Sally Lindsay
A tenant in Auckland’s CBD who told the Tenancy Tribunal she was unaware her boyfriend was smoking meth inside her home and was beaten up when she discovered this and confronted him, is being forced to pay her landlord $50,039 to decontaminate, refurbish and renovate the apartment.
Yoriko Unno’s boyfriend was jailed for assault and possession of an illicit substance when she discovered he had been secretly using methamphetamine in the toilet or bathroom.
Unno told the tribunal that because she was unaware of his unlawful activity and did not use methamphetamine herself or manufacture it in the apartment, she should not be held responsible for the extensive contamination.
The tribunal’s decision, traversing who should y be liable for the full decontamination, refurbishment and renovation costs, came two years after an initial tribunal hearing and order that awarded the tenant compensation, and a subsequent appeal by the landlord to the District Court.
The 2022 tribunal decision ordered the landlord, who has name suppression, to pay Unno $5,753.40 in compensation for Airbnb costs, general damages for stress and inconvenience and exemplary damages for breaching s 46 of the Residential Tenancies Act (RTA).
Unno was locked out of the apartment by the body corporate and not allowed to return before a possession order was granted.
In that same decision, the landlord was awarded $1500 in exemplary damages against Unno because she allowed the premises to be used for an unlawful purpose.
Tribunal adjudicator Jack Tam said despite the absence of methamphetamine testing before Unno moved in, he was satisfied the contamination occurred during the course of her tenancy. Meth readings taken at the apartment exceeded by a substantial amount both the New Zealand standard and the level regarded as acceptable in an opinion from the government’s former chief scientist, Sir Peter Gluckman.
After the landlord appealed to the Auckland District Court, the tribunal’s award to the tenant was set aside in favour of a rent rebate of $1,628.57 for two weeks and five days.
But Judge Kate Davenport KC said this was not to take effect until the tribunal could consider and ruled on the apportionment of loss and damage to unit 1710 at the apartment tower.
Davenport said she “had considerable difficulty” with the tribunal’s order that the landlord had to pay damages and compensation for circumstances that were caused by “an illicit act of the tenant”.
In the subsequent Tenancy Tribunal hearing in September this year, adjudicator Michelle Pollak said the judge had accepted that the tenant was responsible for her boyfriend’s methamphetamine use in the apartment that led to the landlord having to undertake a full meth decontamination, including repeated testing, renovation and refurbishment.
Under s 49B(1) RTA, tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that could be an imprisonable offence. This applies to anything the tenant does and anything done by a person the tenant is responsible for.
Unno confirmed her boyfriend was at her apartment with her permission but said he did not have a key. She said she let him in when he visited and he stayed over from time to time, but always with her knowledge and consent.
Pollak found Unno liable under s 41(1) of the RTA for the damage to the apartment caused by her boyfriend’s meth use .“It was more than fair wear and tear, and the tenant has not disproved liability.”
The landlord applied for rent arrears, compensation and refund of the bond.
The body corporate paid decontamination costs of $88,907 direct to the clean-up contractors. Pollak ordered the tenant to pay the landlord the $14,000 she had paid to the body corporate as her share. The body corporate’s insurance company paid $57,500 towards the clean-up and the remaining $17,407 was written off.
The landlord also proved the tenant had tried to cut costs by buying replacement soft furnishings and appliances second-hand and by negotiating discounts on new items she purchased.
Because of the discounts, Pollak did not depreciate the amounts claimed for the contaminated original items, which were four to five years old.
“The landlord had suffered far more loss than what had been claimed by her and she was in no way better off because I have not depreciated these items she has claimed compensation for,” Pollak said.
The tenant did not challenge any of the amounts ordered.
Although the landlord lost 42 weeks’ rent because of the time it took to decontaminate, renovate and refurbish, she could claim 20 of those weeks on insurance. Pollak ordered the other 22 weeks of rent at $13,200.00 to be paid by the tenant.
The tribunal dismissed, for lack of jurisdiction, a compensation claim by the landlord for emotional harm and stress.
Unno was ordered to make 250 weekly payments of $200 each until the landlord’s compensation award was paid off. If her financial circumstances improve, she has agreed to contact the landlord and make arrangements to increase the weekly amounts payable or to make lump sum payments.
As part of the final order, Unno had the rent rebate of $1,628.57 in Judge Davenport’s appeal determination deducted from the total awarded against her, along with the $2,400 bond.
Read the tribunal’s order here.
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