What was the outcome of Tenancy Tribunal case 4583929?

The tribunal order states: Trinity Ngaro Ogilvie must pay Mayfair Property Investments NZ Limited

How much money was awarded in case 4583929?

Cleaning: $253.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Broken Downpipe, Excess Only: $500.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Garage Door, Excess Only: $500.00 awarded to landlord; Replace Furnishings: $310.80 awarded to landlord; Rubbish Removal: $403.08 awarded to landlord; Smoke Alarms: $129.25 awarded to landlord; Smoke Alarms: $500.00 awarded to landlord

What type of tenancy dispute was case 4583929?

The primary dispute was Property damage. Related themes: Smoke alarms, Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4583929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9409183-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4583929?

The tribunal order states: Trinity Ngaro Ogilvie must pay Mayfair Property Investments NZ Limited

How much money was awarded in case 4583929?

Cleaning: $253.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Broken Downpipe, Excess Only: $500.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Garage Door, Excess Only: $500.00 awarded to landlord; Replace Furnishings: $310.80 awarded to landlord; Rubbish Removal: $403.08 awarded to landlord; Smoke Alarms: $129.25 awarded to landlord; Smoke Alarms: $500.00 awarded to landlord

What type of tenancy dispute was case 4583929?

The primary dispute was Property damage. Related themes: Smoke alarms, Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4583929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9409183-Tenancy_Tribunal_Order.pdf.

11 Constable Road, Waiuku, Waiuku 2123 Tenancy Tribunal Case 4583929 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4583929 — net $2,206.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$253.00		Carpet Cleaning
Replace smoke alarms	$129.25		Replace smoke alarms
Replace furnishings	$310.80		Replace furnishings
Rubbish removal	$403.08		Rubbish removal
Repairs: doors, insurance excess only	$500.00		Repairs: doors, insurance excess only
Repairs: garage door, excess only	$500.00		Repairs: garage door, excess only
Repairs: broken downpipe, excess only	$500.00		Repairs: broken downpipe, excess only
Exemplary damages for tampering with smoke alarms	$500.00		Exemplary damages for tampering with smoke alarms
Exemplary damages for using the premises for an	$500.00		Exemplary damages for using the premises for an
Filing fee reimbursement	$20.44		Filing fee reimbursement
Bond already refunded to landlord		$1,410.00	Bond already refunded to landlord
Total award	$3,616.57	$1,410.00
Net award	$2,206.57
Total payable by Tenant to Landlord	$2,206.57

Only the landlord attended the hearing.

The landlord has applied for compensation, exemplary damages and reimbursement of the filing fee following the end of the tenancy.

The bond had since been refunded to the landlord; the bond will be used to set off against the costs proved at the hearing.

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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.

The landlord had to replace the curtains/drapes in the bedroom.

The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

A 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 by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related 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 (or market 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.

The following damage was caused during the tenancy: doors, garage door and downpipe. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

The amounts ordered are proved to the extent of the lesser of the applicable insurance excess.

Post-tenancy, methamphetamine testing results recorded 2.8μg/100cm2 in the garage on the premises.

Issue is whether the premises required remediation and cleaning based on the methamphetamine test results.

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

5μg/100cm2. While that related to laboratories, it is the case that the 0.5 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

5μg/100cm2 after decontamination. While this level is greater than the Ministry of Health 2010 guideline value of 0.5μg/100cm2 for properties used as clandestine laboratories, there are a number of reasons why the committee decided to adopt the single value of 1.5μg/100cm2 in this standard.

In short, this standard confirmed that the level at which habitation of residential premises was considered safe, was a level of 1.5μg/100cm2. The expectation on landlords arising from this Standard, was to remediate premises contaminated with methamphetamine, to a level of less than 1.5μg/100cm2.

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 15μg/100cm2 were unlikely to present adverse effects:

Taken together, these factors indicate that methamphetamine levels that exceed the NZS 8510:2017 clean-up standard of 1.5μg/100cm2 should not be regarded as signalling a health risk. Indeed, exposure to methamphetamine levels below 15μg/100cm2 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.

In the District Court judgment of Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar considered a case in which remediation was undertaken in reliance on the 2010 Ministry of Health level of 0.5μg/100cm2. It is the case that following the remediation work the Standard NZS 8510:2017 was released, which as noted above increased the acceptable level to

5μg/100cm2. Judge Kellar records that when the premises were tested, the highest level recorded was in the toilet at 1.4μg/100cm2 that “exceeded the Ministry of Health guidelines at the time.” The Court confirmed that any consideration as to whether the premises had been damaged, but be based on the prevailing guidelines at that time:

It appears to be the case that at the time the methamphetamine testing and decontamination was carried out the premises were not safe to occupy in terms of the then prevailing Ministry of Health guidelines.

If the landlord had no choice but to test for methamphetamine and decontaminate the premises and if the premises were not ‘safe’ in terms of the prevailing Ministry of Health guidelines at the time of testing then the premises may be said to have been damaged during the term of the tenancy.

At this time there remains a current New Zealand Standard of 1.5μg/100cm2, and also a current opinion from the Chief Science Advisor that there is no evidence of risk below 15μg/100cm2.

This matter has been considered recently 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.

In my assessment, this decision of the Court has 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 15μg/100cm2.

Here, the recorded level of contamination of 2.8μg/100cm2 is above the threshold set by current New Zealand Standard of 1.5μg/100cm2 but below the risk level expressed by the Chief Science Advisor of 15μg/100cm2; objectively, the property did not require remediation at all.

There is therefore no basis for the landlord to seek decontamination and cleaning costs, and damages against the tenant.

The premises have not been returned to the landlord in an unacceptable state of cleanliness in terms of methamphetamine presence.

There is no cogent evidence before me to indicate that the premises are not ‘safe’ in terms of the prevailing Ministry of Health guidelines at the time of testing.

There is also no evidence to indicate the premises have been ‘damaged’ by methamphetamine nor do the garage warrant decontamination at the end of the tenancy.

That being the case, the landlord’s claim for methamphetamine cleaning costs, must fail.

Is the tenant liable for exemplary damages?

Mayfair Property Investments NZ Limited claims the tenant has removed or interfered with the smoke alarms.

A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) Residential Tenancies Act 1986. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.

The tenant removed smoke alarms in the premises without proper excuse. I find they have committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 award exemplary damages of $500.00 for the tenant’s breach in relation to removal of smoke alarms.

Mayfair Property Investments NZ Limited claims the tenant has used the premises unlawfully; methamphetamine residue was recorded in the garage after the tenancy had ended.

A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.

It is unlawful to smoke methamphetamine.

The tenant admitted to having guests/visitors to the premises who may have misused drugs in the garage.

I find they have committed an unlawful act.

I award exemplary damages of $500.00 for the tenant’s breach in relation to use of methamphetamine on the premises. Tenants are liable for actions of their guests/occupiers who are on the premises with their permission.

Because Mayfair Property Investments NZ Limited has substantially succeeded with the claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4583929 — net $2,206.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$253.00		Carpet Cleaning
Replace smoke alarms	$129.25		Replace smoke alarms
Replace furnishings	$310.80		Replace furnishings
Rubbish removal	$403.08		Rubbish removal
Repairs: doors, insurance excess only	$500.00		Repairs: doors, insurance excess only
Repairs: garage door, excess only	$500.00		Repairs: garage door, excess only
Repairs: broken downpipe, excess only	$500.00		Repairs: broken downpipe, excess only
Exemplary damages for tampering with smoke alarms	$500.00		Exemplary damages for tampering with smoke alarms
Exemplary damages for using the premises for an	$500.00		Exemplary damages for using the premises for an
Filing fee reimbursement	$20.44		Filing fee reimbursement
Bond already refunded to landlord		$1,410.00	Bond already refunded to landlord
Total award	$3,616.57	$1,410.00
Net award	$2,206.57
Total payable by Tenant to Landlord	$2,206.57