What was Tenancy Tribunal case 4468542 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4468542?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4468542?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4468542?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9058706-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4468542 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4468542?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4468542?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4468542?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9058706-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4468542 — Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
The landlords claim is dismissed.
The Bond Centre is to pay the bond of $600.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing which was conducted by telephone.
The tenancy commenced on 12 March 2010 and ended on 6 December 2022. [Tenant 1], who is [Tenant 2]’s mother, moved out of the premises in 2018 and did not return to live at the premises after that date but remained a tenant under the tenancy agreement.
The landlord applied for compensation for the cost of testing for methamphetamine contamination, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The application was amended at the hearing to include removal of goods left at the premises. The tenants accepted the amendment being heard despite not having received prior notice.

Is the landlord entitled to costs for testing for methamphetamine?

The landlord’s claim for costs for methamphetamine testing involves consideration of whether the premises were contaminated with methamphetamine and if so, whether the damage occurred during the tenancy and was caused by the tenants or someone at the premises with their permission.
There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises 1 : New Zealand Standard 8510:2017 and a report issued by Professor Sir Peter Gluckman.
On 29 June 2017, Standards New Zealand released NZS 8510:2017 which provides industry guidance on good practice methods in the testing and cleaning of methamphetamine contamination in properties. 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.
On 29 May 2018 Professor Gluckman, the then Prime Minister’s Chief Science Advisor, released a report 2 which concluded that there is little evidence supporting health risks from exposure to residue from methamphetamine consumption. The ‘Gluckman Report’ states that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm2 was unlikely to have an adverse health effect therefore there should be no need for remediation. Where there is evidence of manufacture the report found NZS 8510:2017 to be the appropriate standard.
The Court of Appeal in Smith v Accessible Properties New Zealand Limited 3 in direct reference to the Gluckman Report commented: “We acknowledge that the testing in this case yielded results now considered not to raise any health and safety concerns.”
The District Court in Full Circle Real Estate Limited v Piper 4 upheld a decision of the Tribunal to apply the higher standard of 15μg/100cm2 from the Gluckman Report.
The District Court took a similar approach in Acme Realty Limited v Hogg and others 5 where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to 1 Section 138C Residential Tenancies Act 1986 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 2 “Methamphetamine contamination and residential properties: exposures, risk levels and interpretation of standards” 3 Smith v Accessible Properties New Zealand Limited [2019] NZCA 38 at [16] 4 Full Circle Real Estate Limited v Piper [2019] NZDC 4947 5 Acme Realty Limited v Hogg and others [2021] NZDC 3231 apply the 1.5μg standard. More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited 6 , both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
I am therefore of the view that the current level to be applied is the level of 15μg/100cm2 as expressed in the Gluckman Report. There is no evidence of manufacture in this case.
Testing of the premises was carried out by [A testing company] on 12 December 2022, after the tenancy ended. Composite samples were taken from a number of rooms in the property with 4 tubes being analysed by [a commercial laboratory]. Each tube contaminated samples from various rooms. The single composited result recorded a methamphetamine level of 10.4 μg /100cm² with a potential maximum of 42 μg /100cm² if all the methamphetamine in the composite is attributable to a single sample.
The four tubes were then individually analysed on 29 December. The results reported the composite samples as follows: tube 1: 9.3 μg /100cm²; tube 2: 19.2 μg /100cm²; tube 3: 10.1 μg /100cm²; tube 4: 0.68 μg /100cm²;
The landlord says individual samples were then laboratory analysed on 20 January 2023 for the rooms sampled in tube 2 which resulted in a reading of 16.1 μg /100cm² in the master bedroom.
The landlord’s verbal evidence is that the woodwork in the master bedroom was stripped back and redone and that the premises was retested with a clear methamphetamine result showing in laboratory analysis carried out on 14 February 2023.
The landlord confirmed that four reports from [a testing company] and four reports from [a commercial laboratory] were done. The landlords said they had uploaded all of the reports. However as explained to the landlord at the hearing only the [a commercial laboratory] reports for 12 and 29 December were uploaded, along with some pages from the [a testing company] reports for testing relating to 12 and 29 December 2022 and 20 January 2023. That is, the entire [a testing company] reports have not been provided.
The landlord was given further opportunity to provide the [commercial laboratory] and entire [testing company] reports however did not want to do so and asked for a decision to be made based on the evidence received by the Tribunal to date.
The composite tests determine that methamphetamine is present in the premises. The Standard NZS 8510:2017 sets out various requirements for testing 6 Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319 and confirms that composite testing is a suitable screening tool, but that it is not a suitable means to determine the actual levels of methamphetamine. 7
A [commercial laboratory] report establishing the master bedroom is contaminated to a level exceeding 15 μg /100cm² has not been provided. The [testing company] report records “Laboratory results” from the analysis of the individual samples and shows Bedroom three has having a methamphetamine level of 16.1 μg /100cm². The [testing company] report is not a source document for determining the level of contamination and therefore contains only third hand information. Therefore on the evidence in front of me I am unable to determine that the premises is contaminated with methamphetamine with a level that exceeds 15 μg /100cm².
Even had the landlord taken up the opportunity to provide all the reports supporting their view that the master bedroom had a result of 16.1 μg /100cm², the landlord would still need to prove that methamphetamine contamination occurred during the tenancy and was caused by the tenants.
The premises was not tested for methamphetamine prior to the tenancy commencing as the landlord says that testing for this purpose was not being done in around 2010.
The landlord intended to sell the premises after the tenancy ended. The landlord had real estate agents go the premises who told them the property smelled strongly of drugs, particularly marijuana. As a result they had the property tested.
The tenants deny using methamphetamine in the premises. [Tenant 2] says his young daughter used the master bedroom for a number of years, and strongly denied that any one in the premises used methamphetamine during the tenancy.
[Tenant 2] raised that methamphetamine is known to sit for years on surfaces and the premises may have been contaminated before they moved in. He said his daughter and mother were often unwell when they were living there.
The tenants also raised that the tenancy ended on 6 December, and that the testing was done on 12 December. When I asked the landlord if there was anyone other than the real estate agents in the premises between 6 and 12 December, they emphatically replied ‘no’. However their evidence shows that a quote for carpet was provided during this period and rubbish was removed from inside the premises. Therefore others were in the premises during this time. I note the landlord lives overseas and was not in New Zealand during this period.
The onus is on the landlord, as the applicant, to prove that the tenant was responsible for the contamination, not for the tenant to disprove the allegation 7 The testing requirements set out in the NZS remain valid and have been endorsed by the Gluckman report regardless that the methamphetamine levels determined in the NZS for use in premises are no longer applied. that they or others in the premises with their permission were responsible for the contamination. An applicant must provide sufficient evidence to prove on the balance of probabilities that what is alleged is likely to be more than 50% likely to have occurred.
The District Court has found that in the absence of pre-tenancy methamphetamine testing, it is difficult for a landlord to the tenant contaminated the premises.
In Brooking v Imrie 8 the Court considered an appeal of a Tenancy Tribunal decision where the Tribunal accepted there was contamination caused by the tenants on the evidence of a witness who worked across the road from the tenancy premises. The witness described windows covered with film, security cameras being installed and strong chemical odours arising from the premise, as well as regular attendance at the premises from gang members and other “undesirables” and regular visits from then police.
The Court did not accept the evidence presented was sufficient to prove that methamphetamine had been used at the premises and overturned the Tribunal’s decision. The Court concluded: The difficulty with the landlords claim is that there was no methamphetamine test conducted at the beginning of the tenancy, and no actual proof of what occurred during the tenancy.
In Eren Limited v Louise Martin 9 the District Court considered an appeal by the landlord as the Tribunal had declined the landlord’s claim for contamination costs for various reasons, including that the landlord had not established that the tenant had contaminated the premises. In that case the landlord had found evidence of drug use in rubbish left at the premises and neighbours had reported the tenants using drugs at the premises. The Court found this circumstantial evidence could be considered by the Tribunal but was not sufficient to get over the problem of no pre-tenancy methamphetamine testing: However the significant problem for this claim is that there is no evidence of any methamphetamine testing carried out at the start of this tenancy.. .... The lack of methamphetamine testing at the start of the tenancy significantly weakened the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of the tenancy.
I am not convinced from the evidence that the landlord has proved that the tenants caused the contamination in the premises. There is no pre-tenancy methamphetamine test, or any test carried out during the tenancy. There is a 8 Brooking v Imrie [2021] NZDC 16976 9 Eren Limited v Louise Martin [2021] NZDC 15210 window of 6 days between the end of the tenancy and the testing occurring. The circumstantial evidence raised by the landlord does not convince me the tenants caused the contamination.
For the above reasons I must conclude that the landlord’s application for methamphetamine testing costs has not been established and must be dismissed.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. 10
Landlord claims the tenants left a number of items at the premises and claims $850.00. The invoice for $850.00 states the work done as “Rubbish, cleaning and dumping”. The landlord says the cleaning was to remove weeds and lichen from the footpaths, driveway and retaining wall.
The photographs provided do not show that there were weeds that needed removing to meet the standard required under the RTA of reasonably clean and tidy. Removal of lichen is a landlord obligation, except where the landlord proves the tenant has caused lichen to grow beyond what would naturally occur. Therefore I find the tenants have no liability for this part of the claim.
The tenancy agreement records a list of goods left at the premises for the use of the tenants. The landlord has provided photographs of the goods left at the end of the tenancy. There is a chair in the photographs which the landlord confirms is part of the list in the tenancy agreement. The landlords’ evidence does not show they have separately been charged for the removal of that chair, and I conclude it is included in the cost of the invoice.
The tenants say they took all their goods with them and that the goods the landlord is seeking compensation for were all at the premises at the start of the tenancy. The tenants believe they were left by the previous tenants.
The landlord’s neighbour signed the tenancy agreement with the tenants as the landlord has lived overseas throughout this tenancy and the previous tenancy.
I have considered the list of goods in the tenancy agreement against the tenants’ evidence that the goods were at the premises at the start of the tenancy. The evidence is conflicting however I am left doubting that the goods are the tenants’ goods. In particular I find a) [Tenant 2]’s evidence convincing, which is confirmed by his mother, that he has no interest in cars or motors and would have no reason to have 2 gearboxes or tyres at the premises, and b) 10 Section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA). [Tenant 1]’s evidence convincing that the tyres in a location not easily seen at the start of their tenancy.
I am more persuaded the goods are not the tenants than I am persuaded they are based on the evidence therefore I find the tenants have no liability for the costs claimed. Conclusion
The landlords’ claim is dismissed for the above reasons. The bond is to be returned to the tenants.
Name suppression is available to the substantially successful party, which in this case is the tenant. The tenant has requested name suppression therefore a suppression order is made of the tenants’ names and the identifying details of the tenancy. 11

Tenancy Tribunal case 4468542 — Cleanliness

At a glance

Tenancy Tribunal case 4468542 — Cleanliness

At a glance

Claims & awards

Order

Reasons

Is the landlord entitled to costs for testing for methamphetamine?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the landlord entitled to costs for testing for methamphetamine?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions