What was Tenancy Tribunal case 4682310 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4682310?

Filing Fee: $20.44 awarded to landlord; Oven: $200.00 awarded to landlord; Painting: $655.48 awarded to landlord; Shower Unit: $2,024.00 awarded to landlord

What type of tenancy dispute was case 4682310?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4682310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9555204-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4682310 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4682310?

Filing Fee: $20.44 awarded to landlord; Oven: $200.00 awarded to landlord; Painting: $655.48 awarded to landlord; Shower Unit: $2,024.00 awarded to landlord

What type of tenancy dispute was case 4682310?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4682310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9555204-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4682310 — Property damage

Claims and awards in Tenancy Tribunal application 4682310. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Shower unit	$2,024.00	Repairs: Shower unit
Repairs: Painting	$655.48	Repairs: Painting
Repairs: Oven	$200.00	Repairs: Oven
Filing fee reimbursement	$20.44	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4682310. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Shower unit	$2,024.00	Repairs: Shower unit
Repairs: Painting	$655.48	Repairs: Painting
Repairs: Oven	$200.00	Repairs: Oven
Filing fee reimbursement	$20.44	Filing fee reimbursement

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The landlord’s application in relation to the bathroom ceiling is dismissed.
The tenants’ application for compensation is dismissed
Kristoferson Waculicz and Mariana Waculicz are to pay [The landlord/s] $2,044.92 calculated as shown in table below.
The Bond Centre is to pay the bond of $855.00 ([Bond number suppressed]) immediately to [the landlords].

Reasons

Both parties attended the hearing. [The property manager] attended with the owners, Mr and Mrs Z. Ms Mariana Waculicz attended on behalf of the tenants, and she was accompanied by a support person.
The landlord applied for $4,213.61 in compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The compensation is related to damage to the: a. Oven$ 786.63 b. shower walls$2,024.00 c. walls in the house$ 655.48 d. bathroom ceiling$ 747.50
The landlord’s application (4682310) was set down for hearing on 28 September 2023 at 11.15am. As the hearing started, it became apparent that a cross-application had been filed by the tenant. This was linked to the original application at about 11.16 and so became available to me as adjudicator after the hearing had started. The tenant’s claim is for compensation arising from health issues from mould in the bathroom ceiling. I was reluctant to hear either claim in relation to mould in the bathroom, especially given the landlord had not seen the tenant’s claim.
[The property manager] noted that the landlord does not dispute that tenant has suffered health issues but does not accept that the owners are responsible for them. The landlord was keen to get rulings on all matters, at least on the applications that do not involve mould.
I decided to make determinations on the tenants’ and landlords’ responsibilities, noting that if I decided that the landlord was responsible in any way for the tenant’s health issues, I would hear further from the parties.
The burden of proof is on the party seeking to establish a fact. The standard of proof is the balance of probabilities. That means that I must be satisfied that something is more likely than not. Background
This had been a fairly long tenancy, starting on 14 August 2015 and ending on 15 July 2023. The tenancy was originally managed by Double Winkel Real Estate Ltd and then the owners managed the tenancy until May of this year, when Unique Reality took over management. The early years of the tenancy were marked by a very friendly terms between tenant and owners, but the relationship deteriorated in the latter years.
The owners bought the property in 2015. In 2019, in exchange for a rent reduction between 2019 and 2020 the tenants painted the interior of the home, the landlords paying for paint.
The owners also attended to various improvements and repairs throughout the tenancy. They set out the amounts spent. I have not found that relevant to my determinations.
Neither party had reliable records of communications or inspection dates. The copies of letters, emails or text communication between the parties before May 2023 are sparse.
Both parties said that the other was reluctant to undertake inspections. The landlords laboured under a false impression that the tenants needed to consent or be present for inspections. The tenant said that the landlord did not want to undertake inspections.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
I must also take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Oven
In 2017 the landlords installed a new oven. At the end of the tenancy, they discovered that the oven grill 1 was missing. The bottom of the stove has been damaged. In the photos there is what looks like a build-up of oven spills, but the landlord says that the surface has been damaged and therefore it will start deteriorating or corroding.
The landlord seeks $783.00 being the cost of the oven with depreciation of one year.
The tenant denies that the oven is damaged and has no knowledge about the oven rack.
The landlord has not replaced the oven but has let the property out with the oven as is. However, they say that the expected life of the oven has been significantly reduced because of the tenant’s actions and it will need to be replaced much sooner than otherwise.
The IRD depreciation guides exist so that businesses can claim depreciation on the book value of their assets, spreading out the expense paid for the asset over a number of years. This expense can then be deducted from annual revenue, reducing the amount of annual income tax paid on revenue. They are a useful guide for the Tribunal but not determinative. For example, the estimated life of an oven under these guides is 8 years, but it is not expected that a landlord would automatically replace the oven every 8 years. An 8-year- old oven may have no book value after 8 years, and the value can no longer be offset against income, but in many, if not most, cases, it will be a useable oven that is of value to the owner.
Based on the landlord’s evidence and the photographs, I am satisfied that the integrity of the surface of the bottom of the oven has been compromised. If the oven had no longer been functional and needed to be replaced immediately, I might have ordered the amount claimed. However, it seems that the owner will continue to obtain some use from it and the depreciated value may form part of their ongoing business accounts. That said, I accept that the expected life of the oven has been reduced, and I order compensation of $200 for damage to the oven. 1 The rack that the oven trays may sit on. Walls
The landlords seek $655.48 for paint and their own time to paint the interior walls. They produced photographs showing multiple patches on most walls. It was not clear whether it was paint or plaster, but it did not match the background colour.
Mrs Waculicz said that there were a number of marks and dents on the walls through fair wear and tear and so her husband repaired them. She said that tenants are not responsible for repainting a property at the end of a tenancy.
Mrs Waculicz is quite right that there is no requirement that a tenant paint the premises. However, tenants are responsible for any damage that is more than fair wear and tear. Because of the patching, neither the landlords nor the Tribunal can make a proper assessment of whether marks fell into that category. The patching of the walls without any attempt to match the paint amounts to an intentional act that they must remedy. There is no doubt that the walls required painting as a result of that, and the tenants are responsible for that.
Because the walls had been repainted 3 years prior, I may take into account depreciation. The landlords should not be in a better position than they were at the start of the tenancy. They have had the benefit of 3 years of the tenants’ painting in 2019 to 2020. However, the costs sought by the landlord are very reasonable and probably less than half of what they would have paid for a professional painter. They claim $179.48 for paint and 17 hours of their time at $28 an hour which comes to $476. The total claimed is $655.48 and that is ordered. Shower unit
The landlord seeks compensation of $2,024 for relining the shower unit. A quote was provided for that amount and the landlord provided photographs showing a patched area in the shower unit.
The tenant accepts that some damage was caused during the tenancy by their children playing. They repaired the damage themselves.
The landlords have re-let the property with the patched shower unit, and so arguably there has been no loss to them. The concern is that this is a wet area, and they will need to ensure that the job done by the tenant does not lead to further damage.
I find that although the initial damage may have been accidental, the repair was intentional. Had the tenants notified the landlord of the damage, then the landlord could have had the damage assessed, made an insurance claim, and ensured that the damage was repaired in a way that does not threaten the integrity of the walls behind the shower. The tenant’s liability would have been limited to the insurance excess or four weeks’ rent, whichever was the lesser.
I remind the tenants that under section 40(1)(d) of the Act, tenants are obliged to notify the landlords as soon as possible after discovery of any damage to the premises or of the need for repairs. This applies no matter how the damage has occurred. Paragraph 12 of the tenancy agreement says the tenant is responsible for reporting of any maintenance, including water leaks. Paragraph 16 says that the tenant shall not paint, drive nails or screws into, or affix any kind of adhesive tape, or in any way deface the walls, ceilings, floors, ... of the property or furniture. I suggest that the landlord may like to revise their agreement to reflect the obligations under section 40.
The landlord has not yet incurred any expense and has not been sufficiently concerned about this issue to attend to the damage before renting the property. However, I accept that the three walls will need to be replaced and order $2,024.00 for the damage to the shower. Bathroom mould
The landlords claimed $747.50 for mould removal and painting of the bathroom ceiling.
In 2018 during an inspection, the landlords noticed mould on the bathroom ceiling. They had the ceiling repainted, using a painter recommended by Mr Waculicz, himself a painter.
During a subsequent inspection, the landlord noticed that there was again a lot of mould on the ceiling. The tenants were asked to clean it using a particular product and were reminded to keep the bathroom adequately ventilated, using the extractor fan and the open window. [The landlord] offered to undertake the cleaning herself, Ms Waculicz being reluctant to handle chemical product because of health issues.
It is not disputed that Mr Waculicz cleaned the ceiling with the recommended product. However, the mould soon grew back. The extent of further discussions about mould avoidance or removal is not clear from the parties’ accounts until correspondence between the tenants and property manager in May and Jun 2023.
In 2022 the owners had a new kitchen installed. [The landlord] took the opportunity to ask the electrician if he had any recommendations for ventilation in the bathroom. On inspection, it was noted that one of the heat lamps had been removed from a unit which comprised two heat lamps and an extractor fan. He said that because of the hole left by the absent lamp, the efficacy of the unit was affected. The landlords produced a letter from the Director of Pearce Electrical confirming that that they had disconnected the heat fan light and that the electrician “explained the unit was compromised because the tenant had removed the heat lamp which rendered the fan useless, therefore the moisture was not removed from the bathroom allowing the mould to grow”.
The tenant said they had removed the lamp to save on power, and so the landlords replaced the unit with single lamp and extractor fan.
The landlord claims $747.50 for repainting the ceiling because of the build-up of mould. They say that this was caused by the tenants not ventilating the bathroom properly by keeping windows open and by altering the fan unit. Paragraph 19 of the tenancy agreement requires the tenant to ensure the property receives adequate ventilation to prevent mildew on ceilings, walls and window coverings. It says that any mould or mildew appearing is to be removed by the tenant.
Ms Waculicz says that they did ventilate the property at all times but could not prevent the build-up of mould. She feels there is an issue with the home which needs investigating. In a communication dated 29 May 2023 to the property manager, she said: We do keep the windows and doors open all the time for ventilation, even through Winter (and specially after showers as the extractor fan isn't very strong). The bathroom has been always well-aired and painted in the past, but the mould persists in flourishing, so it is clear that the waterproof paint wasn't enough to solve the problem. Due to my skin allergies and chemical sensitivity, I have hired a house cleaner to wash the bathroom ceiling. The whole bathroom was thoroughly washed yesterday (Sunday 28, May) so we can track how fast the mould comes back. Tenancy Services advise the house owners to take this matter seriously as it is a health hazard. Peter and Heather will need to invest in another painting job with a fungicidal protective coating. Kris as a pro painter can provide them with a proper quote.
Although the removal of the lamp in the dual lamp unit would have contributed to a lack of ventilation it is evident that the ceiling was being wiped from time to time. I accept that it is possible that the tenant did not air the property properly, but the landlord must establish that it is more likely than not that the tenants’ behaviour was responsible for the build-up of mould, such that the ceiling needed to be repainted. I am not satisfied that the landlords have established that. The claim for the bathroom ceiling is dismissed. The tenants’ claims
The tenants seek compensation of $19,022.55 for mould toxicity affecting Ms Waculicz’s health during the tenancy. She included correspondence between her and the property manager from May and June in which both parties raised concerns about mould in the bathroom. The tenant also raised a number of other concerns about the property.
The tenant says that it was a relief to have a property manager who would do inspections and address their concerns.
The tenant produced evidence of the efforts and expense they had borne throughout the tenancy. She included a copy of an invoice for $91.23 for a plumber for repairing a leak under a vanity.
The tenant also provided evidence of her health issues and some information she had downloaded from the internet about symptoms of mould toxicity.
In order to consider whether the claims for compensation are reasonable, I must first be satisfied that the landlord has failed to meet a responsibility imposed under the Act, then decide if there is a causal connection between the tenant’s health issues and that failure, and then decide if the compensation sought is reasonable and relates to that failure.
The tenant says that the owners’ negligence in addressing the issue of mould over an extended period borders on criminal, considering the harm it caused to Mrs Waculicz’s health. She says the landlords had a painter attempt a cheap and ineffective solution to the mould problem in 2017.
In her application, the tenant says that there has been a breach of the Healthy Homes Standards, but she has not stipulated which one. She says that the HHS were implemented to improve rental property conditions, focusing on factors like insulation and moisture control.
The landlords produced a Healthy Homes Statement dated 1 September 2023 from Simply Efficient, showing the home is compliant. There is no statement of compliance prior to that because this tenancy commenced in 2015 before the introduction of the HHS. The compliance dates for the HHS vary, but they relate to tenancies commenced or renewed on or after certain dates. The earliest one is for insulation. All tenancies that commenced or were renewed from 1 July 2019 onwards must have ceiling and underfloor insulation. Because this tenancy started before then, the HHS do not apply. 2
The tenant has talked about the landlords not undertaking inspections, but she has provided no evidence that before May 2023 she spoke to the landlord about any maintenance issues or suggested that there was something the landlord needed to do.
The evidence could have been in the nature of text messages, emails or notices to remedy, or statements about specific conversations with the landlord at inspections about what she thought needed to be fixed. Even at the hearing, she simply says that she believes there is a fault with the home that is making it mouldy. The tenant has provided no evidence that the landlord has failed to 2 From 1 July 2025 all residential tenancies must comply with HHS regardless of when the tenancy began. comply with their responsibilities under the Act in relation to the tenant’s problems with mould toxicity.
The tenants have not got over the first hurdle of establishing on the balance of probabilities (that it is more likely than not) that the landlord has failed to meet an obligation under the Act.
The tenants’ application is dismissed.
Because the landlord has largely succeeded I order reimbursement of the filing fee of $20.44.

Tenancy Tribunal case 4682310 — Property damage

At a glance

Tenancy Tribunal case 4682310 — Property damage

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions