Zoe Sweeney WESTON and Daniel DUNN v Margaret MORRIS
[2009] ACTRTT 2
•6 February 2009
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:Zoe Sweeney WESTON and Daniel DUNN v Margaret MORRIS [2009] ACTRTT (2)
RT 579of 2007
Tribunal:Jann Lennard, Member
Date: 6h February 2009
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 579 of 2007
RE: Zoe Sweeney WESTON and Daniel DUNN
(Applicants/Tenants)
AND: Margaret MORRIS
(Respondent/Lessor)
DECISION
Tribunal :Jann Lennard, Member
Date :23 April 2008
Decision :1. That the application if dismissed.
2. Lessor is to file documents and submissions in relation to bond claim in matter RTT 115 of 2008 on or before 24 February 2009.
…………………………….
Jann Lennard – Member
6th February 2009
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 579 of 2007
RE:Zoe Sweeney WESTON and Daniel DUNN
(Applicant/Tenant
AND: Margaret MORRIS
(Respondent/Lessor
REASONS FOR DECISION
Jann Lennard, Member
The Tenancy
The Premises are located at Unit 1, 127 Antill Street, Watson, ACT. A Residential Tenancy Agreement was entered into between the Applicant tenants and the Respondent lessor on 20 December 2005, for a fixed term from 16 December 2005 to 16 June 2006. On or about 20 January 2008 the tenants vacated the premises.
The applications
On 15 October 2007 the tenants made application to the Residential Tenancies Tribunal seeking orders that the lessor:
a)take all necessary steps to:
i) remove mould from the walls, ceilings and carpets of the premises;
ii) install an exhaust fan in the bathroom of the premises;
iii) replace the bedroom and living area carpets and underlay;
iv) take any other necessary steps to prevent a recurrence of the mould, such as painting the property with mould resistant paint; and
b)provide vacant possession of the storage space which forms part of the premises.
The tenants also sought compensation, initially by way of an 80% rent reduction, for failure by the lessor to maintain the premises and/or compensation for loss of amenity and reasonable enjoyment arising from the lessor’s failure to remove mould.
After the termination of the tenancy the lessor made an application for release of the Bond. This was based on tenants’ breach of their obligation to leave the premises in a reasonable state of repair and cleanliness. The tenants’ claim is amended in so far as a rent reduction is no longer applicable and they now seek compensation based on a failure by the lessor to repair or maintain the premises.
On 19 April 2008 the tenants amended their application: the submissions were as follows:
(a) The applicants allege that the respondent has failed to provide the necessary repairs and maintenance, namely the removal of a serious infestation of mould in the premises.
(b) The applicants contend that they have experienced:
1. The loss or diminished utility of a facility, being the bedroom, lounge room, bathroom and storeroom;
2. The loss of the use of a significant part of the premises, being the bedroom, lounge room, bathroom and storeroom; and/or
3. Significant interference with the applicants’ quiet enjoyment of the premises. …
(c) In the alternative , the applicants contend that the respondent has failed to meet her obligation under either:
1. Clause 54(1) of the Residential Tenancy Agreement; or
2. Clause 54(1)(a) and (c) of the Residential Tenancy Agreement.
(ii)The applicants seek compensation for these alleged breaches.
These applications are dealt with together: the issue of responsibility for the removal/prevention of mould is central to each.
Background facts
Storage space
The tenants allege that the premises consist of a one bedroom unit and storage space. Their written application states that [W]hen inspecting the premises prior to signing the agreement, the respondent showed the applicants the door to a storage space marked ‘1’ and indicated that this was included in the lease.
The lessor, in the written response denies that any representation was made that the premises included the storage space, and states: [T]he lessor did point out the storage space, and indicated that it was owned by the Body corporate and that they would use their best endeavours to enable the tenants to have use of the space.
Evidence in relation to storage space
Ms Weston gave evidence that she believed from the time of initial inspection that the storage space was part of the leased premises. In relation to the day of the signing of the tenancy agreement Ms Weston stated that she had asked Mr and Mrs Morris about the bike hook in the carport area and whether it was possible for Mr Dunn to store his bike there. She stated that Mr Morris replied that he would have to ask ‘someone else’ about using the storage space.
10) Ms Weston handed up a note from Mrs Morris to the tenants. This note was undated, but wishes the tenants a happy new year and refers to the process of lodging the bond. The final paragraph states: We are still in Albury caring for my parents. Will ask again about the bike storage when back in the ACT.
