Published tribunal order
Tenancy Tribunal case 5141490 — Cleanliness at 1 Bibby Lane, Waipawa, 4210
Decided 7 Apr 2025 · Published 7 Apr 2025 · Application 5141490
Landlord favoured
- Cleanliness
- Exemplary damages
- Property damage
Order
- Vanessa May Arnesen must pay Pretorious Francis Lamb $7,743.96 immediately, calculated as shown in the table below.
- The Bond Centre is to pay the bond of $2,320.00 (3305523-013) to Pretorious Francis Lamb immediately.
Reasons
- The landlord attended the hearing. The tenant did not attend and was unable to be contacted by phone. Background
- The parties entered into a periodic tenancy agreement on 13 May 2023.
- The landlord gave notice ending the tenancy, because the property was to be sold.
- That notice ended the tenancy on 25 November 2024. The tenant vacated on 26 November 2024.
- The landlord’s evidence is that an inspection was carried out by the property manager not long before the end of the tenancy. When the premises were inspected after the tenant vacated, more damage was found. That damage is considerable and is proved by photographs taken of the premises when the tenancy had ended, provided by the landlord.
- The premises were tested for methamphetamine contamination. The composite test shows contamination of 54μg per 100 cm 2 over the 9 sites tested.
- Detailed testing was then carried out showing contamination levels at the sites tested ranging from .38μg per 100 cm 2 in the bathroom through to 16μg per 100 cm 2 in the hallway.
- The landlord made an insurance claim for decontamination costs and separately for damage caused to the premises.
- The claim for decontamination costs was accepted. The landlord paid the applicable special excess of $2,500.00. Comprehensive decontamination cleaning was carried out, including removal of carpets and soft furnishings throughout the premises.
- In respect of the damage claims, the insurer accepted the claim on the basis that the damage caused to each room (rather than for each individual damage event) would be treated as a separate claim, with a $700.00 excess payable for each.
- A repair quote was obtained from Angelo Construction. The landlord claimed under the insurance policy for repair of the damage in four of the rooms, where the quoted repair cost was higher than the $700.00 excess.
- In respect of the damage caused to rooms where the quoted repair cost was less than the excess, the landlord and her partner undertook the repair work themselves, except for an area of painting which they engaged Angelo Construction to do, outside the work covered by the insurance claim.
- While completing that repair work, the landlord also completed significant improvement work to the property to get it ready for sale.
Did the tenant comply with her obligations at the end of the tenancy?
- At the end of the tenancy a 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.
- End of tenancy photographs proved by the landlord show that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
- The landlord and her partner removed the rubbish left at the premises themselves. The landlord has provided receipts for the trailer hire and dump fees incurred in removing the rubbish. The landlord is entitled to be compensated for those expenses.
- The landlord is also entitled to be compensated for the time spent and work undertaken to remove the tenant’s rubbish. That compensation is included in the award of compensation for time and labour for repair work.
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.
- 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. Methamphetamine contamination
- The landlord has provided a methamphetamine test report dated 20 April 2023, which proves that the premises were not contaminated when the tenancy began.
- The testing undertaken when the tenancy had ended shows it was then contaminated. I am satisfied that the contamination occurred during the tenancy. I am satisfied that the actions leading to that contamination were intentional. The tenant is responsible for the actions of others at the premises with her permission (see s.41 RTA).
- Surprisingly, the landlord became aware for the first time at this hearing, that the level of methamphetamine contamination that the Tribunal considers requiring remediation, is what is known at the “Gluckman” standard of 15μg per 100 cm 2 , not the NZS:8510:2017 standard of 1.5μg per 100 per cm 2 .
- The reasons for application of that standard have been noted in many of the Tribunal’s decisions and do not need to be repeated here. It is difficult to understand how the landlord could not have been made aware of that.
- Applying that standard, the only area of the premises where the testing found a level of contamination requiring remediation, was the hallway, with a level of 16μg per 100 cm 2 . Contamination at close to that level was found in Bedroom 1, with a reading of 14.2 μg. Results from other samples tested were well below that level.
- What that means is that contamination was found in the hallway that required remediation. Decontamination could not have been achieved simply by cleaning the area the test sample was taken from. Industry ethics require that the decontamination process reduces contamination of that area to a level below the NZS:8510.2017 standard.
- Achieving that decontamination seems very unlikely to have required the degree of cleaning, removal of soft furnishings and so forth that was undertaken throughout the property, on the premise that all areas contaminated above NZS level needed to be decontaminated.
- I am satisfied on balance that the cost of cleaning the area that did require decontamination, would have exceeded the excess paid by the landlord on the insurance claim. That loss should be compensated by the tenant. Repair costs
- The photographic evidence and the scope of remediation works prepared by Angelo Construction for the insurer, proves that significant damage was caused throughout the premises.
- I am satisfied that it was caused during the tenancy and was more than fair wear and tear. The nature and extent of the damage satisfies me that it is more likely that not to have been intentionally caused, either because the damage itself was intended or because it resulted from treatment of the premises in a way the tenant must have known would result in damage being caused. Accordingly, the cap on the tenant’s liability under s.49B(3)(a) RTA does not apply.
- The landlord is entitled to be compensated for the 4 x $700.00 excess payments made in respect of the insurance claim.
- In terms of the additional repair work done by the landlord and her partner that was not covered by the insurance claim, the landlord has provided a comprehensive record of receipts for expenditure on the property. That expenditure was for repair work, as well as for improvement work which is not the tenant’s responsibility.
- In evidence, the landlord explained what the expenditure recorded by each of the invoices was for. Having gone through that process, I am satisfied that the sum awarded to the landlord, only compensates her for costs incurred to repair damage for which the tenant was responsible, not for improvement work carried out.
- The landlord’s evidence is that after the decontamination had been completed and cleared, every weekend between 6 January 2025 and 23 February 2025, were spent by she and her partner working on the property. Her assessment is that 4 days of her and her partner’s combined time was attributable to repairing the property. Having regard to the photographic evidence, the scope of works from Angelo Construction noting the repair work required (only some of which they did under the insurance claim) and the landlord’s oral evidence, I accept that as a fair assessment of the time spent to repair the premises.
- Compensation is calculated at 4 days x 8 hours x 2 persons x $30.00 per hour. Excluded Claims
- In considering the landlord’s application I have dismissed the following claims: a. travel costs – the need for the landlord and her partner to travel from Kapiti to Waipawa to work on the property, was not caused by the tenant; b. litigation expenses – the expenses incurred by the landlord in bringing this claim (excluding the filing fee) are costs which the Tribunal is unable to award except in the special circumstances set out in s.102(2) RTA, which do not apply in this case; c. costs for replacement of carpet, curtains and lighting – the landlord was paid depreciated replacement value for the carpets as part of the insurance claim. The Tribunal could only have awarded that same depreciated replacement value, as representing the landlord’s loss. I am not satisfied that replacement of all curtains and light bulbs was necessary to remediate the unacceptable level of contamination in the hallway; d. mortgage costs – the landlord says that the delay in being able to sell the premises due to the tenant’s breaches – in particular in having to have the premises decontaminated before repair and improvement work could be carried out, has caused a loss which she should be compensated for. I accept that some loss may have been caused but it is not possible to quantity that loss. The evidence does not enable the Tribunal to assess what delays may have been caused by issues between the landlord and her insurer, processing delays that were not a direct or foreseeable result of the tenant’s breaches, how long the improvement work might have taken anyway or whether the property would likely have been sold any earlier but for those delays. The impact on the landlord of the premises having been contaminated by methamphetamine, is taken into account in the award of exemplary damages below. Exemplary damages
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.
- Smoking methamphetamine is unlawful. It is proved that the tenant used the premises for that purpose, or allowed it to be used for that purpose. The tenant has accordingly committed an unlawful act under s.40(3A)(c).
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- I find it more likely than not that the tenant intentionally smoked methamphetamine in the premises or allowed others to do so.
- In doing so, the tenant must have been aware that the consequence for the landlord from contamination of the premises, could be severe. The actual consequences for the landlord have been very challenging, leading to the need for an insurance claim, decontamination of the premises, delays and resulting costs before repair work could be carried out while the premises were decontaminated and very possible losses from delays in the premises being sold.
- The public interest in tenants being dissuaded from such behaviour is clear.
- Weighing those considerations, I find it just that an award of exemplary damages toward the top end of the scale would be just. Additional Tenants
- The landlord claims exemplary damages for the tenant’s reach of s.40(3) RTA, which provides, “Where the tenancy agreement specifies a maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy”. Breach of that obligation is an unlawful act for which exemplary damages of up to $1,000.00 may be awarded.
- The agreement provides that the maximum number of resident and tenants combined must not exceed four. They are identified as the tenant and her three children. The landlord says that during the tenancy, the children moved to live elsewhere and up to three other males occupied the premises with the tenant.
- While those other male occupants were not occupants specified in the agreement, the landlord says that they were not living there at the same time as the tenant’s children. It is not therefore proved that the maximum number of occupants, at any given time, exceeded four, being the maximum number specified in the agreement. I do not find a breach of s.40(3) proved.
- Because Pretorious Francis Lamb has wholly succeeded with the claim I must reimburse the filing fee.