What was the outcome of Tenancy Tribunal case 4754709?

The tribunal order states: The applications are dismissed.

How much money was awarded in case 4754709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4754709?

The primary dispute was Healthy homes. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4754709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9997772-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4754709?

The tribunal order states: The applications are dismissed.

How much money was awarded in case 4754709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4754709?

The primary dispute was Healthy homes. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4754709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9997772-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1205A, 20 Park Avenue, Ellerslie, Auckland 1051 Tenancy Tribunal Case 4754709 — Healthy homes

Order

The applications are dismissed.

Reasons

Ms Wang moved into this new build apartment on 19 November 2023 having signed a 12-month fixed term lease. Unfortunately, that night she developed an allergic reaction to what she understood was very high levels of formaldehyde in the property. As a result of this reaction, Ms Wang immediately moved out of the property and sought to terminate her lease on the basis that it was uninhabitable.
Her landlord, represented at the hearing by Mr Wright and Ms Verma, agreed to end the fixed term lease on the basis that Ms Wang pay rent until the new tenancy commenced. When they had her agreement to this arrangement, they commenced advertising and secured a new tenancy releasing Ms Wang on 10 January.
Ms Wang now in her comprehensive and thorough application, seeks compensation and exemplary damages for her landlord’s failure to release her from the tenancy immediately and for providing her with a contaminated premise. Specifically, she seeks her entire rent to be refunded and reimbursement of the extra costs she incurred from having to secure alternative accommodation until she could source a new apartment.
The landlord defends this claim saying they did all they could in the situation and were more than reasonable. They counter claimed for the costs they incurred in re-letting the apartment including the reduction in rent they had to apply in order to re-let the apartment within a reasonable time frame.
As discussed at the hearing I decline to interfere in the original agreement the parties came to. They agreed that the tenancy would end when a replacement tenant was found, and Ms Wang was to pay rent until that time. As part of that agreement the landlord waived their re-letting costs, and no discussion was had with regards to reducing the rent. That agreement has occurred with both parties performing their part in that. It is not in line with the principles of contract law for me to revisit that agreement that has been completed without breach.
Accordingly, I decline the landlord’s cross application for re-letting costs and the loss in expected rental.
The remaining cross claim of the landlord’s is based on their submission that Ms Wang’s application is vexatious. They do not consider that she has legitimately made this application and as such seek costs and compensation for having to defend the claim.
I discuss each claim separately below, however before I do, it is useful if I outline the requirements for proof. In the Tenancy Tribunal applicants are required to establish their case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not as they argue or allege. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. It is up to the parties to establish their case and it is not for the Tribunal to extract the necessary evidence.

Should the tenancy have been terminated pursuant to section 59B of the RTA?

Ms Wang submits that she should have been permitted to leave the tenancy on two days’ notice pursuant to section 59B(7) of the Residential Tenancies Act 1986 (RTA). As she was not, she seeks that all of her paid rent is refunded.
Section 59B of the RTA is a relatively new section to the Act having been brought into law in January 2021. It provides remedies if: testing in accordance with a relevant prescribed method establishes contamination by a contaminant, in any part of the premises, at a level that is above a relevant maximum inhabitable level prescribed for that contaminant.
A contaminant is defined in section 2 of the RTA as: (a) methamphetamine: (b) any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of this Act.
Section 138C of the RTA directs that regulations classifying contaminants, prescribing their maximum inhabitable levels, prescribing testing and other rules may be made. There are currently no regulations made under this provision as it relates to formaldehyde (in fact there are no regulations in relation to any substance).
Formaldehyde has therefore not been classified as a ‘contaminant’ by the RTA or any associated regulations. Accordingly, a tenancy cannot currently be ended pursuant section 59B where formaldehyde has been found in a tenancy. Therefore, this claim must be dismissed.
I appreciate that for Ms Wang this decision will be confusing and upsetting as the evidence she has tells her that formaldehyde is a dangerous contaminant in the usual meaning of the term. Be that as it may, the RTA does simply not permit me to determine what is a contaminant for the purposes of section 59B; that is for the government. Has the landlord breached the RTA by providing a property where high levels of formaldehyde are present?
Under section 45(1)(a) - (ca) RTA, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements. Ms Wang’s argument is that the landlord did not do this because there were high levels of formaldehyde in the property which render it unsafe. Further, it was because of this formaldehyde that she could not continue the tenancy and accordingly she submits that she should be compensated for the loss she was put to.
Ms Wang is well versed in the dangers of formaldehyde exposure. When she was a teenager, it was established that she has a high sensitivity to it and as such when she is exposed to certain levels of formaldehyde, she develops severe allergic reactions such as a rash, fever, headache and breathing difficulties.
Because of this allergy she has a formaldehyde detector which she brought with her to New Zealand from her home country, China. This detects levels of formaldehyde at an unsafe level for her and sends out an alarm. Ms Wang tells me that in China formaldehyde levels in homes is a live issue and there are government regulations regarding its presence.
This alarm went off the first night Ms Wang resided in the unit. It detected levels of formaldehyde of approximately 147 HCHO μg/m³ which she says is well over the acceptable levels. The following is a table Ms Wang prepared as to the respective levels in the apartment over the relevant period: Temperature and Formaldehyde Level Records Date Time High °C Low °C HCHO mg/m³ HCHOμg/m³TVOCmg/m³ 20/11/2023 07:16 21°C 15°C 0.147 147 1.494 21/11/2023 16:09 24°C 15°C 0.149 149 1.446 22/11/2023 13:50 25°C 15°C 0.163 163 1.777 23/11/2023 22:11 24°C 16°C 0.142 142 1.404 25/11/2023 17:55 19°C 10°C 0.118 118 1.01 26/11/2023 19:53 20°C 12°C 0.127 127 1.142 29/11/2023 16:31 21°C 13°C 0.123 123 1.082
This she says shows that the levels were considerably higher than those recommended 1 even for short 30-minute exposure. Accordingly, she submits that the property is unsafe and uninhabitable.
In support of this submission, she points to the following: i. The Ministry for the Environment publication on Hazardous Air Pollutants. 2 This publication classes formaldehyde as one of New Zealand’s nine priority hazardous air pollutants and states that exposure to 100 μg/m 3 of Formaldehyde for more than 30 minutes does pose a risk to human health. ii. A publication by the World Health Organisation which states: Formaldehyde is classified as a Group 81carcinogen of medium potency by the US EPA. and as a Group 2A carcinogen by IARC (1998). The WHO ambient air quality guideline value is 100 μg/m 3 . 30-minute average. for protection of the general population. This is based on a no observable adverse effects level of 100 μg/m 3 and an uncertainty factor of 1. WHO also recommend that for groups within the general population that show hypersensitivity reactions without immunological signs. the formaldehyde concentration should be kept to a minimum and not exceed 10 μg/m 3 (30-minute average). iii. An email from Auckland Council who inspected the apartment, and which agrees that formaldehyde levels are high in the apartment. 1 100 μg/m 3 2 Hazardous air pollutants | Ministry for the Environment iv. A research paper: The Carcinogenic Effects of Formaldehyde Occupational Exposure: A Systematic Review Cancers (Basel). 2022 Jan; 14(1): 165. v. A research paper: Mortality from Solid Cancers among Workers in Formaldehyde Industries American Journal of Epidemiology, Volume 159, Issue 12, 15 June 2004, Pages 1117–1130, https://doi.org/10.1093/aje/kwh174 Published: 15 June 2004 vi. A publication by the American Cancer Society regarding whether formaldehyde can cause cancer. 3
Ms Wang submits that the landlord is ignoring the danger to not only her health but others’. She is of the view that they have placed her in a distressing and health-threatening situation, and it is unjust that they consider she should pay for an uninhabitable space.
The landlord defends the claim and says that Ms Wang did not take steps to mitigate the issue, her method of testing is unreliable, she has not provided medical evidence to link any levels of formaldehyde to her health, the owners lived in the apartment for a week prior to this tenancy and did not experience any ill health, and no one else in the building has had similar experience.
They refer to an earlier Tribunal decision Ingram & Ingram v Watson Real Estate Ltd [2021] NZTT Palmerston North 4284891 (Ingram case). The experienced adjudicator in that decision was dealing with a premise that had been tested by a testing company who detected levels of formaldehyde at levels between 31μg/m3 and 1,160 μg/m3. He noted at paragraph 47 as follows: The difficulty that the tenants face in this case, is that they have not identified any enactment (such as statute law or regulations) that set any standards that apply for formaldehyde levels in a residential dwelling. That would be relevant if the tenant’s argument was that the levels of formaldehyde in this tenancy was hazardous. Further I am unaware of any specific law that would prescribe maximum levels that would apply in a residential dwelling. 4 This difficulty is amplified by the fact that, as recognised by Mr Lewer, formaldehyde is a substance that is ubiquitous in buildings, and is a substance present to a greater or lesser degree in all dwellings, but more prevalent in new dwellings for the first year or two while off-gassing occurs. The evidence is further that the level at which formaldehyde would be tolerable to an individual depends on the individual and whether they would have developed a sensitivity to that substance. Mr Lewer indicted that a sensitised person should not be exposed to levels above 30 μg/m3, where as a non-sensitised person could 3 https://www.cancer.org/cancer/riskprevention/chemicals/formaldehyde.html#:~:text=TheInternationalA gencyforResearch,cause nasopharyngeal cancerandleukemia. 4 Paragraph 48 safely be exposed to levels up to 100 μg/m3 if applying the World Health Organisation guidelines. 5 However, those indicative levels are not fixed in in any enactment (statute or regulation) that the Tribunal has been directed to, and therefore any reference guidance such as that provided by WHO could not fall within the strict landlords’ obligations under section 45(1)(c). To put that another way, the WHO guideline is not an enactment in New Zealand, and therefore the landlord is not obligated to apply it.
In response to the landlord, Ms Wang says she did ventilate for 48 hours but no discernible reduction in the levels detected occurred. Her understanding is that it takes months if not years for formaldehyde levels to reduce and she was not prepared to expose herself for that length of time. She kept the windows closed after the initial 48 hours in an effort to demonstrate to the landlord the danger, and preserve the scene should professional testing be undertaken.
She explains that she did not attend the doctor as she is not familiar with the New Zealand medical system and did not feel able to navigate it at the time. She knew she needed to remove herself from the pollutant and allow herself time to recover as the most appropriate remedy.
With respect to the Ingram case, she points to the Ministry for the Environment publication noted above that came out after that case. She therefore contends that there is more information available on formaldehyde in New Zealand now.
The Auckland Council email is pertinent to this discussion, as such I set it out as follows: I have discussed this case with our specialists, and we have come to a conclusion. I do agree that formaldehyde is present at your unit and may be at a higher rate than what is recommended (100 μgtm 3 on a 30-minute average). I have also noted that you are allergic to it and has impacted your stay at this unit. However, we won't be able to do anything for you in this situation. It is important to note that the chemical will off-gas at room temperature particularly when the building products are new, so new buildings should be well ventilated, particularly during construction and for the first 4-6 weeks of occupation, to allow new building products to off-gas most of their formaldehyde and thus reduce the risks from it. The levels will eventually go down as time goes by. So the key to minimise exposure in an indoor environment is continuous ventilation. 5 Paragraph 49 I do apologize as I know this is not the outcome you were after. If you still want to pursue an action, it will have to be between you and the property manager however continuous ventilation is the best resolution.
The important parts of this email are as follows: a. They agree formaldehyde may be present in higher than recommended quantities. There is no evidence as to what, if any, tests they themselves conducted. b. They cannot do anything to assist. c. The required mitigation process is ventilation.
If there was an accepted hazard identified, the Council would have been required to take steps. They can direct that a home is uninhabitable for specific reasons; they have not done so here. Further, they are the body who had certified the property’s Code of Compliance which certifies that the property does in fact meet the necessary building standards. Had they found evidence as to an issue with its compliance, they would have had to address that.
The term uninhabitable is not defined in the RTA but sections 59, 59A and 59B all deal with situations where a home is determined uninhabitable. Case law is helpful although not specifically in relation to contaminant levels. In First Avenue Property Ltd v Malik DC Christchurch (VIC-2011-009-001539) 23 November 2011 the Court considered the word and stated: [12] The Act does not define ‘uninhabitable’ but, in my judgment, a liberal approach should be taken to the interpretation of that word. Every case should be decided on its own facts. It is for the Tribunal to determine just what the damage was that was occasioned by the earthquake, what effect it has had on the tenants, and then to decide whether these premises are so seriously damaged as to be uninhabitable. That, in my judgment, also involves having regard to the personal circumstances of the tenants. For example, young men occupying a flat might be more robust and able to put up with the privations of earthquake damage than, say, a young family with a child who had bronchial problems that are exacerbated by liquefaction dust or even an elderly couple whose mobility is affected by their age. These are circumstances that should be taken into account in deciding whether, in the particular case, premises are so seriously damaged as to be uninhabitable.
In Watkin v Brazier Property Investments Ltd DC Christchurch (CIV-201-009- 001006) 28 November 2011 the Court said: [10] The Act does not define the term and I have not been able to find any case law on the matter. The word “uninhabitable” is not defined in the Oxford English Dictionary, however “habitable” is defined “suitable for habitation or as a human abode; fit to live in” and “inhabitable” as “capable of being inhabited, occupied or tenanted”. Accordingly, “uninhabitable” must denote a state which lacks those qualities [11] The Dictionary definitions (of habitable and inhabitable) do not advance the matter. The meaning of the word is very much dependant on the context. Accordingly, the term should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time.
What is clear from these District Court decisions is that whether premises are uninhabitable will be decided on a case-by-case basis: there is no statutory definition or test of uninhabitability. The Tribunal must have regard to the personal circumstances of the tenants however likewise must also consider prevailing conditions and expectations of the particular community at the particular time.
I accept the evidence that Ms Wang experienced a physical reaction to the apartment and most likely 6 that was because of the levels of formaldehyde present. Ms Wang however did not action the clear direction of the Auckland Council to ventilate the property, therefore I have no evidence before me that doing so would not have reduced the levels. I accept the very clear evidence that ventilation was required to mitigate any potential risk. I am also minded that from Ms Wang’s own evidence, she has a pre-disposition to effects from formaldehyde.
With regard to the publications Ms Wang has provided on the effects of formaldehyde, whilst I accept them as relevant, they do not establish conclusively that certain levels in residential homes renders them uninhabitable or even imminently dangerous. The research on formaldehyde has not been developed in New Zealand to a sufficient extent that has been incorporated into statute or regulation or even council policy. Again, that is not for me to decide but the Government and local Councils.
I concur with the findings of Adjudicator Woodhouse in the Watkin decision that it is not for the Tribunal to define what products homes should be built from, nor is it for the Tribunal to regulate the levels of formaldehyde considered safe in New Zealand home. Specifically, the Ministry of Health publication is not an enactment in New Zealand, nor has it been incorporated into an enactment, and therefore the landlord is not obligated to apply it.
There was discussion at the hearing as to why Ms Wang took a new build tenancy when she was aware that new builds frequently have higher levels of formaldehyde. Ms Wang says she could not do a reading pre-tenancy as her detector takes some hours to register any levels present. Further, her previous tenancy had also been a new build and she did not experience any issues. She says she trusted the New Zealand government to regulate the use of formaldehyde-producing products. 6 This is the applicable evidential standard: the civil standard of the balance of probabilities
This is an extremely unfortunate situation for all involved. I accept that Ms Wang, because of her particular sensitivities did not feel she could live in the home as she was concerned for her health. I do not however find that the landlord has breached the RTA in providing the apartment for rent. They were entitled to rely on the Council certification that the property met the necessary building standards, and in fact there is no evidence before me suggesting it did not meet those necessary standards or that it was uninhabitable.
When they were appraised of the situation, they investigated other apartments given the complex was newly built. They also contacted the building company to see if this was an issue they had faced before. The only action they did not take was to have the property tested themselves. I accept however that they chose an alternate resolution in allowing Ms Wang to end the tenancy prematurely which is what she was wanting. This was an option open to them particularly in the face of the limited awareness in New Zealand regarding the effects of formaldehyde and Ms Wang’s primary desire to vacate.
In summary, I consider that the landlord acted appropriately and expediently in allowing Ms Wang to leave the tenancy early on relatively favourable terms.
Accordingly, this claim must be dismissed. As discussed at the hearing this does not detract from what Ms Wang experienced and I have considerable sympathy for her. However, as I can find no breach of the RTA by the landlord, Ms Wang has no entitlement to financial redress. The landlord’s claim – was Ms Wang vexatious in her application?
Pursuant to section 102 of the RTA the Tribunal has no power to award costs except in specific situations, one of which is where the “proceedings are frivolous or vexatious or ought not to have been brought”. 7
Mr Clark submits that Ms Wang should not have brought the claim for the following reasons: i. They let her out of the tenancy on generous terms. ii. It has not conclusively been determined that formaldehyde was present in dangerous levels as no actual tests have been undertaken. iii. Ms Wang did not take the Council recommendation to ventilate the property to reduce any presence of formaldehyde.
The Concise Oxford English Dictionary defines the term ‘frivolous’ as “not having any serious purpose or value”. Whether a claim is frivolous or vexatious will depend on the particular situation, including the relevant history. 7 Section 102(2)RTA
I do not consider Ms Wang frivolous or vexatious here. She genuinely considered that remaining in her apartment was a danger to her health. She also has an in-depth knowledge of formaldehyde and its effects, a knowledge greater than the average New Zealander.
I also note that whilst Ms Wang in her email of 23 November did agree to the terms of ending the agreement, she did at the same time clearly reserve her right to make an application to the Tribunal for relief.
I find that Ms Wang was entitled to bring her claim, although it was not successful. Accordingly, I dismiss the landlord’s claim for compensation. Suppression
Section 95A of the RTA enables successful parties to have the identifying details redacted from the published order. Neither party was successful here and there are no public interest factors that I am aware of that would require suppression. Accordingly, both applications for suppression must be dismissed.

Tenancy Tribunal case 4754709 — Healthy homes at Unit/Flat 1205A, 20 Park Avenue, Ellerslie, Auckland 1051

At a glance

Tenancy Tribunal case 4754709 — Healthy homes at Unit/Flat 1205A, 20 Park Avenue, Ellerslie, Auckland 1051

At a glance

Claims & awards

Order

Reasons

Should the tenancy have been terminated pursuant to section 59B of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy have been terminated pursuant to section 59B of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions