What was Tenancy Tribunal case 4537538 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $207.00 immediately, calculated as

How much money was awarded in case 4537538?

Property Damage: $400.00 awarded to landlord; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $1,157.00 awarded to landlord; Property Damage: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4537538?

The primary dispute was Rent arrears. Related themes: Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4537538?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9934695-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4537538 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $207.00 immediately, calculated as

How much money was awarded in case 4537538?

Property Damage: $400.00 awarded to landlord; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $1,157.00 awarded to landlord; Property Damage: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4537538?

The primary dispute was Rent arrears. Related themes: Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4537538?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9934695-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4537538 — Rent arrears

Claims and awards in Tenancy Tribunal application 4537538 — net $207.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 31 March 2023	$1,157.00		Rent arrears to 31 March 2023
Exemplary damages - preventing access	$400.00		Exemplary damages - preventing access
Repairs: Insurance excess	$1,000.00		Repairs: Insurance excess
Exemplary damages: Breach of quiet enjoyment		$1,000.00	Breach of quiet enjoyment
Total award	$2,557.00	$1,000.00
Net award	$207.00
Total payable by Tenant to Landlord	$207.00

Claims and awards in Tenancy Tribunal application 4537538 — net $207.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 31 March 2023	$1,157.00		Rent arrears to 31 March 2023
Exemplary damages - preventing access	$400.00		Exemplary damages - preventing access
Repairs: Insurance excess	$1,000.00		Repairs: Insurance excess
Exemplary damages: Breach of quiet enjoyment		$1,000.00	Breach of quiet enjoyment
Total award	$2,557.00	$1,000.00
Net award	$207.00
Total payable by Tenant to Landlord	$207.00

Order

[The tenant/s] must pay [The landlord/s] $207.00 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,350.00 ([Bond number suppressed]) to [The landlord/s] immediately.
The landlord’s claims for methamphetamine contamination and breaches of the Body Corporate Rules are dismissed as not proven.
The tenant’s claim for preventing access is dismissed.

Reasons

The background to this matter has been fully canvassed in my decision of the 30 June 2023 and this decision should be read in conjunction with that order.
This matter has been heard in two parts on the 29 June 2023, and on the 3 December 2023. Landlord Claims:
The landlord seeks orders that the tenant is liable for the following: a. Compensation to pay for damage that the tenant committed on the 12 March 2023. b. Compensation for remediation of the apartment due to methamphetamine contamination. c. Reimbursement of Body Corporate fines given to the landlord for body corporate breaches that the body corporate says were committed by the tenant. (i) Keeping a pet, acting aggressively to management -13 April 2022 $546.00 (ii) Hanging out washing/clothes on the balcony $201.25-15 May 2022 (iii) 20 August 2022- Rubbish disposal $171.25 (iv) 20 September 2022 – Rubbish disposal $201.25 d. Rent arrears owed to 31 March 2023. e. The filing fee and refund of the bond. Tenant claims:
The outstanding tenant claims 1 are: a. compensation for breach of quiet enjoyment over what he says was a campaign against him for keeping a support animal, harassment by the body corporate and unfairly targeting of his due to his mental health disability. b. The tenant also is seeking compensation for not having access to the property (he says he was locked out).

Is the tenant liable for damage caused on the 12 March?

Tenants can be liable for any damage that is more than fair wear and tear. The damage caused by the tenant on the 12 March 2023 was more than wear and 1 I made provision in the decision of the 29 June 2023 to allow [The tenant/s] to retrieve his belongings. tear and therefore the tenant is liable for the excess. I award the landlord the excess he has paid to his insurance company of $1000.00.

Is the tenant responsible for methamphetamine damage?

The landlord claims that the tenant contaminated the premises with methamphetamine.
No testing was done at the premises before the tenancy. The premises were tested on the 14 March 2023, and high levels of above 15 ug/100cm 2 were found in all of the five areas throughout the apartment that were tested. The level of 183ug in a kitchen cupboard is indicative of manufacture. 2 The parties’ submissions
The landlord says that the tenant must have contaminated the premises because: a. The premises are subjected to drug dog detection. These animals are trained to indicate where cannabis and methamphetamine are identified. The dogs do not go into the property but are taken around corridors and outside each residence’s door. In February and July 2022, the dogs did not detect outside [The tenant/s] apartment but in February 2023 they did so. The landlord says that this shows that methamphetamine was not present in February 2022 or July 2022, and as [The tenant/s] was the only tenant between July 2022 and February 2023 then it must be him that used or manufactured methamphetamine at the property. b. The damage that occurred at the property on the 12 March 2023 is indicative of methamphetamine fuelled behaviour. c. That [The tenant/s] refusal to allow an inspection in early March shows an unwillingness to allow the landlord into the apartment to monitor what was going on. d. That [The tenant/s] could have provided the Tribunal with blood tests results for tests he had taken over the tenancy and the fact that he has not infers that [The tenant/s] is hiding something. e. That the electrical problems at the premises could have been caused by methamphetamine damage.
[The tenant/s] strongly refutes the allegation that he has used or manufactured methamphetamine or allowed others to do so during his tenancy he says: a. If he had manufactured methamphetamine or used methamphetamine in the levels found at the apartment then his support parrot would have been 2 The Gluckman report paragraph 27 6.3 paragraph 2 notes “levels greater than 30ug/100cm2 are considered by forensic experts that manufacture is likely to have taken place.” poisoned and would have exhibited signs of exposure including respiratory issues and loss of feathers. [The tenant/s] parrot is in good health and never suffered from any signs of contamination. b. That drugs and drug taking are rife and problematic at the [redacted] apartment complex and that people call out to each other on the balconies to sell and buy drugs. [The tenant/s] says that the drug dogs should be indicating a lot more than what they were throughout the building which shows that they are a screening tool and not evidence of a conclusive finding. c. That the drug dogs indication simply indicates that someone that was once in the hallway may have used cannabis or methamphetamine, it may have been on their shoes or it may be coming from other apartments. [The tenant/s] says one of his neighbours had known drug issues. d. That the electrician came into his apartment on three occasions and never saw any evidence of methamphetamine use or manufacture. there were never any reports of smell or concern from neighbours. When [The landlord’s representative] attended on the 3 March 2023 there was no evidence of drug use of manufacture and when the police attended on the 12 March, they did not record any drug use or evidence of manufacture. e. That [The tenant/s] regularly (at least once a week) attends with health professionals all of whom would be trained to be alert to use of methamphetamine, no one had ever stopped him from attending health support groups because of drug concerns and it was a requirement of his group session that no one was to be under the influence of any drug at the time of attending. The law
When a landlord does not test the premises for methamphetamine contamination at the beginning of the tenancy then it will be difficult to prove, in the absence of any other evidence that dates when the premises became contaminated. The lack of methamphetamine testing at the start of the tenancy significantly weakens 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 their tenancy. Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210 The decision
Having considered all the evidence, and both parties’ submissions I am not satisfied that the tenant contaminated the premises with methamphetamine I say this for the following reasons: a. There was no methamphetamine testing completed before the tenancy began. Unless methamphetamine is cleaned or removed then it can stay on surfaces for a considerable period. The simple fact that the methamphetamine contamination was detected during [The tenant/s] tenancy is not evidence that he was the person who contaminated the premises. b. The use of drug dogs is a screening process, not conclusive evidence of drugs being present. There was no expert evidence from the dog handlers given on the fallibility of the process. In the report from Drug Dog Assist to the Body Corporate dated 1 March 2023, which shows an indication outside the tenant’s doorway in the hall it states that there are 3 levels: 1 = no indication, 2= A positive indication shows odour detected but dogs could not pinpoint source, 3= Odour of drugs detected, and dogs have indicated on the strongest source of odour. There is nothing in the report which states what the different indicators are between 2 and 3 and there is nothing that states what level (2 or 3) was the indication outside the tenant’s door. Therefore, the only conclusion that can be reached is that the drug dogs indicated in the hall outside the tenant’s door. The report also noted that the positive indication was not a confirmed positive. 3 The mere fact the drug dog indicated in February 2023 is not conclusive evidence that the premises were contaminated during the tenancy. No conclusion be reached as to what drugs the dogs were indicating, or when they were put there or the quantity of the drugs. c. [The tenant/s] allowed visitors including health professionals and the repair persons into his apartments and they never raised any concerns about drug use or manufacture. d. [The tenant/s] parrot showed no signs of contamination, which considering the very high levels of methamphetamine residue present, I would have expected if [The tenant/s] had used or manufacture methamphetamine at the premises that this would have had some detrimental effect on his parrot. [The tenant/s] presented evidence showing the effect of methamphetamine contamination in parrots overseas, and none of the effects on the birds were noted on [The tenant/s] parrot. e. In early March in an email between [The tenant/s] and [The landlord’s representative], the body corporate chairperson, who was acting as the landlord’s agent at that time, [The landlord’s representative] stated that he 3 See table showing indication. In report dated 1 March 2023. The box marked confirmed positive is marked as “no”. was trying to gain entry to stash drugs. Whilst I consider that [The landlord’s representative] was probably being sarcastic when he wrote the following message, I also consider that [The landlord’s representative] is the body corporate chairperson of the large body corporate at [apartment complex]. I would have expected that he would have considered the ramifications of admitting such detail in writing even if it was meant I also note that [The landlord’s representative] never told [The tenant/s] that he was ‘joking’ or retracted this email. [Screenshots of emails redacted] f. [The tenant/s] regularly attends with trained mental health professionals who I expect would have raised concerns, and in some cases refused treatment or admission to some services if [The tenant/s] presented under the effects of heavy methamphetamine use. There does not seem to be any evidence of anyone raising such a concern. g. When the police entered the property on the 12 March, they did not record any evidence or concerns of methamphetamine use or manufacture.
As I found that the landlord has not proven that [The tenant/s] has used or manufactured methamphetamine at the property causing damage, then [The tenant/s] is not liable for any of remedial costs of decontaminating the property and the landlord’s claim for decontamination and remedial costs is dismissed. Is [The tenant/s] liable for the Body Corporate fees charged?
There is no legal authority for a Body Corporate to impose fines on the body corporate owners. Any fine given can be challenged that it is ultra vires; that is that it is beyond the lawful powers of the body corporate to impose such fines.
A Body Corporate can only charge an owner compensation or reimbursement of the actual cost to remedy the breach, for instance if a tenant throws rubbish from a balcony then the tenant might be liable the cost of someone picking up and disposing of the rubbish.
As there is no legal authority, any ‘fine’ given by the body corporate is not enforceable against the tenant, and therefore the landlord’s claims for payment of the fines by the tenant fails.
The tenant can be liable for compensation for breaches of the body corporate rules. 4 The landlord has the obligation of proving that the tenant has breached the body corporate rules and what actual loss was suffered as a result of the breach. The parties have been the subject of two previous Tenancy Tribunal cases ([Order number redacted]) and (4489008/ 4511894) in both of those cases the landlord raised claims relating to all of the alleged breaches of Body corporate Rules. In [Order number redacted], it sought termination on the basis of repeated breaches of the rules and in 4489008 it withdrew its claims for damages for breaches of the rules.
The legal principle in the case of Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 applies which confirmed that a party may not raise any claim in subsequent litigation which they ought properly to have raised in a previous action.
The landlord has had two opportunities in previous proceedings to raise claims in respect of these breaches but has not done so. I consider that those breaches ought to have been raised and determined in those previous proceedings and therefore they should be struck out. However, as I have heard evidence on them, I have made a determination on each claimed breach.
Neither the landlord nor the body corporate recall when or if they gave [The tenant/s] a copy of the Body Corporate Rules at the beginning of the tenancy. In November 2022 the Body Corporate amended its rules and both parties accept that at some stage after that [The tenant/s] received a copy of the amended rules.
The landlord claims that the tenant breached four rules as follows:
Keeping a pet or animal at the premises.
Acting aggressively to body corporate management.
Hanging out clothes on a washing line.
Disposing of rubbish over the balcony. Keeping a pet
In TT [Order number redacted] the Adjudicator stated that [The tenant/s]’s Parrott was not a pet but a support animal.
One of the amendments in November 2022 to the Body Corporate Rules was to clause 2 which was amended to “ An owner or occupier may not keep animals or pets in or around that unit.” [The landlord’s representative] told me that the amendment to this clause was the addition of the word animal. 4 Section 16B RTA – the Body Corporate Rules are deemed to form part of the tenancy agreement, but the landlord has an obligation to ensure that the tenant receives a copy of the Body Corporate Rules.
In New Zealand no animals, apart from some dogs, can be registered as disability service animals. Disability service dogs can attend almost all places and are granted special legal rights under the Human Rights Act 1993 and the Dog Control Act 1996.
