Tenant Entitled to Compensation for Excessive Moisture Damage

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[2025] NZTT 5024348, 4970974

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. The [COMPANY] is to split the bond of $2,600.00 ([Bond number suppressed]) as follows:

a. $1063.44 to [[NAME]] immediately.

b. $1536.56 to [[NAME]]

Description Landlord Tenant Compensation $1364.06 Cleaning $172.50 Total award Bond $1536.56 $1063.44

Reasons:

1. Both parties attended the hearing.

2. [[NAME]] rented the tenancy in July 2023, under a periodic tenancy.

3. Through the course of their tenancy [[NAME]] experienced high levels of moisture at the tenancy. This was brought to the landlord’s attention and there

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were various interactions and correspondence relating to the issue. As a result they requested that the landlord terminate their periodic tenancy and the tenancy ended on 11 July 2024.

4. After a post tenancy inspection, the landlord raised issues relating to mouldy curtains, a missing shower curtain, a water damaged bathroom door, and stained vinyl floor coverings in the bathroom.

5. A dispute has arisen regarding the release of bond, which led to the landlord making an application seeking $1914.33; the cost to replace curtains, a shower curtain, the bathroom door, the bathroom vinyl, cleaning, and replacing a casement on the lounge door.

6. [[NAME]] have brought counterclaims for:

a. alleged failures to maintain the premises in a reasonable state of repair, specifically a failure is to ensure that the tenancy is compliant with the regulation 15 of the Housing Improvement Regulations 1947, which requires that a tenancy is free from excessive dampness;

b. damages for mould damaged property which was discarded:

c. damages for loss of amenity;

d. damages for storage costs for the period in emergency accommodation before finding permanent accommodation; and

e. the filing fee.

The moisture issue

7. The key issue in this matter is the high levels of moisture experienced by [[NAME]]. I have been provided with photos and video showing what appears to be condensation dripping down windows, and wall linings, and soaking into carpets. Photos have been provided showing what appears to be a water spot, mildewed window frames, and mildewed wall paint by the front door and in a bedroom wardrobe.

Evidence

8. [[NAME]]’s evidence was that they were opening windows and doors but the condensation recurred. They describe the mould coming back quickly after [[NAME]] was cleaning the walls. [[NAME]] says the water spot corresponded with a leak in the tiled roof and mentioned an issue with the gutters around the entrance way, although this was not mentioned to the landlord and has not been noted by any other observer.

9. The house is a single level, brick clad house, with single glazed joinery, and a relatively steep pitched concrete tile roof. Photos show it has a suspended wooden floor on timber piles and a concrete perimeter beam foundation. It was built in 1963. Before being rented it was the dwelling of an elderly owner whose

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estate is administered by the current owner. The photos show it to be in a reasonably tidy condition although with dated décor appropriate for its age. Before the tenancy the carpets were steam cleaned, and the house was professionally cleaned. The invoice for the cleaning refers to cobwebs and dust, however, it makes no mention of mildew mould or other issues.

10. Prior to the tenancy a healthy homes report was prepared by [COMPANY]. The house passed the healthy home standards for ceiling insulation, ventilation fans, openable windows and doors, draft stopping, a ground moisture barrier, underfloor insulation, and drainage.

11. The landlord has provided a statement from the painter who after the tenancy repainted the house including two bedrooms and the lounge which required repair due to damaged wallpaper (for which I know compensation is not sought). This work was done in September 2024, when the property had been shut up for two months. The painter’s statement was that “the property was dry and of sound condition…[t]he walls were dry and sound prior to our works with small amounts of surface mould which was wiped off prior to undertaking our works”.

12. The landlord has provided a report from a property inspector who took moisture readings taken at various points around the house. These were taken in October 2024, some three months after the house had been shut up. The readings were taken throughout the tenancy and show moisture readings in the range of 10 to 12.5%. The report notes that this is a normal level, with readings of up to 17% considered acceptable.1 The report notes “[u]pon entering the address there was no notable smell of mold [sic] on the curtains and no obvious sign of damage caused by condensation on the window sills”. I note that some curtains had been replaced at this stage in the property had been cleaned.

13. The landlord has provided a statement from the current tenant, which was a response to the question “[h]ave you noticed any issues with moisture, mould, or condensation?” The tenant responded “[s]o far I haven’t noticed any moisture or condensation problems at all. I guess winter will be the real test but nothing of any sorts at all. I’m someone who is always opening doors and windows and leaving them open for a while I’m big on hearing the house out. But even in the mornings that we’ve had [lately] that are quite chilly no signs of condensation or mould at all”.

Discussion

14. A difficult aspect of the evidence is the source of the moisture. The issue was extensive enough to cause water damage to the bathroom door, and mould and mildew inside a wardrobe, on painted walls, as well as in areas where it would be more likely to be expected such as window frames and curtains. The evidence

1 for reference timber framing is able to be enclosed by claddings and linings when moisture levels are less than 18%.

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is that the condensation issue affected most of the house. The video provided shows condensation running down the pelmet in the main bedroom, at a level that would be expected in a closed bathroom with a hot shower running. This is unusual at normal air moisture levels. Such levels of condensation might be expected on a single glazed window, where there is a marked temperature difference between the internal air and the cold glass. However, a pelmet is generally constructed on top of a wall cavity and, as a result, this surface temperature of the wallpapered gib face of the pelmet would not be expected to get cold enough, relative to the internal air temperature, for condensation to occur, especially at the high levels seen. The evidence is that this was occurring on colder nights, but there appears to be no correlation with rainy periods. I conclude that there is a source of moisture raising the humidity inside the house to an unusually high level.

15. The tenancy is on a flat section and the terrain does not suggest that the site is subject to drainage which could lead to rising damp. The building has a suspended floor, and a ground moisture barrier. Photos of the subfloor show it to be dry and the piles to be in good condition. The evidence does not suggest that the moisture is coming from beneath the house. The house may be compared with older Victorian and Edwardian period houses in Wellington on steep south facing sites where such issues regularly cause moisture issues.

16. [[NAME]]’s evidence of issues with the roof and guttering suggests a possible cause of water ingress. However, the mildew issue at the entrance way was on a painted section of wall below a window at floor level. Moisture coming from a leaking gutter would be expected to cause issues higher up, of which there is no evidence. Similarly, the water spot in the ceiling suggests a possible cause from a cracked tile or similar. However, this would not explain the very high internal humidity required for the extent of the condensation seen.

17. In the case of both the potential of the guttering and roof issues to be the source of the moisture, the fact that the high levels of condensation were occurring on dry nights suggests that these were not the source of moisture ingress.

18. I am left conclusion that the source of the moisture causing the condensation, mould, and other water damage issues is internal. I note that there is no evidence of a leaking pipe, or other structural cause for the level of moisture experienced. Rather, the humidity must be coming from water being heated in some way inside the house.

The Tenants’ claims

19. [[NAME]] claim that the landlord has breached their obligations under:

a. Section 45 of the Residential Tenancies Act 1986 (RTA). Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair comply with any relevant enactment in relation to buildings, health and

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safety. Specifically, they say the tenancy does not comply with regulation 15 of the Housing Improvement Regulations 1947, which states “[e]very house shall be free from dampness.”

b. Section 45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The moisture ingress and drainage standard require that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.

20. Breaching either of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).

21. Furthermore, [[NAME]] claimed that the condition of the property has caused loss and damage in terms of, clothing, furniture, bedding and other personal items. They claim compensation for the cost of replacing these items. Additionally, they claim that the condition of the property leads to them needing to break the lease earlier than anticipated with some urgency. This led to a period in which they were in temporary accommodation and had to pay storage costs, which are also sought as compensation.

22. For a landlord to be in breach of section 45 RTA and regulation 15 there must be some act or omission of the landlord which has created the situation alleged. An act could be renting out a property which is untenantable due to moisture ingress issues. An omission could be a failure to take steps to address an issue which arises during the tenancy.

23. In this case there is no question that the evidence shows that there was dampness in the house. However, the evidence suggests that prior to the tenancy there was no issue. The pre-tenancy condition report and the healthy homes report both show that the property was both compliance with regulations and was tenantable. The act of the landlord to rent a property in this condition was not a breach of section 45 RTA or regulation 15. It is alleged that the landlord failed to take reasonable steps to deal with the moisture issue when it was brought to their attention. However, the correspondence shows discussions which occurred between 9 May 2024 and 21 June 2024, a relatively short period of time during which that the landlord made suggestions about ventilation, and the use of a dehumidifier which were appropriate to the nature of the issue referred to.

24. I cannot find that the landlord has breached their obligations in this instance. The evidence does not show that there were acts or omissions which would trigger liability. Therefore [[NAME]]’s counterclaim is dismissed.

Landlords Claim

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25. At the end of the tenancy a tenant must leave the premises in a reasonably clean and tidy condition and is liable to make good any damage to the property.

26. 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. See sections 40(2)(a), 41 and 49B RTA.

27. 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. In this case the insurance excess is $550. 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.

28. In this instance the damage alleged is:

a. water damage to the bathroom door;

b. replacement of a stained section of vinyl in the bathroom and repairs to the flooring beneath;

c. a missing shower curtain;

d. replacement curtains which were damaged by mould; and

e. a replacement casement lock, for one which was removed from the French doors between the lounge and a conservatory.

29. Considering the damage to the door, the photos and evidence show that the door has suffered water damage which has led to the MDF, and timber veneer of the door soaking up water, swelling and splitting for a section and the hinge side of the door. [[NAME]] denied that there had been a flood in the bathroom and suggested that the door was like this at the outset of the tenancy or was affected by the alleged moisture issue. However, the pre-tenancy inspection shows that the door was undamaged when the tenancy began. The nature of the damage is such that the door can only have been damaged by the presence of a relatively large amount of water on the floor. This was careless damage. The door was replaced at a cost of $529. It is likely that the damage would have been insurable, however, the excess is higher than the cost claimed. Therefore, I award the landlord $529.

30. The woodgrain vinyl had been sustained with visibly grey reddish marks in the vicinity of the water damaged door. When the vinyl was replaced, it was discovered that the ply substrate beneath the vinyl was suffering from rot. This damage is consistent with the presence of water in the area where the door was damaged, and I find the tenants liable for this damage. Repairs were carried out at a cost of $339.25 which I award to the landlord.

31. On re-entry the landlord discovered that the shower curtain was missing. This was replaced at a cost of $23. I award the landlord $23.

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32. Thermal curtains, and privacy net curtains throughout the property where heavily mildewed. Noting the issues discussed above, this is damage which the tenants are liable for. The curtains were not new at the start of the tenancy but were in good condition. Depreciation applies. It is unclear how the curtains were but I consider it reasonable from the photos and other evidence to conclude that they were approximately halfway through the useful life. The landlord replace the curtains a cost of $945.67, therefore operating off a 50% depreciation I war the landlord $472.83.

33. The landlord has claimed $100 to replace a casement lock which was removed from the top of the French doors between the lounge and the conservatory. Photos from the start of the tenancy show the lock in place, however, it was missing the end of the tenancy. [NAME] says that the pin in the bottom casement lock was bent and it was hard to open therefore he removed it and replaced it with the top lock. However, I note that the landlord has not provided an invoice for this amount and said the lock was replaced with one which the owner already had in their possession. Therefore, there is no evidence of the actual cost and I cannot award the amount sought.

34. Landlord is also claimed $172.50 for the cost to have the house cleaned. Considering the photos showing mould and mildew throughout, I consider that this cost is reasonable. Therefore, I award the landlord $172.50.

[NAME] 2 April 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki [NAME] ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: