Published tribunal order
Tenancy Tribunal case 5141169 — Property damage at 206 Kelvin Street, Avenal, Invercargill 9810
Decided 2 Apr 2025 · Published 2 Apr 2025 · Application 5141169
Landlord favoured
- Property damage
- Cleanliness
Order
- Nicolette Elizabeth Iris Wahia must pay Bayleys Property Management As Agent For Isabel Diack $1,922.71 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,880.00 (3473116-010) to Bayleys Property Management As Agent For Isabel Diack immediately.
- 29 Total payable by Tenant to Landlord$1,922.71
Reasons
- Both parties attended the hearing. Ms Wahia is the only tenant who signed the tenancy agreement as her son Michael Wahia was named but he did not sign the agreement. He was present in person at today’s hearing with Ms Wahia as he resided at the home with his mother.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The landlord states that the house was immaculate at the end of the tenancy. That the tenants had been excellent tenants and there had been no issues throughout the tenancy.
- The background to this case is that the tenants were given notice that the property was going on the market. As a result of the proposed sale testing was carried out at the property for Methamphetamine. The results were positive. Further extensive testing was carried out and some of the results were high. As a result, the tenants were issued with a seven day notice to terminate.
- The landlords confirmed at today’s hearing that they seek the insurance excess for the clean up together with the costs to carry out the last testing as this was not covered by insurance.
- The tenants claim that the contamination did not occur during their tenancy and as there was no pre tenancy testing this could not be blamed on them. They seek to have their rent re paid on the basis that they should not have been paying rent on a property that was not habitable. They also claim for the cost of the storage of their belongings as it was a significant task moving in a week where they had nowhere to go.
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 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 claims that the damage is as a result of Methamphetamine use. They seek the costs of the insurance excess and final testing.
- The tenancy commenced on 5 April 2022 and ended with the termination notice on the 31 October 2024. There was no base line testing carried out.
- The tenants deny liability. Mr Wahia claims that this has happened before at a previous tenancy and testing should be done before the tenancy started to avoid this. He denied Meth use in the home. Ms Wahia also denied that there would have been use at the property as she has had whanau stay including sick whanau and she is not that type of person. She states she carries out drug testing for work.
- Mrs Wahia stated, and I accept, that this has been a very stressful and upsetting situation for her.
- The evidence in relation to the testing is that there were high levels detected in some areas. However, the concerning areas were the smoke alarms that had been installed during the tenancy. Mr Wahia accepts that new ones were installed during the tenancy replacing old ones that were there. He submitted that the contamination could have been bought into the home on the smoke alarms with the person who installed them.
- I must deal with the evidence on the balance of probabilities, that is, what is more likely to have occurred than not. The evidence is that new items were contaminated with high levels and that occurred during the tenancy. On the balance of probabilities, I cannot accept this was bought in by the smoke alarm installer.
- Therefore, I accept the claim of the landlords.
- The amounts ordered are proved.
- Because Bayleys Property Management As Agent For Isabel Diack has wholly succeeded with the claim I must reimburse the filing fee.
- In relation to the claim by the tenants, that the house was contaminated before they moved in and therefore should have a full rent refund is dismissed.
- The tenants confirmed that they have had no issue with the property for the entire tenancy, some two and a half years. They paid their rent and increased rent when it was asked. There is nothing to suggest that the house caused any issues for them.
- On this basis I have no option but to dismiss the claim.