When torrential rain hit Sydney in March, Sam* soon noticed a leak in his family home. Litres of water came through the roof in one bedroom, causing mould to develop and mushrooms to sprout from the ceiling. Sam and his mother contacted their real estate agent, who took six weeks to respond before sending out a roofer who told them it was too wet to do any work and left.
It wasn’t until a family member, who is a lawyer, wrote their agent a formal letter that anything happened: they were granted a one-off rent reduction of $960 for their three-bedroom home, the equivalent of nine days’ amnesty from rent.
“We just got this sort of arbitrary number,” Sam says. “Which, in the grand scheme of things, is not really sufficient. But I guess it was some sort of small victory.”
But that wasn’t the end of the matter. Four months later, Sam says, the leak in their roof still has not been fixed. They haven’t received any further reductions, and have recently been informed their rent is being hiked up by $100 a week.
“So not only have they spent months not fixing it and only giving us a small rent reduction, they are now clawing that back in a rent increase,” Sam says.
“In hindsight, I think we should have been a lot more aggressive in threatening to go to Ncat [the NSW Civil and Administrative Tribunal] and developing some sort of case. But when you’re working full-time, trying to develop a case for Ncat is a lot of work.”
Unfortunately, Sam’s is one of the better outcomes Guardian Australia heard while researching this story. Even tenant advocacy groups along Australia’s La Niña-hit east coast concede getting action on mould from a landlord or agent can be difficult.
“I asked [one of our] law workers if he’s got anyone who has successfully negotiated a rent reduction, and he said no,” says Penny Carr, CEO of Tenants Queensland. “It’s just really complicated with mould.”
So what are your rights when it comes to mould – and how can you actually enforce them? Here’s a quick guide for renters in NSW, Queensland and Victoria.
I’ve spotted mould, what do I do?
The first step is always contacting your landlord or real estate agent, Carr says.
Whatever part of the country you’re in, as with most rental disputes, your best bet is to create a paper trail.
“Keep evidence and document things. So get photos, keep dates, tell the owner or agent what’s going on,” says Carr. Calling your real estate agent is fine, “but always follow up with something in writing”.
Ned Cooke, a solicitor from the Tenants’ Advice and Advocacy Service at Sydney’s Redfern Legal Centre, agrees. “The key to all of these things is your landlord being on notice or aware of the issue.”
If your landlord or agent fails to act, you can escalate to your state’s civil and administrative tribunal with as much evidence as you can muster.
Mould has ruined my stuff! Am I eligible for compensation?
Theoretically, yes. With some caveats.
In NSW and Queensland, you must be able to prove the cause of the mould is a problem with the property – for instance, a leak, like Sam’s, that has not been fixed despite being reported by the tenant.
If the dispute reaches a tribunal and the mould is deemed the landlord’s fault, you could ask for compensation for the value of items damaged in your home or the cost of having them cleaned. In NSW, you can also claim compensation for general loss of enjoyment to the property, which is paid on top of any claim for damaged possessions. But proving your case is rarely easy.
“Mould is a really difficult issue because it comes down to causation,” says Carr. “And sometimes it’s hard to understand or to know for sure what’s caused the mould.”
“If you take that complexity out for a second, it’s like any repair. If the issue has been caused by the owner, directly or indirectly – so that could be it’s been poorly built or poorly repaired or maintained, and that’s caused mould – then that is an issue for the owner.
“You could substitute, in that scenario, the word mould for a working oven. The problem is it’s really clear when the oven doesn’t work … it can be much more difficult to work out why mould is happening.”
So how do I prove cause?
If the mould is down to recent weather, it is unlikely to be deemed the landlord’s fault. Even when mould is a longstanding issue, determining its cause could still be tricky.
“A very typical situation would be a tenant complaining about mould and their landlord saying, ‘Well, it’s a ventilation issue – you guys aren’t using the bathroom fan, you’re not opening the windows’,” says Cooke.
If you’re after compensation in either NSW or Queensland, you must also show that you took reasonable steps to limit the amount of loss that you suffered – for instance, you didn’t leave a laptop in a place with a known leak.
If your landlord doesn’t immediately agree to compensation, you can ask them to arrange for an expert inspection and written report to determine what caused the mould. Of course, your landlord might refuse this request.
In NSW, Cooke says, “if it really turns into a fight, then it might be a matter of getting … Fair Trading to send an inspector out to the property”.
In Victoria, tenants seeking compensation must also prove cause – though that process should be easier than in NSW or Queensland. Recent changes to rental laws state that if ordinary use of a building is causing mould, the landlord is responsible.
“Unless the rental provider can say that the renter is using [the property] in some extraordinary way that would amount to a breach of the renter’s duty not to cause damage, I think that the compensation position would be there,” says Ben Cording, a lawyer with Tenants Victoria.
Renters in Victoria who are dealing with mould can apply to the Victorian Civil and Administrative Tribunal for a hearing that must, by law, happen within two business days. “And you’ll usually come out pretty quickly with an order saying it’s got to be fixed,” says Cording.
But to be awarded compensation, your landlord must have been notified and given adequate time to fix the problem.
“It might be slightly different in a situation where the renter didn’t know anything, then pulls back the mattress and goes, ‘oh, there’s mould there’,” says Cording. “The Tribunal is a bit reluctant [to award compensation] in those sorts of situations.”
Part of my house is too mouldy to use. Can I get a rent reduction?
Yes – in NSW and Queensland.
“That’s one of the big remedies,” says Cooke. “If you’ve got any aspect or feature of your property that you can’t use because the landlord has failed to do some necessary work, then you could be asking for a rent reduction. If the landlord won’t give you one, you could apply to the tribunal.”
You’ll want to put “a reasonable figure” on what percentage of your rent would be appropriate. “So a cupboard might be a reasonably small reduction, but the loss of a whole bedroom can be quite a significant reduction, depending on the overall property,” Cooke says.
It’s a similar story if part of your home has flooded. “You’re not probably going to get compensated for the goods that you’ve lost because it was an act of nature, unless the owner’s done something to contribute to that,” Carr says (again, that could mean not fixing a leak that exacerbated your flood damage).
But if you can’t use the whole property while repairs are under way, it might be possible to get a rent reduction.
In Victoria, Cording advises going for compensation over a rent reduction.
“The tribunal prefers the losses to become crystallised. So you can say, ‘I reported it on this day, I wasn’t able to use the cupboard until this day,’ and you get compensation for use of the cupboard for that period of time,” he says.
Could I be evicted for asking about mould?
Unfortunately, some renters may find their landlord would rather give them the boot than deal with the problem.
In NSW, tenants who are no longer in a fixed term lease – for instance, those who are past their initial one-year lease period – are vulnerable to what’s called a no grounds termination notice, in which the landlord can evict them without having to give a reason.
There are similar laws, called without grounds notices, in Queensland. Other factors exacerbate the situation there.
“The bigger overlay at the moment for renters is that they’re in an extremely tight market, so they don’t want to put their head up,” says Carr. “And in Queensland, we tend to have shorter tent fixed term agreements – six months [is common].”
In Victoria, the situation is better – but still not perfect.
“Within the bundle of rights that came through last year, they also got rid of what’s called a no reason notice to vacate. So they can’t kick you out for no reason any more,” Cording says.
Renters could still be evicted with 90 days’ notice before the end of their fixed term agreement. However, landlords must disclose to potential tenants if anyone has complained about mould in the past three years – meaning they have incentive to actually fix the problem.
On Australia’s soggy east coast, that’s about as good as it gets.
*Name has been changed