Case Notes ~ Mould

FIEGE & ORS v WILKINSON; WILKINSON v HOLBROOK & ORS (Residential Tenancies) [2023] ACAT 11

The tenants sought compensation from the landlord after they vacated a property that had become uninhabitable due to mould. They alleged the landlord had failed to maintain the property in a reasonable state of repair in accordance with clause 55(1) of the Residential Tenancy Agreement. The landlord claimed the tenants had failed in their obligation to notify the lessor of damage to the property and the need for urgent repairs and that the presence of mould was attributable to the tenants’ negligence for which he incurred remediation costs.

There was a history of mould in the property. A mould report commissioned by the lessor 12 months before the tenants vacated made several recommendations for remediation, but only the surface cleaning of the mould was carried out. The mould returned from time to time to varying degrees. Eventually the tenants notified the lessor that the mould had returned to the extent that it was beyond the capacity of the tenants to clean.

The Tribunal referred to authorities supporting the conclusion that the extent of the mould throughout the property had made the property uninhabitable and found the landlord had not implemented the recommendations of the mould report.

The Tribunal stated:

The lessor’s attempts to address the mould problem were temporary measures and did not provide an absolute solution to the prevention of mould recurring. These temporary measures may seem a reasonable response but failed to maintain the Premises in a reasonable state of repair. The prevalence of mould and its tendency to appear was not addressed. In other words, the actual state of repair was a house in which mould was likely to recur because measures to prevent and eradicate its recurrence were not taken.

The obligation to maintain the property in a reasonable state of repair set out in clause 55(1) goes to the actual state of repair of the property, not the reasonableness of the landlord’s efforts or diligence in endeavouring to carry out repairs. “The obligation is a continuous and ongoing one” that requires an assessment of the premises over the life of the tenancy, not at particular points in time.

The Tribunal left open the question of whether the level of attention expected of the tenants in treating the mould might amount to an interference with their quiet enjoyment of the premises.