NSW Mould in brand new rental property unit: who is responsible? Builder, landlord, or tenant?

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25 October 2020
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I have a brand new apartment unit that is currently tenanted. During this year’s winter (the first winter that the apartment has experienced), the tenants raised a complain to the property manager about moulds developing inside the unit.

The property manager organised two separate inspections from mould specialists.

The first inspection didn’t say anything specific about any water ingress or structural damage, but stated that one of the conditions for their one-year guarantee for the cleaning is that the water ingress is fixed.

The second inspection went further with infrared cameras and found no water ingress in the unit.

The inspections then suggested cleaning, as well as installation of an additional dehumidifier, even though there is already a built-in air conditioner with dehumidifier function.

Some other apartments in the building also have moulding issues, but they found water ingress in those units.

When the mould issues started to happen in the building, the strata management issued “maintenance tips” on how to alleviate condensation to prevent mould, saying that new buildings are more sealed off to achieve energy efficiency and therefore are more prone to condensation, and consequently, mould.

The property manager (which I believe just wants to get this issue over and done with) kept quoting the “urgent repair” clause as my responsibility, and told me that some apartments “are just like that” and that I have to pay for everything.

I said to them that I believe this is not my legal responsibility, as no defects were found, structural or otherwise, which means that no urgent repair is required, and a built-in air conditioner with dehumidifier function is available for the tenant to use.

My questions are:
  1. Is it my legal responsibility to pay for the mould cleaning? And an additional dehumidifier?
  2. If yes, then since this is a brand new apartment building, is it safe to conclude that this ultimately becomes the builder’s responsibility to rectify the situation and pay for the damages, since the apartment unit was not made suitable for habitation?
  3. I strongly feel that the responsibility could lie on the tenant as they might have inadvertently “misused” the apartment unit. Ideally we all should have been told by the builder about the potential condensation issues of new apartment buildings, but is it really their legal responsibility to provide us with “instruction manual” on how to operate the apartment units? Or is the fact that the unit apartment comes with a built-in air conditioner with dehumidifier function a good enough legal cover for them, as the air conditioner acts as an implicit notice that condensation might and/or will occur?

Thank you so much in advance for your kind help. Any further pointers are also much appreciated.
 

Rod

Lawyer
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27 May 2014
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Mould issues are bad news and can be hard to determine the cause, whether its the design, a fault or just normal everyday use can be hard to tell.

You need a building expert report.

If the apartment needs to be dehumidified on a regular basis because of design build a clause into your lease and have some way of monitoring aircon use.

Showers, cooking, and especially clothes dryers should have suitable extraction fans.

Also consider selling.