Mould in rental properties
– the tenant’s rights and the landlord’s responsibilities
Mould in rental houses and home units can be a health risk
for tenants and a ‘wealth risk’ for landlords if it is not
treated quickly.
This is a guide to the law which applies to mould in rental
properties, including case studies which illustrate the
tenant’s legal rights to have the mould treated, their rent
reduced, to receive compensation and to terminate the
tenancy because of the mould.
The Law – the landlord must
provide premises fit for habitation / fit to live in
Residential Tenancy Law imposes a legal obligation upon the
landlord to provide rental premises which are fit for
habitation / fit to live in.
In NSW the landlord must provide:
the residential premises in a reasonable state of
cleanliness and fit for habitation by the tenant. (s
52(1) Residential Tenancies Act 2010 (NSW)), and
provide and maintain the residential premises in a
reasonable state of repair (s 63(1) RTA)
In Queensland the lessor must ensure that:
the premises are fit for the tenant to live in (s
185(2)(b) Residential Tenancies and Rooming Accommodation
Act 2008 (Qld)).
In Victoria the residential rent provider must ensure that:
the rented premises are provided and maintained … in a
reasonably fit and suitable condition for occupation (s
68(1)(b) Residential Tenancies Act 2007 (Vic)).
This legal obligation forms part of the standard Residential
Tenancy Agreement.
It follows that if mould appears, the tenant should give
notice to the landlord to treat the mould under the
Residential Tenancy Agreement because it affects fitness for
habitation. And the landlord should take steps to treat the
mould and its source, as soon as possible.
In NSW a tenant may give an immediate termination notice to
the landlord if the premises … become wholly or partly
uninhabitable (otherwise than as a result of a breach of
an agreement) (s 109 RTA). Equivalent provisions apply in
Qld and Vic.
Who is responsible to treat
mould?
Black Mould (Aspergillus niger) is a fungi which
releases spores which cause health or allergic reactions
such as asthma and dermatitis in some people. It grows in
moist places which lack ventilation.
The responsibility to treat the mould usually falls upon a
landlord, sometimes on a tenant. Consumer Affairs
Victoria provides these illustrations and advice:
- A tenant may have allowed mould to develop in a
bathroom by not using ventilation fans. If so, the
landlord may serve the tenant with a notice requiring
them to fix the problem.
- A defective window frame has allowed rainwater to
leak into the property, causing mould to develop. If so,
the tenant may serve a notice to repair and the landlord
must deal with this as a non-urgent repair.
- It will be an urgent repair if the tenant proves
that the mould is dangerous and/or is causing a health
issue. The proof required is an expert’s assessment
report by an occupational hygienist or an environmental
health professional or a local council inspector; and a
medical report if the tenant has an existing health
issue such as asthma.
The Tenancy Tribunal (NCAT, QCAT or VCAT) decides mould
disputes for rental property.
Four Tenancy Case Studies on
rent reduction, compensation and termination for mould
#1 Andrew Fletcher and
Song Fletcher; v Luke Bunbury [2015] NSWCATCD 60 – 2015
Facts The tenants leased a three bedroom house at
Greenwich for a term of 2 years from 23 March 2013 at a rent
of $930pw. At the open inspection they had noticed a scented
candle was burning, which they later realised disguised the
musty odour they discovered when they moved in. The tenant
and her daughter suffered nasal irritation and allergic
symptoms. She kept the property cleaned and kept the windows
open for ventilation, used a dehumidifier, damp rids and a
condenser dryer. In April 2014, the tenants stopped using
bedroom 3 because of mould - they discovered the cause was
that the underfloor was very damp. They notified landlord’s
agent who had 10 sub-floor vents installed. This did not
solve the mould problem. On 14 November 2014 the tenants
found new premises and gave a 14 day termination notice
citing dampness and mould. On 28 November, the tenants
obtained an expert’s report which concluded:
“The property is considered a Grade 4 Building
Contamination as per the Australian Mould Guideline
(AMG-2010-1), whereby visible mould growth occurs on
greater than 25% or more than 10m2 on interior surfaces;
this means that the house is not fit for habitation
until mould remediation has been completed. No
personnel/occupants should enter the property without
the appropriate full Personal Protective Equipment…”
Decision The Tribunal found that the tenant was
justified in giving the termination notice before the lease
had ended because the premises were affected by rising damp
‘giving rise to high levels of condensation facilitating the
growth of mould’. The Tribunal Member rejected the
landlord’s argument that the tenant had misused the property
by failing to ventilate. The landlord had not solved the
damp/mould problem since being notified. The landlord was
ordered to refund excessive rent (under s 44(1)(b) RTA) of
$230 pw (for bedroom 3 based on comparable rentals) from 11
April 2014 to 28 November 2014, in the amount of $7,590; and
to pay compensation of $15,000 to reimburse the cost of
professionally decontaminating the tenants’ goods before
they could be relocated to their new accommodation (under s
63(1) RTA). The bond was refunded in full and no break costs
were claimed for early termination of the lease.
#2 Raats v Zein [2016]
NSWCATCD 62 – 2016
Facts The tenants had just moved into a townhouse at
Waitara when they noticed mould infestation in the air
conditioner filter, in the linen cupboard and in the ceiling
(caused by water entry) and throughout Bedroom 3 which could
not be occupied due serious health risk (respiratory
disruption). The mould gave off a foul odour. They notified
the managing agent, but soon afterwards they decided to
vacate because the premises were not habitable. They gave
immediate notice of termination of lease (only 14 days after
the lease started).
Decision The Tribunal found that the premises were
not ‘fit for habitation’ because ‘the mould infestation was
extensive and constituted a serious health risk’. This was a
very serious breach by the landlord of his obligation under
the lease to provide habitable premises, and the tenants
were entitled to terminate the lease and vacate the premises
immediately. The landlord was ordered to reimburse the
tenants $1,741.00 for removal costs and $22.08 for a special
reading of the electricity meter. The rent paid in advance
and rental bond were refunded.
#3 Waller v Pacorp
Holdings Pty Ltd [2017] NSWCATCD 5 – 2017
Facts The tenant had leased a one bedroom home unit
at Cremorne since 2005. In August 2015, the tenant contacted
the landlord’s agent to report mould on the ceiling and on
the walls (water entry from roof / guttering). The agent
recommended the property be properly ventilated and the
tenant purchase a spray and wipe product with clove oil. The
tenant requested that the corroded window fixings be
replaced to allow the windows to be opened to improve
ventilation. Nothing was done. In April 2016, the landlord’s
agent advised that the mouldy blinds would be replaced, the
walls and ceilings sanded back and re-painted. Nothing was
done. The landlord issued a 90 day termination notice in
September 2016. In November 2016, the tenant began sleeping
in her lounge room because the bedroom was affected by mould
throughout.
Decision The Tribunal granted a rent reduction of 25%
for the period from October 2015 to January 2017 (64 weeks)
of $6,015 for loss of services and facilities because the
premises were affected by mould and inadequate ventilation
arising from lack of proper window locks (s 44(1) RTA). The
Tribunal ordered the landlord to pay compensation for mould
damage to pictures and prints of $1,380, curtains $108, and
30% of the replacement costs for bedding, clothing and
accessories and a travel bag, in the amount of $3,063.75 (s
63(1) RTA), after taking into account their age and
prospects of rejuvenation. Finally, the landlord was ordered
to reimburse the tenant $999 for the expert mould report she
obtained.
#4 Jupiter St James Pty
Ltd v Jin; Jin v Jupiter St James Pty Ltd [2019]
NSWCATCD – 2019
Facts The tenant had leased a two bedroom luxury
apartment at Potts Point since 2016. He entered into a new
12 months lease from 16 July 2018 at a rent of $5,518 per
month. He lived alone and occupied the second bedroom. When
his mother visited, she occupied the main bedroom. On 16
July 2018 he notified the landlord’s agent of water damage
to the carpet in the main bedroom from a leak in the vanity
in the ensuite. The agent responded quickly, but the leak
was not quickly fixed and mould and odour became a problem
over the next 3 weeks. The tenant obtained a medical
certificate on 8 August, and on 15 August moved to a hotel
on account of ‘significant health risk’ due to the mould,
although his mother stayed on. On 30 August he gave an
immediate termination notice and moved out that day.
Decision The landlord claimed the break fee of six
weeks rent of $7,620 was payable for the early termination
of the fixed term lease because the tenant had abandoned the
premises (s 106 & 107 RTA). The Tribunal rejected the
tenant’s argument that the premises had become uninhabitable
(under s 109 RTA), because the ‘impact could have been
contained by closing the door to the ensuite bathroom and
keeping it sealed’ and there was another bathroom that could
be used. Therefore, the premises were habitable and the
break fee was payable because immediate termination was not
justified. But the tenant was successful in claiming
compensation of 25% of the rent payable for the period 17
July 2018 to 30 August 2018, in the amount of $2,041. This
was for loss of quiet enjoyment because of the removal of
parts of the carpet, the damp and mould odour, and the
unsightly damage to the skirting boards and baseboards; the
visits to the premises by the landlord’s insurer, plumbers,
and other tradespersons; and the communications necessary
with the landlord’s agent (under s 50 RTA). The Tribunal
rejected the tenant’s claim for reimbursement of the cost of
hotel accommodation.
What do the case studies tell
us about mould in rental houses and home units?
- Landlords must provide habitable premises and take
pro-active measures to prevent mould. This means
preventing moisture building up through rising damp or
trapped moisture by installing passive and mechanical
ventilation (vents and fans) and fixing and sealing
leaky rooves, gutters, faulty pipes and leaky windows to
prevent water penetration.
- If mould is present at any time during a tenancy, it
is the landlord’s legal obligation to treat the mould
and its cause.
- Tenants have an obligation keep the premises
ventilated by opening windows and doors and to report
mould and dampness to the landlord.
- An expert’s mould report may make recommendations to
a landlord and provide evidence for a tenant to claim
compensation and to terminate. But expert reports can be
costly. Photographs and correspondence with the landlord
or the rental agent are acceptable evidence in many
cases.
- The tenant may receive a rent rebate in the order of
25% from the time they notify the landlord’s agent of
the mould until they are able to fully use the premises
again.
- If the mould is severe, the tenant may immediately
terminate the lease without paying a break fee and be
reimbursed moving expenses.
- If the mould is severe, the tenant may also be
entitled to claim the cost of decontamination of
personal possessions and compensation for damage to
clothing and goods.
- Landlords should replace carpet (which soaks up
water and is prone to mould) with timber floors, vinyl
floorcoverings or tiles when renovating.
- Where the premises are a townhouse or home unit, and
water is entering from outside, the owners corporation
should be notified and requested to fix the water entry.
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