Published tribunal order
Tenancy Tribunal case 4341251 — Property damage at Unit/Flat 3, 39 Woodward Road, Mount Albert, Auckland
Decided 21 Nov 2023 · Published 21 Nov 2023 · Application 4341251
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the name for [Tenant 1] only.
- [The tenant/s] must pay Wendell Property Management Limited As Agent For Lyn Burchell $3,503.32 immediately, calculated as shown in table below: ItemAmount Rent arrears (15 February 2022 – 25 February 2022) $1,102.14 Water rates$145.24 Ranch slider damage$650.00 Kitchen door, blind and lock damage$650.00 Bedroom door damage$300.00 Bathroom mirror and window damage$348.00 Rubbish removal $287.50 Filing fee$20.44 Total amount to be paid by tenants to landlord$3,503.32
Reasons
- The Tribunal must consider an application filed by the landlord against the two co-tenants, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- The Tribunal originally referred the dispute to mediation, but I understand that the tenants could not be contacted in the mediation process, so the matter has been referred back to the Tribunal for a hearing.
- A telephone hearing was convened on 19 January 2023. The landlord was in attendance represented by Ms Wendell. [Tenant 1] one of the co-tenants attended, but I had no success in contacting the second co-tenant Mr Boogert on the two telephone numbers provided. However on one of those numbers, the call went to voicemail, with the landlord and tenant confirming that was Mr Boogert’s voicemail. I have no reason to believe that Mr Boogert has not been properly notified of the hearing, so I will proceed to consider the matter in his absence.
- I note that the tenancy was terminated by way of an earlier order from the Tribunal, on the basis of rent arrears. The tenants were required to return possession of the premises to the landlord on 16 February 2022. The landlord states possession was not returned until 25 February 2022. The Tribunal ordered rent arrears to 14 February 2022, and released the bond to the landlord.
- One of the questions raised by [Tenant 1] at the hearing, was the extent of his liability, given he considers that the damage and additional rent claim, arises from the actions of his co-tenant. As I explained, the two co-tenants are jointly and severally liable for any debt that arises in relation to the tenancy. That means, that if a debt is established, for example rent arrears, then the landlord can pursue those rent arrears from either [Tenant 1] or Mr Boogert individually, or from both of them. The Tenancy Tribunal deals with disputes between landlords and tenants, if an order is made and [Tenant 1] considers that the liability should be with his co-tenant, then he is able to pursue his co-tenant in the Disputes Tribunal. The Tenancy Tribunal cannot consider disputes between tenants. Application for payment of rent arrears
- The landlord has applied for an order that the tenant pay further rent arrears.
- I am satisfied that the premises were not returned to the landlord until 25 February 2022. The landlord is entitled to be paid rent for the period during which the tenants had possession of the premises, and I therefore order the additional rent to cover the period between the last Tribunal order, and possession being returned to the landlord. Application for cleaning and rubbish removal
- The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
- Then landlord has provided photographs showing a small amount of rubbish left in the carport at the end of the tenancy, which includes a bedframe. I am satisfied that this rubbish was left by the tenants and so they are liable for the disposal costs which are established. Application for compensation
- The landlord seeks various orders for compensation arising from damage or other costs. Before I consider those claims, I will summarise the relevant law that applies.
- With any claim for damage, the landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is caused carelessly, and is covered the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent. See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See the High Court decision of Guo v Korck [2019] NZHC 1541. Water rates
- The landlord has claimed $145.24 for water rates for the period until mid- January. Tenants are liable for utilities like water, that are used exclusively from their occupation in the premises. The landlord was agreeable to waive the later water charges. [Tenant 1] accepted that this amount should be ordered. Methamphetamine decontamination
- The landlord has claimed the insurance excess as it relates to methamphetamine contamination. As I will discuss below, I accept the premises were contaminated by methamphetamine during the tenancy, to a maximum level of 7.1 μg/100 cm 2 in the kitchen.
- In 2010 the New Zealand Ministry of Health produced guidelines for the remediation of clandestine methamphetamine laboratories, and determined that remediation was required if the environmental level of methamphetamine was 0.5 μg/100 cm 2 . While that related to laboratories, it is the case that the
- 5 level became the de facto level at which premises were considered to require decontamination.
- In 2017 the level was increased when Standards New Zealand released Standard NZS 8510:2017 “Testing and decontamination of methamphetamine- contaminated properties”. At that time, this standard set the definitive levels at which properties which had methamphetamine contamination, required remediation. The Standard confirmed that: After seeking expert advice on exposure risk from Environmental Science and Research Ltd (ESR) and the Ministry of Health, and reviewing a large number of public comments on a draft of this standard, the committee has decided to set the maximum acceptable level of methamphetamine in an affected property at 1.5 μg/100 cm 2 after decontamination. While this level is greater than the Ministry of Health 2010 guideline value of 0.5 μg/100 cm 2 for properties used as clandestine laboratories, there are a number of reasons why the committee decided to adopt the single value of 1.5 μg/100 cm 2 in this standard.
- In short, this standard confirmed that the level at which habitation of residential premises was considered safe, was a level of 1.5 μg/100 cm 2 . The expectation on landlords arising from this Standard, was to remediate premises contaminated with methamphetamine, to a level of less than 1.5 μg/100 cm 2 .
