notice to vacate or cold, damp conditions of the house directly caused her medical issues. There was no evidence of the Tenants personal leave taken from work because of the stress of the personal issues at home. There were no receipts for petrol to substantiate the costs or proof of the viewings they were attending.
- Furthermore, the claim for $32,500.00 is excessive given the Tenants did not actually lose out on rent because the notice was withdrawn and they continued to live there.
- As alluded to earlier, the onus is on the Tenant to prove their case. In this instance, because of the lack of supporting evidence, the claim is dismissed.
- As the Tenant has not been wholly or substantially successful in their claim, the Tenant shall pay their own filing fee.
- Neither party has requested name suppression so this has not been granted.