What was the outcome of Tenancy Tribunal case 4583950?

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

How much money was awarded in case 4583950?

Property Damage: $103.50 awarded to landlord

What type of tenancy dispute was case 4583950?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4583950?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9431186-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4583950?

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

How much money was awarded in case 4583950?

Property Damage: $103.50 awarded to landlord

What type of tenancy dispute was case 4583950?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4583950?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9431186-Tenancy_Tribunal_Order.pdf.

2 Clydesdale Close, Papamoa Beach, Papamoa 3118 Tenancy Tribunal Case 4583950 — Property damage

Claims and awards in Tenancy Tribunal application 4583950 — net $103.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replacement roof tiles	$103.50	Replacement roof tiles
Net award	$103.50
Total payable by Tenant to Landlord	$103.50

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Boutique Rentals BOP Limited is to pay the bond money of $2,235.21, held in their trust account, immediately, apportioned as follows: Boutique Rentals Bop Limited: $103.50 Danelle Barbarich: $2,131.71

Reasons

Ms Barbarich did not attend today’s hearing. I note that on 5 September Ms Barbarich phoned the Tribunal requesting an adjournment of today’s hearing because she was due to have a baby in hospital today. On 6 September 2023 the Tribunal advised her that before granting an adjournment, the adjudicator required evidence of that appointment. The Tribunal did not hear from Ms Barbarich until this morning, not long prior to the start of the hearing at 9.30am, when she called the Tribunal to again advise that she was going to the hospital today to be induced. There was still no confirmation of this appointment from the hospital/midwife and so the hearing went ahead in her absence.
The landlord has applied for compensation for replacing 10 roof tiles, carpet cleaning, the insurance excess payable for decontaminating the garage, payment from the bond money held in their trust account, and reimbursement of the filing fee following the end of the tenancy.

Did the tenant comply with her 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 landlord claims $175.00 for carpet cleaning, deoderisation, sanitisation and stain removal. The invoice for this work was dated 5 April 2023.
I am dismissing this part of the landlord’s claim because I have evidence (an invoice) of Ms Barbarich having the carpets cleaned, by the same company, for exactly the same work, on 23 March 2023. Further, there is no evidence that in between 23 March 2023 and 5 April 2023 the work needed to be repeated.

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.
Applicants are required to prove their case on the balance of probabilities. In this case that means that the landlord is required to show that more likely than not the tenant, or someone they were responsible for, caused damage to 10 roof tiles.
Having seen the photos of the tenant’s children walking on the roof, I am satisfied that more likely than not they caused the damage to 10 roof tiles.
I note that the tenant advised the landlord that her brother had replaced the broken roof tiles. However, I accept the evidence that only 3 tiles were replaced and they were not the same colour as the existing roof tiles.
On this evidence I am satisfied that the tenant ought to pay the cost of replacing the 10 roof tiles. This amounted to $172.50 but I am ordering the tenant to pay $103.50 because I have taken depreciation into account as I am required to do. Methamphetamine Contamination
The landlord claims $2,750.00, that being the insurance excess payable for having the garage decontaminated.
I accept that at the end of the tenancy the garage showed traces of methamphetamine at 3.96mu/100 cm 2 . I also accept that given the testing completed at the beginning of the tenancy, that this ‘contamination’ occurred during Ms Barbarich’s tenancy.
The issue here is whether 3.96mu/100 cm 2 is considered to be an unsafe level requiring decontamination.
Since 2015 the Tribunal has received increasing numbers of applications involving “methamphetamine contamination”. Along with the increasing number of applications to the Tribunal, various guidelines have been used to determine the level at which levels of methamphetamine become unsafe.
In July 2017, ESR, the Crown Research Institute, released NZS8510:2017. This report set one level – 1.5/100 cm2 and this became the standard that in general, the Tenancy Tribunal applied in cases before it relating to methamphetamine contamination.
However, in May 2018, Professor Sir Peter Gluckman, the then-Chief Scientific Advisor in the Office of the Prime Minister, released a report indicating that the previous guideline was unnecessarily risk averse. Noting the findings of various overseas reports, the report’s authors conclude that there is currently no evidence that methamphetamine levels typically resulting from third hand exposure to smoking residues on household surfaces can elicit an adverse health effect. They recommended that below 15mu/100cm 2 methamphetamine levels would be unlikely to give rise to any adverse effects.
In dealing with applications such as these, the Tribunal has in more recent years adopted the Gluckman report – that is, that any level 15mu/100cm 2 and above can be considered contaminated and anything below, can be considered not contaminated.
The adoption of these levels has been endorsed by a number of District Court decisions including Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947 and Eren Ltd v Martin & Kukuruzsnayak [2021] NZDC 15210.
For the reasons described above, I do not consider that Ms Barbarich ought to pay the insurance excess for decontaminating the garage. This is because the level of 3.96mu/100 cm 2 is well below the 15mu/100cm 2 level and cannot therefore be considered as requiring decontamination.
I note too that the Tenancy Tribunal is bound to follow decisions made by the District Court. Filing fee reimbursement
If an applicant is wholly or substantially successful in their claim, then the Tribunal orders the other party to reimburse them the filing fee.
In this case the applicant was neither wholly nor substantially successful in their claim and so I am not ordering the tenant to reimburse them the filing fee. C ter Haar 19 September 2023

Claims and awards in Tenancy Tribunal application 4583950 — net $103.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replacement roof tiles	$103.50	Replacement roof tiles
Net award	$103.50
Total payable by Tenant to Landlord	$103.50

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Boutique Rentals BOP Limited is to pay the bond money of $2,235.21, held in their trust account, immediately, apportioned as follows: Boutique Rentals Bop Limited: $103.50 Danelle Barbarich: $2,131.71

Reasons

Ms Barbarich did not attend today’s hearing. I note that on 5 September Ms Barbarich phoned the Tribunal requesting an adjournment of today’s hearing because she was due to have a baby in hospital today. On 6 September 2023 the Tribunal advised her that before granting an adjournment, the adjudicator required evidence of that appointment. The Tribunal did not hear from Ms Barbarich until this morning, not long prior to the start of the hearing at 9.30am, when she called the Tribunal to again advise that she was going to the hospital today to be induced. There was still no confirmation of this appointment from the hospital/midwife and so the hearing went ahead in her absence.
The landlord has applied for compensation for replacing 10 roof tiles, carpet cleaning, the insurance excess payable for decontaminating the garage, payment from the bond money held in their trust account, and reimbursement of the filing fee following the end of the tenancy.

Did the tenant comply with her 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 landlord claims $175.00 for carpet cleaning, deoderisation, sanitisation and stain removal. The invoice for this work was dated 5 April 2023.
I am dismissing this part of the landlord’s claim because I have evidence (an invoice) of Ms Barbarich having the carpets cleaned, by the same company, for exactly the same work, on 23 March 2023. Further, there is no evidence that in between 23 March 2023 and 5 April 2023 the work needed to be repeated.

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.
Applicants are required to prove their case on the balance of probabilities. In this case that means that the landlord is required to show that more likely than not the tenant, or someone they were responsible for, caused damage to 10 roof tiles.
Having seen the photos of the tenant’s children walking on the roof, I am satisfied that more likely than not they caused the damage to 10 roof tiles.
I note that the tenant advised the landlord that her brother had replaced the broken roof tiles. However, I accept the evidence that only 3 tiles were replaced and they were not the same colour as the existing roof tiles.
On this evidence I am satisfied that the tenant ought to pay the cost of replacing the 10 roof tiles. This amounted to $172.50 but I am ordering the tenant to pay $103.50 because I have taken depreciation into account as I am required to do. Methamphetamine Contamination
The landlord claims $2,750.00, that being the insurance excess payable for having the garage decontaminated.
I accept that at the end of the tenancy the garage showed traces of methamphetamine at 3.96mu/100 cm 2 . I also accept that given the testing completed at the beginning of the tenancy, that this ‘contamination’ occurred during Ms Barbarich’s tenancy.
The issue here is whether 3.96mu/100 cm 2 is considered to be an unsafe level requiring decontamination.
Since 2015 the Tribunal has received increasing numbers of applications involving “methamphetamine contamination”. Along with the increasing number of applications to the Tribunal, various guidelines have been used to determine the level at which levels of methamphetamine become unsafe.
In July 2017, ESR, the Crown Research Institute, released NZS8510:2017. This report set one level – 1.5/100 cm2 and this became the standard that in general, the Tenancy Tribunal applied in cases before it relating to methamphetamine contamination.
However, in May 2018, Professor Sir Peter Gluckman, the then-Chief Scientific Advisor in the Office of the Prime Minister, released a report indicating that the previous guideline was unnecessarily risk averse. Noting the findings of various overseas reports, the report’s authors conclude that there is currently no evidence that methamphetamine levels typically resulting from third hand exposure to smoking residues on household surfaces can elicit an adverse health effect. They recommended that below 15mu/100cm 2 methamphetamine levels would be unlikely to give rise to any adverse effects.
In dealing with applications such as these, the Tribunal has in more recent years adopted the Gluckman report – that is, that any level 15mu/100cm 2 and above can be considered contaminated and anything below, can be considered not contaminated.
The adoption of these levels has been endorsed by a number of District Court decisions including Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947 and Eren Ltd v Martin & Kukuruzsnayak [2021] NZDC 15210.
For the reasons described above, I do not consider that Ms Barbarich ought to pay the insurance excess for decontaminating the garage. This is because the level of 3.96mu/100 cm 2 is well below the 15mu/100cm 2 level and cannot therefore be considered as requiring decontamination.
I note too that the Tenancy Tribunal is bound to follow decisions made by the District Court. Filing fee reimbursement
If an applicant is wholly or substantially successful in their claim, then the Tribunal orders the other party to reimburse them the filing fee.
In this case the applicant was neither wholly nor substantially successful in their claim and so I am not ordering the tenant to reimburse them the filing fee. C ter Haar 19 September 2023

Tenancy Tribunal case 4583950 — Property damage at 2 Clydesdale Close, Papamoa Beach, Papamoa 3118

At a glance

Tenancy Tribunal case 4583950 — Property damage at 2 Clydesdale Close, Papamoa Beach, Papamoa 3118

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with her obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with her obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions