Published tribunal order
Tenancy Tribunal case 4805039 — Property damage at Unit/Flat 2, 503 Cashel Street, Linwood, Christchurch 8011
Decided 8 Aug 2024 · Published 8 Aug 2024 · Application 4805039
Landlord favoured
- Property damage
Order
- Sarah Fabian must pay Quintessential Property Management Limited As Agent For Buntay Family Trust $486.44 immediately, calculated as shown in table below. DescriptionLandlord Cleaning and Rubbish Removal$306.00 Repairs: Carpet - 4 insurance excesses$1,600.00 Repairs: Wall damage - insurance excess$400.00 Filing fee reimbursement$20.44 Total award$2,326.44 Bond (already paid to Landlord)$1,840.00 Total payable by Tenant to Landlord$486.44
- The Landlord’s other claims are dismissed.
Reasons
- A representative of the landlord attended the hearing. The tenant did not attend.
- The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy. The landlord has already received the bond and that payment has been reflected in Order 1 above.
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 did not leave the premises reasonably clean and tidy and did not remove all rubbish. The landlord provided photographs and an invoice showing the costs incurred. The amounts ordered are proved.
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.
- The following damage was caused during the tenancy: carpet was extensively stained, well beyond fair wear and tear and there were holes in walls and a door. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The landlord provided evidence of the insurance excesses applied. That amount was below the cost of repair. The amounts ordered are proved.
- The landlord also claimed two insurances excesses for damage to a neighbouring unit. The landlord said that the damage was caused by the tenant’s removal truck. There was no evidence or witness to confirm how or when the damage occurred. More significantly, the damage is to a neighbouring property, not the tenancy premises. It is well established that a tenant is only liable, to the landlord, for damage to the tenancy property, not for example another apartment in the same building or adjoining premises. 1 The claims in relation to the barge board and plaster damage are dismissed. 1 Bribanc Property Management Ltd v Hayman (TT Auckland 07/3984 AK, 9 January 2008; Phillips v Taylor (DC Whanganui TT424/99, 25 January 2000; MacDonald v Dodds DC Hamilton CIV-2009-019- 1524, 26 February 2010)
- The landlord also claimed the cost of methamphetamine testing and cleaning. The landlord provided evidence of one post-tenancy composite test of 8 samples showing a reading of 10.2 micrograms per 100cm2. The executive summary of the report notes: “The Certificate of Analysis provided by Hill Laboratory confirms the sum accumulation of methamphetamine found in the 8 samples obtained to be 10.2μg, meaning that of the 8 samples one may have a level of methamphetamine above the NZ Standard of 1.5μg/100cm².”
- The composite test was not at a level that the Tribunal would find that damage had occurred. There are currently two sources of guidance on methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm 2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm 2 for limited use areas.
- In May 2018 Professor Sir Peter Gluckman, the then Prime Minister's Chief Science Advisor, released a report "Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards”. The report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.
- The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).
- The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947. The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5μg standard.
- More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
- Further, the landlord in this case did not provide any evidence of pre-tenancy methamphetamine testing. Absence of pre-let testing means that the landlord was not able to prove contamination or methamphetamine use occurred during this tenancy. See Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210; Brooking and Hodges v Imrie [2021] NZDC 16976.
- The claims in relation to Methamphetamine testing and cleaning are dismissed.
- As the landlord was partially successful, I have awarded reimbursement of the Tribunal application fee. The landlord was not substantially successful, so I have not granted its request for suppression of its details.