What was the outcome of Tenancy Tribunal case 4687871?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4687871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4687871?

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

Where can I read the official tribunal order for case 4687871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9761332-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4687871?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4687871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4687871?

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

Where can I read the official tribunal order for case 4687871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9761332-Tenancy_Tribunal_Order.pdf.

67 Hollis Road, Waikino, RD 2, Waihi 3682 Tenancy Tribunal Case 4687871 — Mould & damp

Order

The landlord’s application is dismissed.
The tenant’s application is dismissed.

Reasons

Both parties attended the hearing. Mr Harrison, the named applicant (and respondent for the cross-application) on the Tenancy Services application forms was unable to attend so Mrs Harrison, who also signed the Tenancy Agreement appeared as the landlord.
The landlord has applied for compensation due to carpet being damaged, and reimbursement of the filing fee.
The tenant has applied for compensation for a vacuum cleaner and a washing machine which he says were ruined by power surges, costs of dumping mouldly furniture at the end of the tenancy, compensation for breach of his quiet enjoyment and reimbursement of the filing fee. Background
The tenant and the landlord lived in different houses on the same rural property in Waihi. Both parties agree there was approximately 100 metres between the two houses and no fences separating the properties.
From 1992 until December 2018 just before Mr Mudgway moved in, Mr and Mrs Harrison lived in the house that they subsequently rented to Mr Mudgway.
At the beginning of the tenancy both parties considered each other to be family friends, and there was an air of informality about arrangements.
Mr Harrison maintained both houses, mowing all the lawns on his ride-on mower, doing garden work and odd jobs as needed. Mr Mudgway regularly assisted one way or another by helping with foliage and the chickens, maintaining the chicken coop, installing insulation and other jobs on a regular basis as needed. They also exchanged vegetables and as well as this, the Harrisons had grandchildren and Mr Mudgway had children who played together across the property.
Clearly by the end of the tenancy the convivial relationship that had existed between the landlord and the tenant for the bulk of the tenancy, had turned sour. Mr Mudgway identified that the change had happened by February 2023 just before the tenancy ended. The landlord’s claim: is the tenant responsible for the damage to the premises?
The landlord is seeking compensation for insurance excess of four amounts of $550.00 for replacing the carpet due to stains. Mrs Harrison gave information about, and provided photos which showed three areas of pink stains which looked like pink fizzy-drink stains, and other marks and stains as well on the carpet.
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
I must take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the carpet at the start of the tenancy and its likely useful lifespan.
The tenancy lasted just over four years and included the several COVID-19 lockdown periods. The tenancy agreement records that six people would be living in the property.
Mrs Harrison gave information that the carpet was four years old at the beginning of the tenancy.
Against the lounge, an inspection report from the beginning of the tenancy records: “Stains here and there carpet”.
Against the dining room, the inspection report from the beginning of the tenancy records: “Old stains here and there vinyl stains”.
Ms De Ocampo, a witness for Mr Mudgway, gave information that she helped Mr Mudgway move in at the beginning of the tenancy, and she noted the carpet at that time looked worn. She also stated that there were several stains that looked like fizzy drink stains.
There was some discussion about whether the pink stains could be wine stains.
Having seen the photographs of the stains, I am satisfied the stains in question were fizzy-drink stains caused during the tenancy. As already mentioned I do not consider them large stains and I note that it is common ground that the carpet was worn at the beginning of the tenancy.
The IRD Depreciation Schedule (IR265 October 2023) gives carpet of this sort an eight-year life span.
Mrs Harrison gave evidence that the carpet was four years old at the beginning of the tenancy, and therefore it was a little over eight years old at the end of the tenancy.
The depreciation of the carpet is therefore such that the carpet had no residual value according to the IRD Depreciation Schedule, by the end of the tenancy.
Therefore an assessment of whether the stains resulted from fair wear and tear or careless use, is not required from the Tribunal, and the claim is dismissed accordingly. The tenant’s claim for compensation
Mr Mudgway stated that because the landlord’s and his house were both on the same power metre, power surges were common at his property.
Mr Mudgway provided information that in November 2021 he was using the washing machine when there was a power-surge and the power went out. The power was later restored by the power company, as the power outage was across the wider community. Following the power being reconnected Mr Mudgway claimed his washing machine no longer worked. Mr Mudgway is seeking the cost of replacing the washing machine which he says was four years old at the time, from the landlord. Mr Mudgway has provided an invoice dated 08.09.2020 from Noel Leeming for $567.00 for the replacement washing machine.
Mr Mudgway stated that Mr Harrison came over to look at the washing machine. Mrs Harrison stated that Mr Mudgway’s application was the first she had heard of any problem to do with the washing machine. Mr Mudgway did not engage an electrician to establish what the failure of the washing machine was.
Mr Mudgway also provided information that in September 2020 he had been using the vacuum cleaner one evening, when a circuit-breaker had tripped and the vacuum cleaner stopped working. Mr Mudgway attributed the circuit-breaker tripping, to a power surge. He stated that after he flipped the circuit-breaker back on, his three-year old Bissel vacuum cleaner no longer worked. Mr Mudgway provided an invoice for $488.00 for a Bissel vacuum cleaner that he says he purchased in 2020 as a replacement.
Mr Mudgway did not advise the landlord of the event and did not engage an electrician to establish what the failure of the vacuum cleaner was.
Mrs Harrison stated that Mr Mudgway’s application was also the first occasion she had heard about this event.
Mrs Harrison stated that power outages were common in the area, but in twenty-eight years of living in the same house that Mr Mudgway was living in, she never experienced power-surges such as Mr Mudgway was describing. To be fair to Mr Mudgway, his view was that the cause of the power surges was the common power metre between the two houses.
Mr Mudgway conceded that the power outage at the time of the failure of his washing machine was across the wider community. There is no information that attributes the outage to the landlord and I am not persuaded the landlord can be held responsible for the failure of Mr Mudgway’s washing machine.
Nor does one tripped circuit-breaker persuade me on the balance of probabilities that there was a fault with the wiring of the house that caused the destruction of Mr Mudgway’s vacuum cleaner. In my view is it is as probable that a fault in the vacuum cleaner caused the circuit breaker to trip. Without more information regarding the wiring in the house, or the fault in the vacuum cleaner, causation is not established.
The applicant has not satisfied me that it is more likely than not that power surges, the responsibility of which may or may not lie with the landlord, caused the destruction of his washing machine or vacuum cleaner. The tenant’s claim for breach of quiet enjoyment
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.
Mr Mudgway claimed that Mr Harrison breached his quiet enjoyment by often being around the property and sometimes “popping in”. Mr Mudgway mentioned two specific events: One was an occasion when Mr Mudgway saw Mr Harrison walking around outside the bathroom/toilet window doing some maintenance or gardening work; The second occasion may have been on Mr Mudgway’s birthday in November 2021.
On the second occasion Mr Harrison knocked at Mr Mudgway’s front door while Mr Mudgway was having his birthday party. Mr Mudgway greeted Mr Harrison with “Are we doing this now?” Mr Harrison responded “Yes”. Mr Harrison then entered the house and he and Mr Mudgway spent an hour on a maintenance job.
On the information I heard today I find that for the duration of the tenancy each party had the consent of the other party to use a part of the property which was not clearly defined, but which included the areas around the house in which Mr Mudgway and his family lived. This consent was established when the relationship between the two parties was healthy and it worked well for the bulk of the tenancy.
The mutual consent allowed for both parties to work together to maintain the common area and other areas, and for Mr Mudgway’s children and the Harrison’s grandchildren to play together. No information or evidence was given by either party that indicated this consent was ever revoked.
On this basis I do not find that Mr Harrison walking past a bathroom window to be a breach of Mr Mudgway’s quiet enjoyment. Mr Mudgway has not raised that there was anything untoward in what Mr Harrison was doing, he was simply moving around the property as was usual in their daily movements and relationship.
It also appears that it was not unusual, albeit not a frequent occurrence, for Mr Harrison to approach Mr Mudgway for assistance in some or other matter, including matters that affected Mr Mudgway’s tenancy such as installing insulation and doing minor repairs inside the property.
Mr Mudgway stated that on one of his birthdays, he believes it was 2021, Mr Harrison came over to his house and knocked on the front door. Mr Mudgway asked Mr Harrison “Are we doing this now?” to which Mr Harrison stated they were, and together the two of them spent an hour working together inside the house.
Mr Mudgway states this was a breach of his quiet enjoyment.
Mr Harrison was at liberty to approach Mr Mudgway’s front door and to ask if it was convenient to undertake a repair at that time. Mr Mudgway was similarly at liberty to refuse entry to Mr Harrison. It is clear from Mr Mudgway’s information that Mr Mudgway chose not to decline Mr Harrison entry. Mr Harrison’s entry was therefore with the consent of Mr Mudgway.
Mr Mudgway’s information today makes it clear that the timing of the repair was not convenient. It may also be that because of the relationship that had been established from the beginning of the tenancy that Mr Mudgway found it awkward to decline Mr Harrison’s entry.
However, for the entry to be a breach of Mr Mudgway’s quiet enjoyment, Mr Mudgway would have needed to communicate clearly to Mr Harrison a refusal of some sort to consent to Mr Harrison’s entry, and this did not happen. For this reason I am not persuaded that it was a breach of Mr Mudgways’ quiet enjoyment. The tenant’s claim for dumping fees
Mr Mudgway is seeking $212.50 dumping fees for the disposal of furniture that he says became unusable due to mould as a result of the house being damp from leaks. Mr Mudgway produced a receipt for the amount, but no photos of any of his belongings that were dumped.
Mrs Harrison stated that in the four years prior to Mr Mudgway’s application she had never heard any complaint about the furniture becoming mouldy.
Mrs Harrison conceded that there was a leak in one bedroom that occurred when the rain came from a certain direction two or three times a year. Mrs Harrison stated that the leak produced a small amount of water that would be soaked up by a cloth in the bottom of a small container.
By contrast, Mr Mudgway stated a bucket was needed for the leak every time there was sustained rain.
Mrs Harrison asked Mr Mudgway where he dried his washing, and Mr Mudgway stated that when the weather was bad he would dry it on racks inside the house and over the upstairs banister. Mrs Harrison stated that the house was a lovely warm house and that in her experience washing dried well inside, which demonstrated it wasn’t a damp house.
I am not persuaded that the house was damp and without photos illustrating mould on furniture sufficient to make it unusable I am unable to find Mr Mudgway’s claim proven on the balance of probabilities.

Tenancy Tribunal case 4687871 — Mould & damp at 67 Hollis Road, Waikino, RD 2, Waihi 3682

At a glance

Tenancy Tribunal case 4687871 — Mould & damp at 67 Hollis Road, Waikino, RD 2, Waihi 3682

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions