Published tribunal order
Tenancy Tribunal case 4703029 — Property damage at 73C Clevedon Road, Papakura, Papakura 2110
Decided 27 May 2024 · Published 27 May 2024 · Application 4703029
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- DescriptionLandlord Carpet Cleaning$230.00 Repairs$862.50 Rubbish removal$230.00 Repairs: Wooden floor & kitchen bench$747.50 Replacement carpet -30%$2,254.00 Filing fee$20.44 Total award$4,344.44 Bond-$2,880.00 Total payable by Tenant to Landlord$1,464.44
- The Bond Centre is to pay the bond of $1,092.50 ([Bond number suppressed]) to [The landlord/s] immediately.
- I am dismissing the landlord’s application for the decontamination of the property.
Reasons
- The landlord attended the hearing, the tenant did not attend.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
- The landlord has provided the Tribunal with a pre-entry and exit inspection reports and photographs. The photos show rubbish left around the property and dirty stained carpets.
- The landlord provided an invoice for $230.00 dated 29 August 2023 for carpet cleaning and an invoice from [the cleaning company] dated 29 September 2023 for $230.00. I am satisfied that the landlord has proven their claim for carpet cleaning and rubbish removal.
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 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.
- 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: -Damaged kitchen bench -Damaged to wooden flooring in kitchen. -Repair digital door lock/ replace switch on stove/repair holes and plastering. -Heavily stained carpets beyond repair.
- The landlord has provided photos and invoices to repair the damage. The landlord has provided an invoice for $3967.50 from [the company] for the repair of the wooden flooring ($402.50 inclusive GST), kitchen bench ($345.00 Inclusive GST) and replacement carpets ($3220.00 inclusive GST) .
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved. Depreciation of carpet replacement
- I have taken into account betterment and depreciation in regard to the replaced carpet. The house was a new build in May 2021. 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 and deducted 30% off the cost of the carpet replacement.
- Carpets are assessed as having a likely useful lifespan of 8 years within the Inland Revenue list for depreciation for rental properties. Given that the carpet is now 3 years old, a 30% deduction for deprecation is appropriate, which bring the amount ordered to be $2254.00 for the carpet replacement. Methamphetamine contamination
- The property was newly built at the start of the tenancy in May 2021. The landlord had conducted a pre-let methamphetamine (meth) inspection on 12 May 2021. The results of that inspection show that there was no evidence of meth having been consumed at the property.
- At the end of the tenancy a meth test was conducted on 23 August 2023, which showed that meth had been used during the tenancy in the property. However, the levels detected were below 15ug/100 cm2 and are considered to be unlikely to negatively effect people.
- Despite the low level, the landlord seeks to have the property decontaminated and has provided a quote from Quality House Inspections dated 12 September 2023 for $8970.00. The quote covers extensive decontamination and cleaning of the whole interior of the property.
- I am not however satisfied that the tenant is responsible for the decontamination costs. That is because the levels of methamphetamine were not so high as to warrant the extensive decontamination.
- A number of District Court decisions have confirmed the insurance companies’ stance in cases such as this, which is that methamphetamine levels below 15μg are not injurious to health and therefore the extensive cleaning was not required to restore the premises to a safe habitable state.
- I appreciate that this puts the landlord in a difficult position as they have a report stating that the premises has evidence of meth use and that this Tribunal and District Court states that it is only if the levels exceed the 15μg set out in the Gluckman report that the property is potentially injurious to health and extensive decontamination is required.
- I must however apply the reasoning of the District Court. In two recent decisions the District Court has confirmed the Tribunal’s approach in adopting the Gluckman recommendations as correct.
- In Acme Realty Ltd v Alexander James Hogg, Tuitui Grace Polotu, Leigh Sharyn Coughlin [2021] NZDC 3231 Judge Harrison confirmed Judge de Ridder’s approach in the earlier decision of Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947.
- Both decisions held that the Tribunal was correct to adopt and apply the levels set out in the Gluckman report, with the result that only if levels are above 15μg is decontamination required to ensure the premises are safe and not injurious to the health of future occupants.
- Decontamination is not required for low level methamphetamine levels below the 15μg.
- It follows that I dismiss the claim for decontamination costs. Bond/Suppression/Filing fee
- The bond is to be refunded to the landlord immediately from the Bond Centre, to offset the debt owed by the tenant to the landlord.
- The landlord has applied for suppression of their name and details. As they have been largely successful with their claim, I am granting suppression of their name and details.
- Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee.