What was Tenancy Tribunal case 4324137 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,345.94 immediately, calculated as shown

How much money was awarded in case 4324137?

Compensation: Failure To Maintain: $630.00 awarded to tenant; Compensation: Methamphetamine Test: $195.50 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4324137?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4324137?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/7680805-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4324137 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,345.94 immediately, calculated as shown

How much money was awarded in case 4324137?

Compensation: Failure To Maintain: $630.00 awarded to tenant; Compensation: Methamphetamine Test: $195.50 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4324137?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4324137?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/7680805-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4324137 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4324137 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4324137 — net $2,345.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain	$630.00	Failure to maintain
Exemplary damages	$1,500.00	Exemplary damages
Compensation: Methamphetamine test	$195.50	Methamphetamine test
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,345.94
Total payable by Landlord to Tenant	$2,345.94

Claims and awards for application 4324137 — net $2,345.94 NZD. Verify on MoJ.

Compensation: Failure to maintain

Amount: $630.00
Awarded to: Tenant
Reason: Failure to maintain

Exemplary damages

Amount: $1,500.00
Awarded to: Tenant
Reason: Exemplary damages

Compensation: Methamphetamine test

Amount: $195.50
Awarded to: Tenant
Reason: Methamphetamine test

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $2,345.94

Total payable by Landlord to Tenant

Tenant $2,345.94

Dismissed claims

Other Claims — All other claims dismissed
Property Damage — Did the landlord fail to maintain the premises?

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee Property damage

Order

[The landlord/s] must pay [The tenant/s] $2,345.94 immediately, calculated as shown in table below:
All other claims are dismissed.
An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenant and Landlord name and identifying details.

Reasons

Both parties attended the hearing. [Landlord/s support person] also attended. The tenant was assisted by the written submissions of their legal counsel, Ms Munro of Woodward Crisp Solicitors.
The tenant seeks the following: -Exemplary damages for failing to provide an insulation statement; -Compensation and exemplary damages for failure to maintain and repair; -Rent refund of $1980.00 for premises being uninhabitable due to methamphetamine contamination; -Exemplary damages for landlord providing the premises despite knowledge of contamination; -Exemplary damages for a retaliatory notice; and -Exemplary damages for harassment.
The civil standard of proof applies, on the balance of probabilities.
The evidence filed in this case was voluminous. It should be noted that an Adjudicator has no obligation to refer to each and every aspect of the evidence presented 1 and this decision will summarise the relevant and pertinent evidence before providing an explanation for the conclusions reached.
This was a fixed term tenancy which commenced on 7 November 2021 and was due to run to 7 May 2022. On 19 November 2021, the landlord made an unconditional offer to release the tenants from the tenancy which was followed up by an invalid 90-day notice of termination. The offer was accepted by the tenants on 24 November and they indicated they would be moving out on 5 December. This was then superseded by the tenants giving 2-days’ notice on 26 November due to traces of methamphetamine being found at the premises. The tenancy ended on 28 November 2021 (3 weeks and 1 day).
The landlord has agreed to pay the cost of a methamphetamine test commissioned by the tenant, so I make an Order for $195.50 as sought.

Did the landlord fail to provide an insulation statement?

[The tenant/s] claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986 (RTA).
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it 1 Repia v Walsh Trust DC Waitakere CIV-2011-090-56, 27 April 2011 cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) RTA.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A RTA.
Section 85(2) RTA requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but the Tribunal is not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
The landlord provided full insulation details to the tenant prior to the start of the tenancy. Although this came separately in the form of a Healthy Homes Report which was not attached to the tenancy agreement, the relevant information was nonetheless provided.
This does not amount to a breach therefore this part of the claim is dismissed.

Did the landlord fail to maintain the premises?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health and safety provide an adequate means for the collection and storage of water if there is no reticulated supply.
It became compulsory for landlords to comply with the Smoke Alarm Regulations from 1 July 2016. The requirements for alarms that are not hardwired alarms, include:- a. There must be at least one “qualifying smoke alarm” installed in every sleeping space, or within 3 metres of the entrance (or main entrance) to every sleeping space, and on every storey or level in the premises, and b. The alarm must be a photoelectric alarm, be fully operational and have not expired (the expiry date must be displayed on the alarm), and c. Must have a battery with a life span of at least 8 years. d. Once installed, it is a tenant’s obligation to replace batteries in alarms, if necessary.
If a smoke alarm was installed before 1 July 2016 and the replacement date has not passed, then the alarm need not comply with paragraphs b and c above. However, all replacement alarms do need to comply.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The landlord agrees that cleaning and garden work was needed at the start of the tenancy; but not to the extent claimed by the tenant. The landlord says an additional smoke alarm was installed by the Fire Brigade on 16 November and the old one upgraded, mould in the bathroom ensuite bathroom ceiling was removed by 17 November, and the garden work done by 18 November. The landlord says she was ill for 6 weeks which contributed to delays at the start of the tenancy. The landlord stated that she could not check the existing smoke alarm as it was too high up.
I find that the premises were not provided in a reasonably clean state. The heat pump filter was dirty, surfaces and ceilings needed to be wiped down, curtains and carpets needed to be cleaned, there was mould in the ensuite bathroom, and the lawns and gardens were overgrown. I accept the tenant’s evidence that the single existing smoke alarm was out of date and this was not replaced when the additional alarm was installed. I find that $630.00 is fair, reasonable and proportionate compensation in the circumstances of this case which is equivalent to one week’s rent.
The tenant has not provided sufficient evidence to prove that pest control was needed at the premises, so this part of the claim is dismissed. Similarly, the tenants did not provide any evidence to support their claim that the gas fire was unsafe and could not be used. The heat pump was functional throughout the tenancy.
However, I find that the landlord has committed an unlawful act; particularly in relation to the smoke alarms.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied that the landlord was well aware of the cleaning issues that needed to be addressed prior to the tenancy. I also find that her relaxed attitude to the provision of adequate smoke alarms is unacceptable. The existing alarm should have been checked before the start of the tenancy and it did not meet the regulations as it had passed its expiry date. The additional alarm, which was required under the Regulations, was not installed in the hallway until some 9 days after the start of the tenancy. All of the issues combined caused the tenants significant and justifiable worry and stress. Bearing all of these factors in mind, I make an award of $1,500.00 exemplary damages.

Were the premises uninhabitable due to methamphetamine contamination?

On 22 November the tenant commissioned a composite test for methamphetamine at the premises. Hill Laboratories reported a level of 24μg for methamphetamine, 0.73 amphetamine, and 0.04 ephedrine. The tenant says they are entitled to a full rent refund as the premises were uninhabitable or contaminated by methamphetamine. The tenant says that as traces of pre-cursors have been found, they have been told that this suggests manufacture.
Section 138C RTA provides for regulations to be made prescribing the maximum acceptable level for contaminants, but as yet no regulations have been made in relation to methamphetamine.
There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. On 29 June 2017, Standards New Zealand released NZS 8510:2017 Testing and decontamination of methamphetamine-contaminated properties, which provides industry guidance on good practice methods in the testing and cleaning of methamphetamine contamination in houses. The standard adopted a single level of 1.5μg/100cm2 that ‘high use areas’ of affected properties should be decontaminated to, regardless of whether the properties were involved in the production or use of methamphetamine.
In 2018, The Prime Minister’s former Chief Science Advisor, Professor Sir Peter Gluckman determined that there is little evidence supporting health risks from exposure to residue from methamphetamine consumption. 2 The ‘Gluckman Report’ stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect therefore there should be no need for remediation. Where there is evidence of manufacture the NZS 8510:2017 standard is appropriate.
As noted recently by the District Court, there is an established position in the Tenancy Tribunal that in dealing with claims for compensation for cleaning costs in relation to methamphetamine contamination, the Gluckman Report is to be adopted. 3
I also note recent comments of the Court of Appeal 4 in direct reference to the Gluckman Report, “We acknowledge that the testing in this case yielded results now considered not to raise any health and safety concerns.”
I am therefore satisfied that the current level to be applied is the level of 15μg/100cm2 as expressed by the Gluckman Report.
Gluckman notes, 5 2 Report entitled ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018. 3 Eren Ltd v Martin and Kukuruzsryak [2021] NZDC 15210 at [12]; Full Circle Real Estate Limited v Piper [2019] NZDC 4947; Acme Realty Limited v Hogg and others [2021] NZDC 3231. 4 Smith v Accessible Properties New Zealand Limited [2019] NZCA 38 at [16] 5 At paragraph 1, pg 7 of the Executive Summary. “For initial screening of properties, combining multiple samples taken throughout a dwelling into a single composite sample, as permitted in NZS 8510:2017, has limited value in accurately reflecting levels of risk, and depending on how the data are integrated can lead to quite misleading interpretation and false impressions of high exposure, triggering another round of expensive testing. There is merit in using tests that rapidly provide a simple positive or negative result in multiple locations for detection of higher levels (for example >15 μg/100 cm2) on site, followed by sensitive testing targeted to areas that produce a positive signal to inform a decision to decontaminate. In most cases, if methamphetamine is not detected at this level anywhere within a property, there is little cause for concern unless there are other reasons to suspect methamphetamine manufacturing activity.”
It should also be noted that the Guidelines provide for a methodology involving analysis of individual area by area samples rather than analysis of composite samples taken from different areas to produce a total amount of methamphetamine from multiple swabs. 6
It follows that results from the composite samples cannot be relied upon to prove the existence of methamphetamine residue exceeding the ‘Gluckman’ levels of 15μg/100cm2.
This part of the claim is dismissed. I find no evidence to suggest any manufacturing activity in the premises in this case and there is no evidence to support the theory that the presence of pre-cursors is determinative of manufacturing. Did the landlord provide the premises in the knowledge that it was contaminated with methamphetamine?
The tenant says that the landlord must have known the premises were contaminated with the methamphetamine at the start of the tenancy.
Where premises have been tested and found to be contaminated with methamphetamine, or any other prescribed contaminant, the landlord cannot provide the premises to a tenant until they have been decontaminated. Where the premises have already been provided, the landlord may only continue to provide them if the premises are being decontaminated. See sections 45(1AA) and (1AAB) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 45(1AB) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA. 6 Hughes v BCRE Ltd [2016] NZTT Pukekohe, 4001997 & 4006950.
I find it more likely than not that the landlord was unaware of any methamphetamine being present at the premises prior to this tenancy. I accept the landlord’s evidence that she lived at the premises for 3 years prior to this tenancy (with a boarder for a time) and she had no knowledge of methamphetamine or other illegal drugs being used at the premises. While it would have been wise for the landlord to carry out a pre-tenancy test for methamphetamine as part of her due diligence, there is no legal requirement to do so. Similarly, there is no legal obligation on a landlord to disclose to a prospective tenant that the premises have been contaminated and then decontaminated for methamphetamine.
This part of the tenant’s claim is dismissed.

Was the notice to end the tenancy retaliatory?

On 19 November 2021, the landlord gave the tenant a notice purporting to end the fixed term tenancy on 18 February 2022. The tenant claims the notice is retaliatory.
Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 RTA, the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy (see section 54(1) RTA).
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The 90-day notice given by the landlord did not comply with the requirements of section 51 RTA as this was a fixed term tenancy. Section 51 only applies to periodic tenancies. This was pointed out to the landlord by the tenant on 21 November (2 days after it was given), although the tenant agreed it was in the interests of both parties to end the tenancy as soon as possible in any event.
Accordingly, the notice was invalid and cannot be declared retaliatory.
This part of the tenant’s claim is dismissed.