- In more recent times, the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman determined that there was little evidence supporting health risks from exposure to residue from methamphetamine consumption (Report entitled ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018). The report concluded that any levels below 15 μg/100 cm 2 were unlikely to present adverse effects: Taken together, these factors indicate that methamphetamine levels that exceed the NZS 8510:2017 clean-up standard of 1.5 μg/100 cm 2 should not be regarded as signalling a health risk. Indeed, exposure to methamphetamine levels below 15 μg/100 cm 2 would be unlikely to give rise to any adverse effects. This level still incorporates a 30-fold safety buffer on a conservative estimate of risk.
- At this time there remains a current New Zealand Standard of 1.5 μg/100 cm 2 , and also a current opinion from the Chief Science Advisor that there is no evidence of risk below 15 μg/100 cm 2
- This matter has been considered by the District Court in Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947. Judge Kellar needed to determine which level should be applied. The Court discussed the conflict between the New Zealand Standard and Chief Science Advisors report, and confirmed: The Tenancy Tribunal was in a difficult position. The best state of knowledge of risk to human health from methamphetamine contamination available to the adjudicator was the Gluckman Report. It would have been bold for the adjudicator to have ignored that report in favour of the New Zealand Standard given that the Gluckman report represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.
- I also note the more recent District Court decision of Eren Limited v Martin and Kukuruzsnak [2021] NZDC 15210, in which Judge de Ridder. In that case the Court accepted that the tenants had contaminated the premises with Methamphetamine with the maximum level found to be 9.9 μg/100 cm 2 . The Court noted that the level applied by insurers and the testing industry was 1.5 μg/100 cm 2 . The Court noted that the approach that has been taken by the Tenancy Tribunal was to apply the level as set in the Gluckman report, also noting the above mentioned Full Circle decision, with the Judge concluding: In this case there is no other evidence to counter the conclusions of the Gluckman Report. Thus it cannot be said that the Tribunal was wrong in the approach it adopted in dismissing the claim for compensation for these matters.
- A third District Court decision of relevance is Acme Realty Limited v Hogg, Polotu and Coughlin [2021] NZDC 3231. Judge Harrison noted that “At issue is a short legal point, namely whether New Zealand Standard 8510:2017 has the force for law”. The appeal arose from a decision of the Tenancy Tribunal which applied the Gluckman report level of 15 μg/100 cm 2 . The Court concluded that: ...for the reasons I have given that standard has not been passed into the law of this country and consequently the Adjudicator was not bound by the level it prescribes in reaching her conclusion.
- In my assessment, these decisions of the Court have confirmed that the level to be applied is the level expressed by the Chief Science Advisor, which is that there is no risk when levels of contamination are below 15 μg/100 cm 2
- In the case of this tenancy, I accept that testing before the Tenancy commenced, showed there was no detectable levels of methamphetamine in the premises. However, based on the reports provided to the Tribunal at this hearing, there was methamphetamine contamination when the tenants moved out. While I have not been provided with the laboratory report, the landlord has provided a quotation and report from [Testing company] dated 25 March 2022 which confirms that of the individual rooms tested, that the highest level of methamphetamine contamination is from the kitchen at a level of 7.1μg/100 cm 2 .
- The report states that the authors recommendation was that remediation: will need to be undertaken to reduce the levels of methamphetamine contamination to below the Ministry of health guidelines (NZS:8510:2017) threshold level of 1.5 μg/100 cm 2 or 3.8 μg/100 cm 2 per low use area.
- I make the observation that there is an error in the above statement, because the reference is strictly a New Zealand Standard, as opposed to a Ministry of Health Guideline, but more surprisingly, the report does not reference the Prime Minister’s chief science advisors report and the associated level, which as indicated above has been accepted by the Tribunal and courts over the years.
- However, in this case the levels of methamphetamine are below 15 μg/100 cm 2 in any room, and therefore the landlord has not established that decontamination was necessary, and to that extent no order of compensation can be ordered. Damage to ranch slider door
- The landlord states that the ranch slider door was forcefully broken above and below the door. That resulted in twisting of the aluminium. Given the age of the door, the door could not be replaced. [Tenant 1] confirmed that the damage to the door occurred from fighting between himself and the co-tenant. The tenant does not dispute this claim. The damage was caused either carelessly or intentionally, it must be the liability of the tenants. Damage to kitchen door, blind and lock
- The landlord claims compensation for damage to the kitchen door and frame which appears to have been kicked in, including lock replacement. Again the landlord is seeking the excess for this claim. [Tenant 1] confirmed that they had kicked the door in when they did not have a key. This damage would be viewed as intentional, so the tenants are liable for this damage. This claim is ordered in full. Damage to bedroom door
- [Tenant 1] agreed that this damage occurred during violence in the tenancy. The landlords claim for $300.00 is established and ordered in full. Damage to bathroom mirror and window
- [Tenant 1] also accepted that the tenants are liable for this damage but was not sure what happened to have caused the damage. Filing fee
- The applicant has been mostly successful in their claim before the Tribunal. I find it is reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal, which is $20.44. Name suppression
- [Tenant 1] has applied full name suppression. As I explained that the hearing, there is a statutory expectation that name suppression is ordered on request, of a successful party in a Tenancy Tribunal proceeding. However [Tenant 1] was not successful substantially, and name suppression cannot be ordered on that basis.
- However section 95A of the RTA confirms that: (4) 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.
- The basis for the name suppression request from [Tenant 1], is that the damage to the property occurred in part from domestic violence. No evidence has been presented from the police, or any other independent party confirming that is the situation. However, I also take into account the views of the landlord, which was supportive of name suppression being granted for [Tenant 1] only.
- I will accept on face value [Tenant 1]’s description of how the damage occurred, and by a very narrow margin, given the support of the landlord, extend my discretion to order name suppression to [Tenant 1] only.