In other countries there are three different kinds of animals, Disability Service Animals, these animals usually have special legal rights and have full public access. Emotional support animals, these are animals which are usually recognised as being more than household pets, they provide a specific function usually medical to their owner. In some jurisdictions these animals can be certified by qualified persons and certification affords them access to places that pets might not be allowed, for example rental accommodation, hotels and airplanes. The third category is household pets. These are companion animals that do not provide any specific health related benefit or assistance to their owners.
[The tenant/s] provided letters from [The tenant’s consultant psychiatrist] and another from [The tenant’s clinical psychologist]. In [The tenant’s consultant psychiatrist’s] letter dated 15 February 2023, 5 she outlines [The tenant/s] special medical diagnosis and says: “The patient ([The tenant/s]) was advised to procure a support animal as part of his psychiatric treatment and support. He has effectively done this by way of a bird PARROT, named [Redacted], which qualifies as a therapy bird forming a vital part of his treatment. As such he should be allowed to have this animal on his person as it is not a PET but a necessary and effective modality for his illness.” (emphasis as written in letter). [The tenant’s clinical psychologist] says in her letter “ he is very bonded to his parrot.. who is an emotional support animal for him and helps soothe some of his symptoms.”
It is clear that [The tenant/s] parrot is not a pet but is an emotional support animal that assists him in dealing with his mental health disability. I witnessed first-hand the assistance and emotional support that [The tenant/s] parrot gave him in both hearings. When [The tenant/s] is stressed, she deliberately diverts his attention to her. She alerts him when he is becoming agitated, and this allowed me to recognise the need for [The tenant/s] to take a break from the proceedings. He is calmed by stroking and talking to her. The only reason that she cannot be given the status of a disability assist service animal is because it is a parrot not a dog, and there is no mechanism in New Zealand law that allows a parrot to be recognised as a service animal. 5 This letter was given to the Body Corporate by [The tenant/s] to explain that [parrot] is an emotional support animal.
I am also not satisfied that the Body Corporate rule is unenforceable, because it appears to breach Human Rights Act 1993 by restricting an owner, including those with disabilities from keeping ‘animals’ at the property. The effect of such a clause would mean that anyone with a disability, who has a service or certified emotional support animal would be unable to live at the [apartment complex]. The Human Rights Act prevents discrimination against any person on the basis of a medical condition or disability. I am satisfied that [The tenant/s] mental health diagnosis is effectively a disability and that the rule to prevent him from keeping a service/emotional support animal at the apartment is discriminatory because he cannot live there without his parrot.
[The tenant/s] has not breached the Body Corporate rule, the rule has been applied in a discriminatory manner and is unenforceable. Aggressive behaviour.
This related to [The tenant/s] writing comments on notices that were posted on the noticeboard about pets in the building. There appears to have been a targeted campaign by the body corporate management to post notices about pets on [The tenant/s] tower and level. I was left in no doubt at the hearing that those notices were directed at [The tenant/s] and his parrot. As I have found that such notices were misdirected because [The tenant/s] parrot is an emotional support animal not a pet, then I do not consider that [The tenant/s] response to these notices, by crossing them out or making comments was a breach to the rules and that he did not act in a way that interfered with the Body Corporate lawful instructions or procedure as those instructions were not lawful. Hanging out washing clothes on the balcony.
At the hearing the tenant accepted that he may have hung towels and other items outside but not as a washing line. He said that lots of apartment owners/ tenants did this, but he did not think that the body corporate had issued them with fines or notices.
As I have found that the Body Corporate fines are not recoverable, then [The tenant/s] is not liable for the fine.
The Body corporate says that it spent one hour dealing with this issue. But that one hour was issuing the fine. They did not for instance simply get the building manager to ask [The tenant/s] to bring his clothes inside. I do not consider this fine reasonable or proportionate to the breach and I do not consider that the Body Corporate suffered any economic loss. Rubbish disposal
The body corporate says that [The tenant/s] disposed of rubbish by throwing it off the balcony on two occasions. The body corporate produced video of what it says is [The tenant/s] disposing of rubbish off his balcony and secondly of an uber eats bag which was retrieved from the roof of the building below the side of the building that [The tenant/s] apartment is located which has the name [Redacted] written on it.
I am not satisfied that it is likely that it was [The tenant/s] in the video or that the bag belonged to [The tenant/s]. [The tenant/s] gave evidence that his uber eats account is in the name of [Redacted] not [Redacted], and he submitted that [Redacted] would be the name on any bag he ordered. The [apartment complex] is a large complex and [Redacted] is a popular name. The video recording is not clear and did not satisfy me that it was [The tenant/s] apartment.
As I am not satisfied that [The tenant/s] disposed of the rubbish over the balcony the landlord has not proven this breach. Is [The tenant/s] liable for rent arrears to 31 March?
On the 10 March 2023 the Tribunal 6 confirmed that the tenancy was to end on the 31 March. [The tenant/s] says he was locked out of his apartment from the incident on the 12 March 2023. I have already found that [The tenant/s] is liable for the damage caused in the apartment on the 12 March. As a result of the damage, the apartment was unable to be lived in. When the tenant causes the property to be uninhabitable, he remains liable for the rent until the end of the tenancy. Therefore, [The tenant/s] is liable for rent until the 31 March 2023, which was the termination date of the tenancy.
I award the landlord rent arrears to the 31 March 2023. Did [The tenant/s] prevent access to the property on the 6 March 2023?
The landlord claims that it gave notice to inspect the property on the 6 March and that [The tenant/s], prevented access when he tried to enter the property.
[The tenant/s] says that he has told the landlord that he would not allow access to the property because he was concerned that the landlord was there for a nefarious purpose. It is clear that the relationship between [The tenant/s] and [The landlord’s representative] had broken down by this stage and that [The landlord’s representative] had been warned by [The tenant/s] and the Police not to attend.
[The landlord’s representative] was entitled to enter the apartment on the 6 March, he had given written notice in an email. He was attending the property between the prescribed hours and he was there as an agent of the landlord. A 6 TT 4489008 tenant cannot stop a landlord entering the property, because they don’t get along with them. I find that [The tenant/s] has breached his obligation by refusing access.
Obstructing access to a legitimate inspection by a landlord is an unlawful act under s 48(4)(1)(b). I am satisfied that [The tenant/s] is liable for exemplary damages of $400.00 for this breach. In coming to this amount, I have taken into account [The tenant/s] aggressive behaviour towards [The landlord’s representative] on the 6 March. I have also taken into account that [The landlord’s representative] could have asked someone else to do the inspection, which would have prevented the situation, as it was [The landlord’s representative] doing the inspection that was the problem not the inspection as such. Some of the communication chosen by [The landlord’s representative] only escalated the situation, such as confirming to [The tenant/s] in writing that he wanted access to ‘stash drugs” and only added to [The tenant/s] concerns about the inspection. The tenant’s claims. Did the landlord breach the tenant’s quiet enjoyment of the property?
The tenant claims the landlord has harassed them.
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.
Having considered all the evidence, including the correspondence between the parties, I am satisfied that the landlord did breach [The tenant/s] quiet enjoyment of the property by its insistence that [The tenant/s] was in breach of the body corporate rules by keeping his support parrot at the property.
The landlord brought a claim for termination to the Tribunal in December 2022, which was determined on [date redacted], seeking termination for breaches of the body corporate rules, most of these related to the keeping of the parrot. Whilst that claim failed on procedural grounds, [The adjudicator] noted in paragraph [redacted] of her decision that [The tenant/s] parrot was not a pet but rather an emotional support animal.
The continued insistence by the Body Corporate and the landlord that [The tenant/s] parrot was a breach of the rules was a form of harassment. As noted in the above paragraph [The tenant/s] requires his support parrot to keep him mentally well. The landlord’s continual insistence was a form of harassment it was designed to upset, worry and distress [The tenant/s], and [The tenant/s] clear distress can be seen from the correspondence between the parties from December to March.
I award [The tenant/s] $1000.00 in exemplary damages for this breach. The continued insistence that [The tenant/s] parrot was a pet despite having been told by the Tribunal that it was not, was persistent and intentional. Was [The tenant/s] locked out of the property?
After [The tenant/s] damaged the property, the apartment had to be secured. The landlord allowed the tenant to return with his caregiver to retrieve items and he did so. I am satisfied that the tenant was not prevented access from his property. The property was rendered uninhabitable and the steps that the landlord took to secure it were reasonable and appropriate. Filing Fee
As both parties have been somewhat successful in their claims, then the filing fee is not awarded to either. Name suppression and Publication.
Both parties requested name suppression at the hearing. As they are both somewhat successful, they are entitled to name suppression.
Usually, the Tribunal would not publish a decision that contains personal medical details of a party. However, I consider that there is public interest in allowing this decision to be published albeit with the names of the parties, the names of medical professionals, and the witnesses anonymised. This is because there is public interest in understanding how the Tribunal may determine cases regarding emotional support animals, the liability of tenants for imposed body corporate fines, and the difficulty in proving methamphetamine contamination if no testing is conducted at the beginning of the tenancy.

Tenancy Tribunal case 4537538 — Rent arrears

At a glance

Tenancy Tribunal case 4537538 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant liable for damage caused on the 12 March?

Is the tenant responsible for methamphetamine damage?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant liable for damage caused on the 12 March?

Is the tenant responsible for methamphetamine damage?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions