What was the outcome of Tenancy Tribunal case 4782447?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4782447?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4782447?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4782447?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10492157-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4782447?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4782447?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4782447?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4782447?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10492157-Tenancy_Tribunal_Order.pdf.

57 The Crescent, Roseneath, Wellington 6011 Tenancy Tribunal Case 4782447 — Mould & damp

Order

The application is dismissed.
It is declared that the amount of $2,200 already paid by the landlord to the tenants, and the landlord’s agreement to early termination of the tenancy, is reasonable compensation in respect of the tenants’ claims arising from the tenancy.

Reasons

Both parties attended the hearing with Mr Taylor and Mr Moran representing the landlord.
The tenants, Lauren and Brian Cleary, seek compensation and exemplary damages from the landlords in relation to the following claims: i. Failure to comply with Healthy Homes Standards in accordance with the Residential Tenancies (Healthy Homes Standards) 2019 Regulations (HHS) in respect of heating; insulation; draughts; moisture ingress and ventilation which is a breach of section 45(1)(bb) Residential Tenancies Act 1986 (RTA); ii. Failure to provide information concerning HHS when requested; iii. Providing false and/or misleading information concerning the HHS compliance statement in the tenancy agreement.
The tenants did not specifically articulate their claim for exemplary damages in the application they filed with Tenancy Services on 16 January 2024 as required by s109 RTA. On or about 13 February 2024, they updated their application by filing a further list of claims. Again, this list did not specify exemplary damages. However, the amounts listed for several claims are the maximum awards which are available for exemplary damages. I have allowed the tenants to pursue the claims for exemplary damages on the basis that the claims were likely obvious to the professional property managers representing the landlord and they are able to answer the claims.
The tenants are also seeking global amounts of compensation which they claim arise from their claims against the landlord. Mrs Cleary is seeking $16,182 in lost earnings and both tenants seek $20,000 for pain and suffering and $3,212 for moving costs. Mrs Cleary works remotely from home as a mental health professional and claims that mould and general condition of the premises affected her health so that she was forced to cancel client sessions resulting in the loss of income. I have considered in this decision whether the tenants are entitled to compensation which is related to a tenant effectively running a commercial enterprise from residential premises; whether they are entitled to general damages for pain and suffering; and whether they are entitled to moving costs following a mutual agreement to terminate the tenancy before expiry of the fixed term.
The tenants have the burden to prove their claims. The standard of proof required is the usual civil standard of “on the balance of probabilities.” Put another way, the tenants must persuade me that what they say is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not. In deciding each claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.
In the decision that follows I may not have referred to all the oral testimony and other evidence, but the parties should know it has been considered. Background facts
The premises are a two-storey 1920s wooden home with single glazing. The property managers were engaged in mid-2022 to let the property and manage it as a rental. The property had been uninhabited two years prior to their appointment due to the occupant’s death.
The property managers arranged for the home to assessed for compliance with HHS. On 26 July 2022, Total Home Inspections Services (THIS) conducted an inspection and produced a report. This was completed by a registered member of the New Zealand Institute of Building Inspectors The report concluded that the following work was required to meet HHS: i. A top up layer of ceiling insulation; ii. Installation of mechanical extraction in the bathroom; iii. Close off the fireplace; iv. Window maintenance in bedroom 1 to prevent draughts; v. Locate and provide keys to locked window in lounge to enable opening; vi. Install two smoke alarms near bedroom areas and on ground floor.
Other then the above work, the report stated that the property complied.
The landlord arranged for the above works to be completed as shown by various contractor invoices produced in evidence.
The property was listed online for rent. The listing stated that the house was centrally heated and complied with HHS.
In or about February 2023, Mrs Cleary telephoned Mr Taylor to enquire about the property and the tenants attended an open home viewing. Mrs Cleary says she advised Mr Taylor in their first phone call that she was immunocompromised, and an HHS compliant house was very important. She also advised him of her intention to work from home. Mr Taylor says that he recalls Mrs Cleary explaining her health issues and, because of the HHS assessment and work completed as recommended, he was confident in advising that the property complied with HHS. He does not recall a discussion with Mrs Cleary about her working from home.
At the open home viewing, Mrs Cleary asked Mr Taylor to turn on the central heating. He said it worked but he was unable to turn it on without the operating manual. She also asked him to turn on the kitchen rangehood. Again, he said it worked but did not show the tenants how.
Subsequently, the tenants were offered and signed a tenancy agreement for the premises with a fixed term tenancy commencing on 20 March 2023 and to end on 19 March 2024.
On the move-in date, the landlord advised the tenants that the rangehood was not working. However, it was later checked by an electrician who found that it was working, although the filters needed replacing which was done.
Mrs Cleary says that on the moving in day she and a friend (who provided a written statement) immediately noticed issues with the house being musty smelling, dusty and dirty. She says that her eyes, ears, and throat started to itch, and she was wheezing. She sent Mr Taylor a text advising that she would need to leave because of the dust and dirt and asked him to arrange cleaning. Mr Taylor advised that the premises were cleaned prior to the tenancy as evidenced by a cleaning invoice for $1,338.60 dated 27 February 2023. The landlord did not agree to arrange further cleaning and Mrs Cleary says she cleaned as well as she could. She did not produce photos showing the state of the premises which she said she deleted. Therefore, I can make no finding about the condition of the property, but it is not part of the tenants’ claims.
Mrs Cleary says problems escalated after this. She was overseas from 22 March to 10 May but on her return she started experiencing flu-like symptoms from living at the property including a swollen eye; red swollen hands, and feet; fevers; sore throat; coughing; rashes; muscle aches and fatigue. She produced photos showing her appearance with these symptoms. She also produced a medical certificate dated 13 July 2023 which recorded that health issues had developed since moving into the premises which the Doctor stated resulted from an abnormal immune system regulation. He also stated: “I believe these issues are related to living in mouldy, damp, dusty conditions. She has allergies to mould and dust. I have advised that she change accommodation as soon as possible for the sake of her health.”
The tenants say that they noticed blackish mould on the ceiling in the bathroom, in the shower cabinet, and on the ceiling above the wardrobe in the main bedroom early in the tenancy.
The tenants also discovered that the central heating was not working. Mrs Cleary says she reported this by a text to Mr Taylor on 13 May 2023. Mr Taylor says that the first report he received was a message on the TAPI reporting system operated by the landlord on 22 May 2023. Neither party had evidence to prove what date the problems were reported but it must have been sometime between 13-22 May. The chronology of events after this may be summarised as follows. 30 May 2023: Mr Taylor met the tenants at the premises to look at concerns raised by them about mould, moisture, the bathroom extractor fan and to check the heating. Mr Taylor says that the mould was very minimal but agreed to instruct a contractor to assess and fix any problems. He also confirmed that the heating was not working and that he would instruct a contractor to investigate the heating. 2 June: A contractor assessed the central heating and determined it should be replaced. 9 June: Mr Taylor met the tenants at the premises again and they further discussed the heating problem and the need for replacement and additional issues raised by the tenants about draughts and other maintenance work. 12 & 13 June: Emails were exchanged in which the landlord confirmed an offer of $2,200 (2 weeks rent) compensation for the heating not working, extra electricity costs and for the purchase of 2 portable heaters by the tenants provided they were left at the property when the tenancy ended. The owner did not agree to pay for a dehumidifier as requested by the tenants. It was also agreed to have contractors assess the mould; take moisture readings; service the bathroom fan; have professional cleaners remove visible mould after any required repairs and after new heating system installed; fix some lights; install draught stoppers in 5 small upstairs windows and a small window in downstairs bedroom and seal the cat door. 13 June: Quote received to replace central heating. 19 June: Quote for replacement central heating approved. 21 June: The tenants issued a 14-day notice to remedy issues. In the alternative, they also suggested early termination of lease without penalty and provided the landlord covered their moving costs. The landlord replied that they were willing to allow termination without penalty but could not cover the moving costs. 22 June: Manage Your Property (MYP) contractors, engaged by the landlord, inspected the property and took moisture readings in the bathroom, lounge, and bedrooms. They reported that all readings were 14%, well within range, and no cause for concern. They noted that mould had been cleaned off by the tenants; there were no wet carpets/ walls and no dampness. They also completed agreed draught-stopping work, sealed the cat flap, and fixed some lights. 27 June: The tenants commissioned a healthy homes assessment report from Comprehensive Property Reports Limited (CPR) which found that the premises breached all the HHS and recorded high moisture readings and mould in areas. The report writer stated he held a Bachelor of Engineering, current NZ certification in refrigeration and air conditioning, and 9 years’ experience carrying out building inspections for an inspection company. He referred to himself as a trade qualified building inspector. The report was not disclosed to the landlords until the Tribunal application was lodged and after the tenancy was terminated. 29 June: Invoice from contractor who checked bathroom extractor and confirmed it was operating as required 4 July: The tenants advised that they wanted to end the tenancy as soon as possible based on the CPR report. The landlord confirmed that they were open to this but would not cover moving costs. They also expressed surprise that the tenants had commissioned an HHS report when the landlords had obtained one prior to the tenancy. They said they would be happy to review the tenants’ report and discuss it with the original healthy homes assessor and noted that the non-compliant findings of the original report had been remedied prior to the tenancy starting. 5 July: Replacement central heating installed. 31 July: The tenants commissioned a second healthy homes assessment report from Healthy Homes New Zealand (HHNZ) which concluded that there were items requiring attention at the premises: whether it was possible to install a ground vapor barrier over a wider area, although they recorded it may be exempt because of insufficient ground clearance; and gaps around the main entry door, kitchen/dining external doors and bathroom window which was not closing properly. The report assessed each room against the standards and raised no other issues. The report writer’s qualifications were not recorded in the report. This report was also not disclosed to the landlords until the Tribunal application was lodged and after the tenancy terminated. 1 August: The tenancy terminated by mutual agreement of the parties. The landlord reimbursed overpaid rent to the tenants plus $2,200 compensation.
The tenants submit that the lack of heating, draughts, excess moisture and visible black mould at the property negatively impacted Mrs Cleary’s health and ability to work. They also maintained that these health issues persisted even after the central heating system was replaced and works were carried out by MYP. They complain that the landlord did not adequately investigate the source of the mould nor clean areas affected by mould as promised, after the replacement heating was installed. They rely on the two reports they obtained assessing the house for HHS compliance from CPR and HHNZ.
The landlord submits that there was no major mould at the premises, with minor mould in the shower box which was cleaned by the tenants. They allege blackish marks on the ceiling above the main bedroom wardrobe had been there since the start but were not mould. They rely on the pre-tenancy HHS assessment carried out by THIS and MYP’s notes from their inspection on 22 June 2023 which concluded that the property was dry with no visible mould. They also say that they did not clean mould as agreed because by 5 July 2023, the parties were in negotiations about ending the tenancy early and that became the focus. They note that the two reports commissioned by the tenants conflict. In particular, the later HHNZ report did not record signs of mould or moisture and while commenting that some draughts around external doors and bathroom windows required attention, the report did not make any specific recommendations. It also did not make any of the same findings as the CPR report which stated that the premises did not comply with any of the HHS.
I have concerns about the accuracy and independence of the CPR report obtained by the tenants. The report writer has made several subjective comments; recorded information passed on by the tenants about their experience of the house; and given an opinion as to what remedies the Courts should impose. It also states that a prior HHS assessment obtained by the landlord is fraudulent. That is an extraordinary and unsubstantiated claim to make in what should be an independent report. This suggests that the assessment has not been conducted in an objective, independent and professional manner. A general comment at the start of the report says: “Therefore if a tenant informs the property manager that they have mould at the $1100.00 per week, rented property and they are having adverse reactions to the mould, that is clearly visible at the dwelling. And the cold, non-heated home is adding to their suffering.........By law the property manager must act without delay...........the tenants made the property managers aware of their health issues prior to moving in and were assured the home was fully Healthy Homes compliant already. They were misled regarding the central heating being operational just prior to them moving in, and then were assured the mould would be sampled and remedied immediately. They were further misinformed by the company hired by their property manager to assess the mould and moisture levels in the areas of concern and were told “it’s fine and has no moisture issues.” Nearly 3 months later, the tenants are still living in an unheated Wellington hilltop home that has significant moisture and mould issues which central heating alone cannot remedy and that they moved into based on a fraudulent healthy homes report provided by the property manager. We recommend the courts award moving costs, medical bill, heating costs, plus cleaning product cost and if the court sees fit, pain and suffering compensation to the tenants...”
Given the above commentary, I treat the CPR report with some caution.

Has the landlord failed to comply with HHS?

Insulation

The tenants claim that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where insulation is installed after 1 July 2016, the minimum R- value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3. The insulation must be in reasonable condition.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
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 (1)(A) and Schedule 1A RTA.
The CPR report obtained by the tenants dated 27 June 2023 concludes that the house does not comply with the insulation standard because it says underfloor insulation does not have a minimum R-value of 1.3 and the ceiling insulation is not at least 120mm thick and does not comply with the 2008 building code. However, the second HHNZ report commissioned by the tenants dated 31 July 2023 concludes the opposite. It says that some areas of the floor are insulated with an R-value of 1.5 which complies with the standard but notes that the remaining rooms are exempt because of low clearance of less than 400mm. It also confirms that the ceiling insulation complies with the standard because there are two layers of insulation with layer 2 being 170mm thick at the lowest point and having an R-value of 3.6. The insulation is recorded as being in reasonable condition or better.
I find that the CPR report is inaccurate. I find that the tenants’ second report from HHNZ dated 31 July 2023 should be relied upon. It’s findings are consistent with the landlord’s evidence (an invoice and email from the insulation installers) which proves they installed ceiling and underfloor insulation with the R-values identified in the HHNZ report, and a ground vapour barrier, at the property in February 2023, just prior to the tenancy starting.
In summary, I find that the premises comply with the insulation standards and the claimed breach is not proved and must be dismissed. Other healthy homes standards
The tenants claim that the landlord has breached the landlord’s other obligations under section 45(1)(bb) to comply with the HHS heating, ventilation, draught stopping and moisture ingress standards.
Compliance dates for the HHS vary depending on the tenancy. For this tenancy, the premises must comply within 120 days of the commencement of the tenancy.
The HHS does provide exemptions for compliance in specific circumstances. There are exceptions to these requirements, for example, where it is not “reasonably practicable.”
Regulation 6 HHS also requires a landlord to ensure that all installed or provided things are maintained in good working order; or if they cannot be maintained in good working order, they are replaced within a reasonable time.
Breaching HHS obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA Heating
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.
The heating standard requires that heaters have a minimum heating capacity. An on-line calculator has been produced to determine what level of heating is required premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
It is not disputed that when the tenants tried to use the gas central heating at the premises, it did not work.
The report obtained by the tenants from CPR stated that the heating system had an on-board memory which they were able to download to check the error codes. CPR claimed that the screenshots of the data log taken from the system showed that it had not been operational since before 7/9/2022. However, the report writer was not present at the hearing to explain the data and how it might be interpreted.
I have determined that the landlord complied with the heating standard as detailed in the THIS report obtained in July 2022. The report was completed by an independent contractor and the landlord relied on it when advising the tenants that the house was centrally heated and complied with HHS, and in completing the HHS compliance statement in the tenancy agreement. There was no information as to what was done by THIS to test the heater when completing the HHS assessment. Also, the landlord might not have tested whether the central heating was still working after the HHS assessment and before the tenancy began. Had they done so, they may have discovered the problem. However, I accept that they relied on an independent assessment regarding the heating, and they had no reason to suspect that it did not work. I also accept that the faulty system was a maintenance issue that the landlords needed to address.
Once the faulty central heating system was reported (sometime between 13 and 22 May 2023), the landlords took reasonable steps to investigate and remedy the matter by replacing the heating system on 5 July. In the meantime, the tenants purchased two portable electric heaters. They claim that the power costs incurred to run the heaters would be higher than the cost of the gas central heating. They seek compensation for no central heating, the costs of the temporary electric heaters and power costs.
The tenants also complain that the contractors who installed the replacement central heating system may not have followed best practice causing contaminants (dust and other irritants) in the ducting and vents to blow into the home causing further health issues.
By email dated 3 July 2023, Mrs Cleary asked the contractor if he would cleanout/remove the dust that had collected in the ducting before turning on and running the replacement unit. The contractor replied: “There is some ducting that will be replaced, but you can’t clean out the ducting as it is a flexible ducting and would damage the internals as they are delicate...”
The tenants, relying on advice from CPR, advised the landlord’s contractor and the landlord by email on 3 July, that they would allow the central heating system to be replaced on 5 July provided “we are guaranteed that filters will be placed on the outside of all vents prior to the new unit being turned on. Based on an independent Building Inspector’s report, this has been advised to us for health reasons and due to possible asbestos in the collapsed ducting.”
Following this email, the tenants initially refused to allow the contractors access on 5 July to install the central heating. Mr Taylor followed up asking why they were refusing access. Again, Mrs Cleary explained by email on 5 July that she had been “advised by a professional that without adding these filters, irritants that are in the ducting will blow into the home and cause further health issues This includes but is not limited to dust or animal faeces.”
The landlords responded that the advice from their contractor was that installing filters would cause the system to overheat and they asked the tenants to allow access. The tenants then did so and the replacement heating was installed.
The tenants purchased an air purifier and produced a photo of the purifier taken on 27 July 2023 with red lights which they say proves poor air quality. However, the landlords say that Mrs Cleary did not subsequently raise any issue about any problems with air quality in the house.
There was insufficient evidence to explain what might cause the air purifier to activate a red light. It may mean that the air purifier is diligently working to remove pollutants and improve air quality. However, a red light might also indicate that the internal filter needs replacement. In addition, different purifiers may have different settings so that the meaning of the red light may differ. There was also no evidence as to what exactly the purifier might be filtering. While it might detect dust, mould, and mildew spores, it can also detect pollen and other outdoor pollutants.
In summary, the tenants are entitled to some compensation for the 6-8 weeks they were waiting for the gas central heating to be replaced. I am not satisfied on the evidence that the tenants have proved how the air was contaminated and that it was attributable to some defect with the premises, or the method used to install the new central heating system.
While the landlords paid compensation of $2,200, the tenants did not accept this amount as adequate. The landlords stated at the hearing that they believe this payment together with the agreement to terminate the fixed term tenancy early is reasonable compensation.
The tenants also claim global amounts of compensation for all the alleged breaches. Therefore, I will consider whether the tenants have proved each claim first and then deal with compensation for the proved breaches separately.
The tenants also seek exemplary damages for alleged unlawful acts committed by the landlord which I will also deal with separately. Ventilation
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 CPR report obtained by the tenants is poorly worded and states: “Either the living room, dining room, kitchen and bedrooms does not have at least one or more windows and/or doors that open to the outdoors...” CPR does not specify which rooms do not comply. CPR also states, “either the kitchen and/or bathroom does not have an extractor fan that ventilates to the outside.” The photos which are included in this section of the report (showing ceiling molding/trim and some photos showing the roof space) are not labelled so the rooms/areas are not identified and nor is there an explanation as to what the photos show. There are no photos of the non- complying windows, doors, or of the extractor fans that were present at the premises, as would be typical in a report that identifies ventilation or extraction issues in those areas.
In contrast, the tenants’ second report from HHNZ specifically assesses each room in the house and concludes that all areas comply with the ventilation requirements including the presence of extractor fans in the kitchen and bathroom which are vented to the outside. This accords with the THIS report obtained by the landlord which confirmed compliance except for a bathroom extractor which was later installed prior to the tenancy starting. The landlord also provided evidence that both the rangehood and bathroom extractors were checked during the tenancy and found to be in working order.
While THIS stated that the windows in the large living space and bedroom 1 did not comply with the ventilation requirement (total openable area of the windows and doors to the outside must be at least 5% of the floor area in a room), they concluded that those areas were exempt because they had not been modified and would have been compliant at the time of construction. The report also noted that a lounge window could be opened by a key and required that the key be provided which the landlords did.
Accordingly, I find that the premises complied with the ventilation standard and there is no breach, which accords with the consistent findings of the reports done by THIS and HHNZ. Therefore, the claim is dismissed. Draught-stopping
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 tenants raised issues about draughts with Mr Taylor when they met at the premises on 9 June 2023. The landlord agreed to do some extra draught stopping work of 5 small windows upstairs, a small window in the downstairs bathroom and sealing of the cat door. The work was done by MYP on 22 June 2023. Mr Taylor stated at the hearing that while this draught-stopping work was not raised as an issue in the report they obtained from THIS, he decided to get it done to resolve it to the tenants’ satisfaction.
The CPR report obtained by the tenants raised further issues with draught- stopping simply stating: Unreasonable gaps or holes in walls, windows, ceilings, floors, and doors that cause noticeable draughts. Fireplace and/or chimney of an open fireplace that cause noticeable draught.” There are some photos of windows in the report, but the areas shown are not identified. The tenant identified it as the bathroom window. There is also a photo of the chimney with the comment that it might not be capped. This report, however, was not shared with the landlord before the tenancy ended and nor was this raised as an issue by the tenants.
The second HHNZ report obtained by the tenant made different findings from the CPR report stating that the bathroom window was not closing properly; there were 4mm gaps around the main entrance door; and 3mm gaps around the external doors off the kitchen/dining area which required attention. No recommendations were made and there was no specific comment about whether the gaps were unreasonable and breached HHS.
The landlord relies on the THIS assessment they had done before the tenancy started and the proof they provided of remedying the non-compliant issues. When the tenants raised further issues with draughts on 13 June 2023, the landlord addressed them promptly even though they were not raised in the THIS report. They received no further complaint about draughts from the tenants so consider they met their draught-stopping obligations.
I accept that the landlords are entitled to rely on the independent report they obtained which found that the premises complied with draught stopping. Furthermore, once the tenants raised issues they arranged contractors to do further draught stopping. Therefore, I find that they discharged their duties both in relation to compliance with the draught-stopping standard and subsequent maintenance. Therefore, the claim is dismissed. Moisture ingress and drainage
The moisture ingress and drainage standards require 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 CPR report obtained by the tenants makes no comment about the drainage systems and the presence or absence of a ground moisture barrier. Therefore, it does not consider those fundamental aspects of the moisture ingress and drainage standard. Both the HHNZ report obtained by the tenants and the THIS report obtained by the landlord record that the drainage systems comply with the standards. Whereas the HHNZ identifies that there is no ground moisture barrier under some areas and this issue should be looked at, no recommendations were made, and the report found no signs of moisture on top of the barrier that was present. It also acknowledged that the premise may be exempt from compliance. The THIS report clearly states that in the inspector’s opinion, the premises are exempt from the requirement to install a ground moisture barrier because of insufficient ground clearance.
I find that there is no evidence to prove that the premises do not comply with the moisture ingress/drainage standards. The claim is dismissed. Has the landlord failed to maintain the premises such that mould and moisture has developed?
Under section 45(1)(b) and (c), a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health, and safety.
It is well settled that, the landlord’s obligation under section 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, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be.
The tenants complained about mould and moisture at the premises. They said there was mould in the upstairs bathroom, on the ceiling and wall above the wardrobe in the main bedroom and in the large living room. They took some photos forwarded on 31 May 2023 of the bathroom and main bedroom which they say shows some mould. When Mr Taylor inspected the premises on 30 May 2023, his view was that the mould was minimal and mainly in the shower cabinet. He struggled to see that it was a serious issue. As for blackish marks on the ceiling above the wardrobe in the main bedroom, he thinks those were historical marks (not mould) that had not changed. Ms Cleary showed him Damp Rid bags that she had placed in the wardrobe which were partially filled with water absorbed from the environment.
As detailed above, MYP were instructed by the landlord and inspected the premises on 22 June 2023. They took moisture readings in the bathroom, lounge, and bedrooms. They determined that the readings were well within an acceptable range and there was no cause for concern at all. The mould had been cleaned by the tenants and there was no dampness detected in carpets or walls. Because the moisture readings were normal, no photos were taken. The landlord believed that once the central heating was replaced and operational, this would deal with any mould issues.
The tenants were not confident about the MYP findings which is why they obtained their own assessment from CPR. The CPR report says that moisture readings they took were high in some areas. However, the report is vague and does not identify the specific areas showing high readings. The tenant said that these readings were from the main bedroom area above the wardrobe and the bathroom. However, no further investigation was conducted as recommended in the report to establish possible causes of moisture. The report and its findings were also not shared with the landlord to enable them to further investigate. The focus of the parties by this stage was ending the tenancy early as requested by the tenants.
In any event, the second HHNZ report obtained by the tenants on 31 July 2023 does not raise any issues with moisture and mould. Notably, this report was completed after the central heating system was replaced and various maintenance including extra draught-stopping was carried out by the landlord’s contractor, MYP.
After carefully considering all the available evidence, I consider that the landlords took reasonable steps to investigate the tenants complaints about moisture and mould and deal with potential causes of the minimal mould that was present. There is insufficient evidence to establish that there was a recurring mould problem caused by defects with the premises. For those reasons, the claim regarding failing to maintain the property and keep it free from dampness and mould is dismissed. Has the landlord breached their obligations to provide HHS information on request?
The tenants claim that the landlord has breached their obligations under section 45(1AC) to supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request from the tenant.
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. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
By email on 30 June, Mrs Cleary asked for the moisture report from MYP, and “the other documents I requested.” The “other documents” she was referring to were not specified but the tenant claims she asked the landlord for a copy of the THIS report. MYP did not complete a formal report but their findings after their inspection of the premises was recorded in their invoice, and this was forwarded to Mrs Cleary a few days later. Another request for the THIS report was made in an email on 20 July and provided on 25 July.
Based on the evidence, I find that the landlord complied with the tenant’s specific request for a copy of the THIS report and supplied it within the required period. Therefore, there is no breach of s45 (1AC) and the claim is dismissed. Has the landlord breached their obligations to provide a genuine HHS compliance statement?
The landlord commits an unlawful act and is liable for exemplary damages up to a maximum of $900 if the healthy homes compliance statement provided in the tenancy agreement includes anything that the landlord knows to be false or misleading.
I find that there is no basis for the allegation that the HHS compliance statement in the tenancy agreement was false or misleading. I do not accept the tenants claim that failing to test the central heating just before the tenancy began meant that the landlord could not claim compliance with the heating standard. The landlord relied on an independent healthy homes report. It is unfortunate that the central heating malfunctioned and had to be replaced. However, I accept the landlord’s submission that things break or wear out and it was a maintenance issue which they fixed. They did not know that the heating did not work, and I find was no intention to mislead the tenants. The claim is dismissed. Compensation
The only claim made by the tenants which has succeeded and justifies an award of compensation is the failure of the central heating. The tenants are entitled to compensation for the loss of amenity.
It is a well-accepted principle when awarding damages that, as far as money can do it, the injured party shall be put in the same position as he would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a common-sense approach is required. There are no general or absolute rules for calculating the amount of compensation, but the primary purpose is to reflect the extent of the loss actually and reasonably suffered by the injured party.
I consider the amount paid by the landlord of $2,200, which is equivalent to two full week’s rent, is more than reasonable to cover the loss including the inconvenience, the purchase of heaters and extra electricity costs.
In respect to the tenants other large claims, I find as follows.
Pain & suffering $20,000---I find that it is not established that Mrs Cleary’s health issues were caused by house defects as opposed to her underlying health condition. While her Doctor recommended she leave the house, this was likely based on Mrs Cleary’s advice about the property. Based on the available evidence, I have found that the landlord acted reasonably to address issues and there is insufficient evidence to prove recurring mould, moisture or air quality issues related to defects with the house. This claim for compensation must be dismissed.
Loss of earnings $16,182—Mrs Cleary claims that due to her ill health caused by the condition of the premises she had to cancel many of the sessions she had scheduled with clients. Comparing her earnings with the same period the year before, she provided evidence of a drop in income. Of course, there is the potential that the workflow was less, or clients may have cancelled sessions. Mrs Cleary disputes this and says her work records show that workflow was the same. Even if Mrs Cleary had established on the evidence that the house caused health issues, loss of earnings is not a reasonably foreseeable loss that flows from the breach. This is a residential tenancy not a commercial tenancy. It was open to Mrs Cleary to obtain income protection insurance in case of illness. It is not a reasonably foreseeable loss that flows from a breach of a residential tenancy that the landlord ought to cover.
Moving costs $3,212—The landlord agreed to the tenants’ request to end the tenancy early despite their view that the premises complied with HHS and there were no ongoing recurring problems or defects with the premises. Given my findings, there is no basis for awarding moving costs. The landlord did not have to release the tenants from the tenancy, but they did so. Allowing the tenancy to end early without penalty (e.g. usually the tenants would be liable for rent to the date new tenants are found) was of considerable benefit to the tenants. Exemplary damages
It follows from my findings above that there is no basis for considering an award of exemplary damages to the tenants for the lack of heating because the failure of the heating was not an intentional breach of the landlord’s obligations. Therefore the claim for exemplary damages is dismissed. Summary
I acknowledge, Mrs Cleary’s health situation for which I have sympathy. My findings are not to say there was not some problem with the premises as claimed, but there was insufficient evidence before me to prove all the claims.
The tenants asked for suppression of their names and identifying details which may be granted where they substantially succeed with their claims, or if publication is not in the public interest. I find that they have not substantially succeeded with their claims. Therefore, suppression orders are not granted. For the same reason, I do not award reimbursement of the filing fee.

Tenancy Tribunal case 4782447 — Mould & damp at 57 The Crescent, Roseneath, Wellington 6011

At a glance

Tenancy Tribunal case 4782447 — Mould & damp at 57 The Crescent, Roseneath, Wellington 6011

At a glance

Claims & awards

Order

Reasons

Has the landlord failed to comply with HHS?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord failed to comply with HHS?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions