I contacted the Tenants Union NSW for definitive answer (because they actually KNOW about this stuff, whereas I just have an opinion) and this was their legal advisor’s response:
We would say the Act is clear that the landlord has, under s52(1) of the Act, or clause an obligation to provide the premises in a reasonable state of cleanliness. This would relate to both the grease and the mould.
Further, under s63(1), the landlord has an obligation to provide and maintain the premises in a reasonable state of repair. This could relate to the cause of the mould.
For ease of reference, those two sections of the Act are clauses 18.1 and 18.3 in the standard form tenancy agreement. The words used are slightly different, but in a dispute the words of the Act are the ones to rely on.
Mould is a contentious issue- it can caused by a landlord’s breach, by failing to repair a cause of dampness, or having inadequate ventilation in a room. It can also be a tenant’s breach by failing to ventilate properly. At the beginning of a tenancy however, it would be impossible to argue it is anything but the landlord’s responsiblity.
The tenant should ensure they note the grease and mould on the condition report. Their responsibility is to return the premises in a reasonable state of cleanliness- with regard to the condition of the premises at the start of the tenancy. In this case, that does mean that their obligation to maintain does not extend to the tenant cleaning the pre-existing grease and mould.
In order to start the breach process, the tenant needs to notify the landlord of the breach and give them opportunity to rectify. The notification can be verbal or in writing, but to ensure a tenant has good evidence if it does proceed to the Tribunal we would recommend a notification of the breach be put in writing to the landlord.
This notice of breach should detail what the tenant believes the problems are and asking for it to be rectified within a certain amount of time- we would normally suggest a week for cleaning, longer for more complex problems. If the problem has not been addressed in the time requested, then the tenant can put in an application to the CTTT for one or more of the following orders:
- that the landlord do the repairs/cleaning the tenant specified
- that the landlord compensate the tenant for losses the tenant suffered because the landlord did not do the repairs
- that all or part of the rent is paid to the tribunal until the repairs are done
- that the rent is reduced for the period that the premises are/were in disrepair.
For the first three the application to the Tribunal must be made within 3 months of the landlord failing to meet the deadline for repairs. For the last they can apply at any time before the end of the tenancy, but the Tribunal can only go back 12 months.
For more information on these things, tenants can also read the following factsheets
Leo Patterson Ross
Legal Support Officer
Tenants’ Union of NSW