Landlords urgently need clarity on their rights over tenants, says the Foxton man appealing a Tenancy Tribunal ruling that a renter who let her dog urinate and defecate in the house does not have to pay $3000 damages - even though there was a no pets policy.
David Russ says it "beggars belief" he has to foot the bill for damage caused to his property by renter Amanda Stewart and her pet.
According to Russ, Stewart breached the terms of her lease by having animals in the house in the first place, which then urinated and defecated on the carpet, while the curtains stank to "high heaven" as the result of the dogs' waste.
He took her to the tribunal to recover $3000 in costs, however, the tribunal ruled in favour of Stewart who didn't have to pay a cent.
A landlord of 20 years, Russ says it's the worst case of damage he's ever encountered, has been stunned by the decision and will appeal in court - concerned it opens the door for tenants to cause damage without being held accountable.
"It just think it's not right. You can't have people doing that and saying they're not at fault. It beggars belief really," Russ told the Herald.
At the centre of the wrangle is whether the damage caused during Stewart's tenancy was intentional. The tribunal said while the lease terms were intentionally breached by Stewart, it ruled Russ failed to prove the damage was also intentional.
"While I accept that the tenant has intentionally breached the agreement by allowing a dogs onto the property the landlord has not established that the tenant intended to damage the carpet," the tribunal adjudicator said.
"Nor has the landlord proven the tenants actions amount to an imprisionable offence or that insurance is irrecoverable because of the tenant's acts or omissions.
To suggest that she didn't intend to pollute the thing is like driving down the wrong side of the road - you didn't intend to bang into the other car, but if you drive on the other side of the road you are going to have an accident.
"Ms Stewart is immune from liability for the damage to the carpet."
Russ says he disagrees with the decision and has concerns it opens the door for tenants to get away with damage by saying hey didn't mean it.
"The decision is challengable," he said. "To suggest that she didn't intend to pollute the thing is like driving down the wrong side of the road - you didn't intend to bang into the other car, but if you drive on the other side of the road you are going to have an accident.
"She knew she had a problem too, she contacted a cleaner that we got in touch with as well, because he's known to be an expert in cleaning contaminated carpets. Again, it's just another string to the thread of a deliberate and knowledgeable event."
The issue of tenants, landlords and damage has come to light this year when Auckland tenants Kenji and Tieko Osaki won a Court of Appeal ruling in April, saying they were not liable for damage caused when Mrs Osaki left a pot of oil on high heat and unattended for five minutes.
Fire broke out, causing substantial damage to the house.
Insurers AMI lost because the tenants were found to be immune from any liability for the damage to the property, which their landlord had insured, because it was ruled to be unintentional.
Russ says the fallout from that case is starting to be seen elsewhere for an increasing number of landlords.
"We're not happy with the overall implications of the Osaki thing because it opens the door to saying anything they did was accidental," he said.
President of the Independent Property Managers' Association, Karen Withers, says the debate over whether damage is intentional needs clarity.
"There is definitely the question of intentional versus unintentional and unfortunately, it's case by case," Withers said.
"Every landlord should be aware of the Osaki case and the implications is has for Tenancy Tribunal rulings. It's very, very topical.
"We are lobbying very hard to get clarification on it. The High Court ruling called on a section of the Property Law Act, usually it's just the Residential Tenancies Act that's involved."