Published tribunal order
Tenancy Tribunal case 4682229 — Lost Rent at 5A Cushla Place, Massey, Auckland 0614
Decided 8 Apr 2024 · Published 8 Apr 2024 · Application 4682229
Landlord favoured
- Lost Rent
- Cleanliness
- Property damage
Order
- Loleni Selesele must pay Barfoot & Thompson Limited Acting as Agent for Neville Cooper Trust $9,334.01 immediately, calculated as shown in table below. DescriptionLandlord Meth testing/Cleaning$2,500.00 Repairs: walls$1,000.00 Repairs: kitchen floor$500.00 Repairs: Shelving$500.00 Repairs: Bedroom$500.00 lost rent$6,293.57 Filing fee reimbursement$20.44 Total award$11,314.01 Bond-$1,980.00 Total payable by Tenant to Landlord$9,334.01
- The tenant must pay the debt in order 1 at the rate of $50.00 per week.
- The first payment must be made on Friday, 12 April 2024 and payments must continue every Friday until the debt is paid in full.
- If the tenant fails to make any payment within 2 working days of the due date, the balance of the debt owing will be payable immediately and can be enforced through the District Court.
Reasons
- Both parties attended the hearing.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The tenancy ended on 31 May 2023. As will be seen below, there was methamphetamine contamination to the premises and remediation was required before the premises could be re-tenanted. The landlord provided rent records which prove the amount shown as lost rent.
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.
- The following damage was caused during the tenancy: a. Methamphetamine contamination. b. Holes in the walls in bedroom 2. c. Damage to the kitchen floor. d. Damage to walls in bedroom 1. e. Damage to wardrobe shelving
- In relation to items 9.b.- e. I am satisfied the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- During of the tenancy, methamphetamine testing was done by MethSolutions.
- Nine discrete tests were undertaken with results ranging from 0.7μg – 21.7μg.
- The results showed the dining room had a methamphetamine reading of 14.1μg per 100cm3 and bedroom 2 a reading of 21.7μg per 100cm3.
- This would indicate that significant methamphetamine contamination did occur.
- For the landlord to recover the costs of methamphetamine decontamination it must reach the legal level for “damage” which is generally considered contamination a 15μg per 100cm3 or higher as set out in the “Gluckman Report” and adopted by the Court in the case of Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947 CIV-2018-0092490 where it said that the: “Gluckman report represents the current scientific knowledge to the risk to human health from methamphetamine contamination in dwellings”.
- This test result in bedroom 2 is well above the “Gluckman Report” level of contamination, and the result in the dining room is close enough that I consider remediation is warranted and the tenant is liable for the cost.
- The tenant has accepted that the contamination was caused by him.
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- Because Barfoot & Thompson Limited Acting as Agent for Neville Cooper Trust has wholly succeeded with the claim I must order reimbursement of the filing fee.