Published tribunal order
Tenancy Tribunal case 4531554 — Property damage at Unit/Flat 2, 25 Trent Street, Linwood, Christchurch 8011
Decided 22 Aug 2023 · Published 22 Aug 2023 · Application 4531554
Landlord favoured
- Property damage
- Rent arrears
- Cleanliness
- Smoke alarms
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Bridget Quartermain must pay Barry John Darren Gamble $5,484.93 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing. Mrs Quartermain represented her daughter, the tenant, approval having been given. Background
- The tenancy started on 25 July 2021 and was for a 1-year fixed term ending on 24 July 2022. The tenancy continued after that.
- Following methamphetamine testing on 17 March 2023, the landlord received a report from its contractor AllClear that showed methamphetamine contamination between 32μg/100cm² and 95μg/100cm² in 6 rooms at the premises. Only 2 room samples and the garage showed levels below 15μg/100cm² which is the level the Tribunal works to when determining whether premises are contaminated to a point where there is endangerment to health.
- After receiving the methamphetamine test report, the landlord served a termination notice under section 59A of the Residential Tenancies Act 1986 (RTA) terminating the tenancy on 7 days’ notice. The notice was given on 23 March 2023. The tenancy was to end on 30 March 2023. The tenant did not vacate until 7 May 2023.
- After the tenant vacated the landlord applied for rent arrears, compensation, and the bond.
- The tenant cross applied. Her application was a defence to the landlord’s application.
- I held a directions conference with the parties on 8 June 2023. Mrs Quartermain, authorised to represent her daughter, withdrew the tenant’s application and consented to the bond being paid to the landlord.
- I noted in that order that the landlord’s insurance claim had not been finalised and also that the restriction on a landlord’s claim to the amount of the insurance excess or 4 week’s rent (whichever is the lesser) did not apply to claims for intentional damage.
- In that order, and in a later directions order I made on 24 July 2023, I issued time tabling directions for the filing of evidence and submissions. Neither party complied with those directions, so a further scheduled hearing had to be further adjourned.
- At 11.41 pm last night Mrs Quartermain emailed a substantial document which she said was her daughter’s defence to the landlord’s application. Included was a statement of counter claim amounting to $77,780.50.
- The counter claim (referred to as a cross application in the Tribunal) cannot be heard because there is no application in fact. Mrs Quartermain’s statement of claim is not a cross application because it has not been filed and the filing fee has not been paid.
- Despite my repeated guidance to Mrs Quartermain today, she insisted that her daughter’s counter claim should be heard as a defence to the landlord’s application.
- Her intransigence on this point was discourteous to the Tribunal. She would not be guided. So, I will set out again what I told her.
- Mrs Quartermain withdrew her daughter’s cross application at the directions hearing on 8 June 2023. The application cannot be reinstated because it was simply a defence to the landlord’s application. As I noted in my order that day, a defence does not require a cross application.
- There was no mention in that application of the claims against the landlord that now total $77,780.50. To file that counter claim a few hours before the scheduled hearing is an abuse of process.
- More importantly, without a written application and payment of the filing fee, there is no cross application before the Tribunal. The Tribunal cannot deal with a claim for costs in the absence of an application properly made and served on the other party.
- Given the earlier directions hearings and the previous adjournments with directions largely ignored, the Tribunal is not prepared to adjourn the application again.
- The tenant may still bring claims against the landlord, but she must make an application and pay a filing fee in order to do so. And Mrs Quartermain must understand that she is not the tenant. That she was approved to represent her daughter at this hearing does not mean that she can file an application against the landlord. Only her daughter can do that. Issues
- The issues to be determined on the landlord’s application are these: •Has the landlord proved a claim for rent arrears? •Has the landlord proved claims for rubbish removal and compensation for damage? Has the landlord proved a claim for rent arrears
- The tenancy ended by notice dated 23 March 2023. The end date of the tenancy was 30 March. The tenant did not vacate the premises until 7 May 2023 (which Mrs Quartermain accepted). The tenant remained liable for rent until 7 May 2023. I find the landlord’s claim for rent proved. Has the landlord proved claims for rubbish removal and compensation for damage?
- 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) RTA. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) RTA. The tenant must also replace standard light bulbs.
- 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 landlord has claimed for the repair/replacement of kitchen vinyl; lock and key replacement; repairing holes in the master bedroom walls and to the front door frame; replacing the council red bin; labour for removing rubbish and a structure in the garden; replacing contaminated smoke alarms; and the insurance excess for methamphetamine contamination. The defences raised by the tenant
- Mrs Quartermain said the tenant was never given a property inspection report at the start of the tenancy so the landlord could not prove claims for damage.
- I do not accept that. The landlord provided in evidence a property inspection report signed by both parties dated 25 July 2021. It records various damage and defects. It is proof of the agreed state of the premises at the start of the tenancy.
- Mrs Quartermain submitted that the landlord wrongly terminated the tenancy because it was a fixed term tenancy.
- Section 59A RTA allows a landlord to terminate a tenancy on 7 days’ notice where, as a result of a breach of the tenancy agreement (whether for a fixed term tenancy or a periodic tenancy) by a party, the premises are destroyed or are so seriously damaged as to be uninhabitable.
- Here, the landlord had evidence that methamphetamine had been used, possibly manufactured, at the premises resulting in the contamination of almost every room to levels well in excess of 15μg/100cm². That is the level above which contamination is considered injurious to human health. At levels of 32, 35, 48, 49, 73 and 95μg/100cm² the Tribunal finds that the contamination was at a level which meant the premises were so seriously damaged by contamination as to be uninhabitable.
- The Tribunal finds that the landlord therefore correctly gave notice to terminate the tenancy under section 59A RTA.
- Mrs Quartermain submitted that in the absence of a pre-tenancy methamphetamine test report, the landlord could not prove that her daughter caused the contamination.
- The landlord gave evidence that he did not have the premises tested before the tenancy. However, about one week after the tenancy started someone cut through the front door with a circular saw and he had to replace the door with a brand-new door (for which he paid the insurance excess). That new door later tested positive for methamphetamine at a level of 32μg/100cm².
- The Tribunal finds that the replacement door, being a brand-new door, installed after the tenancy started, which then was shown to be contaminated, is proof of probable methamphetamine contamination during the tenancy.
- Furthermore, the landlord gave evidence that he found drug paraphernalia at the premises; a meth pipe, a quantity of meth; and cannabis offcuts. He referred those findings to the police.
- The Tribunal does not accept the defence advanced by Mrs Quartermain that the absence of testing means the landlord’s claims cannot succeed given the evidence to which I have referred. Findings
- The evidence produced by the landlord includes the property inspection repors from the start of the tenancy; photos from the end of the tenancy; quotes and invoices; and email correspondence between him and the tenant. As well there is the methamphetamine test report and related explanatory commentary and the laboratory results.
- Other documents were produced by both parties, but I need not specifically refer to them.
- The methamphetamine contamination arose as an intentional act. Using drugs (the report suggests possible manufacture to produce such high levels of contamination) is not a careless act, it is an intentional act. While the landlord’s claim is not limited to the insurance excess or 4 weeks’ rent, he has just claimed the excess of $2,500.00 and that is what the Tribunal awards.
- Associated with that is the replacement of smoke alarms. They had to be replaced due to methamphetamine contamination. I find that claim proved.
- The claims for the repair of other damage (kitchen vinyl, master bedroom walls, front door frame) are proved by the photos and the inspection report from the start of the tenancy.
- Mrs Quartermain agreed that her daughter added a digital front door lock for her protection. The landlord said the lock was added without consent. Consent aside, the installation of the lock caused damage to the door frame which the tenant is liable for. That damage, the damage to the kitchen vinyl caused by a dog and the damage to the walls was at least careless damage. The landlord has limited his claim to the amount of the insurance excesses under his policy. If the insurer declines the claims, his loss will be greater.
- The landlord gave evidence that he spent considerable time removing rubbish and removing a structure the tenant built for her cats, well in excess of the claim for labour of $400.00, which I find proved. That equate to 16 hours at a rate of $25.00 per hour which is what the Tribunal usually awards as compensation for landlord labour. Linked to that is the claim for skip hire which I find proved as well.
- Also proved is the replacement cost of the council red refuse bin. The tenant did not report the bin missing. It was not there at the end of the tenancy. A tenant must leave all chattels provided for their benefit when a tenancy is vacated. The council charged $109.00 to replace the refuse bin. That is a cost for which the tenant is liable.
- Mrs Quartermain said her daughter did not have time to remove rubbish or remove the structure she built. I do not accept that. The notice to terminate the tenancy was given on 23 March 2023. She did not vacate until 7 May 2023. That is more than sufficient for her to have complied with her statutory responsibilities.
- I find proved the claim for the removal of oil from the driveway. Mrs Quartermain said her daughter did not cause that damage or know how it happened.
- When damage occurs during a tenancy and is beyond fair wear and tear, it is for the tenant to prove that they did not cause it.
- The tenant did not attend the hearing. Mrs Quartermain could not give evidence for her. I find it probable that this damage arose during the tenancy and was caused by the tenant or someone at the premises with her consent.
- Mrs Quartermain’s suggestion that an unknown third party came and tipped oil on the driveway was not a credible explanation. Result
- The landlord’s claims against the tenant are proved. The tenant will pay the landlord $5,484.93 which takes account of the bond the landlord has already received. Because the application is successful, the tenant will pay the landlord’s Tribunal filing fee.
- The landlord did not seek a name suppression order. The tenant is not entitled to name suppression as her defence of the landlord’s application is unsuccessful.