11) A second note from Mrs Morris, dated 23/9/06 states: I phoned Olive as promised she was to speak to her daughter so hopefully you now have storage space. Regards Margaret.
12) On 18 June 2007 the tenants wrote to the lessor in the following terms:
On a number of occasions the issue of available storage space at Unit 1 has been an expressed concern to you as landlord. It was only upon agreement of available storage space opposite the entrance to Unit 1 that we signed the lease agreement.
As tenants, we are once again asking when this space will become available for our private use. Please respond within 7 days of this letter.
13) On 20 June 2007 the lessor responded in the following terms:
…
You were advised at the Tenancy Agreement signing that storage space in the complex was controlled by the Body Corporate and was not available.
Upon your request, we negotiated an informal arrangement through the Body Corporate Manager that you were to liaise with Mrs Olive Gower, another tenant in the building, about possible access to storage space under her control. You were advised of this and you undertook to negotiate with Mrs Gower as you knew her.
We understand that the standing arrangement between Mrs Gower and yourselves allowed, from time to time, use of part of the store if space were available.
In response to your letter of 18 June we contacted the Body Corporate Manager who advised that he understood the above arrangement was still in place and as availability of storage space within the complex is extremely limited and not likely to become available, he suggested you again speak with Mrs Gower. We encourage you to talk to her again.
However, while this arrangement has been in place for some time there was never a commitment to permanent storage availability either by ourselves, in the tenancy agreement or through the body corporate.
14) Ms Kay Weston gave evidence that she was present at the signing of the tenancy agreement. Ms Kay Weston stated that her daughter, the tenant, had in conversation with her, after the initial viewing of the premises but before signing the agreement, said the unit had ‘great storage’. She also gave evidence that in reply to a question from Mr Dunn as to whether he could put up a hook for his bike, Mr Morris said that there was a storage shed and he would see if it was available, that he ‘had to get the key’.
15) Mrs Morris gave evidence that there are four storage spaces under each of the stairwells and that the storage areas belong to the Body Corporate. She had never regarded the storage unit as hers and she does not have a key to it. Mrs Morris stated in her evidence and under cross-examination that she was ‘sure’ that the storage space was not discussed until after the tenancy agreement had been signed. She stated that the tenants had seemed pleased with her undertaking to make inquires of the Body Corporate about the availability of the storage space.
16) Neither the tenancy agreement no the inventory report prepared by Mrs Morris at the commencement of the tenancy refer to the storage space.
17) On the above evidence, the Tribunal finds that the lessor did not represent, prior to the formation of the contract for tenancy that the storage space formed part of the premises. There is no evidence, upon which the Tribunal could imply such term. The Tribunal finds that the storage space does not form part of the premises described in the tenancy agreement. Thus the tenants’ application for vacant possession of the storage space fails.
Evidence as to mould
Chronology of correspondence and meetings between the parties
18) 1 August 2006: the tenants wrote to the lessor stating that there was a problem in the bedroom the walls and the carpet have black mold [sic] on them. The tenants asked what the lessor could do to help them.
19) On or about 2 September 2006 the lessor and tenants met at the premises to discuss the mould problem. The evidence from both Ms Weston and Mrs Morris about this meeting was that the tenants had stated that when they cleaned the walls with bleach and other mould removing products the mould was removed but that it reappeared within a few weeks. The tenant gave evidence that she had made some attempt to clean the mould from the carpets. At the time of this meeting the mould was evident on the walls of the bedroom and lounge room, and in the carpet in the bedroom. The lessor stated that the mould was a problem for the tenant to deal with and that the tenant should continue to clean the mould from the walls.
20) 25 September 2006: the tenants wrote to the lessor demanding that the lessor ‘repair’ the mould problem. The applicants assert that this letter amounts to a notice to remedy. The tenants requested:
(1)the rooms are cleaned, the mould removed
(2)the cover of medical expenses
(3)rent reduction past and future, for the time the bedroom has not been in use(backdated)
(4)new mattress and bedding
(5)dry cleaning of all clothing that has been affected
21) 6 October 2006: the lessor served a notice to remedy on the tenants. The lessor gave evidence that the Notice to Remedy was issued in response to the letter above, which she viewed as a demand for money. In this notice the lessor stated it is our opinion that the appearance of mould in the premises during your occupancy is a tenant management issue and that you are currently in breach of section 63 of the tenancy agreement. The lessor proposed an inspection date of 30 October. The tenants refused to allow this inspection.
22) 9 November 2006: tenants wrote to the lessor stating that there was no reason to inspect the property as we have done everything possible to remedy the problem. They further state that they have not been able to remedy the problem.
23) The lessor contacted the NRMA in relation to a possible claim by the tenant following the letter described in para 20 above. The lessor gave evidence that they regarded this as demand for money and passed it over to the NRMA. The NRMA inspected the premises on 12 March 2007. Copies of the photos taken at that inspection were provided to the Tribunal. These photos show some small areas of mould on the walls and carpet in the lounge room and some mould in the bathroom. They also show that the premises are full to bursting with furniture and personal belongings of the tenants. These include a jumble of boxes, blankets, umbrellas, a bicycle, shopping bags, a dryer, four boxes of Coco Cola, a bed frame and assorted bric-a-brac crowded into the corner of one room. The lounge room, used as a bedroom, appears to have the entire floor space covered by furniture and the mattress. The NRMA claim was not proceeded with, after the tenants advised the NRMA that they were no longer making a claim.
24) On or about 24 April 2007 Ms Yvette Gonzales, an ADACAS support worker representing the tenants, arranged to meet with the lessor. At this meeting the lessor indicated that they did not propose to take any further action against the tenants in relation to the mould. It was agreed that all further correspondence would be through ADACAS.
25) There were no further inspections of the property until the tenants vacated and no further correspondence with regards to the mould until the tenants made application to the Tribunal in October 2007. However the lessor did increase the rent by $15 per week form March 2007.
Witnesses
26) Timothy Pratten: Mr Pratten resided at unit 3/271 Antill Street from November 2005 to September 2007. This unit is similar to unit 1, but is not connected to it by any common wall. He gave evidence that mould began appearing on the walls of Unit 3 in May 2006, that the mould was cleaned from the walls but reappeared after about one month. The mould was on the walls but the carpet and windows were wet during the colder weather. The mould was not a problem during the summer. In a written statement, adopted by Mr Pratten in oral evidence he stated:
…I noticed that, as the weather grew colder, condensation began to appear on the windows and on the walls inside the cupboard in the bedroom. The condensation was more apparent when we shut the windows to keep the unit warm and was worst when we had the heater on…I observed that there seemed to be a link between the cold weather , the appearance of the condensation and the mould.
27) Three photographs were attached to Mr Pratten’s written statement. He stated that they accurately reflected the state of the flat when he moved out. These photographs showed extensive growth of mould on the walls of the bedroom and rust and mould on the window frames and sills.
28) Mr Toby John Morris. Mr Morris is co-owner of the premises. In his evidence to the Tribunal he stated:
a)There was no mould evident at the commencement of the tenancy. He and Mrs Morris have owned the premises for 17 years and never experienced a problem with mould.
b)The premises had been painted with mould resistant paint as a precaution. He admits he was aware of the discussion at the body corporate meetings with regards to mould in other units. It was observed that additional insulation in those units had had little affect upon the mould and that he agreed with the body corporate opinion that mould was a natural incident of ordinary living; the mould could be controlled by regular cleaning and was thus a tenant issue rather than a maintenance or repair issue for the lessor.
c)In his opinion the mould was caused by the tenants’ conduct. He stated that when he visited the premises the windows were closed and that condensation was evident.
29) Ms Zoe Weston. Ms Weston denied that there had been a condition report supplied at the beginning of the tenancy. In her oral evidence she agreed that there had been no mould in the premises at the commencement of the tenancy. She stated that the unit had a musty smell which she assumed came from being ‘closed up’. in her evidence to the Tribunal Ms Weston stated:
a)The mould was first noticed in July of 2006. The bed mattress and goods stored under the bed were damp, the wall behind the bed was black with mould and the carpet under the bed was wet and smelly. There was a water mark evident on the wall, running from the window sill and down behind the bed.
b)She purchased and used cleaning products which removed the mould from the bedroom wall. The mould returned after a period of about four weeks.
c)Approximately 2 weeks after the mould was discovered the tenants moved the mattress from the bedroom to the lounge room floor. There is no evidence before the Tribunal as to what steps if any the tenants took to remove the mould and damp from the mattress.
d)By late July Ms Weston believed that she had done all she could do to remove the mould and on 1 August 2006 wrote to the lessor to seek help. At the meeting on 2 September Mrs Morris had told her that she was doing the right thing by cleaning the mould and that she should continue with this treatment. Mr Morris told her that mould had been a problem and that the premises were painted with mould resistant paint. The tenants thought that the lessors’ response was inadequate and on the advice of the Tenants’ Advisory Service they wrote the letter of 25 September 2006, which they regarded as a Notice to Remedy.
e)After the winter of 2006 the mould ceased to be a problem and there was no further correspondence with the lessor until the meeting with AFDACAS in April 2007. Mould was not a problem in April of 2007. The walls were clean but the carpet was in the same state of dampness and mouldy. Ms Weston agreed that there had been no correspondence between the tenants and the lessor with regards to the mould. Ms Weston stated that during this period she had been pregnant and unwell and thus not able to follow up in regards to these issues. Ms Weston in her evidence and in written submissions claimed that the presence of the mould had contributed to ill health on the part of Ms Weston and Mr Dunn. There is no evidence as to the health of Mr Dunn. Ms Weston submitted two letters from Dr DP Lewis. Each of these letters appears to have been written to support an application for government housing. While these letters state that Ms Weston’s symptoms caused by Chronic Fatigue Syndrome will be adversely impacted by the presence of mould, there is no evidence of tests being carried out in the premises to determine what moulds, fungi or toxins are present and no evidence of test or treatment of Ms Weston in regard to any specific reaction to the presence of mould in the premises.
f)Ms Weston stated that the tenants had installed a clothes dryer in the premises in September/October 2006 it was operated in the bathroom until February 2007 when is was moved to the bedroom, and vented through the window by an exhaust pipe. In February 2007 the tenants installed a washing machine in the bathroom.
g)The tenants had a large fish tank in the lounge room throughout the tenancy. Ms Weston stated that it had a lid on it and there had never been a spill form the fish tank. The Tribunal had photographic evidence of the size and location of the fish tank.
h)The tenants kept the windows open as much as possible. In November of 2006 the tenants had purchased and installed a Dimplex portable air conditioner. This unit was used in the summer months for cooling and as a de-humidifier in autumn and winter. Ms Weston stated that the problem of the black mould on the walls re-occurred during winter and the dehumidifier had no discernable effect. The premises were heated in winter by two small electric blower heaters.
The windows in the premises leaked during rain and that water pooled on the inside window sills. This was not reported by the tenants to the lessor. The problem was first noticed in June/July 2006 and Ms Weston observed that the problem was worse in the winter months.
j)Ms Weston was shown photos taken by the lessor during and at the end of the tenancy. Ms Weston agreed that the areas of mould in the carpet were greater and concentrated around the space where the dryer, freezer and fish tank had been located. Ms Weston agreed that the photos showed that the tenants had a lot of goods stored in the unit.
30) Mrs Margaret Morris, lessor. Mrs Morris gave evidence that the premises were built in the 1960s and that she and Mr Morris had purchased Unit 1 in 1990. Unit 1 had always been tenanted and they had had no complaints form earlier tenants about mould. There was no mould evident at the commencement of the tenancy. In her evidence to the Tribunal she stated:
a)At the inspection on 2 September she had observed mould on the carpets, walls and the tenants goods. She told the tenant that the mould was their problem but gave advice as to its removal.
b)Despite the letter of demand from the tenants and the meeting with ADACAS she had formed the view that the mould was not an ongoing problem, and that the cleaning had been effective. This view was supported by her understanding that NRMA had not proceeded to a formal report because the tenants had made no further claims.
c)She was aware of the problems of mould experienced in two other units in the complex and of the discussion in regard to this problem at body corporate meetings. She had formed the view that the mould in unit 1 was a problem that could be solved by regular cleaning by the tenants.
d)At the end of the tenancy the premises were in a poor condition. The premises were very clean but the paint was peeling in places and there was mould on some walls and along the base of the vertical blinds. The carpet was wet, mouldy and water stained. It had to be replaced. Photos showing the mould and the rotten carpet were provided to the Tribunal.
Expert evidence
31) Mr Zoran Sever, Picasso Construction. Mr Sever is an experienced builder and architect; he inspected the premises at the request of the tenants and provided a written report dated 12 May 2007 and photographs relating to the condition of the premises and the presence of mould in the premises. Mr Sever is not an expert in the cause and affects of mould, and his evidence was confined to his observations during an inspection of the premises. In his oral evidence to the tribunal Mr Sever stated that he had observed a ‘lot of mould’ in the carpet and on the walls: the mould was concentrated around the windows. Mr Sever stated that in his opinion the primary sources of the mould in the premises were condensation around the windows, a window leak and possibly damp rising from the slab. Mr Sever stated in his evidence that he was not able to determine whether a damp course was present or effective. Me Sever concluded in oral evidence as he had in his written report that the major source of water into the premises was under the window sills. In his written report he said: The mould is due to the state of the window frames and the fact that there is condensation in the flat due to the window frames leaking and the damp in the masonry.
32) Mr Sever stated that the interior walls had felt damp to the touch, but he had not taken any physical measurement to ascertain the level of moisture in the internal walls.
33) Mr Sever provided some photos, one of which shows a water mark on the wall. This mark appears to be the result of water leaking under or through the window sill and then running down the wall to the carpet. This photo is included in this decision. It appears that the mould in the carpet has been caused by water running down the wall and soaking into the carpet. The dryer installed by the tenants can be seen on the right of the photo. This photo is of the window in the bedroom of unit 1.
34) Mr George Pudja; IBIS – Integrated Building and Inspection Services. Mr Pudja is the proprietor of IBIS, a member of HIA, Certified Building Inspector and Licensed Builder. Mr Pudja was accepted by the Tribunal as an expert witness. Mr Pudja had inspected the premises on 31 October 2007 and prepared a written report. Mr Pudja gave evidence at the tribunal hearing.
35) The written report contained the following information:
a)The building was in a good condition for its age;
b)The moisture meter readings in the walls were high in areas close to the floor and the reading in the timber skirting was high which indicated that the lower bricks were absorbing moisture from somewhere.
c)The bathrooms and kitchen areas showed no obvious signs of mould or deterioration. The report recommended that consideration be given to installing exhaust fans in both the bathroom and the kitchen.
d)The bedroom window showed signs of water marks which seem to run from the window frame. Over the sill and down the wall. This was localised and corresponded with a section of damaged carpet.
e)The original vinyl floor below the carpet did not indicate current moisture problems.
f)Moisture readings to the wall around the stains and the timber skirting below did not indicate anything unusual which would suggest this is a result of periodic leakage rather than long term moisture problems.
36) In oral evidence Mr Pudja reviewed his written report and stated that mould was not a problem in the building itself. However, the age and style of the building would contribute to a condensation problem. This would be most evident in the winter months when the brick walls would be cold, the internal air would be warm and condensation would be concentrated around the windows. Mr Pudja explained that water would form on the interior surfaces and the walls and windows would have to be wiped down to prevent water soaking into the walls and the carpets. If the walls and the carpets were damp, mould would eventually grow.
37) Mr Pudja stated that, in his expert opinion, temperature was the key element. Heating the building might help the problem, a reverse cycle air conditioner operating 24 hours a day would alleviate the condensation. The installation of exhaust fans in the kitchen and bathroom would have only a minimal impact on the amount of moisture in the flat. Operating a dryer, even when vented to the outside would add a considerable amount of moisture to the air in the flat. The fish tank owned by the tenants would also contribute to the moisture in the air, but not to a significant level.
38) Mr Pudja stated that given the age of the building, the style of windows and windowsills and the brick walls, there would always be moisture in the premises. Where condensation happens it must be wiped away and the interior should be heated. Living patterns will be the key factor: while exhaust fans and opening the windows for ventilation may have an impact, heating and cleaning were most important to prevent mould build up.
39) Mr Pudja stated that the leak from the bedroom window would be a major contributor to the mould on the wall and in the carpet in the bedroom. If the leak continued the skirting board and the carpet would deteriorate.
40) The evidence form this expert was that mould is usually the result of a combination of several factors. In the conclusion to his written report he noted:
i) The most obvious signs of mould were found in the Northwest facing bedroom, where spores had grown on the walls, and have damaged the carpet under the window, where it appears a periodic leak from around the window introduced water that eventually created mould which damaged the carpet.
ii) The lack of mechanical ventilation in the bathroom and the presence of a washing machine and dryer are far more likely [than rising damp]to be the cause of moisture vapour resulting in condensation and mould.
iii) Human activity and behaviour can have a significant impact on the habitat...an average family can produce 4 litres of moisture vapour in a day.
iv) The fact that the living room, kitchen and entry area has less mould problems than the bedroom/bathroom are and has an air conditioning unit which can act as a dehumidifier is perhaps not a coincidence.
41) Mr Pudja made several recommendations to help reduce the incidence of mould. He noted that mould could not be eliminated altogether. These recommendations included the installation of exhaust fans in the kitchen and bathroom, the installation of a reverse cycle air conditioner, regular cleaning of the mould affected areas with superheated steam or bleach – multiple treatments would eventually reduce mould growth.
Other evidence
42) The Condition report dated 16 /12/05 is signed by Mrs Morris, but not signed by the tenants. It describes the premises as fair to good and makes no mention of mould.
43) The lessor provided a copy of a written report by ARTAS, Architects and Planners. This report was compiled following an inspection of the premises. The report is dated 12 November 2007. The relevant sections of the report are reproduced below:
Condensation dampness
i) Condensation is caused when moisture produced by everyday activities such as cooking and bathing meets a cold surface and condenses forming water droplets. Mould growth will quickly appear and spread all over the cold surface such as a wall or window frame. The amount of moisture deposited is dependent on how warm the air is, how much moisture the air is carting and how cold the surface is.
ii) The signs of common condensation are:
oMisting of window panes
oWater droplets on window panes
oPools of water on window sills
oDamp patches on walls around windows
oBlack or green mould growth in corners of rooms that are crescent shaped
oMould growth around windows and isolated areas on walls
oMould inside cupboards and behind furniture.
Condensation control is a balance between:
oAdequate heating
oSufficient insulation
oThe reduction of moisture production
oControlled ventilation
44) In relation to the premises the ARTAS report concluded that there was no evidence of rising damp on the external walls; there was no evidence of ponding water adjacent to the area. The photos of the interior of the unit show minimal signs of mould on the interior walls. This type of condition is generally associated with the humidity and moisture levels within the unit. For example if a dryer or humidifier is used internally without adequate ventilation, then the moisture inside the unit can provide an idea[l] environment for mould spores to propagate.
45) Photographs
a)NRMA taken 12 March 2007 - these show the bedroom and bathroom of the unit. There is a small amount of mould on the bathroom walls and some mould evident at the edge of the carpet and skirting board in bedroom. There is a large amount of furniture, boxes and personal goods belonging to the tenant stacked throughout the unit.
b)Mr Zoran Sever – photos taken June 2007. These show a small amount of mould at the bottom of the walls and in the edge of the carpet in the bedroom and lounge room. The skirting boards are in poor condition with flaking paint. Some photographs show mould on the bottom of the vertical blinds and some identify a possible source of water from leaks around the window sill.
c)Photos supplied to the Tribunal with the application dated 31 10 2007. These photos show mould and damaged carpet in the bedroom and lounge room. The mould on the windowsills is much more than that in the earlier photos and the carpets are visibly worse with many areas appearing to be rotting.
d)Photos of carpets after tenants had vacated. These show the carpet to have been destroyed by the mould. The carpet was rotten around the edges and extensively damaged.
The relevant law
The Residential Tenancy Agreement between the parties
46) The tenants base their claim for compensation on an alleged breach by the lessor of the obligation to maintain the premises in a reasonable state of repair as required by clause 55(1) of the tenancy agreement. In written submission the tenants also rely on a failure by the lessor to deliver the premises in a manner which is fit for habitation [clause 54(1)(a)] and/or a failure by the lessor to provide the premises in a reasonable state of repair at the commencement of the tenancy [clause 54(1)(c).
Residential Tenancies Act 1997
47) The Tribunal has power pursuant to s104(d) of the Residential Tenancies Act 1997 to make an order for compensation for loss resulting from a breach of the residential tenancy agreement.
48) Did the lessor comply with clause 54(1)? This clause requires the lessor to ensure, at the start of the tenancy, that the premises are fit for habitation, reasonably claen and in a state of reasonable repair.
49) The tenants argue that the lessor either was, or should have been, aware of the mould being a problem at the commencement of the tenancy. There is no evidence of this. The Tribunal has had the benefit of reading the decision of a differently constituted Residential Tenancies Tribunal in Adam and Michelle Mc Guinness v Michael and Alanna Ernst-Russell [2009] ACTRTT (1) which considered a similar issue. Clause 54(1) does not oblige a lessor to carry out any extraordinary inspection of the premises prior to commencement of a tenancy. In McGuinness v Ernst-Russell it was held, following the High Court’s decisions in Jones v Bartlett (2000) 205 CLR 166 and Harris v Northern Sandblasting (1997) 188 CLR 313 that the lessor’s duty to provide the premises in a reasonable state of repair at the commencement of the tenancy did not extend to having the premises inspected by relevant tradespeople in order to discover if any defect may exist. The lessor’s duty went no further than to attend to defects of which the lessor was aware or could discover by casual inspection.
50) The tribunal is satisfied upon hearing the evidence of Ms Weston and Mr and Mrs Morris and viewing the original condition report that there was no mould evident at the commencement of the tenancy. The problem of the mould was on Ms Weston’s evidence first experienced in June of 2006, and the lessor was informed of the presence of the mould in the bedroom, by written notice from the tenants on 1 August 2006. The mould described by Ms Weston was a small amount of mould in the bedroom and the bathroom. Thus the tenants have not established that the premises were at the commencement of the tenancy either unfit for habitation or not in a reasonable state of repair. Indeed the evidence of Ms Weston and of her mother gave the impression that the tenants were very pleased to have found the premises and were entirely satisfied with them.
51) Thus the issue for the Tribunal is confined to the question of whether the lessor has failed to repair the premises or maintain the premises in a reasonable state. If the lessor has breached the obligation and the tenants’ use or enjoyment of the premises has diminished significantly as a result of the loss of the use of all or part of the premises then the tenants’ claim for compensation will succeed and damages will be assessed; if not then the Tribunal will proceed directly to the Bond dispute.
52) Each party made final written submissions to the Tribunal and referred the Tribunal to a great number of cases concerning mould in premises. Many of these were unhelpful, either because of their lack of clear explanation of reasons for decisions or the comments being not directly applicable to the facts before the tribunal in this matter.
53) The lessor’s duty to repair premises is an obligation arising as a matter of contract and is found in the Residential Tenancy Agreement at clause 55:
(1)The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2)The tenant must notify the lessor of any need for repairs.
54) The authorities support the proposition that a lessor’s duty to repair is dependent on notice: Residential Tenancies Law and Practice in NSW, 4th ed, Anforth and Christensen at [2.25.3].
55) Does the presence of mould per se render the lessor liable for a breach of clause 55(1)? The answer to this is no. The evidence before the Tribunal suggest that some mould is a consequence of every day living, and a failure to take reasonable and ordinary steps to clean mould away would render a tenant liable for a breach of the obligation imposed by clause 63(c) to take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living. A tenant who failed to clean mould from a shower and bathroom could not complain that a lessor was obliged to repair the premises by taking steps to remove and prevent the return of an excess of such mould.
56) The authorities are clear that where there is mould in the premises, and, the tenant informed the lessor of this, and the cause of the mould is identified as a specific defect which could be remedied by the lessor, the lessor who fails to remedy the defect will be in breach of the obligation to maintain and repair the premises. See for instance: Garcia v Department of Housing (Tenancy) [2007] NSWCTTT 695 (25 October 2007) where a water leak in the bathroom caused the carpet in the bedroom to be wet and mould to form; More & More v Gentle (Tenancy) [2004] NSWCTTT 501 (27 August 2004) where rain entering the premises caused the walls, floors and curtains of the remises to become wet and mould to form; or Kincaid-Smith v Stevens (Tenancy) [2008] NSWCTTT 902 (14 April 2008) where the lessor had failed for nine years to properly repair a water leak and water penetration of the walls had caused mould and smell.
57) In this matter the mould growth cannot be attributed to a specific defect. The Tribunal having considered the evidence outlined above finds that it is more likely than not that the mould may be explained as follows:
a)The construction of the premises, while safe and complying with all relevant standards, means that the premises have a tendency to produce condensation in the cooler weather. Mould will form if the condensation is not wiped away and allowed to pool on windowsills.
b)Rainwater leaked under the window in the bedroom and ran down the wall and thence under the bed. The bedding became wet and mouldy, mould developed on the carpet under the bed, on the tenants’ goods stored under the bed and the wall behind the bed. This is the primary and most significant cause of the original mould growth, which was not discovered for some time and was not adequately treated.
c)The tenants transferred the mattress to the lounge room and placed it directly upon the floor, this caused mould spores to be transferred to the lounge room carpet and mould began to grow in that area.
d)The mould became worse over time: some of this can be contributed to poor ventilation and some can be contributed to the use the tenants made of the premises, in particular the use of a washing machine and dryer, and the untidy nature of the premises due to the unusually large amount of goods stored within the premises. The photographic evidence shows that the mould is worse in the areas around the dryer and the fish tank.
e)Failure by the tenants to remove the mould from the walls.
f)Failure by the tenants to inform the lessor of the leak under the window and the mould in the carpet and bedding in a timely manner.
g)Failure by the tenants to dry the carpets after the rain leaked in.
58) The tenants argue that the lessor had a duty to provide better ventilation by the installation of exhaust fans in the kitchen and bathroom and security screens on the windows. While it might be a reasonable step for the lessor to take, the expert evidence is that this would have only minimal impact and would not have remedied the problem entirely.
59) Both Mr Sever and Mr Pudja identify the primary cause of the mould as the leak under the bedroom window and Mr Pudja states that ‘operating a dryer, even when vented to the outside would add a considerable amount of moisture to the air in the flat. The fish tank owned by the tenants would also contribute to the moisture in the air, but not to a significant level’.
60) Nevertheless there is considerable support in the NSW cases for the proposition that once a tenant has informed the lessor of mould in the premises, the mould becomes a lessor’s problem and they have a duty to remove it and prevent its reoccurrence. Once the need for repair is communicated to the lessor, the lessor is obliged to put the premises into a reasonable state of repair: this may involve work to both treat the build up of mould and steps to prevent a reoccurrence of the mould. Watsemwa v Ayoub (Tenancy) [2004] NSWCTTT 215 (7 April 2004). In some circumstances this will involve the installation of fans and other works that would otherwise be regarded as improvements. The Tribunal notes that the lessor is entitled to have regard to the condition of the premises at the commencement of the tenancy. The obligation to repair is essentially an obligation to restore the premises to a state which reasonably approximates their condition at the commencement of the tenancy and does not extend to renewal or replacement: see Ellul v NSW Department of Housing [1991] NSWRT 168 ( 2 August 1991).
61) The lessor has no obligation to repair damage caused by the negligent or wilful act of the tenant. In this matter the conduct of the tenant has contributed to the mould problem in a number of ways. These may or may not amount to negligence, but they do make a finding of breach by the lessor unlikely.
62) The tenant wrote to the lessor in August 2006 and a meeting between the parties was conducted at the premises in September. The outcome of this meeting was less than satisfactory, and soon thereafter they exchanged “notices to remedy”. The tenant refused access to the lessors to inspect the mould and it appears that several caused the lessor to believe that the mould had ceased to be a problem:
i) The mould decreased during the warmer weather;
ii) The meeting with ADACAS, was called to discuss the mould problem. Mrs Morris expressed the view that the mould could be removed by cleaning. Ms Weston said in her evidence that the mould had ceased to be a problem in April 2007.
iii) The tenants informed the NRMA that they were not proceeding with the claim.
iv) The tenants did not inform the lessor that the mould was a continuing problem; they took no further action in relation to the “notice to remedy” of 27 September 2006, and when the lessors increased the rent responded, in January 2007, in vague terms objecting to the rent increase as excessive, made no mention of the mould and paid the increased rent with no further complaint.
63) The Tribunal notes Ms Weston’s evidence that after April 2007 there was no further notice to the lessor of the continuing and increasing mould growth or of the wet carpets and that the tenants had never informed the lessor of the rainwater leaking in under the window.
64) The lessor’s obligation to repair is conditional upon notice of the need for repair. The tenants have failed to properly inform the lessor of the cause of the mould, the need for repair and the extent of the problem.
65) While the tribunal accepts that the mould caused disruption to the tenants’ use of the premises, the failure to properly inform the lessor of either the leak in the bedroom window and the continuing mould problem results in the lessor being under no obligation to take steps to remedy the problem. The Tribunal finds that on the balance of probabilities the conduct of the tenant was the major contributor to the formation of mould and their failure to promptly and properly inform the lessor of the problem, combined with the refusal of access for inspection by the lessor was a major contributor to the exacerbation of the mould problem.
66) The tenants have not established that the lessor is in breach of clause 55.
67) The tribunal notes that if the lessor had been in breach of their obligation to repair and maintain the premises, the calculation of the extent of diminution of amenity and loss of use of the premises would have required an assessment of the contribution of the tenants’ conduct to that loss, as well as a consideration of whether the tenants had acted in manner which properly mitigated their loss. The tenants’ failure to inform the lessor of the need for repairs to the bedroom window, the tenants failure to inform the lessor of the increasing mould growth and damage to the carpet, the use of a washing machine and dryer in premises which do not have an internal laundry and the refusal of an inspection of the premises in November 2006 are all factors which would need to be weighed by the Tribunal.
Jann Lennard
Member
6th February 2009
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