What was the outcome of Tenancy Tribunal case 5113108?

The tribunal order states: The application by Carolyn Phoenix for compensation and exemplary damages

How much money was awarded in case 5113108?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5113108?

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

Where can I read the official tribunal order for case 5113108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11965895-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5113108?

The tribunal order states: The application by Carolyn Phoenix for compensation and exemplary damages

How much money was awarded in case 5113108?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5113108?

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

Where can I read the official tribunal order for case 5113108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11965895-Tenancy_Tribunal_Order.pdf.

113 Oakwood Avenue, Balaclava, Dunedin 9011 Tenancy Tribunal Case 5113108 — Mould & damp

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Reasons

Both parties attended the hearing.

The tenant claimed a refund of rent of $6,435.00, compensation for medical costs of $1,059.82, and rent and bond payment for her new tenancy of $2,475.00.

In addition, the tenant sought exemplary damages for non-lodgement of the bond, failure to clean and maintain the premises and breach of healthy homes standards.

The tenancy was for a fixed term from 10/10/2024 to 10/10/2025 at $585.00 rent per week.

The tenant vacated the premises on 15/12/2024 and gave the landlord 48 hours notice the following day that she wanted to end the tenancy.

Did the landlord fail to lodge the bond within the required timeframe?

Carolyn Phoenix claims the landlord did not lodge the bond with the Bond Centre within the required time and was unhappy with the length of time it took for her share of the bond to be refunded.

In support of her claim the tenant confirmed that she had paid the bond on 29/9/2024 but when she sought a refund the Bond Centre advised that the bond was not lodged until 9/1/2025.

On the other hand, the landlord suggested that the bond had been submitted, with several other bonds on 2/10/2024, at a time the Bond Centre was changing from manual to digital lodgement but had not been processed.

In support of their position the landlord provided email correspondence with the Bond Centre about the failed lodgements.

The landlord suggested that refund of the bond was submitted to the Bond Centre as soon as possible after the lodgement issue was resolved, and that the time delays associated with the refund were not their fault but an unfortunate part of the system due to a busy time of year.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

I am persuaded by the evidence produced by the landlord that they sent the bond payment to the Bond Centre within the required timeframe but due to circumstances beyond their control the initial lodgement was unsuccessful.

Further I accept that the delay in refund of the bond was not due to any negligence on the part of the landlord.

I find the landlord has not committed an unlawful act.

Did the landlord breach their obligations?

Carolyn Phoenix claims that the landlord has breached their obligations by failing to provide the premises in a reasonably clean condition, failing to maintain the premises and breaching healthy homes moisture ingress and drainage standard.

The tenant submitted that the premises were mouldy, and rat infested and after living at the property for five days, caused her daughter to develop sepsis pneumonia.

On 14/11/2024 the tenant provided the landlord with a list of 18 maintenance issues she believed needed attending to.

In support of her claims about the state of the premises the tenant provided numerous photographs taken from around 12/11/2024 onwards and a significant volume of emails to the landlord.

As she believed the mould was dangerous to the health of her daughter and herself the tenant obtained a quote for cleaning of $1,100.00, which was carried out on 17/11/2024, after the mould had been sprayed.

Further, the tenant provided a report from the Eco Design Advisor with the Dunedin City Council dated 13/12/2024, which suggested that the property “had issues meeting the drainage standard of the Healthy Homes Standard.”

The report noted that the sump to drain water to the kerb might need maintenance and there was mould under the moisture barrier in the basement.

In particular the report stated: “Under the house is covered by a ground moisture barrier, but there is still a significant amount of water moisture in the soil (figure 2). The ground moisture barrier will prevent a lot of moisture going into the house but it won’t be solving all the problems. The dampness will still be going into the walls and rising. This will be why you found so much mould on the walls when you moved in.”

On the other hand, the landlord did not believe the premises were in an unclean condition at the start of the tenancy and provided an entry inspection report dated 8/10/2024.

The landlord also submitted that their cleaner was not given the opportunity by the tenant to clean any mould from the premises and provided an email from that cleaner who had previously visited the property to lay rat bait who stated: “I have been treating mould for 40 years and in my opinion there was not a mould problem at this place with only some small areas which I saw from the tenants photos which were in places not easily seen and very easy to treat if we had access”.

In addition, the landlord highlighted that in the cleaning quote provided to the tenant by her cleaner the only mention of mould was for windows, window frames and outside black blinds.

However, the landlord accepted that some maintenance needed to be attended to and provided invoices for replacement of a window, gardening, rubbish removal, unblocking of a drain, replacement of light fittings, checking the hot water cylinder temperature and roof repairs.

Further the landlord provided a healthy homes standards compliance report from Warmfuzzies dated September 2020 which outlined two areas of failure with the standards for draught stopping and moisture barrier. The invoices for compliance for these two standards dated 14/10 and 30/9/2020 respectively were also provided.

Under section 45, a landlord must, among other matters, provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.

Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

Breaching any of these 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 Residential Tenancies Act 1986.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.

The compliance date for this tenancy would have been 7/2/2025.

The moisture ingress and drainage standard requires 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.

It is understandable that the severe illness suffered by the tenant’s daughter has caused her much stress.

However, and unfortunate as it may be for the tenant there is simply not enough compelling objective evidence to persuade me that it is more likely than not any mould in the premises caused the sepsis pneumonia during the five day period of occupation.

There is no dispute that the tenant’s daughter was ill with a virus before the tenancy began.

The medical certificate of 7/3/2025 based on a review of notes opined only that there was no clinical evidence of sepsis on 13/10 but there was on 18/10/2024.

The entry inspection report does not mention any mould; at best the undated photographs from the tenant show what may be mould in small areas, the landlord’s cleaner did not believe there was a mould problem and the only evidence from the tenant’s cleaner was a quote.

Nor do I consider the report from the DCC Eco Advisor satisfies me that there was rising damp in the walls causing mould. The only mould identified by the report, two months after the tenancy began was under the moisture barrier in the basement.

The advisor did not mention any breaks in the moisture barrier or indeed seeing mould elsewhere in the basement.

The healthy homes standards report provided by the landlord confirms a compliance date of 14/10/2020.

While the landlord is required to provide and maintain the premises in a reasonable state of repair this responsibility takes into account the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.

I consider the maintenance issues complained of by the tenant were relatively minor taking into account the older age of the premises and attended to by the landlord in a reasonable timeframe.

I find the landlord has not committed any unlawful acts.

Moreover, I consider the landlord attempted to mitigate the loss of both parties by agreeing to allow the tenant to end the fixed term tenancy by giving 48 hours notice and paying her for the cleaning costs she incurred.

The claim for refund of rent, compensation and exemplary damages fails.

For the avoidance of doubt, I find the landlord did not fail to send the bond to the Bond Centre within the required timeframe; did not fail to provide the premises in a reasonable state of cleanliness and repair; and did not fail to comply with healthy homes standards.

No filing fee is awarded because the tenant was unsuccessful with her claims.

Suppression is not available to the tenant because she was unsuccessful with the proceedings.

Reasons