Can you become liable for fault of your co-tenant without any fault of your own?

Harrison v Shields (District Court, Dunedin NP435/00, 25 September 2002, Judge GS MacAskill)

There is always some risk involved when you decide to rent a flat or a house with someone else. Not many people realize that although she may not be at fault, she may be liable for other’s fault which resulted in damaging the rental property.

This was a claim by a landlord against the tenants of his residential property for the damage caused by a fire during the term of the tenancy. It was accepted by the parties that the fire was caused by the negligence of one of the co-tenants. The tenancy was for a fixed term of one year and was subject to the Residential Tenancy Act 1986. There were six co-tenants of whom five had signed the written tenancy agreement. The damage occurred during the one year tenancy term but following the fire the tenants ceased to occupy the flat for the remainder of the term.

The landlord claimed damages totaling $82,381.07. One of the tenants had admitted liability and judgment had been entered against him for the amount of the claim but the other five tenants denied liability and quantum.

The Court concluded that as five of the six tenants had signed the tenancy agreement, they were to enjoy exclusive occupation collectively, and had all contributed to the rent, the tenancy was a joint tenancy at common law, and “all of the defendants’ rights and obligations were joint and several”. Furthermore, s 67 of the Property Law Act 1952 confirmed that covenants bind covenantees jointly and severally unless a contrary intention is expressed.

The decision and the quantum of damages awarded would come as a shock to most residential tenants, particularly students or others on low incomes sharing a flat in circumstances similar to this case. The injustice of the decision prompted the Court to make a strong plea for law reform.

Please note that the above information is intended to provide general information only. The contents contained in this article do not constitute legal advice and should not be relied on as such. For legal advice please contact our professional team at Forest Harrison.