Mouldy Tenancies Q&A

The Tenants' Union asks Ned Cooke, solicitor and team leader of the Inner Sydney Tenants' Advice and Advocacy Service, your questions about mould in tenancy. The audio for this episode was taken from a Q&A session live-streamed to facebook as part of our 'Mould on my mind' day of action. 

Tenants’ Union resources:

https://www.tenants.org.au/factsheet-24-mould

https://www.tenants.org.au/factsheet-06-repairs-and-maintenance

https://www.tenants.org.au/sample/rent-reduction

https://www.tenants.org.au/factsheet-16-ending-tenancy-early

https://www.tenants.org.au/factsheet-09-you-want-to-leave

https://www.tenants.org.au/factsheet-11-nsw-civil-and-administrative-tribunal

Make Renting Fair campaign:

www.rentingfair.org.au

Fair Trading information:

https://www.fairtrading.nsw.gov.au/housing-and-property/renting/during-a-tenancy/health,-safety-and-security

Links to health information:

https://www.health.nsw.gov.au/environment/factsheets/Pages/mould.aspx

https://www.sciencedirect.com/science/article/abs/pii/S1364032120303841

Transcript

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Mouldy Tenancies Q & A

[00:00:00] Charlie Wilde: Welcome to another episode of Renting Bytes. This series attempts to break down renting into 'byte-sized' pieces. The audio for this episode was recorded at a special event, a Q & A live-streamed to Facebook, to answer tenants' questions about their mouldy tenancies. We were joined by Ned Cooke from the Inner Sydney Tenants Advice and Advocacy Service for this episode and I'm sure you'll find Ned's answers illuminating. Have a listen: 

[00:00:39] Welcome everyone to our special mould Q & A for our 'Mould on my mind' day of action. I'd like to start by acknowledging the traditional custodians of the land on which we meet today. This Q & A is being live streamed throughout New South Wales and perhaps beyond that, and it's being held on unceded Aboriginal land. I'm streaming from Darkinjung Country in the central coast and Ned, I believe you are on Gadigal country in Inner Sydney? 

[00:01:10] Ned Cooke: That's correct, yes. 

[00:01:12] Charlie Wilde: We'd like to pay our respects to Elders past, present and emerging and extend that respect to any Aboriginal or Torres Strait Islander peoples here, present. Uh, and as, as far as mould goes, I suppose it doesn't need too much of an introduction. We've all lived through a very wet summer, which turned into a wet autumn, then a wet winter. Which provided the perfect conditions for mould to bloom all throughout the State, particularly in homes with inadequate ventilation. We've seen flood damage, we've seen water damage and we're finding a situation in which tenants are finding mould in their rental property and aren't sure how to deal with it. So we thought a Q & A session like this would be really helpful. And we're lucky enough to have Ned Cooke with us today. 

[00:02:06] Ned Cooke: Hello. 

[00:02:07] Charlie Wilde: Hi, welcome. 

[00:02:08] Ned Cooke: Thank-you. 

[00:02:08] Charlie Wilde: Ned you're coming to us from Redfern Legal Centre, its reputation precedes you. And you are heading up the team there that deals with tenancy.

[00:02:19] Ned Cooke: That's correct, yeah, I'm the team leader of the tenancy team at Redfern Legal Centre, the Inner Sydney Tenants Advice and Advocacy Service. 

[00:02:26] Charlie Wilde: Ned, you've been interviewed on mould quite a bit lately, to the point where you've got a nickname. Am I right? 

[00:02:33] Ned Cooke: I have. Someone has named me the mould guy now. I'm not sure if that's that's right. Or if, um, I wanna be the mould guy, but, yeah, look, it's, it's such a big issue at the moment that, um, that, sadly, maybe there does need to be a mould guy at the moment. 

[00:02:48] Charlie Wilde: Hmm. And Ned what is it about mould that's particularly problematic for renters, do you think?

[00:02:53] Ned Cooke: Yeah, I mean, the real challenge around mould for renters is, is identifying the cause of the mould issue in the house. Essentially, as you said, I mean there's, there's mould everywhere. It exists sort of naturally in the air and when the conditions are right within an environment, then that's when you sort of have mould outbreaks. We've seen recently the conditions, you know, as far as the weather goes, have really meant that within people's rental properties there has been probably an unprecedented amount of mould developing in people's properties. The thing that makes it tricky for renters is identifying the cause of that mould and who is responsible for the mould issues in the premises. So what that means is, you know, is there an issue with the property, um, But is it in disrepair or is it not sort of meet basic habitability standards that are, that allow mould to bloom in that way? Or is it something the tenant is doing to sort of, to not properly ventilate or to allow mould to develop? That's where the sort of tension point is, I suppose, between land landlords and tenants here. 

[00:03:56] Charlie Wilde: Sure. And I'm looking forward to getting stuck into some of those issues with you. Um, I think maybe it's useful, to qualify this discussion from the outset. Neither Ned or myself are health experts. We do have some health links to useful health information in the chat. However, we won't be able to provide health information on types of mould or the potential impact that that might have on tenants. This conversation today is more around tenancy law and what tenants can do within that framework. But I suppose it's, uh, it's generally accepted that, that mould's not a good thing to have in a home. We do have lots of schools of thought on how to treat mould. We're not gonna touch that here, but we really do encourage you to do your own research on that. 

[00:04:45] Ned Cooke: Yeah. 

[00:04:46] Charlie Wilde: When it comes to mould, whose responsibility is it? I mean, who, who needs to be treating it Ned? 

[00:04:53] Ned Cooke: Okay. Well, I mean, that's, that's really the, the core question I think here. I guess the starting point is under the residential tendency agreement, there are sort of competing obligations, you know, there's the landlord's obligation to maintain the premises in a reasonable state of repair and to provide the premises, you know, in a reasonable state of repair and, and fit for habitation. The tenant has responsibilities as well to keep the premises in a reasonable state of cleanliness. So there are, there are obligations on both sides as far as looking after the property are concerned. So the answer is, unfortunately, it depends. 

[00:05:31] Charlie Wilde: Okay. So how can I tell when it's just mould that I need to clean and when it's a repairs issue that I should push with the landlord? 

[00:05:41] Ned Cooke: Mm-hmm um, well, the answer to that is sometimes the cause of the mould will be, will be clear. So here I'm talking about, I suppose, leaks, um, water or moisture entering the premises because you know, it's not properly sealed from the elements, for example. Things where there are broken appliances like air conditioners or broken bathroom fans. Those kind of things will fall squarely on the landlord as far as responsibility goes, you know, those are, those are repair issues the landlord must address if they're notified of them. On the other hand, sometimes it might be quite clearly a tenant responsibility, like, you know, the tenant has caused a flood or a leak or water damage to the property, for example, or the tenant has, elected to, you know, never use the bathroom fan and never open the bathroom window and maybe in that sort of extreme situation has allowed mold to bloom. I would say far more often things fall somewhere in between and as I said before, that's where the dispute is gonna be. How do you, what is the cause of the mould when it's not entirely clear? That's the sort of the pointy end.

[00:06:47] Charlie Wilde: Okay, I'm gonna pick up on that with you a little later. 

[00:06:51] Ned Cooke: Hmm. 

[00:06:51] Charlie Wilde: Um, but first I suppose it's useful to name the elephant in the room and that is that some tenants are concerned that if they raise the issue of mould with their landlord, that their landlord will respond by either hiking up the rent, sending them a notice of termination, doing something like that. What could you say to tenants that are faced with that dilemma? 

[00:07:13] Ned Cooke: It's really common that tenants are reluctant to ask their landlords for repairs. Because they're worried about exactly that, you know, the landlord retaliating against them in some way with termination or a rent increase. That's a reasonable concern, I think, it's, it's something that we see happen, you know? Not uncommon. So yes, it's a reasonable concern. I would say there are some protections for tenants around those issues, which we'll probably touch on on later, but, I would say those protections are currently, I would say quite, inadequate. The starting point, another sort of way to approach this, I suppose is tenants have an obligation, to notify their landlord if the residential premises is in need of repair as well. So that's also something to bear in mind is, tenants might, you know, the concerns might be legitimate, but you would need to be cautious about, rather than the risk of provoking your landlord, you sort of keep your head down and don't report it, the issue gets worse and worse. And you may be in breach of your tenancy agreement if you have not reported a repair issue to your landlord. So that's something to be cautious of as well. 

[00:08:20] Charlie Wilde: Okay. That's, that's pretty good to know. If a tenant was in that situation and they did decide to raise the mould issue, which as you've indicated, it's one of their responsibilities, what would be the best way to raise that with a landlord? 

[00:08:34] Ned Cooke: So, so the best course of action is to, you know, as I say, notify landlord or real estate agent, if that's who you're dealing with, about the issue in writing is definitely the preference. If you can supply, you know, photographs, evidence at the time that you're reporting it as well. Um, that's very important. Maybe it's a good time to comment on the tone that you use when you're corresponding with your real estate agent or landlord. I think actually the starting point here should be trying to work with the landlord to get the issue resolved. The reason I say that is that it's, it is actually in everyone's interests that the issue be fixed. You know, it's the landlord's property. If you notify them and they can intervene early, once a mould issue is, ah, identified, it's very likely that that might save them, you know, much, much higher repair costs down the line for the landlord. And so that can be a useful sort of starting point is, you know, it's in everyone interest, the tenant doesn't wanna live in a, in a mouldy property. The landlord doesn't want to have their tenant living in a mouldy property and have their property being damaged by mould. And so let's work together to get this fixed that I think that it should be the initial approach. Of course every landlord and tenant relationship is, is different. There can be a really wide spectrum of how those relationships are. Some landlords are extremely generous and, and will go above and beyond for their tenants and other landlords unfortunately, would do whatever they can to avoid spending a cent and doing anything to repair the property.

[00:10:05] Charlie Wilde: Sure. 

[00:10:05] Ned Cooke: So what I said before is obviously qualified by it may not work. Your landlord might just not want to go down that path at all, but, but I do think it's important to take that approach at first, you know, let's, let's try and get this fixed. 

[00:10:17] Charlie Wilde: Okay. Good advice. And to have that conversation followed up with writing. 

[00:10:22] Ned Cooke: Absolutely. 

[00:10:22] Charlie Wilde: That's that's good advice too. Um, you mentioned photographs, is that the best way that tenants should be documenting the mould that they see in their home? Um, is there any other strategy that you recommend for that?

[00:10:36] Ned Cooke: Look, I think where there's a dispute about a tenancy issue, it almost always boils down to evidence. Photographs when, when you're talking about mold, photographs can be, are of course essential. They can be quite compelling. If you've got photographs of really, really bad mold issues that they can be really strong evidence. In fact it's useful to identify when they were taken, you know, time and date stamps, for example. Um, it's also important to, to have sort of context. Thinking about if you are sort of developing a case to go to the tribunal or something to think about a whole timeline, you know, here's the issue when it first developed. Here's when I notified my landlord and, and have copies of the correspondence where you've notified your landlord. Here's the issue developing and getting worse, for example, so kind of photographs mixed in with what you did and when, what your landlord response was, um, all those kind of things, sort of creating a full picture of, of the issue with all of the relevant evidence.

[00:11:31] Charlie Wilde: I was speaking to one of our advocates yesterday about this situation and she had a tenant who had the, the situation of cleaning the mould and the mould kept coming back and it kept coming back. No matter how much she ventilated, no matter how much she put bleach on the walls. So the way she handled that was taking photos of the wall after it had been cleaned, then a week later when the mould had started to come back to show that progression.

[00:11:57] Ned Cooke: Mm-hmm

[00:11:57] Charlie Wilde: It seems fairly onerous on a tenant to have to do, but would that be something that you'd advise?

[00:12:04] Ned Cooke: Um, look, I think , to the extent that that sort of diligence on a tenants' part is necessary, I suppose, really it is to do with again, identifying the cause of the issue. So, if your landlord's defense, you know, them saying they don't wanna deal with the mould, if that is because they think you know, well, you know, you just need to ventilate more or you have, you've done something wrong, whatever it is. If you've been doing everything that they say you should be doing and you can evidence that, then you can contradict their position. You can go in and say, well, you say I haven't been ventilating, but here's what I've been doing. Here's me cleaning. Here's what it looks like a week later, there's clearly a structural issue. There's clearly a defect. There's clearly something that you as a landlord will need to do now. If you're being diligent like that, I would say, make sure you document it and use it as evidence if you need to.

[00:12:58] Charlie Wilde: And what if a tenant goes to their landlord with that evidence and they still won't do anything about it, what can they do in that situation? 

[00:13:06] Ned Cooke: Yeah. Well, I guess we're now talking about taking sort of formal legal action. If you're presenting your landlord with evidence that there's a repair issue or a, a defect that they need to remedy and they're refusing, then that is when you would be talking about making application to the tribunal. In New South Wales when I say 'the tribunal', I'm talking about the New South Wales Civil and Administrative Tribunal, which is often called NCAT. The tribunal has the power to make orders, basically resolving disputes between landlords and tenants that could be orders about, I think we'll probably talk about this later as well, but orders about repairs, possibly about the rent being reduced and possibly compensation as well. 

[00:13:44] Charlie Wilde: Thanks, Ned. Um, in the chat, we have a comment from Lewis. Lewis says, I told the agent about black mould in my bedroom from water damage. They told me to scrub the walls and open all the windows. I did that, but the mould keeps coming back. I think we've just touched on this question, but would you like to address Lewis' question there? 

[00:14:03] Ned Cooke: Yeah, I mean, I think when you say water damage, that says to me a landlord issue, you know, I'm assuming that's, that's a leak of some kind I would be saying as far as responsibility goes, you could be putting all that back on the landlord and saying, well, you know, number one, someone needs to come and look at the cause of the issue. So if you're still seeing mould after a water damage issue, then has the issue really been fixed or is it still water sort of entering the property or moisture entering the property? So it's a repair issue there. And then there's a further repair issue which is to do with, fixing up the result of that water damage. So that might be, you know, is that area of wall contaminated? Does it need to be cleaned by someone with professional skills and the appropriate equipment? Does the plaster board need to be dried out using some kind of specialized equipment or something? Um, whatever it is, I think if it's not a matter of just, you know, wiping the walls down and walking away and it's all fine, then I think you would be going back to the landlord and saying, this is a major issue that I'm, it's not within my capacity or responsibility to fix. And starting there, you could, at that point, be asking for rent reduction as well. You could be asking to be compensated if you've had to buy specialist cleaning products or anything like that, you could be asking for that, for your landlord to cover those costs as well. And if they're just, if they're just flat out refusing, then yeah, a tribunal might be the, the next option.

[00:15:28] Charlie Wilde: Okay. And we will touch on the tribunal in a little 

[00:15:31] Ned Cooke: mm-hmm 

[00:15:31] Charlie Wilde: Thank you for that answer. We've also got a comment from Richard in the chat. Richard writes, when we moved into a home, there were no fly screens on the windows and no ceiling fans, we asked for them, but the landlord wouldn't provide them.

[00:15:46] Ned Cooke: Mm-hmm . 

[00:15:46] Charlie Wilde: Now we feel like we have to choose between mould or flies and mosquitoes because we can't properly ventilate. What can we do? 

[00:15:54] Ned Cooke: Okay. That's a good question. I guess I would start with, with what the landlords obligations are there. So under the Residential Tenancies Act and the agreement, they have to provide the premises to you in reasonable state of cleanliness and fit for habitation. The law has fairly recently been updated or amended to say what fit for habitation means. It includes that the premises must have adequate ventilation. So there's, you know, there's an obligation on the landlord to provide a premises with adequate ventilation. I suppose the, the challenge in your circumstances is, could the landlord be saying, well, you know, there, there are windows there's, there are windows that open on the property and therefore the property is adequately ventilated. And is it the case that adequate ventilation includes windows specifically with fly screens or that kind of, you know, something to prevent flies from entering the property? That's a difficult question. It's one that the tribunal would have to answer. Really you'd have to be sort of getting a formal decision about that. If you can't reach agreement with the landlord there. Uh, the, the only other thing I would say is, if you don't wanna go down the path of tribunal or if you did, and the tribunal said, well, there are windows, they open and it's adequately ventilated for the, for the purposes of the, the agreement, then there is an option, I suppose, of talking to your landlord about, will you allow me to put something in myself? You know, you'd be bearing the cost of that and having to remove them again at the end, but there is that option of talking to the landlord about at least allowing you to put some fly screens, if you think that's necessary. So not, not, not ideal. But that's, that's the best answer I can give. 

[00:17:35] Charlie Wilde: Sure. We're trying to work around in an imperfect system, aren't we? 

[00:17:38] Ned Cooke: Exactly. 

[00:17:41] Charlie Wilde: We've got another comment here from Bec. Bec says that, uh, Bec has a roof leak which has been causing mould. It's been looked at many times. The roof needs replacing, but a landlord won't because of expense. We've probably touched on this, but any comment for Bec on that one? 

[00:17:59] Ned Cooke: Bec again, it's gonna be, you'd likely to be tribunal here. I mean, Landlord clearly is responsible for carrying out the repairs if there's a roof roof leak, there's no defense for the landlord, if it's just too expensive or they can't afford it, I mean, they, they have to do it. They have to maintain the premises. You may be applying to the tribunal for repair orders again for rent reduction, compensation, potentially. I think when it's clear that the landlord is aware of the issue and failing to act with reasonable diligence, to, to repair it, I think you are very likely to be able to get your repair orders from the tribunal. Um, I suppose as we have spoken about before, there's always those, the sort of nasty underlying concerns that tenants have, that are very legitimate, about, what if there's some retaliation by the landlord and would I be looking at a rent increase or would I be looking at, you know, a termination notice down the track because the landlord doesn't wanna spend this money, a very real concern. But in terms of compelling the landlord to do the work. I think that it may be a matter of playing to the tribunal. 

[00:18:58] Charlie Wilde: Here's a bit of a curly one for you from Bec. Um, her landlord is living in a different state. Uh, does that mean that NCAT has no jurisdiction over that case? 

[00:19:09] Ned Cooke: It does actually. Because of a sort of unfortunate issue with the constitution of Australia, the tribunal doesn't actually have jurisdiction to decide matters between residents of different states. I would suggest that you get some legal advice about what to do, how to sort of continue with taking action. It may be a matter of applying to the tribunal and having the matter, just removed to a different jurisdiction like the local court, which would be able to decide and apply the same law. But I would suggest you get some legal advice about that if necessary. There's also quite, I think, quite reasonable information on the tribunal's website about those issues so you could start there too. And I think the tenants union probably has a fact sheet about that. 

[00:19:52] Charlie Wilde: Sure. And we are getting a few questions through about rent reduction, compensation, things like that. I'm conscious of the time. So I'm gonna create a situation. Say if a tenant's living in a three bedroom home, one of those bedrooms is covered in mould and really can't be used for health reasons. Can they get a rent reduction in that situation because they can't use one bedroom? 

[00:20:14] Ned Cooke: Yes. Short answer is yes. You can always reach an agreement with your landlord to reduce the rent. Never hurts to start there rather than jumping straight to the tribunal. So I would start by appealing to your landlord's kind of reasonableness and saying, look, this bedroom's out of action and, and ask for a rent reduction. In terms of the amount you would ask for, I suppose there's no formula for it exactly, but if you're talking about a three bedroom house, one bedroom out of action. I would say maybe 25% rent reduction would be probably ambitious, but worth it as a starting point. The reason I say it's ambitious is, you know, you've got, well, you've got the two other bedrooms. You've got the kitchen, bathroom, dining room. Um, potentially. So if you are looking at the property as a whole, you know, what is, what percentage of the rent is one bedroom worth? It's up to you to sort of put a number on that, to start with and, and, and see where you get to. If your landlord refuses, then you could apply to the tribunal. Under the Residential Tenancies Act the tribunal can award rent reduction. The section you apply under is, section 44, 1 B of the Residential Tenancies Act. The tribunal can make an order that the rent is excessive because the landlord has, I guess, withdrawn part of the premises that you are supposed to be provided under the tenancy agreement. The tribunal can award a rent reduction actually sort of can back date, you know, back date, a rent reduction to when the issue emerged and that order can also have effect for a period of up to 12 months. So you can go to the tribunal for quite long sort of significant periods of rent reduction. The only thing I would say that's really important to be mindful of is you do have to make that application before your tenancy comes to an end. Often these issues sort of come to a head around the end of the tenancy. I would say to, to any tenant, really very important to get an application for rent reduction in before, before you vacate the premises.

[00:22:03] Charlie Wilde: Fantastic. And we will include a link to our sample letter to apply for a rent reduction. That's the initial application that you'd sent through to your landlord or real estate agent. Let's deal with compensation. Say a tenant has a situation in which they have mould in their closet and they find that a lot of their clothes and shoes are mould affected and have to be thrown away. Can they then apply for compensation for those goods that have been damaged by mould?

[00:22:34] Ned Cooke: Yes. Of course you can apply for compensation. Many of the issues we've already talked about are gonna be right at the center of any claim that you make for compensation. So first of all, you know, what is the cause of the mould? Is it something that the landlord is responsible for? You know, is it a repair issue or, or, a sort of a defect in the building or a habitability issue or ventilation issue, for example? If you can show that the cause of the mold is selling within the landlord's control, then you would be applying for compensation and arguing that correct result of the landlord, failing to remedy that issue, um, you've suffered some, some loss, some financial losses, like in this instance that you've given, might be the cost of replacing items. It might be the cost of cleaning items. For example, you know, if something's damaged by mold, you may be able to get professionally cleaned and, you know, claim that, put the receipt in and, and get us the tribunal to award compensation for that. Another important element here or issue is, is the, the issue of mitigation. So the landlord may come back, you know, if you're talking about a, a wardrobe full of mouldy clothes, a landlord may come back and say, well, what did you do to prevent yourself from suffering that loss? And, as far as the tribunals concerned that, so that's an issue the tribunal will consider is did the person who's saying they suffered loss here do what they could to limit that to, to make sure it wasn't to make sure that they weren't suffering loss unnecessarily. So if you were to notice that things are going mouldy in your wardrobe, and then did nothing about it left the wardrobe sort of as is, and then a few months later, you know, back into the wardrobe and find that everything in there is mouldy and destroyed, the landlord could, could raise that as an issue to defend themselves to say they're not liable because something could have been done early to prevent that loss from being suffered and they're therefore could say they're not responsible. 

[00:24:29] Charlie Wilde: On that subject of compensation, mould can cause a lot of health issues for people, as we know, could the landlord be held responsible for medical expenses that people might incur as a result of having to live in a mouldy home?

[00:24:44] Ned Cooke: Well, I, I would say yes, but I would say also that is kind of a, really a separate issue from what I'm here to talk about. The reason is that if you're talking about health issues and, you know, seeking compensation from someone for what you're saying, you know, injury suffered, for example, I think it's really important to be seeking separate legal advice about that issue from someone who specializes in personal injury law, because different law applies to, to tenancy, the fact that they're your landlord may mean they do have some responsibility towards you, but I think you would need separate advice about how and what to claim for personal injury like that.

[00:25:22] Charlie Wilde: Okay. Good to know. 

[00:25:24] Ned Cooke: Just, just before we go on there, there's one other thing here that, that I think we haven't mentioned that sort of nestles in with personal injury a little bit, talking about claiming for loss, lost items, you know, compensation. There is another kind of compensation you can apply for to the tribunal, which is compensation for lost enjoyment of the property sometimes called 'non-economic loss.' That is, sort of stands separately from a rent reduction and a claim for expenses you've suffered because of a mould issue. The reason is that your tenancy agreement has a term in it that says you are entitled to enjoy your property and your landlord's not to interfere with your peace, comfort, and privacy, if they do, if they have failed to carry out a repair, that means, that means you are not able to enjoy your property. Then there could be a claim for compensation there because they breached their agreement. You're not getting the enjoyment that you are entitled to. That kind of claim can be made on top of these other types of claims. The reason I I've mentioned it alongside personal injury is that it's very important to keep that kind of claim separate from claims about injury or illness because the tribunal basically can't award compensation of that kind. If it's on the basis of a personal injury claim. So, you would be giving evidence of the discomfort that you have suffered the, um, the inconvenience of cleaning, the stress of having to deal with it, all, all those kind of things, but staying away from health issues and, and, and also staying away from, from potential mental health impacts like depression, anxiety, because all those things fall under the umbrella of personal injury and, and, and the tribunal won't be able to award that type of compensation. 

[00:27:02] Charlie Wilde: Wow. Okay. Really good point and glad that you brought that up. 

[00:27:06] Ned Cooke: One more thing on compensation. 

[00:27:07] Charlie Wilde: Yeah. Go for it. 

[00:27:08] Ned Cooke: Very important. There's a three month time limit to apply for compensation, which is really short. And a lot of people do get caught out thinking they'll deal with that issue later. Three month time limit to apply to the tribunal if you wanna claim compensation, just put that out there. 

[00:27:21] Charlie Wilde: Okay, perfect. In the chat, we have a comment from Amy. Amy was asked to pay half of the cost of cleaning the mould, but she thinks the mould was there prior. And she's now found photos from six years ago, showing the same signs of mould in the property. Would those photos be considered by the tribunal? 

[00:27:40] Ned Cooke: Um, It's a tricky question, I suppose, you know, classic lawyer, my first instinct to say it depends. I guess the more useful thing is what does it depend on? I guess it depends on exactly what those photographs show, and where they've come from and those kind of things. But I think they would be relevant if you were trying to show there's a structural issue. It's not, it's not you failing to clean or something like that. There's mould in the property, there always has been, um, very useful if you have the person who took those photos to come and speak about that as well, they could come and give evidence to support you too.

[00:28:17] Charlie Wilde: Okay. And in that case, is expert evidence important in a mould case in the tribunal? 

[00:28:23] Ned Cooke: I think it absolutely could be. Ultimately, maybe it could potentially be the only way to identify responsibility when it's really not clear. I guess the only thing I'd say about expert evidence is the tribunal's a, is what's called a 'no costs' jurisdiction. And so if you're running a tribunal matter and, and incurring costs to do that, whether it's paying for an expert report or, or anything like that, then even if you win your matter, you're unlikely to have the tribunal award, those costs to you because, because everyone basically, bears their own costs of running their matters. So I suppose it may be the only way to prove your case. It may be, you have to, I suppose, take the risk of, of incurring that cost to get that evidence. 

[00:29:05] Charlie Wilde: Would they be able to reclaim the cost of a report like that from the landlord? 

[00:29:10] Ned Cooke: Well, I think, I think that's the best answer I can give is, is through the tribunal, possibly not, you know, depending on, depending on context, but yeah, possibly not.

[00:29:21] Charlie Wilde: Okay. Um, just a few more questions and then I'll let you get back to helping tenants. I had a question about, health. A lot of people have family members who have health problems that get worse when they're exposed to mould. In that situation can tenants break a lease without penalty? If the home itself is putting their health or the health of their family at risk? 

[00:29:44] Ned Cooke: There are ways to leave your tenancy without penalty. I guess, just to quickly go through what those are, if you're in a periodic lease, you know, if your fixed term has ended, then it's fairly straightforward. You can just issue a termination notice to your landlord and, and vacate. If you are in the fixed term, it's obviously that's, that's when the issue of leaving without penalty is a real one. I would say the starting point, you can, your landlord can, your tenancy can, can end by consent without any penalty. So if you and your landlord are sort of in dispute about this, it's possible that you can say, well, what about the option of me just leaving? If your landlord agrees to that and it's not in the context of you breaking the lease, then you can actually leave without penalty. That would be, it's actually quite useful to know that, you know, you can just discuss it with your landlord. If they don't, if they are refusing to allow you to leave, then you are on the path of choosing between breaking your lease and incurring a break fee, which the amount of the fee depends on which quarter of the tenancy you're in, in the first quarter, it's a four week break fee in the last quarter it's a one week break fee. If you're right, if you're towards the end of the tendency, it can actually be the best, economically the best decision just to break your lease rather than sort of pursue other options to terminate. If you're right at the start of the tenancy and really don't wanna sort of wear a four week break fee, then the only other option is to either issue a termination notice to the landlord or to apply to the tribunal for termination orders. Both of those on the basis that your landlord's in breach of the tenancy agreement. I think a lot of what we talked about will come to a head if you do either of those things, you know, is your landlord in breach? What is the cause of the mould? Who is responsible? Is obviously front and center there. You also have to wait, especially if you're going through the tribunal. Wait for a tribunal matter to progress and remain in the property and keep paying rent while the tribunal makes a decision about whether determine terminate the tenancy, for example. So again, if you're stuck in those situations, I would start by doing research, you know, looking at resources on the Tenants' Union website, for example, and seek some legal advice.

[00:31:48] Charlie Wilde: Right. And, obviously in a short session like this, we can't get to all of the factors of mould that you have to think about. We do have some excellent resources in the chat from tenants.org.au, which are really useful, I'd encourage people to go there and do some research on mould itself. And if tenants feel that they need to speak to someone further about their situation to find their local tenants advice and advocacy service and speak to someone for help. So we've talked about what individual renters can do in this situation, if they have mould in their homes. But let's talk about the bigger picture of mould for minute. What are the barriers that are still there for tenants in this situation in getting help for their mould problem? 

[00:32:34] Ned Cooke: Yeah. I mean, I think this is, the big ones that we've touched on already are tenants in fear of the landlord taking some retaliation against them if they raise this issue. So essentially how that often boils down is, tenants are concerned that if they agitate for a repair for their landlord to do some repair, especially if it looks like it's gonna be a costly one like the question asked before with a roof that the landlord just doesn't wanna pay for. I guess the legitimate concern there is that they'll ask the landlord to repair it, the landlord instead of refusing or sitting through a tribunal process might just say, issue a termination notice. And basically try and find a tenant, who's willing to put up with this, you know, that is, that is the risk that the tenants face and the, the core of the real, the central issue there, is that tenants in New South Wales are vulnerable to what's called 'no grounds' termination notices. So your landlord at the end of a fixed term can terminate your agreement without you know, about any reason, just because it's the end of the fixed term. And if your fixed term has expired and you're just continuing in the property on what's called a periodic lease, then your landlord can issue what a 90 day termination notice again on no grounds and there's really no defense, there's no opportunity to ask the tribunal not to terminate your tenancy, to say, well, I've been a good tenant. I paid my rent. The landlord has no reason to evict me. I just wanna stay. There's no chance to really make that kind of submission to the tribunal. If it comes down to it, the tribunal has to terminate on a, on a no grounds notice if it's a valid notice. The very slim protections that do exist, around retaliatory termination notices, so in the Residential Tenancies Act, if you receive a notice and you believe it's retaliatory, you can apply to the tribunal to have that notice revoked. What you have to show though, is the landlord's motivation that the landlord was wholly or partly motivated to issue the notice because you'd taken some steps to enforce a right, that you have it as a tenant usually, and proving someone's motivation, that sort of state of mind can be very difficult in the tribunal. Sometimes landlords are foolish enough to say, write an email saying, I'm evicting you because you've taken me to the tribunal or something like that far more often it's a little while later, there's a notice of termination because, you know, we just want the property back and establishing that motivation can be extremely hard. Even if you can, there's nothing to stop the landlord from issuing another notice down the track. 

[00:35:03] Charlie Wilde: So ending no grounds. I understand that work's also being done to prioritize a safe living environment for tenants, to raise those standards of rental properties throughout the state and allow tenants to live in a safe home .

[00:35:16] Ned Cooke: Yeah, that's right. I think it's positive that, that the Act now contains a series of definitions about what fit for habitation means. But I suppose when we discussed earlier, you know, what does that really mean? It's still, it still really involves people being in dispute about what, what those things mean. Like is this property adequately ventilated or not? It still puts tenants in a position where they're likely to be in the tribunal fighting about what those things mean. And so, and so having something that takes some of the responsibility away from individual tenants to enforce those rights and, and instead have a pretty clear standard, set of standards, that are enforceable independently would be a very good start. 

[00:35:56] Charlie Wilde: Thanks, Ned. If you're viewing this Q & A, and you'd like to be involved in pushing for those reforms, we'd like to invite you to work along with the Make Renting Fair campaign, to fight for healthy homes for all tenants in New South Wales. To do that you can go along to www.renting fair.org.au. There'll be petitions there and an option to connect to the campaign, get updates, that kind of thing. That'll be in the chat. So Ned, we're towards the end, do you have any parting words of advice for tenants in mouldy homes? 

[00:36:32] Ned Cooke: Oh, um, I think I would just reiterate, evidence, evidence, evidence, if there's any chance that you're gonna be in dispute with your landlord, then I would be really, really diligent about documenting what's going on because if you end up in the tribunal, that's what the tribunal looks at. Reiterating, photographs, correspondence in writing. If you have a phone call with a, with a real estate agent and they say something, then follow it up with an email saying you told me this on the phone. And so you have basically a really clear documentary path showing everything that's happened around this issue, is, is what I would say. Yeah, that's, that's, that's my bit of advice. 

[00:37:08] Charlie Wilde: That's it in a nutshell. 

[00:37:09] Ned Cooke: Yeah. 

[00:37:10] Charlie Wilde: Yeah. Well, thank you so much, Ned for coming along and sharing some of that advice. 

[00:37:13] Ned Cooke: It's a pleasure. 

[00:37:14] Charlie Wilde: Yeah. Really, really appreciate it. Thank you for joining us on this Q & A and as I say, check out some of those resources, check out rentingfair.org.au, and hopefully we'll have more of these sessions in the future. 

[00:37:29] Ned Cooke: Thank you very much. 

[00:37:30] Charlie Wilde: Thanks.