Tenant who never resided at rental still liable for damages

A man who was named as a tenant on a Pukekohe rental but never lived at the property is still liable for part of $1,500 in exemplary damages awarded by the Tenancy Tribunal over other tenants’ drug use.

Tuesday, June 6th 2023, 9:33AM

by Sally Lindsay

Stuart Brauninger and Karaka Contractors had the lease on the Station Road property from 12 December 2019 and it ended on 23 June 2021. The property was used by Karaka Contractors for its staff.

During the tenancy police broke down the door to execute a search and emailed landlord Anil Sachdeva saying they had found cannabis, methamphetamine and needles.

Sachdeva then had a composite methamphetamine test done which came back positive. He says people living at the house used methamphetamine and/or manufactured it on the premises damaging the house, resulting in him having to pay insurance excess of $3,000.

He applied to the tribunal for rent arrears, compensation, exemplary damages and refund of the bond.

The tribunal says while Brauninger is not liable for the actions of the police, he is liable to pay the landlord’s costs of the initial methamphetamine test because of the discovery of methamphetamine and drug paraphernalia on the premises during the tenancy.

Further tests found significant levels of methamphetamine contaminants on the property.

However, the tribunal says the material issue is whether the landlord established on balance the methamphetamine contamination occurred during the period of the tenancy.

There was no baseline testing done prior to the tenancy and there had been a number of other tenancies before the premises were rented to Brauninger and Karaka Contractors.

Adjudicator J Tam says without the pre-tenancy testing for methamphetamine contamination on or before 12 December 2019, there is little by way of objective evidence that methamphetamine contamination did not occur or could not have occurred prior to this tenancy.

“The discovery by police of methamphetamine and drug paraphernalia on the premises does not tip the balance in favour of the landlord establishing his case any further.

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.

In Brooking, Judge Cameron considered a case where the tribunal accepted 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 with the District Court saying “the difficulty with the landlords claim is that there was no methamphetamine test conducted at the beginning of the tenancy”.

Tam threw out Sachdeva’s claim for decontamination and further testing costs as he did not establish the methamphetamine contamination occurred only during Brauninger’s and Karaka Contractors tenancy.

Unlawful use

The actual occupiers of the premises were not named or identified to the landlord, but Tam found the premises had been used for the unlawful purpose of possession of drugs and the named tenants had permitted it.

Under sections 40(2)(a) and (b) of the RTA, tenants are liable for the actions of people at the premises with their permission.

“The actions of the occupiers, staff and/or contractors of Karaka Contractors are therefore imputed on the tenants or regarded as that of the tenants,” Tam says.

Breaching thw obligations can result in damages of up to a maximum of $1,800 being awarded.

Brauninger told the tribunal as the person against whom an award of exemplary damages is sought, this aspect of the claim against him should be dismissed as he never resided at the premises and did not therefore commit the alleged unlawful act either intentionally or otherwise.

But Tam says the persons actually residing or occupying the premises during the tenancy have been expressly or implied permitted by the tenants Brauninger and Karaka Contractors to be at the premises.

“It is the state of mind or the intent of those persons actually occupying or using the premises that is relevant here.

“Those occupiers at the premises intentionally used the premises for an unlawful purpose when they brought cannabis, methamphetamine and drug paraphernalia to the property.”

Tam says both named tenants Brauninger and Karaka Contractors are liable to pay the landlord exemplary damages for their staff, contractors and permitted occupiers of the premises as they are responsible for anything done by any person who is in the premises with their permission.

The occupiers used the premises for the unlawful purpose of drug taking and possession of drugs and drug paraphernalia.

Tam awarded exemplary damages on the higher end of the scale of $1,500.

The $3,200 bond was paid to Sachdeva for rent arrears, initial meth testing costs and lock/key replacement plus the exemplary damages, which left Brauninger and Karaka Contractors with $528 to pay.

Tags: Tenancy Tribunal