Did the landlord harass the tenant?

[The tenant/s] claims the landlord has harassed them. The tenant says that multiple phone calls (including during work hours), emails, visits from workmen and an invalid 90-day notice all amount to harassment. The tenant also objects to the landlord labelling them ‘anxious Americans” and the tone of her emails towards the end of the tenancy. The tenant says they were left feeling very overwhelmed, stressed and threatened by the landlord.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I do not find that the landlord intentionally set out to trouble or distress the tenant; nor that their actions amounted to harassment. It is clear that there was almost an immediate clash of personalities which was played out through a series of lengthy and multiple emails. Although I agree that some of the landlord’s correspondence was sarcastic and unprofessional, I do not find that this amounted to harassment. I find that the phone calls and visits from workmen were necessary due to the tenant’s justifiable complaints about the state of the premises. I do not find the invalid 90-day notice amounts to harassment as I accept the landlord’s evidence that she made a genuine mistake.
The Tribunal has taken the view in the past that a personality clash does not of itself amount to a breach of quiet enjoyment. Whilst it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for the breach. In Smith & Olmstead v Floris (TT 93/1404/AK) the Tribunal stated that: “...landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type”.
I find that the evidence in this case does not point to behaviour which is indicative of harassment therefore the claim for exemplary damages is dismissed. Filing fee
As the tenant has partly succeeded with the claim, the landlord must reimburse the filing fee. Name suppression
Both parties applied for suppression of their names and identifying details. Section 95A of the RTA provides that the Tribunal must order suppression if the party applying for it has been wholly or substantially successful in the proceedings.
The tenant has partially succeeded in their claims and the landlord has partially succeed in their defence but neither party has been wholly or substantially successful. However, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published (section 95A(4) RTA).
In the interests of the parties and after considering the public interest, I order suppression of both parties’ names and identifying details.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4324137 — net $2,345.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain	$630.00	Failure to maintain
Exemplary damages	$1,500.00	Exemplary damages
Compensation: Methamphetamine test	$195.50	Methamphetamine test
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,345.94
Total payable by Landlord to Tenant	$2,345.94

Claims and awards for application 4324137 — net $2,345.94 NZD. Verify on MoJ.

Compensation: Failure to maintain

Amount: $630.00
Awarded to: Tenant
Reason: Failure to maintain

Exemplary damages

Amount: $1,500.00
Awarded to: Tenant
Reason: Exemplary damages

Compensation: Methamphetamine test

Amount: $195.50
Awarded to: Tenant
Reason: Methamphetamine test

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $2,345.94

Total payable by Landlord to Tenant

Tenant $2,345.94

Dismissed claims

Other Claims — All other claims dismissed
Property Damage — Did the landlord fail to maintain the premises?

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee Property damage

Order

[The landlord/s] must pay [The tenant/s] $2,345.94 immediately, calculated as shown in table below:
All other claims are dismissed.
An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenant and Landlord name and identifying details.

Reasons

Both parties attended the hearing. [Landlord/s support person] also attended. The tenant was assisted by the written submissions of their legal counsel, Ms Munro of Woodward Crisp Solicitors.
The tenant seeks the following: -Exemplary damages for failing to provide an insulation statement; -Compensation and exemplary damages for failure to maintain and repair; -Rent refund of $1980.00 for premises being uninhabitable due to methamphetamine contamination; -Exemplary damages for landlord providing the premises despite knowledge of contamination; -Exemplary damages for a retaliatory notice; and -Exemplary damages for harassment.
The civil standard of proof applies, on the balance of probabilities.
The evidence filed in this case was voluminous. It should be noted that an Adjudicator has no obligation to refer to each and every aspect of the evidence presented 1 and this decision will summarise the relevant and pertinent evidence before providing an explanation for the conclusions reached.
This was a fixed term tenancy which commenced on 7 November 2021 and was due to run to 7 May 2022. On 19 November 2021, the landlord made an unconditional offer to release the tenants from the tenancy which was followed up by an invalid 90-day notice of termination. The offer was accepted by the tenants on 24 November and they indicated they would be moving out on 5 December. This was then superseded by the tenants giving 2-days’ notice on 26 November due to traces of methamphetamine being found at the premises. The tenancy ended on 28 November 2021 (3 weeks and 1 day).
The landlord has agreed to pay the cost of a methamphetamine test commissioned by the tenant, so I make an Order for $195.50 as sought.

Did the landlord fail to provide an insulation statement?

[The tenant/s] claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986 (RTA).
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it 1 Repia v Walsh Trust DC Waitakere CIV-2011-090-56, 27 April 2011 cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) RTA.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A RTA.
Section 85(2) RTA requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but the Tribunal is not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
The landlord provided full insulation details to the tenant prior to the start of the tenancy. Although this came separately in the form of a Healthy Homes Report which was not attached to the tenancy agreement, the relevant information was nonetheless provided.
This does not amount to a breach therefore this part of the claim is dismissed.

Did the landlord fail to maintain the premises?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health and safety provide an adequate means for the collection and storage of water if there is no reticulated supply.
It became compulsory for landlords to comply with the Smoke Alarm Regulations from 1 July 2016. The requirements for alarms that are not hardwired alarms, include:- a. There must be at least one “qualifying smoke alarm” installed in every sleeping space, or within 3 metres of the entrance (or main entrance) to every sleeping space, and on every storey or level in the premises, and b. The alarm must be a photoelectric alarm, be fully operational and have not expired (the expiry date must be displayed on the alarm), and c. Must have a battery with a life span of at least 8 years. d. Once installed, it is a tenant’s obligation to replace batteries in alarms, if necessary.
If a smoke alarm was installed before 1 July 2016 and the replacement date has not passed, then the alarm need not comply with paragraphs b and c above. However, all replacement alarms do need to comply.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The landlord agrees that cleaning and garden work was needed at the start of the tenancy; but not to the extent claimed by the tenant. The landlord says an additional smoke alarm was installed by the Fire Brigade on 16 November and the old one upgraded, mould in the bathroom ensuite bathroom ceiling was removed by 17 November, and the garden work done by 18 November. The landlord says she was ill for 6 weeks which contributed to delays at the start of the tenancy. The landlord stated that she could not check the existing smoke alarm as it was too high up.
I find that the premises were not provided in a reasonably clean state. The heat pump filter was dirty, surfaces and ceilings needed to be wiped down, curtains and carpets needed to be cleaned, there was mould in the ensuite bathroom, and the lawns and gardens were overgrown. I accept the tenant’s evidence that the single existing smoke alarm was out of date and this was not replaced when the additional alarm was installed. I find that $630.00 is fair, reasonable and proportionate compensation in the circumstances of this case which is equivalent to one week’s rent.
The tenant has not provided sufficient evidence to prove that pest control was needed at the premises, so this part of the claim is dismissed. Similarly, the tenants did not provide any evidence to support their claim that the gas fire was unsafe and could not be used. The heat pump was functional throughout the tenancy.
However, I find that the landlord has committed an unlawful act; particularly in relation to the smoke alarms.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied that the landlord was well aware of the cleaning issues that needed to be addressed prior to the tenancy. I also find that her relaxed attitude to the provision of adequate smoke alarms is unacceptable. The existing alarm should have been checked before the start of the tenancy and it did not meet the regulations as it had passed its expiry date. The additional alarm, which was required under the Regulations, was not installed in the hallway until some 9 days after the start of the tenancy. All of the issues combined caused the tenants significant and justifiable worry and stress. Bearing all of these factors in mind, I make an award of $1,500.00 exemplary damages.

Were the premises uninhabitable due to methamphetamine contamination?

On 22 November the tenant commissioned a composite test for methamphetamine at the premises. Hill Laboratories reported a level of 24μg for methamphetamine, 0.73 amphetamine, and 0.04 ephedrine. The tenant says they are entitled to a full rent refund as the premises were uninhabitable or contaminated by methamphetamine. The tenant says that as traces of pre-cursors have been found, they have been told that this suggests manufacture.
Section 138C RTA provides for regulations to be made prescribing the maximum acceptable level for contaminants, but as yet no regulations have been made in relation to methamphetamine.
There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. On 29 June 2017, Standards New Zealand released NZS 8510:2017 Testing and decontamination of methamphetamine-contaminated properties, which provides industry guidance on good practice methods in the testing and cleaning of methamphetamine contamination in houses. The standard adopted a single level of 1.5μg/100cm2 that ‘high use areas’ of affected properties should be decontaminated to, regardless of whether the properties were involved in the production or use of methamphetamine.
In 2018, The Prime Minister’s former Chief Science Advisor, Professor Sir Peter Gluckman determined that there is little evidence supporting health risks from exposure to residue from methamphetamine consumption. 2 The ‘Gluckman Report’ stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect therefore there should be no need for remediation. Where there is evidence of manufacture the NZS 8510:2017 standard is appropriate.
As noted recently by the District Court, there is an established position in the Tenancy Tribunal that in dealing with claims for compensation for cleaning costs in relation to methamphetamine contamination, the Gluckman Report is to be adopted. 3
I also note recent comments of the Court of Appeal 4 in direct reference to the Gluckman Report, “We acknowledge that the testing in this case yielded results now considered not to raise any health and safety concerns.”
I am therefore satisfied that the current level to be applied is the level of 15μg/100cm2 as expressed by the Gluckman Report.
Gluckman notes, 5 2 Report entitled ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018. 3 Eren Ltd v Martin and Kukuruzsryak [2021] NZDC 15210 at [12]; Full Circle Real Estate Limited v Piper [2019] NZDC 4947; Acme Realty Limited v Hogg and others [2021] NZDC 3231. 4 Smith v Accessible Properties New Zealand Limited [2019] NZCA 38 at [16] 5 At paragraph 1, pg 7 of the Executive Summary. “For initial screening of properties, combining multiple samples taken throughout a dwelling into a single composite sample, as permitted in NZS 8510:2017, has limited value in accurately reflecting levels of risk, and depending on how the data are integrated can lead to quite misleading interpretation and false impressions of high exposure, triggering another round of expensive testing. There is merit in using tests that rapidly provide a simple positive or negative result in multiple locations for detection of higher levels (for example >15 μg/100 cm2) on site, followed by sensitive testing targeted to areas that produce a positive signal to inform a decision to decontaminate. In most cases, if methamphetamine is not detected at this level anywhere within a property, there is little cause for concern unless there are other reasons to suspect methamphetamine manufacturing activity.”
It should also be noted that the Guidelines provide for a methodology involving analysis of individual area by area samples rather than analysis of composite samples taken from different areas to produce a total amount of methamphetamine from multiple swabs. 6
It follows that results from the composite samples cannot be relied upon to prove the existence of methamphetamine residue exceeding the ‘Gluckman’ levels of 15μg/100cm2.
This part of the claim is dismissed. I find no evidence to suggest any manufacturing activity in the premises in this case and there is no evidence to support the theory that the presence of pre-cursors is determinative of manufacturing. Did the landlord provide the premises in the knowledge that it was contaminated with methamphetamine?
The tenant says that the landlord must have known the premises were contaminated with the methamphetamine at the start of the tenancy.
Where premises have been tested and found to be contaminated with methamphetamine, or any other prescribed contaminant, the landlord cannot provide the premises to a tenant until they have been decontaminated. Where the premises have already been provided, the landlord may only continue to provide them if the premises are being decontaminated. See sections 45(1AA) and (1AAB) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 45(1AB) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA. 6 Hughes v BCRE Ltd [2016] NZTT Pukekohe, 4001997 & 4006950.
I find it more likely than not that the landlord was unaware of any methamphetamine being present at the premises prior to this tenancy. I accept the landlord’s evidence that she lived at the premises for 3 years prior to this tenancy (with a boarder for a time) and she had no knowledge of methamphetamine or other illegal drugs being used at the premises. While it would have been wise for the landlord to carry out a pre-tenancy test for methamphetamine as part of her due diligence, there is no legal requirement to do so. Similarly, there is no legal obligation on a landlord to disclose to a prospective tenant that the premises have been contaminated and then decontaminated for methamphetamine.
This part of the tenant’s claim is dismissed.

Was the notice to end the tenancy retaliatory?

On 19 November 2021, the landlord gave the tenant a notice purporting to end the fixed term tenancy on 18 February 2022. The tenant claims the notice is retaliatory.
Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 RTA, the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy (see section 54(1) RTA).
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The 90-day notice given by the landlord did not comply with the requirements of section 51 RTA as this was a fixed term tenancy. Section 51 only applies to periodic tenancies. This was pointed out to the landlord by the tenant on 21 November (2 days after it was given), although the tenant agreed it was in the interests of both parties to end the tenancy as soon as possible in any event.
Accordingly, the notice was invalid and cannot be declared retaliatory.
This part of the tenant’s claim is dismissed.

Did the landlord harass the tenant?

[The tenant/s] claims the landlord has harassed them. The tenant says that multiple phone calls (including during work hours), emails, visits from workmen and an invalid 90-day notice all amount to harassment. The tenant also objects to the landlord labelling them ‘anxious Americans” and the tone of her emails towards the end of the tenancy. The tenant says they were left feeling very overwhelmed, stressed and threatened by the landlord.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I do not find that the landlord intentionally set out to trouble or distress the tenant; nor that their actions amounted to harassment. It is clear that there was almost an immediate clash of personalities which was played out through a series of lengthy and multiple emails. Although I agree that some of the landlord’s correspondence was sarcastic and unprofessional, I do not find that this amounted to harassment. I find that the phone calls and visits from workmen were necessary due to the tenant’s justifiable complaints about the state of the premises. I do not find the invalid 90-day notice amounts to harassment as I accept the landlord’s evidence that she made a genuine mistake.
The Tribunal has taken the view in the past that a personality clash does not of itself amount to a breach of quiet enjoyment. Whilst it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for the breach. In Smith & Olmstead v Floris (TT 93/1404/AK) the Tribunal stated that: “...landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type”.
I find that the evidence in this case does not point to behaviour which is indicative of harassment therefore the claim for exemplary damages is dismissed. Filing fee
As the tenant has partly succeeded with the claim, the landlord must reimburse the filing fee. Name suppression
Both parties applied for suppression of their names and identifying details. Section 95A of the RTA provides that the Tribunal must order suppression if the party applying for it has been wholly or substantially successful in the proceedings.
The tenant has partially succeeded in their claims and the landlord has partially succeed in their defence but neither party has been wholly or substantially successful. However, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published (section 95A(4) RTA).
In the interests of the parties and after considering the public interest, I order suppression of both parties’ names and identifying details.

Tenancy Tribunal case 4324137 — Exemplary damages

At a glance

Tenancy Tribunal case 4324137 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to provide an insulation statement?

Did the landlord fail to maintain the premises?

Were the premises uninhabitable due to methamphetamine contamination?

Was the notice to end the tenancy retaliatory?

Did the landlord harass the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to provide an insulation statement?

Did the landlord fail to maintain the premises?

Were the premises uninhabitable due to methamphetamine contamination?

Was the notice to end the tenancy retaliatory?

Did the landlord harass the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions