What was Tenancy Tribunal case 5128369 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,520.00 ([Bond number suppressed])

How much money was awarded in case 5128369?

Property Damage: $1,800.00 awarded to landlord

What type of tenancy dispute was case 5128369?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5128369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11597109-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5128369 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,520.00 ([Bond number suppressed])

How much money was awarded in case 5128369?

Property Damage: $1,800.00 awarded to landlord

What type of tenancy dispute was case 5128369?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5128369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11597109-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5128369 — Property damage

Claims and awards in Tenancy Tribunal application 5128369. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs	$1,800.00		Repairs

Claims and awards in Tenancy Tribunal application 5128369. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs	$1,800.00		Repairs

Order

The Bond Centre is to pay the bond of $2,520.00 ([Bond number suppressed]) immediately apportioned as follows in accordance with the table below. [The landlord/s]: $1,800.00 Martin John Semmler and Nattaphat Semmler: $720.00
All other claims are dismissed.
The Tribunal orders suppression of the landlord name and identifying details.

Reasons

Both parties attended the hearing. [The landlord’s representative/s] represented the landlord company.
This three-year tenancy ended in December 2024. In January 2025 the tenants applied for their bond to be refunded and in response the landlord submitted a cross application seeking compensation for damages.
This decision discusses each of the landlord’s claims against the bond having considered both parties’ extensive oral and documentary evidence. 1 The evidential standard applied is the balance or probabilities, or what is more likely than not. The evidential burden lies with the applicant, the landlord here.

Is the tenant responsible for the damage to the premises?

The landlord’s claims for compensation come under the following heads: a. Windowsills deterioration. b. Ceiling paint peeling. c. Wall damage. d. Bathroom paint peeling.
Both parties agree that the majority of the damage in the house occurred due to excessive moisture. The causation of that moisture is viewed differently by both.
[The landlord’s representative/s]’s primary submission is that the Semmlers did not ventilate adequately, particularly in the later part of their tenancy. A further contributor to the damp is, he suggests, that during the tenancy the Semmlers brought Mrs Semmler’s two teenage sons to live in the property, without prior consent. Therefore, the doubled occupancy (than that which was agreed) may have contributed.
The way the house was used, he says, has led to significant deterioration of the inside of the home which is disproportionate to fair wear and tear. In particular there was obvious mould growth, windowsills have rotted, and paint has peeled.
The Semmlers say the deterioration was known to all throughout the tenancy and is due to the following reasons: a. The house is older and so naturally has deteriorated over time. b. The home is prone to inherent moisture for the following reasons: i. There was a significant roof leak in May 2023. ii. There was a significant water pipe leak in 2024. iii. It only gets a small amount of sunlight in the mornings.
The evidence on all heads as submitted by each party is summarised below. 1 Although not all of it has been referred to in the decision for reasons of brevity Windowsills
[The landlord’s representative/s]’s evidence is that the majority of the windowsills swelled significantly over a short period of time (the latter part of the tenancy) as they noticed a stark difference between the visit in May 2023 and the inspection on 14 February 2024. When the tenancy commenced, the sills, he says, barring the bathroom, were in good condition. He says the previous tenants did not have an issue with moisture, nor did the previous owners. No issue was identified with this tenancy either until February 2024.
The primary cause of the swelling he says is likely the overflow of condensation from the window channels sitting on the sills. This overflow would have occurred if the property was not sufficiently ventilated, and condensation was not wiped up. He points out that the windows only have small locks and not security stays so cannot be left securely wide open (but can partially be). Therefore, the property can only be sufficiently ventilated when a person is home.
Also in the kitchen, a resting of drying dishes against the sill has resulted in localised swelling. Further, a reluctance to use the kitchen extractor fan would have exacerbated moisture within the home and he says Mr Semmler acknowledged to him that they did not always use the kitchen extractor fan because it was so loud.
The builder they have had quote the job says the sills require replacement. They have not been financially able to do the work as yet so have just applied a temporary coat of paint to preserve the situation. They have new tenants in the property at the same rental price.
After they saw the damage at the February inspection he says, they engaged a roofer to check the roof to ensure it was not allowing water ingress. Their advice was that it was sound and only needed a paint to prolong its life expectancy.
They also sent a letter (14 February) to the Semmlers stating, summarised: a. Significant mould was found at the inspection. b. Lack of ventilation was the likely cause. c. The external duct of the dryer was not connected and should be. d. The rangehood was not being used and should be. e. Mould must be cleaned. f. The house must be ventilated regularly. g. The tenants were to advise if any other issues that could be causing the mould were identified.
Mr Semmler’s evidence is that he was surprised to receive the claim as he had not been alerted to any concerns at the exit inspection. He says they were all aware of the damp in the property during the tenancy and they discussed it regularly, it was however not due to their actions.
He says he is allergic to dust and his wife to mould, so they spent a considerable amount of time during the tenancy cleaning and ventilating. He says the state of the property when they first moved in and the landlord’s photos during the previous tenancy show the previous occupants were dealing with mould as well.
He notes there was a leak in the roof over the bathroom in May 2023 which resulted in significant water ingress. He further questions whether [The landlord’s representative/s] was aware of concerns with the roof earlier as he had mentioned in October 2022 that he needed to fix screws in the roof.
Further, there was a leak in the water main in the garden in 2024. This was detected by Wellington Water, and he says it went on for four months without rectification by the landlord and resulted in a settled pool of water outside and under the house.
He also refers to a recent census which states that 50% of New Zealand homes have issues with damp. This home, being older, is prone to inherent damp he says. He says the condensation in the home was very bad for example the walls would run with water after a shower and the toilet condensation would cause pooling on the floor.
His evidence is that they like fresh air and so ventilate extensively. He even built fly screens so they could have the windows open for longer periods. He ensured the teenagers’ windows were open to deal with the condensation and smell. Mrs Semmler says she uses the rangehood every time she cooks and because it is loud she uses headphones. She also says she cleaned the filter each month.
Mr Semmler points out that the landlords have never resided in the home and so are not aware of quite how damp it is. His view is that the claim is malicious and had been planned in an effort to have tenants pay for required maintenance.
[The landlord’s representative/s], although he has been a landlord since 2016, says this is their first claim of this nature and is genuine as they believe the moisture damage was excessive. He explains the reference to roof screws were in a different part of the roof to where the leak was, and they were essentially a cosmetic issue. Ceilings
The landlord also claims compensation for having to sand, plaster and paint the roof in the kitchen/living area which has started peeling. [The landlord’s representative/s] says this is also because of the tenants’ lack of ventilation. They have not had the work done yet as they cannot afford it but have sanded and given it a temporary paint in the meantime.
Mr Semmler accepts that it started peeling over their tenancy but is unsure when it started. He says it is also due to the inherent damp in the property. His view is that the ceiling does not require plastering, just sanding and painting as the landlords have already done themselves. He is a handyman so is aware of what work would be required.
He says he offered to do so himself before he moved out, but his offer was declined. [The landlord’s representative/s] says this was because he wanted a professional job done. Wall damage
The landlord claims compensation for having to repair and repaint a wall that had damage from fixtures and peeling paint. The Semmler’s evidence is that they did not screw anything to the wall, they hung their whiteboard to the preexisting hook. They are unsure how the paint peeled although they accept it occurred during the tenancy. Bathroom paint
[The landlord’s representative/s]’s evidence is that the bathroom had been painted just prior to the tenancy commencing, and a new fan had been installed. However, over the course of the tenancy the wall and ceiling paintwork begun flaking which he attributes to inadequate ventilation habits. He says he sanded it, skim plastered and repainted, and now claims the cost of the materials.
Mr Semmler’s evidence is that they used the extractor fan every time they had a shower and kept the window open when they could however water would still run down the walls. He says the peeling was throughout the tenancy but came to a head after the May 2024 leak. He points out that inadequate MDF wood had been used for the bathroom windowsill which is why it had deteriorated.
He again denies the areas would have required a plaster, just a sand and paint. He considers this home has an issue with endemic moisture which was exacerbated by leaks. The law and discussion
The law on tenant liability for damage in in accordance with sections 40(2)(a) and 49B Residential Tenancies Act 1986 (RTA). First, a landlord must prove that there is damage that is more than fair wear and tear, and which occurred during the tenancy. Fair wear and tear is the expected toll taken on a house that comes from usual living. It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear.
To avoid liability, the tenant must then prove that they did not carelessly or intentionally cause or permit the damage. Carelessness is not defined in the RTA. Its usual meaning is a lack of attention, care, or precaution that an ordinary, careful person would take. The standard of care required is similar to the standard of care required by the general law of tort in negligence cases. Thus, the question can be expressed as whether the tenant, or some other person at the premises with the tenant’s permission, was “exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances”. 2
The standard of care is the standard of an ordinary careful person, so it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach. This means that the damage will not be compensated if considered to be too remote.
It is relevant to ask whether the tenant was negligent in allowing damage to continue after it should have been obvious that it was occurring. A tenant has a duty to notify the landlord of damage “as soon as possible after discovery”; section 40(1)(d) RTA.
When it comes to mould, it is accepted that in New Zealand, many houses produce mould, particularly during cold, wet seasons. Mould is usually eradicated by wiping with an appropriate cleaner. Mould will grow in a home where humidity remains high, and has difficulty surviving in low humidity.
There are two ways to reduce humidity: by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays in certain circumstances should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without extensive mould developing. If this cannot be done, then it is the 2 Mercier v Smith & Greenan 14/12/98, Dunedin TT 228/93 landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
In this case, there is evidence that is either contradictory or calls for the Tribunal to draw inferences. In such a situation the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence. Moisture damage
Having assessed the evidence very carefully, I find it more likely than not that the excessive damp in this home has arisen for a variety of reasons which I now discuss.
Firstly, on the tenants’ part, there is no evidence of written notifications of the damp during the tenancy by the Semmlers, although Mr Semmler said he did orally raise them. It is agreed he indicated a small area of mould behind a curtain at the May 2023 inspection, but otherwise any other notifications are disputed.
Texts indicate that when specifically asked, Mr Semmler raised no issue of concern. 3
I note that the response Mr Semmler sent back to the 14 February letter 4 was that he thought the mould had occurred as a result of lack of cleaning. He had been specifically asked to raise any issues that he thought may be causing the mould and his response was as follows: To be honest, I feel like it had just not been cleaned recently enough. We usually clean the mould every few weeks, and it had just been put off. As I mentioned when arranging the inspection, my wife and I were both 6 weeks in to 7 day weeks at work and housekeeping suffered. It’s all cleaned now and will stay that way.
Therefore, the tenants did not meet their obligation to notify their landlord of maintenance issues such as excessive moisture. It is also noteworthy that the issues occurred only in the second half of the tenancy.
Of relevance is that Mr Semmler and his wife had been working long hours 6 to 7 days per week over the summer prior to the February inspection. Therefore, without proper window catches to leave the windows open, little ventilation would have occurred over that period. By his own evidence he was extremely busy, and Mr Semmler says the windows were open when they were awake.
Further, the landlord’s concerns arose over a period when the children had come to live at the property and Mr and Mrs Semmler were away from the home a lot and not able to clean as extensively as they would like. 3 October 2022 4 On 7 March
The photos show evidence of mould on walls and windowsills that was not cleaned away at the end of the tenancy and there is evidence that cleaning was not always kept up with during the tenancy. I also accept the evidence of drying dishes against the windowsill as clear patches of rotted sills can be seen that are localised.
The family is also not from New Zealand, and this has been their first real experience with the damp and mould that can occur in New Zealand homes.
On the basis of the above I find it more likely than not that the tenants did not ventilate or clean sufficiently for a home of this nature in the second half of the tenancy.
In saying that, on the landlord’s side, the leaks from the roof in May 2023 and from the water pipe in 2024 (which lasted several months) would have affected the moist conditions within the home. There is no underfloor moisture barrier 5 , the windows are single glazed and do not have security stays installed. There is also no evidence that the insulation meets the requirements other than the landlord’s observation of insulation that was installed before they purchased the property.
Given the bathroom paint peeled after only recently being painted, I find it more likely than not that the paint used was unsuitable to a wet area. There was a fan and window in this room and even if they were not used constantly, the paint should not have peeled this easily in a bathroom.
Accordingly, I am also satisfied that there are inherent characteristics of the home that contributed to its propensity for mould growth.
In summary, the damage to the windowsills and paint work has occurred as a result of a variety of factors. The evidence does however establish that the tenants have failed to meet their obligations to notify of extensive mould growth, clean the mould growth and ventilate sufficiently to mitigate the mould growth.
The amount claimed to remediate these areas is $6,882.75; $4,135 +GST for the sills, $1,850 + GST for the ceilings, and $320.68 for the bathroom. These costs (other than the bathroom) have not yet been incurred but the areas have been painted. The Tribunal rarely accepts claims based on cost estimates as it must be satisfied the actual costs have been acquired as a direct, foreseeable result of a party’s breach of the tenancy agreement or 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 ($690 here). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's 5 Whether this is required in accordance with the Healthy Homes Standards was not examined in the hearing conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
In determining the compensation payable, depreciation must also be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
It is a well accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement or RTA.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $1,800 is justified. In coming to this figure, alongside the above, I note the following: i. The amount claimed is high. ii. There are no photos of the home at the commencement of this tenancy. iii. I do not find it foreseeable that a failure to ventilate would result in the windowsills having to be replaced. iv. I accept the evidence that plastering is not essential to repair the damage to the ceiling. v. I have placed weight on the fact that the areas have been sanded and painted by the landlords themselves and an equivalent rent has been achieved with a new tenancy.
I have also taken into account that Mr Semmler offered to sand and paint the ceiling, an offer which was declined. Tenants are entitled to remedy damage caused by them during the tenancy, therefore Mr Semmler was entitled to take these steps. Further, pursuant to section 49 of the RTA a party is required to take all reasonable steps in mitigation to limit damage.
In summary I find the tenants should contribute to the remedial work and am satisfied that an amount of $1,800 is reasonable in the circumstances. Wall damage
Given there are no photos of the relevant wall pre-tenancy, it has not been established in evidence that the screw holes occurred during this tenancy.
There is also no evidence as to when this wall was previously painted and as such it could have been over the 10-year expected lifespan of paintwork in a tenanted property.
Having carefully considered the evidence, I do not find it established that the paint peeling is anything other than damage from fair wear and tear. There are a number of scrapes and marks on this wall which indicate that the area has already had some use. The wallpaper is peeling in other areas of the room which also indicates the general standard of the home.
Accordingly, I do not find the claim for compensation regarding the wall established as tenant liability in evidence and as such it must be dismissed. Filing fee & suppression
As both parties have been partially successful in their positions it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall.
The landlord only seeks suppression orders and as they were substantially successful in their claims, I approve that application.

Tenancy Tribunal case 5128369 — Property damage

At a glance

Tenancy Tribunal case 5128369 — 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