What was the outcome of Tenancy Tribunal case 4381665?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4381665?

Filing Fee: $20.44 awarded to landlord; Cleaning: $4,386.00 awarded to landlord; Previous Order Application 4344403 D…: $2,565.44 awarded to landlord; Property Damage: $6,600.00 awarded to landlord; Rubbish Removal: $1,398.00 awarded to landlord

What type of tenancy dispute was case 4381665?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4381665?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9070256-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4381665?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4381665?

Filing Fee: $20.44 awarded to landlord; Cleaning: $4,386.00 awarded to landlord; Previous Order Application 4344403 D…: $2,565.44 awarded to landlord; Property Damage: $6,600.00 awarded to landlord; Rubbish Removal: $1,398.00 awarded to landlord

What type of tenancy dispute was case 4381665?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4381665?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9070256-Tenancy_Tribunal_Order.pdf.

100 Coatesville-Riverhead Highway, Coatesville, RD 3, Tenancy Tribunal Case 4381665 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4381665 — net $14,969.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4344403 dated 02/08/2022	$2,565.44	Previous order application 4344403 dated 02/08/2022
Meth testing/Cleaning: Testing, meth excess	$4,386.00	Meth testing/Cleaning: Testing, meth excess
Rubbish removal	$1,398.00	Rubbish removal
Repairs: Insurance excess for damages	$6,600.00	50. I therefore order the tenants to pay $6,600.00 to the landlord, which is the cost of the insurance excess.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$14,969.88
Total payable by Tenant to Landlord	$14,969.88

The landlord attended the hearing via telephone along with his brother Girgis Ebrahim who had been involved with managing the property.

There was no appearance by the tenants.

I am satisfied that the tenants had notice of the time and date of the hearing, therefore the hearing proceeded in their absence. DescriptionLandlordTenant Previous order application 4344403 dated 02/08/2022$2,565.44 Meth testing/Cleaning: Testing, meth excess$4,386.00 Rubbish removal$1,398.00 Repairs: Insurance excess for damages$6,600.00 Filing fee reimbursement$20.44 Total award$14,969.88 Total payable by Tenant to Landlord$14,969.88

The landlord has applied for compensation against the tenants.

Specifically, his claims relate to: a. Unpaid rent - $2,656.44 b. Two methamphetamine tests - $1,886.00 c. Insurance excess for methamphetamine claim - $2,500.00 d. Skip Bin charges - $1,389.00 e. Insurance excess for wider damage claim - $6,600.00 f. Out of pocket expenses (over and above insurance) - $28,527.00 g. Cost of new tiles - $3,889.88

I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.

This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Methamphetamine

For a landlord to succeed in a claim for costs involved in methamphetamine testing and decontamination there are two main aspects that must be proven.

First, that the contamination was caused during the tenancy (and thus that the tenants are liable). It has been held that the absence of pre-tenancy testing is likely to be determinative on this point. 1

Secondly that the level of methamphetamine detected is likely to constitute a health hazard and therefore would entitle the landlord to claim the cost of decontaminating the premises.

Although insurers and companies involved in decontamination work apply the NZS8510:2017 standard of 1.5 μg/100cm 2 the Gluckman Report of 29 May 2018 advised that exposure to methamphetamine levels below 15 μg/100cm 2 would be highly unlikely to result in any adverse health effects. Only where there was evidence of manufacture should the lower level be applied. This approach has been applied in the Tribunal for some time now and endorsed by the District Court. 2

In this case, the landlord has provided a report from Hill Laboratories dated April 2021, which is when the previous tenants moved out. That report confirms no methamphetamine present at that time.

The landlord’s evidence was that the property was undergoing maintenance and renovation work following that date and was otherwise unoccupied until the tenants moved into the property on 1 October 2021.

The landlord has provided two further reports from Hill Laboratories, dated 9 and 19 August 2022, after the end of the tenancy. Of most concern in that report is a result obtained from the kitchen area of the property showing the presence of methamphetamine at a level of 186 μg/100cm 2 .

This is well above the Gluckman standard at which a health risk is found to exist.

Given the absence of such a finding prior to the tenancy, and the presence of this finding at the end of the tenancy, I am satisfied that the landlord has established on the balance of probabilities that the tenants are responsible for the methamphetamine contamination.

Accordingly, the landlord is entitled to compensation for the cost of remediating this damage. The landlord says that part of the methamphetamine remediation required demolition of parts of the house to properly decontaminate. 1 See for example Eren Limited v Martin and Kukuruzsnyak [2021] NZDC 15210, Brooking v Imrie [2021] NZDC 16976 2 See for example Full Circle Real Estate Ltd v Piper [2019] NZDC 4947, Eren Limited v Martin and Kukuruzsnyak [2021] NZDC 15210

I order compensation in the amount of $1,886.00 for the two “positive” methamphetamine tests as well as $2,500.00 which was the insurance excess paid by the landlord by his insurer for the cost of decontamination of the premises. The total award under this heading is $4,386.00.

The amounts ordered are proved. Rubbish Removal

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 (“the Act”).

In this case, the landlord says that the tenants left a significant amount of rubbish at the premises when they left. This has cost him $1,398.00 for various skip bins to remove all the rubbish.

The slight difficulty the landlord has in this case is that the skip bins contained not only genuine “rubbish” left behind at the end of the tenancy, but also construction waste which occurred during remediation works to the premises.

From the landlord’s point of view, the tenants are still liable for all of this, because they caused the damage that necessitated the building works.

Of course, that is somewhat dependent on my finding related to the damage. Normally I would adjust the cost down to reflect that, however on balance I am satisfied that most if not all of the waste was essentially a by-product of the actions of the tenants.

So, in this case and despite some misgivings, I have allowed the landlord’s claim in full and award $1,398.00 for rubbish removal. Other Claims Related to Damage

For a landlord to succeed in a claim for compensation for damage, they 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 of the Act.

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) of the Act.

Where the damage is careless, and occurred before 27 August 2019, the case of Holler and Rouse v Osaki [2016] NZCA 130 applies.

In Osaki, the Court of Appeal held that provisions in the Property Law Act 2007 which relate to commercial tenancies also applied to residential tenancies. As a consequence, tenants were not required to pay for the cost of repairing damage in a number of circumstances, including where the damage is covered by the landlord's insurance.

In Linklater v Dickison and Others [2017] NZHC 2813, the High Court held that the tenant is also protected where the amount of insurance cover is limited to a fixed sum. It is the fact of insurance, not the extent of it, which provides the protection.

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) of the Act.

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 virtual certainty. See Guo v Korck [2019] NZHC 1541.

The claim includes damage to the floors, holes in walls, broken windows, leaks and damage in bathrooms. It includes damage to the gravel driveway and the cost of replacement tiles in two bathrooms and a kitchen.

The landlord claims that this other damage was caused “maliciously” by the tenants and therefore the tenants should compensate him for out-of-pocket expenses over and above the insurance pay-out. (The landlord received an insurance pay-out of $83,000 less the insurance excess of $6,600.00).

In support of the claims, the landlord provided photographs showing the state of the premises at the beginning of the tenancy, and at the end of the tenancy.

According to Council records, this property was built in the 1920s and from the photographs provided it appears to have been in mostly original condition. The property appears tidy and there has been some, but limited, modernisation over the years. For example, kitchens and bathrooms still had original timber floors and the laundry area is obviously an addition sometime perhaps in the 1960s.

Part of the tenancy agreement included a clause for the tenant to renovate the two bathrooms in the premises at their expense. The landlord says that this was at the request of the tenant.

The landlord says that the renovations undertaken were done poorly and essentially needed to be redone after the tenants moved out.

One example provided was that the tenant had tiled over the wooden floor in a bathroom but there was a leak underneath the tiles which required the tiles to be removed, leak fixed and new tiles re-laid.

There is no evidence that persuades me that this damage was caused intentionally rather than as a result of poor workmanship by the tenant. It seems that some of the renovation work was only partly completed before the tenants vacated the premises. I also note here that the tenant had permission to undertake the work, which I observe is a somewhat unusual arrangement that carries some inherent risk for the landlord.

This claim also includes work done on the driveway at the property. The landlord says that the tenants “destroyed” the driveway which he says was in good shape prior to the start of the tenancy.

The only evidence the landlord had as to the cause of this particular “damage” was hearsay evidence of neighbours who claimed there were many more comings and goings at the property than would be typical for a residential premise. However, I cannot place much weight on this type of evidence. Even if it was accepted, the evidence at best would show greater use of the driveway and not conduct likely to cause damage.

The driveway is a long gravel driveway (around 200m) at a rural property. Nothing in the photographs provided showed anything beyond fair wear and tear. Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.

Ultimately, I am satisfied that the damage was caused carelessly by the tenants. I am not however satisfied that the damage claimed for was intentional, such that the tenant should be liable for costs beyond the insurance excess.

I am also conscious of betterment and depreciation in making this finding. 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. To some extent, the choices made by the landlord went beyond what was strictly required to remediate the damage, for example the fact that the landlord decided to tile the bathroom and kitchen (which at the start of the tenancy had a wooden floor) was an improvement rather than a remediation.

I therefore order the tenants to pay $6,600.00 to the landlord, which is the cost of the insurance excess.

The amount ordered is proved.

Because Maged Ebrahim has substantially succeeded with the claim I have reimbursed the filing fee.

Finally, I apologise for the delay in issuing this decision. J R Smith 13 August 2023

Reasons

Claims and awards in Tenancy Tribunal application 4381665 — net $14,969.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4344403 dated 02/08/2022	$2,565.44	Previous order application 4344403 dated 02/08/2022
Meth testing/Cleaning: Testing, meth excess	$4,386.00	Meth testing/Cleaning: Testing, meth excess
Rubbish removal	$1,398.00	Rubbish removal
Repairs: Insurance excess for damages	$6,600.00	50. I therefore order the tenants to pay $6,600.00 to the landlord, which is the cost of the insurance excess.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$14,969.88
Total payable by Tenant to Landlord	$14,969.88