Published tribunal order
Tenancy Tribunal case 5097068 — Mould & damp at 20 Afton Place, Ranui, Auckland 0612
Decided 28 Jan 2025 · Published 28 Jan 2025 · Application 5097068
Tenant favoured
- Mould & damp
- State of repair
- Leaks
Order
- The landlord must carry out the following work to the premises, which must be completed by 5.00 pm Tuesday 25 February 2025: a. Clear the fence line of 20 Afton Place Ranui and 22 Afton Place Ranui of all undergrowth and weeds on the 22 Afton Place, Raniui side of the boundary fence.
- As an alternative to compliance with Order 2, the landlord must pay the tenant $500.00 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 $250.00. These costs may be set off against rent payable.
- The landlord must pay the tenant $27.00 as reimbursement for the filing fee.
Reasons
- Both parties attended the hearing.
- The tenant claims that the landlord has breached the Residential Tenancies Act, 1986 (the “RTA”) by not ensuring the property is free of pests, specifically feral cats, rats, cockroaches and fleas.
- The tenant also claims that the landlord has breached the Residential Tenancies Act, 1986 (the “RTA”) by not ensuring the property is free of mould.
- The tenant wants the problems fixed. Preliminary considerations Burden of proof:
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of the se standards is that it is for the party brining the application to establish their claims on the balance of probabilities. That means the party bring the claim must establish that what they are claiming is more likely than not. This is referred to as the burden of proof. Independent witnesses, corroborating documents and photographs are an important part of discharging the is burden.
- As noted by the District Court in Kaipo v Clarke & McCarth (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
- If the claim is not established to the balance of probability, it must be dismissed. Work orders
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Where the Tribunal determines the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
Has the landlord failed to comply with their obligations?
Pests
- The tenant says his premises or property has suffered from infestations of fleas, cockroaches, rats and feral cats.
- The tenant says the feral cats are living on a neighbouring property at 22 Afton place. 22 Afton Place Ranui is a vacant section that is owned by Kāinga Ora– Homes And Communities.
- The tenant produced a photograph of a woman who he says attends the property to catch and neuter the cats, and a photograph of food that has been left out for the cats to eat. He stated that the cats live in the undergrowth and weeds around the edges of 22 Afton Place, Ranui, and he produced photographs that show some (healthy looking) cats sitting on the cleared area of the property.
- The tenant stated that since someone has been leaving food out for the cats, more and more cats have been congregating on the vacant section. He stated the cats are a nuisance because he can smell their droppings and urine, they make a noise in undergrowth, and they are responsible for the flea infestations at his premises.
- The landlord stated that Kāinga Ora–Homes And Communities does not know who has been dealing with the cats at 22 Afton Place, Ranui, and that no one has been given permission to do so.
- On the balance of probabilities, I accept there is a feral cat population focussed on 22 Afton Place, Ranui, and that because of the fence line between that property and this tenant’s property, the feral cats sometimes overflow onto this tenant’s property and are a nuisance.
- Kāinga Ora–Homes And Communities has a responsibility under the RTA section 45(1)(b) of the RTA to 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.
- Under section 2(1) of the RTA, premises includes any land and appurtenances.
- To the extent that the feral cats are living in the undergrowth and weeds along this fence line, I am satisfied they will be dissuaded from doing so if the fence line is clear of undergrowth and weeds.
- I find the claim regarding the cats being a pest proved. I also determine that because the cats are living either on the neighbouring property which is a Kāinga Ora–Homes And Communities, or between the neighbouring property and the tenant’s property, Kāinga Ora–Homes And Communities is best placed to address the problem. In the first instance this is by removing the cover the cats receive from the weeds and undergrowth.
- I am not persuaded on the balance of probabilities that the fleas that the tenant has found in his premises have arrived from feral cats that don’t enter his premises. The tenant has failed to persuade me that Kāinga Ora–Homes And Communities is responsible for the flea infestation.
- Under the RTA section 40(1)(c) a tenant is required to keep a premises reasonably clean and tidy. This includes reasonable steps to keep the premises free from vermin. As the property was free from fleas at the beginning of the tenancy, I determine it is the responsibility of the tenant to address the issue of the flea infestation themselves.
- The tenant complained that the property is infested with rats. The tenant stated that in August 2022, two months after taking on the tenancy, he made a complaint to Kāinga Ora–Homes And Communities about the rats. Kāinga Ora–Homes And Communities offered to get rid of the rats by poisoning them. The tenant declined the offer because he didn’t want to have to smell decomposing rats in his ceiling. He stated that he advised Kāinga Ora–Homes And Communities that he would get rid of the rats by trapping them, but despite his efforts he has been unsuccessful in getting rid of the rats.
- Clearly the tenant is at an impasse in this matter: Given he won’t give permission to have the rats poisoned, and his own efforts have shown that trapping on its own is ineffective, there appears to be no remedy available to him.
- The tenant produced two photographs of cockroaches in support of his claim that the premises is infested with cockroaches. The first photograph is of a largish black cockroach which the tenant identified as a Gisborne cockroach. These are common cockroaches throughout the North Island of New Zealand. They live in trees and bush and feed on decomposing wood, and rarely stay inside a house for long.
- I do not consider the tenant has proved that these insects are a pest in his premises, that Kāinga Ora–Homes And Communities is responsible for.
- The other photograph showed a smaller cockroach which the tenant identified as a German cockroach. These are known to feed on decomposing human food and easily relocate when boxes, appliances and food are moved from one infested premises to another premises.
- The evidence before me today does not disclose an infestation of German cockroaches at the beginning of the tenancy. Therefore I find that given the tenancy is more than two and a half years old, the tenant is responsible for controlling this infestation. See the RTA section 40(1)(c). The landlord today advised that the premises is going to be fumigated later this afternoon, at the landlord’s cost. This will be a one-off measure by the landlord, and although it should control fleas and cockroaches, there is nothing to say that they will not return. Mould
- The tenant stated the premises has a problem with mould. Although the tenant referred to a leak (that has already been repaired) from a cracked roof tile which occurred when the landlord cleared the guttering, the mould that he referred to was on the aluminium joinery and in the silicon sealant in the bathroom.
- The mere existence of mould is not sufficient to establish a breach by the landlord. As Adjudicator Woodhouse noted in Semmens v Wadman NZTT 4310605: “Rather what a tenant must establish, is that here are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.”
- In Powell v Golding NZTT 4316209, Adjudicator Pasupati noted the following: “In Auckland, many houses produce mould, particularly in view of the levels of humidity in this region. Such mould can usually be addressed by wiping wit an appropriate cleaner. Where a property has a n inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. As noted by the Tribunal in Hullia v Tran & Vu NZTT 4138867 the premises must able to be used and lived in, in the normal way, without excessive mould developing.”
- In the case at hand, the evidence before me discloses a property that is affected by mould to much the same degree as many properties with aluminium joinery that create condensation in cool weather. As a result, there is a build up of mould that needs to be kept on top of and cleaned several times a year. This is the responsibility of the tenant. No breach by the landlord has been disclosed which shows that the landlord is responsible for the mould, and no information has been produced which shows the mould to be excessive.
- Nor do I consider the mould in the sealant in the bathroom to be due to a breach by the landlord, as disclosed by the tenant. I accept that it is possible the landlord has used the wrong sort of sealant around the bath and the vanity, and as a result of this mould has appeared in the sealant which is a little unsightly. However there is no loss of function of the bath or vanity, I do not accept that this mould has been shown to be the cause of any illness, and I consider it would be an extreme measure to require the landlord to remove and replace the sealant given the age and character of the building in question.
- The claim regarding mould is not proved.
- Because Daniel Simon Bogusz has somewhat succeeded with the claim I have ordered reimbursement of the filing fee.