Mould

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As a tenant you have rights under the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2019. This factsheet discusses mould in rented premises.

About mould

Moulds are fungi that need moisture and organic material to grow. When disturbed or dried out, they release spores that can cause illness in some people. They may also cause structural damage if left untreated.

Mould can cause a state of disrepair at rented premises. This can be the result of a breach of the residential tenancy agreement by the landlord or the tenant (e.g. the landlord fails to attend to dampness or the tenant fails to ventilate the premises).

Rights and obligations

You must:

keep the premises ‘reasonably’ clean
tell the landlord about any damage to the premises as soon as possible
take reasonable steps to mitigate (limit or avoid) loss

The landlord must:

provide the premises reasonably clean and comply with minimum standards to be “fit for habitation”, including having adequate ventilation, plumbing and drainage
ensure that the premises are structurally sound, such that floors, ceilings, walls and supporting structures are not subject to significant dampness; and that roof, ceilings and windows do not allow water penetration into the premises
keep the premises in ‘reasonable’ repair (except where the disrepair is caused by the tenant breaching the tenancy agreement)
mitigate loss

The condition report

At the start of the tenancy, the landlord/agent must note on the condition report if there are any signs of mould and dampness. (Whether or not they note the presence of mould/dampness, they cannot avoid the obligation to keep the premises in reasonable repair during the tenancy.)

You can add your own comments relating to mould or dampness under ‘Additional comments on health issues’.

Mitigation of loss

Examples of mitigation of loss include:

a tenant avoiding damage to their clothes by removing them from a built-in wardrobe where mould is growing
a landlord promptly fixing damage to a bathroom wall before mould growth can set in (whether or not the tenant caused the damage)

Decide what to do

You may want to:

stay at the rented premises and have them repaired – see below
end your tenancy and leave – see Factsheet 09: You want to leave for how to end your tenancy agreement. If you are in a fixed-term tenancy, see Factsheet 16: Ending fixed-term tenancy early

If you want to stay

Tell the landlord/agent that they need to arrange for repairs. Write them a letter telling them what needs fixing and by when. Give a clear deadline. Keep a copy of the letter and a record of any conversations as evidence that you have notified them. Also see Factsheet 06: Repairs and maintenance.

If the landlord does not promptly arrange for repairs, you can apply to the NSW Civil and Administrative Tribunal (NCAT) for orders (see below).

If you are going to move out temporarily while repairs are done, make a clear agreement in writing about:

rent reduction (see Sample letter: Rent reduction)
how long you will be away
who will be responsible for goods at the premises or how your goods will be stored.

Applying to the NSW Civil and Administrative Tribunal for orders

You can apply for one or more of the following orders:

that the landlord do the repairs you have specified – apply within 3 months of the landlord failing to do repairs by your deadline
that the rent is reduced from when you told the landlord/agent about the need for the repairs until repairs are done – apply at any time before the end of the tenancy
that the landlord compensate you for losses you suffered because they did not do the repairs – apply within 3 months of the landlord failing to do repairs by your deadline
that all or part of the rent is paid to the Tribunal until the repairs are done

People who are not named on the tenancy agreement as tenants (e.g. children) cannot apply to the Tribunal.

See Factsheet 11: NSW Civil and Administrative Tribunal and contact your local Tenants’ Advice and Advocacy Service for advice about applying.

Applying for an order for repairs

You must be able to show that:

the premises are not in ‘reasonable’ repair and/or the premises do not reach the minimum standards to be ‘fit for habitation’
it is not your fault
the landlord/agent knew about the need for repairs
you told them about it (e.g. you wrote them a letter), or
they ought reasonably to have known about it (e.g. they inspected the premises)
the landlord/agent did not get the repairs done in a reasonable time

Applying for a rent reduction

The Tribunal may make an order that the rent is or was excessive due to a reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises (e.g. a room becomes unusable due to mould growth).

If the Tribunal finds that the rent is excessive, it will make an excessive rent order. It will specify:

the amount that the rent must not exceed
the day from which this maximum rent applies – for a period of up to of 12 months

See Factsheet 04: Rent increases for how to prepare an excessive rent case, and our Rent Increase Negotiation Kit.

Applying for compensation

You can apply for order/s that the landlord compensate you for economic loss such as destruction of or damage to your belongings.

You may also apply for an order that the landlord compensate you for loss of enjoyment of premises you have suffered. Discuss your case with your local Tenants’ Advice and Advocacy Service first.

You must be able to show that your loss was caused by the landlord’s failure to do repairs. The Tribunal may not order compensation if you have not mitigated your losses.

Evidence

You must back up your claims with evidence. This may include expert reports on the presence of mould in the premises (e.g. from a scientist, council building/health inspector, builder). Such reports can be costly so you may need to rely on other evidence.

The condition report is important evidence of the state of the place at the start of the tenancy. Other evidence may include:

your tenancy agreement
correspondence with the landlord/agent
photos and drawings of the premises
samples of the mould (safely gathered and contained)
receipts for expenses
printed materials (such as factsheets) about mould and its effects.

Outcomes of Tribunal cases

In Bunbury v Fletcher [2015] NSWCATAP 194 (9/9/15) the Tribunal found that the landlord had breached the obligation to maintain the premises in reasonable condition. The Tribunal ordered 25% rent reduction and $15,000 compensation to the tenants for their losses. Including the cost of expert evidence, the tenants’ losses were greater than $15,000.

In Bannister v Cheung [2014] NSWCATCD 105 (19/6/14) the Tribunal found that the landlord had breached the obligation to repair, but not the obligation to provide habitable premises. Compensation of $480 to the tenants was ordered. The tenants had claimed more than $13,000. The Tribunal gave no weight to evidence of (mould) inspection by unqualified witnesses. The Tribunal found that the tenants had not mitigated their loss and were not entitled to further compensation.

Personal injury

If someone in your household has been made ill by mould, seek medical advice. Consult a solicitor or your local Community Legal Centre about whether to take legal action.

The NSW Civil and Administrative Tribunal is not the best place to take a personal injury claim – the maximum compensation it can order is $15,000.

Online survey

➤ Measuring dampness and mould exposure in Australian homes

Starting in June 2022, this survey is being conducted by researchers from the University of Melbourne. It takes approximately 15 minutes to complete online. There is an option at the end to provide your contact details if you would like to opt-in to the other parts of the study, including indoor mould measurement and informal interview. If your home is selected for DNA-based mould measurement, a researcher will visit to take vacuum samples. At the end of the project you will receive a HERTSMI-2 report on levels of 5 different mould species found in your home.