Tenant Ordered to Pay Rent Arrears and Water Rates

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[2025] NZTT 5065011

TENANCY TRIBUNAL AT PUKEKOHE | TE TARAIPIUNARA RETIHANGA KI PUKEKOHE

APPLICANT: [redacted] Morgan

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

[NAME] and [NAME] to pay [COMPANY] As Agent For Sue Morgan $1,090.81 from the bond, calculated as shown in table below.

Description Landlord Tenant Rent arrears to 17 October 2024 $455.00 Water rates $145.69 Rubbish removal $360.87 Meth testing costs on the smoke alarm $102.25 Filing fee reimbursement $27.00 Total award $1,090.81 Bond $1,090.81

Reasons:

1. Only the landlord’s representative attended the hearing.

2. The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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How much is owed for rent and water rates?

3. The tenancy ended on 17 October 2024. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

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

4. 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.

5. The tenant did not remove all rubbish.

6. The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

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12. The landlord claims that during the period of this tenancy, the tenant has caused or permitted others living at the premises to have caused the property to be contaminated by methamphetamine use (and/or manufacture) on the premises which damaged the property. The landlord suffered loss in paying the insurance excess of $2,500.00 for methamphetamine cleaning and testing costs which are not insured. The landlord also seeks methamphetamine testing cost on a smoke alarm that was purchased brand new and installed during the tenancy.

Is the tenant liable for methamphetamine testing cost on the smoke alarm

13. While there is no baseline testing of methamphetamine prior to the start of the tenancy in November 2021, I find on the balance of probabilities that there had been methamphetamine use (which is unlawful) in the premises during the tenancy.

14. A smoke alarm that was installed during the tenancy recorded methamphetamine residue of 3.48μg/100cm2.

15. I find it more likely than not that methamphetamine use has occurred during the tenancy because the smoke alarm was purchased brand-new and installed in the premises during the tenancy.

16. Accordingly, I hold that the tenant is liable to pay the landlord the cost of the methamphetamine test undertaken on the smoke alarm of $102.25.

17. I consider the methamphetamine testing cost was reasonably undertaken and incurred by the landlord in the circumstances given my finding that it is more likely than not that methamphetamine use has occurred at the premises during the tenancy.

Is the tenant liable for the uninsured methamphetamine decontamination costs?

18. The landlord’s remaining claims for uninsured loss from methamphetamine decontamination costs rest on whether the premises required remediation, cleaning and replacement of chattels based on the methamphetamine test results.

19. Composite methamphetamine testing results obtained at the end of the tenancy on 22 October 2024 recorded a theoretical maximum reading of 46μg/100cm2 on the premises.

20. The material issue however is whether the landlord has established that methamphetamine contamination occurred and to what levels or extent during the period of this tenancy from 26 November 2021 to 17 October 2024.

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21. The landlord acknowledges that there was no baseline testing done prior to this tenancy.

22. Without pre-tenancy testing for methamphetamine contamination on or shortly before the start of the tenancy on 26 November 2021, there is little by way of objective evidence before the Tribunal that methamphetamine contamination did not occur or could not have occurred prior to this tenancy.

23. The positive methamphetamine testing result on the smoke alarm that was installed during the tenancy does not tip the balance in favour of the landlord establishing their case any further. Methamphetamine contamination could have also occurred on the premises prior to this tenancy to or near the levels indicated by the methamphetamine testings conducted after the end of the tenancy.

24. The District Court in Eren Limited v Louise Martin [2021] NZDC 15210 and Brooking and Hodges v Imrie [2021] NZDC 16976 emphasised the significance of pre tenancy testing, and that its absence would be a determinative factor.

25. In Eren, Judge de Ridder also considered a dispute over who caused the contamination. In that case, the Tribunal had declined the claim for the contamination remediation costs, on various grounds, including that the landlord had not established that the tenant contaminated the premises in the first instance. The appeal to the District Court was by the landlord. In that case, the landlord reports finding evidence of drug use in rubbish left by the tenants, and also that the neighbours had reported the tenants using drugs at the premises. The District Court confirmed that was circumstantial evidence that could be considered by the Tribunal. However, the Court found that the circumstantial evidence was not sufficient to get over the problem of no pre-tenancy methamphetamine testing, with his honour stating:

However, the significant problem for this claim is that there is no evidence of any methamphetamine testing carried out at the start of this tenancy. If there had been such testing and it revealed no methamphetamine, then clearly the methamphetamine residue that was found at the end of this tenancy could only have occurred during the tenancy and could only have occurred by either the tenant’s using methamphetamine or permitting others to use methamphetamine inside the house. The lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of their tenancy.

26. In Brooking, Judge Cameron considered a case where the Tenancy Tribunal accepted that contamination was caused by the tenants, in circumstances where there was no pre-tenancy testing performed, however this decision was then overturned on appeal to the District Court on the basis that “the difficulty with the landlords claim is that there was no methamphetamine test conducted at the beginning of the tenancy”.

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27. For those above reasons, the landlord has not satisfied me that it is more likely than not that the methamphetamine contamination only occurred during the period of the tenancy of [NAME] and [NAME].

28. The landlord’s claim for the uninsured loss (insurance excess) in respect of methamphetamine decontamination and testing costs on the premises therefore fails because the landlord has not established, on balance, that methamphetamine contamination occurred only during the period of this tenancy from 26 November 2021 to 17 October 2024.

29. Only the amounts ordered are proved; the amounts proved is apportioned from the bond to the landlord accordingly.

[NAME]

10 April 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: