Tenant Ordered to Pay Rent Arrears and Damages Due to Mould and Smoke Damage
📌 In brief
The Tenancy Tribunal ordered the tenants to pay rent arrears, damages, and a rent difference to the landlord due to mould and smoke damage. The Tribunal found that the damage exceeded fair wear and tear and was caused by the tenants' use of burners and candles.
⚖️ Legal holding
A tenant is liable for damage to the premises that exceeds fair wear and tear.
📖 What the law says
This rule outlines a tenant's basic responsibilities, including paying rent on time, keeping the property reasonably clean and tidy, and notifying the landlord of any damage or needed repairs. It also requires the tenant to leave the premises clean and tidy and remove all their belongings and rubbish when the tenancy ends.
This rule states that a tenant is responsible for the actions of anyone they allow onto the property, if those actions would have broken the tenancy agreement had the tenant done them. If someone intentionally or carelessly damages the property while the tenant is there, it's assumed the tenant allowed that person to be there.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tenancy Tribunal ordered the tenants to pay rent arrears, damages, and a rent difference to the landlord.
📜 Headnote Official document
The Tenancy Tribunal ordered the tenants to pay rent arrears, damages, and a rent difference to the landlord due to mould and smoke damage. The Tribunal found that the damage exceeded fair wear and tear and was caused by the tenants' use of burners and candles.
📚 Full judgment Official document
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[2025] NZTT 5007448
TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE
APPLICANT: [redacted]
Landlord
RESPONDENTS: [redacted]
Tenants
TENANCY ADDRESS: [ADDRESS], [POSTCODE]
ORDER
1. [NAME] and [NAME] must pay [COMPANY] as Agent for [NAME] $7,309.50 immediately, being rent arrears to 12 September 2024, filing fee, rent difference and damages, as calculated, and set out in table below:
Description Landlord Rent arrears $5,130.00 Filing fee reimbursement $27.00 Repainting walls and ceiling interior $3,622.50 Rent difference during FTT $1,050.00 Total award $9,829.50 Minus Bond -$2,520.00 Total payable by Tenant to Landlord $7,309.50
2. The Bond Centre is to pay the bond of $2,520.00 (6484761-002) to [COMPANY] as Agent for [NAME] immediately.
Reasons:
1. The landlord attended the hearing, the tenants did not attend. One of the tenants sent an email to the Tribunal on 8 April 2025 advising that he is
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overseas and had been since 25 February 2025. His wife is in Auckland but stressed. He sought an adjournment. An adjournment was not granted as the tenants left the property in July 2024 and these claims must be determined. Furthermore, the tenant had been notified of this hearing date some time ago and yet left it until 3 days before the hearing to seek an adjournment. Finally, there are two tenants, and one was available to attend, but chose not to.
2. For all these reasons I am proceeding with the hearing in their absence.
Background:
3. This was a12- month fixed term tenancy that commenced on 4 April 2024.
4. In June 2024 the tenants contacted the landlord to say that the there was a mould issue with the house. They sent photos and a video of mould on walls and ceiling and moisture, to the landlord. Immediately the landlord attended and began an investigation into the moisture and mould claims.
5. The tenants sought an early release of the tenancy due to these issues. The landlord agreed on the condition that the tenants pay the rent until a new tenant was found.
6. The tenants left the property on 13 July 2024.
7. The landlord carried out extensive investigations into the mould and moisture claims. The landlord has provided the Tribunal with photos of what appears to be mould on the walls and ceiling, a report from a cleaning company and a report from the developer.
8. On 27 August 2024 [NAME] prepared a report which confirmed that there was some mould present initially but that in their professional opinion the damage and marks on the walls and ceiling were due to smoke damage. The report writer noted many walls were discoloured with smoke /soot likely due to the tenant’s burning candles or incense in the rooms. The landlord mentioned temple/ prayer areas in the house, with burning equipment.
9. The reporter writer said that they were unable to remove the soot off the wall despite using specialised chemicals, that normally would do the job. The recommendation was for the interior of the house to be repainted due to the extent of the damage to the walls.
10. The landlord needed to ensure that the property did not have an issue with moisture and mould and engaged the services of experts to investigate the tenants claim.
11. A roofer was sent to the property to check for roof leaks. None were located after lifting panels off the roof and advising no evidence of water or water marks and confirming that the roof insulation was dry.
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12. [COMPANY] provided a report and attached photos of their findings when they investigate the complaint. They cut holes into the ceiling and carried out thermal imaging. Their conclusion was there were no signs of any water with no watermarks on the gib and the insulation was dry. There were no signs of leaks or dampness. They concluded that as the previous and subsequent tenants had never experienced any mould issues, that the issue lay with these tenants. The report writer confirmed that the painters stated that the walls and ceilings would need to be washed and treated.
13. Once the landlord had been advised that the property did not have any inherent moisture issues, remediating the property began.
14. The landlord obtained several quotes for the repainting work. [COMPANY] repainted the walls and ceilings due to mould and soot issues. The landlord has provided an invoice for $4025.00 for the repainting.
15. New tenants moved into the property on 13 September 2024 with a reduced rental of $50.00 per week. The landlord advised that the property had been advertised for some time before a suitable tenant was found and that the rental market had changed over those months, and they had to reduce the rent to get a tenant. The landlord seeks to recoup the $50.00 difference in rent until the end of the fixed term tenancy period.
Landlord claims:
16. The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
17. The landlord has applied for rent arrears and has provided rent records which prove the amount of $5130.00 owing as of 12 September 2024.
18. I am satisfied that the landlord has proven their claim for rent arrears.
19. The landlord also sought the difference that they would have received in rent had the fixed term tenancy continued at the rate of $630.00 per week. To obtain a new tenant the rent was reduced to $580.00 per week. The landlord seeks the difference in rent until the end of the fixed term period.
20. The landlord seeks $1050.00 to cover the rent difference. I am satisfied that the landlord has proven their claim for the rent difference.
Is the tenant responsible for the damage to the premises?
21. 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
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damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
22. Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
23. 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.
24. 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.
25. 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.
26. 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.
27. The tenants caused damage during the tenancy to the walls and ceiling by the use of burners, and/or candles which products soot and smoke stains on the paint work. Furthermore, by the lack of ventilation of the property allowed mould to build up on the walls and ceilings.
28. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
29. The landlord has provided photos of the mould and soot marks through out the property and an invoice for $4025.00 for the repainting work.
30. The landlord has made an insurance claim which was declined. The landlord provided the Tribunal with confirmation from [NAME] that they had declined the landlord claim. The reason for declining the claim was that they do not cover damage that was caused by an accumulation of soot from candle burning or incense. Their policy only covers sudden and accidental damage, and this damage must have happened on multiple occasions as the soot was present in multiple rooms. The insurance company stated this was a deliberate act that the tenants carried out on multiple occasions.
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31. For these reasons I find the amounts ordered are proved.
32. I have taken 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.
33. While the property was only 18 months old at the time the tenants left the property, I must consider depreciation. I am deducted 10% from the cost of repainting to reflect the depreciation. I am awarding the landlord $3622.50 for the repainting work.
34. [COMPANY] as Agent for [NAME] has wholly succeeded with the claim I must reimburse the filing fee.
35. The bond is to be refunded to the landlord immediately to offset the debt owed to the landlord by the tenants.
[NAME]
11 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 Ratonga Takirua 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:
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The landlord proved the tenants owed rent arrears.
- The landlord proved their claim for the difference in rent after the property was re-tenanted at a lower rate.
- The tenants caused damage to the walls and ceiling from smoke and soot due to burning candles or incense.
- The damage to the property was more than normal wear and tear, and the tenants did not prove they were not responsible.
- The landlord's insurance claim for the damage was declined because it was not sudden and accidental.
❌ Tends to be rejected
- The tenants' request for an adjournment was denied because they had been notified of the hearing date earlier and one tenant was available to attend.
- The tenants' claim of mould and moisture issues was not supported by expert investigations.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal ordered the tenants to pay rent arrears, damages, and a rent difference to the landlord.
What was the dispute about?
The dispute was about whether the tenants were responsible for rent arrears, damages, and a rent difference due to mould and smoke damage.
How did the court decide, and why?
The court decided that the tenants were responsible for the damages because the damage exceeded fair wear and tear and was caused by the tenants' use of burners and candles.
Which laws or rules were applied?
The Residential Tenancies Act 1986, sections 40(2)(a), 41, and 49B were applied.
What was the argument that mattered most?
The argument that mattered most was that the damage caused by the tenants exceeded fair wear and tear and was due to the use of burners and candles.
Was the decision for or against the person who brought the case?
The decision was for the landlord, who brought the case.
What does this mean for someone in a similar situation?
Someone in a similar situation should be aware that they could be held responsible for damages that exceed fair wear and tear, especially if the damage is caused by their own actions.
What evidence or documents mattered?
Photos of the mould and soot marks, an insurance claim denial, and reports from cleaning companies and developers mattered.