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Mould infested property… What are your rights?

There are various protections afforded to tenants when it comes to rentals.

The Residential Tenancies Act provides, amongst other things, that a rented premise must be ‘maintained in good repair’.

Mould can cause significant health issues and may even make the property unfit to live in. But, who is responsible for the mould? What do you do if you are a tenant that faces this type of issue? Or, if you are a landlord, what happens if your tenant approaches you with this issue?

Whose responsibility is it to treat mould?

Questions to ask:

  • How has the mould arisen?
  • Has it arisen from the tenant’s failure to ensure that care was taken to avoid damaging the premises?
  • Has the landlord breached its duty to maintain the rented premises in good repair?

Whether it is the landlord’s or tenant’s obligation to treat the mould, comes down to the circumstances in which the mould has arisen.

Whilst, ordinarily, the responsibility to treat mould would fall with the landlord, there are some circumstances where the tenant may be liable. For example, it may be that a tenant is obligated to remedy mould in circumstances where the tenant has failed to use a ventilation fan when using the bathroom.

In some circumstances, there may also be an obligation on the owners corporation to remedy the mould where, for example, the mould has arisen as a consequence of a water leak within the common property.

What should a tenant do?

Where the premises are infested with mould, a tenant should immediately give notice to the landlord (pursuant to the Act) of the requirement to remedy the mould as, the premises are not in good repair.

What are the landlord’s obligations?

If a landlord is served with notice, the landlord must immediately take steps to remove the mould.

A landlord takes the risk that, if the mould is not remedied and the premises are not in good repair:

  • the tenant may give notice to the landlord to terminate the Residential Tenancy Agreement with immediate effect;
  • the tenant may seek compensation for any loss and damage suffered.

In the event that the landlord is of the view that the tenant has failed to ensure that care was taken to avoid damaging the premises, the landlord should immediately serve a notice (pursuant to the Act) setting out the circumstances.

Disputes

Where a landlord and tenant are in dispute about a rental property including in relation to mould, either party may make application to the Victorian Civil and Administrative Tribunal who has jurisdiction to hear most disputes arising from a rental property.

What can we learn from this?

  1. The landlord must ensure that it does not breach its duty to maintain the rented premises in good repair.
  2. The tenant must ensure that it does not contribute to the rented premises not being in good repair for failure to put measures in place for example, ventilation ducts to mitigate any damage caused by mould.
  3. Each party must comply with their obligations pursuant to the Act and the Residential Tenancy Agreement. Where appropriate, they should treat and remove mould in a timely manner so as to avoid further damage.
  4. If in doubt about which party is responsible for the remediation works, seek legal advice or an expert report.
  5. In the event that you are served with a notice, deal with the notice in a timely manner. Seek legal advice if you are unsure.
  6. Where a leased premises forms part of an owners corporation and it is possible that the damage may be caused by the owners corporation, they should be contacted immediately. If unsure, seek legal advice.

If you require legal advice in relation to your rights and obligations pursuant to a Residential Tenancies Agreement or otherwise, please contact Our property & development team.

Contacts

Kristy Muhlhan

Principal

Kristy Muhlhan

Principal
LL.B (Hons) GRAD DIP. L.P., GAICD.
Since 2014, she has been an owner and Principal of the firm and has mastered a broad range of essential commercial and business skills which go hand in hand with the work she does for...

Stewart Davis

Associate

Stewart Davis

Associate
LL.B (Hons) B.Com
As well as property law, Stewart has had exposure to VCAT administration matters and commercial law, particularly servicing developer clients.

George Hanger

Associate

George Hanger

Associate
LL.B BA
George was admitted to legal practice in May 2015 after completing a Bachelor of Arts at the University of Melbourne and a Bachelor of Laws at Monash University.

Emma Dickens

Paralegal

Emma Dickens

Paralegal
Emma previously completed a Bachelor of Legal and Dispute studies at RMIT University in 2015.

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