What was Tenancy Tribunal case 4608636 about?

The tribunal order states: Colliers New Zealand Limited As Agent For Land Information New Zealand

How much money was awarded in case 4608636?

Compensation: failing to maintain th…: $700.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $1,700.00 awarded to tenant; Smoke Alarms: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4608636?

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

Where can I read the official tribunal order for case 4608636?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10135568-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4608636 about?

The tribunal order states: Colliers New Zealand Limited As Agent For Land Information New Zealand

How much money was awarded in case 4608636?

Compensation: failing to maintain th…: $700.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $1,700.00 awarded to tenant; Smoke Alarms: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4608636?

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

Where can I read the official tribunal order for case 4608636?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10135568-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4608636 — State of repair

Claims and awards in Tenancy Tribunal application 4608636 — net $6,820.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failing to maintain the premises	$700.00	failing to maintain the premises
Exemplary damages: failing to maintain the premises	$1,700.00	failing to maintain the premises
Exemplary damages: failing to provide smoke alarm/s	$2,400.00	failing to provide smoke alarm/s
Exemplary damages: breach of quiet enjoyment	$2,000.00	breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,820.44
Total payable by Landlord to Tenant	$6,820.44

Claims and awards in Tenancy Tribunal application 4608636 — net $6,820.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failing to maintain the premises	$700.00	failing to maintain the premises
Exemplary damages: failing to maintain the premises	$1,700.00	failing to maintain the premises
Exemplary damages: failing to provide smoke alarm/s	$2,400.00	failing to provide smoke alarm/s
Exemplary damages: breach of quiet enjoyment	$2,000.00	breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,820.44
Total payable by Landlord to Tenant	$6,820.44

Order

Colliers New Zealand Limited As Agent For Land Information New Zealand must pay [The tenant/s] $6,820.44 immediately, calculated as shown in table below.

Reasons

The tenant and Mr Van Helsdingen, property manager for Colliers representing the landlord, attended the hearing. Background
The tenancy commenced on 29 August 2013.
The tenant was advised that on 4 July 2023 the landlord was changing from Colliers New Zealand Limited for Land Information New Zealand, to an iwi trust. It was a condition of the transfer of the management of the tenant’s tenancy and other tenancies being transferred from the landlord to the trust, that no properties recorded methamphetamine levels above 1.5μg/100cm². If they did, the property was to be decontaminated to less than that level. Accordingly Colliers arranged for methamphetamine testing to be carried out to determine the level of contamination, if any, in each property being transferred to the trust.
Testing was carried out on the tenancy premises by [Testing Company] on 12 January 2023. Composite samples were taken from a number of rooms and 4 tubes, each containing a number of samples, were analysed by [Laboratory]. The single composited result recorded a methamphetamine level of 8.8μg/100cm² average per tube with a potential maximum of 35μg/100cm² in a single sample in the event that only one of the areas sampled was contaminated.
The four tubes were individually analysed on 2 February 2023. The results reported the composite samples for each tube as follows: tube 1: 17.2 μg /100cm²; tube 2: 9.7 μg /100cm²; tube 3: 9.1 μg /100cm²; tube 4: 0.50 μg /100cm².
Based on these results the landlord decontaminated the premises between 21 and 23 March 2023. The tenant was provided accommodation during this time by the landlord at its cost.
Further testing was carried out on 24 March 2023 and 4 tubes containing samples from the same rooms previously sampled were sent to [Laboratory] for analysis. The composited result recorded a methamphetamine level of
53μg/100cm² per tube with a potential maximum in a single sample of
1μg/100cm² if all of the methamphetamine contamination was in one area.
The landlord considered this result meant the methamphetamine level in the property remained over 1.5μg/100cm² so carried out further decontamination on 3 and 4 May 2023. After the second decontamination further composite testing recorded a methamphetamine level of 0.25μg/100cm² with a potential maximum in a single sample of 1.00μg/100cm².
During the initial decontamination in March the smoke alarms, carpet and underlay, and curtains were removed and disposed of. All the tenant’s belongings were removed from the premises before the decontamination began. The landlord provided a skip for goods the tenant wanted to dispose of, and a container to store all other belongings and goods the tenant wanted to keep. The container was placed on the front lawn. Not all of the tenant’s goods were put inside the container by the landlord’s contractor. The tenant found furniture and other goods on her lawn on returning to the property on Friday 24 March.
The carpets, curtains and smoke alarms that were removed before the initial contamination was carried out were not replaced. The tenant sent the landlord a 14-day notice on 14 June 2023 to replace these items. The smoke alarms were replaced within the 14-day period, and the carpet some time after that. The tenant purchased new curtains.
The Facilities team within Colliers arranged and managed work relating to the methamphetamine testing, decontamination and renovation work. The Facilities team is separate to the Property Management team, and different staff within the Facilities team were responsible for the methamphetamine testing and decontamination work (Theo), and the refurbishment work (James) . The tenant’s claim
The tenant claims compensation ($15,000.00) and exemplary damages for: i. The landlord failing to provide smoke alarms, carpet and curtains from March 2023, when the property was decontaminated of methamphetamine, until June 2023; ii. Her belongings were damaged as they were left on the lawn for several days rather than being stored in the container while decontamination was carried out; iii. Accommodation costs for the period after decontamination and prior to the tenant being provided confirmation/test results that the property was below the required methamphetamine levels required for habitation; iv. Stress and disruption caused by the decontamination of the property, the short notice given before decontamination occurred, and being accused of causing the methamphetamine contamination;
The Tribunal can award compensation where a party has breached the tenancy agreement or any provisions contained in the RTA and where the other party has suffered a loss because of that breach. It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in but for the breach.
When a provision of the RTA is breached which is stated to be an unlawful act then the Tribunal can consider awarding exemplary damages. 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 1 .
Exemplary damages are not compensatory in nature, but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences. Did the landlord fail to provide smoke alarms, carpet and curtains from March 2023, when the property was initially decontaminated, until June 2023?
A landlord is required to maintain the premises in a reasonable state of repair having regard to the age and character of the property 2 . This requires a landlord to respond within a reasonable time to requests for repairs that arise from maintenance issues affecting the tenant’s use of the property. If a landlord does not respond, or cannot respond, within a reasonable time, compensation is payable for any loss or inconvenience caused.
A landlord is required to have qualifying smoke alarms installed and operational and to comply with all requirements in relation to smoke alarms. Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space 3 .
The tenant was concerned about the state of the property after the initial decontamination. The carpet and underlay were removed throughout the house, but the smooth edge 4 remained in all rooms that had been carpeted. The floor was made of particle board. All curtains and smoke alarms were also removed.
She rang Theo, Facilities team, on Friday 24 March being the day she was advised she could move back into the property, and asked when the smoke alarms, carpets and curtains were being replaced. She says he did not know when that work was going to occur. She understood the property was to be renovated but did not know when. She made several phone calls after that to Colliers including to James, also from the Facilities team, as she had been told it had been handed over to him. He told her the smoke alarms and carpet would be replaced but not when, and that it was her responsibility to replace the curtains but did not explain why.
As the tenant could not get any information about when replacement would occur she sent a 14-day notice to the property manager on 14 June 2023 to install replacement carpet, curtains and smoke alarms. 1 Section 109 and Schedule 1A, RTA 2 s45(1)(b) of the Residential Tenancies Act 1986 (RTA) 3 s 45(1)(ba), RTA and Part 1, Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 4 The plywood strip attached to the floor around the exterior dimensions of a room which holds carpet in place via small metal pins which are fixed to the strip
The landlord says the decontamination was completed to meet the requirements of the scope for the handover to the iwi, and that it was always intended the property would be refurbished. Colliers had instructed contractors to carry out the decontamination and they assessed what work was required.
Mr Van Helsdingen confirmed that new carpet and curtains were part of the refurbishment scope for the premises and were scheduled to be done in June. Replacement of the carpet was among the last work to be done, as the property needed to be painted first. He believes replacement of the curtains was overlooked, and that it was never intended that the tenant replace them at her cost.
He said he spoke to the tenant on 24 March when she rang concerned about whether it was safe to move back into the property, but she did not raise that the carpets, curtains and smoke alarms had been removed in her call.
Mr Van Helsdingen said he did not receive the tenant’s 14-day notice until 6 July after the tenant filed her claim, as the email address it was sent to was not correct. He was unaware until then that the carpets and curtains had not been replaced, and that the smoke alarms were removed. He said had he known he would have followed up immediately.
Having considered all the evidence presented and the submissions of both parties I find that Colliers has breached its obligation under section 45(1)(b) to maintain the property in a reasonable state of repair due to the removal of the carpet and curtains and breached its obligations relating to smoke alarms. I am satisfied from the tenant’s evidence that she raised with Colliers that the chattels and smoke alarms had been removed several times from 24 March until she sent her 14-day notice. I find the landlord did not respond in a reasonable time to reinstate the chattels and the smoke alarms for the following reasons.
The tenant did not necessarily advise the property manager that these items were removed but she did advise others at Colliers who were responsible for the work. I am satisfied that she understood the Facilities team were the correct people to raise the issue of the removal of the carpet, curtains and smoke alarms.
Regardless, as Colliers is the agent of Land Information New Zealand it falls within the RTA definition of ‘landlord’ 5 . Therefore in making the Facilities team aware of the removal of the chattels and smoke alarms the tenant has raised the need for maintenance and lack of smoke alarm/s with the landlord.
In any event, and irrespective of whether the tenant made the removal of the items known to the landlord, Colliers arranged for contractors to do work at the property. Therefore Colliers knew or should have known that the chattels and 5 An agent of the landlord falls within the definition of “landlord” under s 2 of the RTA smoke alarms were removed when the property was decontaminated. It was responsible for the removal of the items and therefore was responsible to reinstate the premises back to the standard required under the RTA in its role as landlord within a reasonable time.
Mr Van Helsdingen, property manager, said he did not know the chattels and smoke alarms were removed by the contractors. That does not surprise me as it was clear during the hearing that he was not in control of the work and not always aware of what work was being done at the property as the Facilities team was managing the work. That does not exonerate Colliers’ responsibilities as landlord. Compensation and exemplary damages for curtains and carpet
From the evidence I find the carpet was replaced no sooner than late July 6 and that the landlord installed curtain rods on around 19 July, but that the tenant purchased replacement curtains in October when she could afford to do so. I have considered the property manager’s evidence that Colliers’ records show a work order request on 6 July 2023 to replace curtains and that the onsite resolution date is recorded as 19 July 2023. However I find the tenant’s evidence convincing that curtain rods only were installed. The tenant produced an invoice dated 11 October 2023 for two sets of curtains ($211.90), which I am convinced she would not have purchased had the landlord provided curtains.
I award the tenant $700.00 in compensation for the breach of the landlord’s obligations to maintain the premises in a reasonable state of repair. This amount is awarded in compensation for the tenant using extra power to stay warm from late March to mid to late July and for the loss of amenity she suffered in having no curtains and carpet.
I am satisfied that the landlord has committed 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, RTA.
I find Colliers has acted intentionally in removing the carpets and curtains. After engaging a contractor to do the work I am satisfied that Colliers has not followed up as a landlord should in ensuring that replacement of the chattels was done or was done in reasonable time. All work on the premises should have been done by Colliers with its responsibilities and obligations as a landlord at the forefront, and ensuring the work was done in such a manner that no obligations it had under the RTA were breached.
The effect on the tenant has been that she has had to live in the premises without knowing when the carpet and curtains would be replaced despite asking on a 6 Colliers did not provide evidence that sets out when the carpet was replaced; the tenant thought it was sometime in late July to early August. number of occasions, and living without the comfort these chattels provide. The lack of curtains meant she had no privacy, and the lack of carpet significantly reduced her comfort. It is in the public interest that landlords ensure that tenancy premises meet a reasonable standard of maintenance. Taking into account all of the above factors I find that that it is just to order Colliers to pay exemplary damages of $1,700.00 for this unlawful act. Compensation and exemplary damages for removal of smoke alarms
Failure to provide working smoke alarms is a breach of s45(1)(ba) RTA and is an unlawful act 45(1A,) RTA. I find that the landlord committed an unlawful act by failing to install working smoke alarms.
I find the removal of the smoke alarms was an intentional act for the same reasons recorded above. The Facilities team have directed its contractors to do the necessary work to decontaminate the premises and are therefore responsible for the removal of the smoke alarm/s.
Failing to install smoke alarms is a serious breach. It is in the public interest that the premises and any persons living in the premises are protected from fire and smoke. Landlords have had a legal duty to have complaint smoke alarms fitted in tenanted premises since July 2016. The stringent requirements in respect of smoke alarms, both in terms of the obligations on landlords and the penalties on tenants if they interfere with a smoke alarm, reflects the intention of Parliament to ensure that tenanted premises have this simple and effect means of saving lives and property.
An award of exemplary damages is just in this situation. Colliers actions are below the standard required of a property manager/landlord acting for the Crown. The tenant is the sole occupant of the house and if a fire had occurred in the premises during the period the premises was without smoke alarm/s the result could have been catastrophic.
I award a further $2,400.00 in exemplary damages for this breach.
In making both exemplary damages awards under s45(1A) I have taken into account that I am unaware of any similar orders made against Colliers for such breaches, but that the awards are just in that they are made to punish and to deter Colliers from disregarding its obligations as landlord in any other similar tenancy situations. Has the landlord breached the tenant’s right to quiet enjoyment?
Under section 38 RTA a tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or their agent/s. Section 38 also provides that a landlord is not to cause or permit any interference with the reasonable peace, comfort or privacy of a tenant.
Effectively section 38 imposes a duty on the landlord not to do anything that significantly interrupts the tenant’s use of the premises and preserves the tenant’s right not to have the quality of the tenancy significantly impaired by actions of the landlord or their agent/s.
The tenant’s claim concerns whether her right to quiet enjoyment has been affected by the landlord decontaminating the premises and the way it was done.

Was decontamination of the premises required?

There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises 7 : 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 8 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/100cm ² 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 (1.5μg/100cm²) to be the appropriate standard.
The Court of Appeal in Smith v Accessible Properties New Zealand Limited 9 in considering a level of contamination of more than 1.5μg/100cm ² but less than 15μg/100cm ² made a direct reference to the level adopted in the Gluckman Report in commenting: “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 10 upheld a decision of the Tribunal to apply the higher standard of 15μg/100cm² from the Gluckman Report. 7 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 8 “Methamphetamine contamination and residential properties: exposures, risk levels and interpretation of standards” 9 Smith v Accessible Properties New Zealand Limited [2019] NZCA 38 at [16] 10 Full Circle Real Estate Limited v Piper [2019] NZDC 4947
The District Court took a similar approach in Acme Realty Limited v Hogg and others 11 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 apply the 1.5μg standard. More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited 12 , both parties presented scientific evidence at a hearing before the Tribunal about health risks from exposure to residue from methamphetamine consumption. 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 13 which means there is no need to remediate or decontaminate where levels of methamphetamine contamination are below 15μg/100cm ² .
The agreement reached between Land Information New Zealand and the iwi trust to decontaminate premises contaminated beyond 1.5μg/100cm² provides for a lower level of contamination than is currently applied based on the Gluckman Report.
In addition, the testing undertaken was not adequate to determine the actual levels of methamphetamine in various rooms in the property. Composite tests, as used here, are an initial form of testing that determine whether methamphetamine is present in the premises. They are indicative only. NZS 8510:2017 sets out various requirements for testing 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. 14 A discreet test is needed to determine the actual level of contamination in a particular area. A discreet test consists of a single wipe collected from a single area which is then laboratory tested.
The testing results Colliers have relied on do not support the need to decontaminate the entire house. The results do not establish that any room in the premises was unsafe to live in, or that the entire house was over the level required by the landlord under its agreement with the iwi trust. That means the landlord has undertaken decontamination of the whole of the premises without doing appropriate testing to show that the decontamination was needed, and has decontaminated the premises twice to a significantly lower level than is currently applied. 11 Acme Realty Limited v Hogg and others [2021] NZDC 3231 12 Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319 13 Section 138C of the RTA provides that regulations may be made prescribing maximum acceptable habitable levels of contaminants such as methamphetamine and methods of testin, however no such regulations have been made to date. 14 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 in determining whether premises can be inhabited.
It appears in my view that Colliers has likely misunderstood what the maximum potential level shown on results of composite laboratory analysis means, and has taken it to mean that the property has levels that are above the safe levels set out in the Gluckman report.
The tenant claims her right to quiet enjoyment has been affected in the following way. The tenant’s goods left on the lawn:
After considering all the evidence I am satisfied the tenant’s goods were damaged as a result of being left on the front lawn of the property for several days during which time it rained instead of being placed in the container as agreed. The tenant was told/understood that the container was arriving on Monday 20 March, but it arrived on Tuesday 21 March. The tenant had to go to work on Tuesday and relied on the Facilities Team telling her that the contractors would move all of her belongings into the container.
The tenant was told to stay away from the property until Friday 24 March, but drove past and saw her goods on the lawn on Thursday 23 March. The neighbour’s evidence supports the tenant’s claim that her goods were on the lawn for several nights and that it rained during this time.
The property manager provided a letter from the National Manager of the contractor that undertook the decontamination work. The letter reads: “The following furniture was placed outside the containers as it was deemed as rubbish but the tenant insisted on keeping. This was not able to fit into the container..... Dirty mattress and base Moldy cushions 1x seater chair moldy 1 broken standing cabinet A cover was placed on the furniture overnight. This cover was already removed (presumed by the tenant) when meth decon team arrived the next morning. The container was also open items inside moved.”
The contractor says the decontamination team saw the tenant at the premises twice while they were there.
The photographs establish that a lot more furniture and goods were left outside than set out in the contractor’s letter. The tenant’s goods were moved out of the house because the landlord required it. The tenant was entitled to rely on her goods being placed into the container as promised and being taken care of by the landlord. Instead her goods and belongings were left on the front lawn without any protection from the weather and for anyone going down the street to see and potential interfere with them. The tenant found the container unlocked on Friday 24; there is no evidence that the container was locked at any time.
I am more persuaded by the tenant’s evidence than the landlord’s evidence that she did not go to the premises until late on the Friday night; that she did not remove any cover from the furniture or see a cover at the premises; and that she did not open the container. 15 That potentially means other persons had been on the property without her permission or authority. I prefer the tenant’s evidence as it is direct evidence, as opposed to that of the national manager who has not stated that he personally was at the property during the decontamination work.
The tenant’s quiet enjoyment has been interrupted by the landlord’s actions in not taking care of her furniture and other chattels, the landlord being responsible to the tenant for the actions of its contractors. The state of the property after the initial decontamination
The tenant was told she could move back into the premises on Friday 24 March, after the first decontamination took place. However when she arrived that day she was very concerned that it was not safe to stay in the property as: a) there was a strong chemical smell, and a lot of residue from the decontamination which made the floors very slippery, and could be seen on surfaces such as the stove elements; b) she was told further testing needed to be done after the decontamination to ensure the property was at a safe level. The testing was done on 24 March and until the results were available the tenant did not know whether it was safe to live there or not. Based on the test results the property was decontaminated for a second time on 3 to 4 April. c) as described above the curtains, the carpet and underlay and the smoke alarms had been removed as part of the decontamination.
The tenant says she was not offered alternative accommodation except for the two periods when the property was decontaminated (21 to 23 March and 3 to 4 April). She slept in her car on Friday 24 March until the excess decontamination product residue was removed, which was the following Tuesday.
Mr Van Helsdingen says the tenant was reassured on 24 March by the Facilities Team manager that the residue was not harmful. Colliers arranged for the excess residue to be cleaned off, but he says the tenant did not leave the keys for the contractor which delayed the clean. Mr Van Helsdingen said an offer was made to the tenant to relocate her at the landlord’s cost while the refurbishment of the property was being done but that the tenant declined the offer. The tenant says she was told the contractor would be there on Monday to clean off the residue but they did not arrive. She did not want to leave the keys at the house on the Tuesday as she was not satisfied the contractors would arrive. 15 The tenant says it was open when she got to the premises on the Friday night.
I find the tenant’s use of the property has been significantly affected by the smell from the cleaning product and the excessive amount of cleaning product left in the property. The tenant attempted to have someone from Colliers come and look at the state of the property but was told that as they were based in [City] they would not attend.
I find the tenant was genuinely concerned whether the property was safe to live in on 24 March. She was led to believe by Colliers that the property was contaminated to a level of 35μg/100cm² and was worried the decontamination had not reduced the property to a safe level. Colliers’ communications caused her to worry and be anxious about how safe the property was to live in. In my view it is no wonder that she was concerned on Friday 24 when she saw the excessive residue and experienced the strong smell of whatever product/chemical 16 was used, and did not want to stay at the premises until the results of the post-decontamination tests were known.
The tenant’s evidence is more persuasive that she was not offered any accommodation other than the nights when the property was being decontaminated. The landlord has not produced any emails verifying this offer. Stress and disruption caused by the decontamination of the property
The tenant found the decontamination of the property disruptive and stressful.
The tenant was told by the Facilities manager on Friday 17 March that Colliers were arranging for the property to be decontaminated and accommodation would be provided for the following Tuesday to Thursday nights. She felt this was little notice as she was told all of her clothing, personal items, and soft furnishings (such as beds and couches) were contaminated and had to be removed. She understood from the manager’s email on 17 March that she was to dispose of all her goods except her appliances. She worried how she would be able to afford to replace them. She emailed the manager on Saturday but did not get a response and worried all weekend until he clarified that the skip bin was for anything she wanted to dispose of and that everything else would go into a container.
The tenant considers that she and her belongings were not treated appropriately by the landlord or its contractors. She was made to feel she caused the methamphetamine contamination, but vehemently denies using methamphetamine at the premises or anyone else using it there. The premises had not been tested for methamphetamine contamination at the start of the tenancy in 2013 or at any time before 12 January 2023.
The tenant’s view is that the contractor demonstrated no respect for her belongings. She acknowledges that her goods did not have a high monetary 16 Colliers have not provided any information on what product or chemical was used to decontaminate the premises. value, but as a number of the goods had been her mother’s they had high sentimental value to her, and as the tenant said, they were all she had and she could not afford to replace them.
The tenant’s employer provided a statement recording that the tenant has exhibited signs of stress at work due to this situation and that it has impacted on the tenant financially, as she has had to take time off for her mental health.
The property manager could not explain why short notice had been given to the tenant of the decontamination as he was not involved. No staff from the Facilities team attended the hearing or gave evidence.
The National manager/contractor’s letter, provided by the landlord, also states: “Delays were caused during the decluttering as it was difficult to communicate with tenant on removing rubbish. Her ‘hoarding’ mentality made it especially hard with an entire day dedicated to removing rubbish.”
The photographs provided do not convince me the tenant is or was a hoarder. There was a lot of furniture in the premises. However that is understandable as she had her mother’s furniture there as well as her own, as her mother had passed away. The contractor had not arrived on the day the tenant had been advised, and when they did arrive the tenant had to go to work. The tenant was further inconvenienced by the contractor not arriving as she had been told.
Overall I am satisfied that without question the tenant’s use of the premises has been significantly interrupted by the decontamination. As stated above, there is no convincing evidence that any room in the house needed to be decontaminated on the basis that methamphetamine contamination levels were above the levels of safety, therefore any decontamination work was completed to meet the requirements of the contract with the iwi trust.
There is no satisfactory way of compensating the tenant for damage to her furniture because she can’t be restored to the position she would have been in had the furniture not been placed on the front lawn and subjected to the rain. This issue and the other quiet enjoyment issues raised are best considered under the tenant’s claim for exemplary damages. therefore I will consider this issue in determining the tenant’s claim for exemplary damages.
Where the landlord has caused or permitted interference with the reasonable peace, comfort or privacy of a tenant in their use of the premises to the extent that it amounts to harassment it is deemed to be an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see sections 38(3) and Schedule 1A, RTA).
The District Court in Macdonald v Dodds 17 considered that the dictionary definition of “harassment” to be the appropriate meaning. The Court adopted the 17 DC Hamilton CIV-2009-019-1524, 26 February 2010 definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
From these definitions it is clear that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them.
After considering all of the evidence I find that the breach of the tenant’s right to quiet enjoyment in this instance amounts to harassment as it has caused significant interference with the reasonable peace, comfort and privacy of the tenant in her use of the premises. The landlord’s actions in decontaminating the premises continued over a period of time caused ongoing discomfort, distress and inconvenience for the tenant in that: a)all of her goods and belongings had to be moved out of the premises. b)she had to move out of the premises when decontamination was being done and then was concerned whether the premises were safe to live in due to the decontamination work; c)the tenant was contacting not just her property manager but members of the Facilities team in an endeavour to get information; d)her use of the premises was significantly impacted and limited by the work.
A landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed. That is the case here. In making this finding I have not considered any aspect of the claim relating to the contractor leaving the furniture on the front lawn.
I find the landlord’s acts are intentional in that it has intended for decontamination work to be done without ensuring the work was needed. The effect on the tenant is significant as described above. It is in the public interest for a landlord to carry out any work on the property in a well- managed way so that it does not interfere and impact on the tenant’s use of the premises.
Taking into account all of the above factors I find that that it is just to order Colliers to pay exemplary damages of $2,000.00 for this unlawful act. This award particularly reflects that the landlord has not established that decontamination of the premises was needed, let alone requiring the premises to be decontaminated twice.
As with the awards made under s 45(1A), it also takes into account that I am unaware of any similar orders made against Colliers for such breaches, but that the award is just in punishing and deterring Colliers from disregarding their obligations as landlord in any other similar tenancy situations..
The award is made against Colliers as I have no reason to make the award against Land Information New Zealand.
The tenant has succeeded with her claim I have reimbursed the filing fee 18 .
The tenants’ application for suppression is allowed because they are the most successful party 19 .

Tenancy Tribunal case 4608636 — State of repair

At a glance

Tenancy Tribunal case 4608636 — State of repair

At a glance

Award balance

Claims & awards

Order

Reasons

Was decontamination of the premises required?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was decontamination of the premises required?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions