What was Tenancy Tribunal case 4621851 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,500.00 ([Bond number suppressed])

How much money was awarded in case 4621851?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4621851?

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

Where can I read the official tribunal order for case 4621851?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9583295-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4621851 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,500.00 ([Bond number suppressed])

How much money was awarded in case 4621851?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4621851?

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

Where can I read the official tribunal order for case 4621851?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9583295-Tribunal_Order_Redacted.pdf.

76 California Drive, Totara Park, Upper Hutt 5018 Tenancy Tribunal Case 4621851 — Leaks

Tenantcheck Insights

Reasons

Both parties attended the hearing with Mr Horne representing the landlord.

The landlord has applied for compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy in relation to a claim for paint damage caused to the driveway and methamphetamine contamination at the premises. Background

The tenancy started on 20 March 2020 for an initial fixed term to end on 11 April 2021. Thereafter, it continued as a periodic tenancy. The tenancy ended after a fire occurred in the garage at the premises which also caused some damage to the house. The cause of the fire is unknown and is under investigation. Following a building inspection, areas of cladding were also found to contain asbestos and the landlord gave the tenants a 90-day notice to end the tenancy so that the property could be remediated and renovated. The tenants found a new home and this tenancy terminated on 7 June 2023.

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 s49B(3)(a) RTA. In this case the landlord has insurance cover with an excess of $2,500.

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 s49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. Driveway damage

At the end of the tenancy, there were white painted footprints on the driveway which the landlord has received a quote to remedy in excess of $3,200. The contractor noted that the driveway had been previously painted, and the footprints were on the top layer so removing them without damaging the paint underneath would be difficult. Therefore, they recommended water-blasting the area and repainting the driveway because simply cleaning off the footprints would leave patches. This is why the quote is reasonably high. The landlord says that the tenant was also responsible for previously painting the driveway, which has added to the repair cost.

The driveway damage is covered by insurance but there is an excess of $2,500 which the landlord seeks to recover from the tenant. There is no dispute that the damage occurred during the tenancy, but the tenant says that she did not cause the damage carelessly or intentionally and is not liable for the insurance excess.

The tenant explained that her husband is a commercial painter and kept containers of paint in the covered porch at the premises and in his van. On or about 21 April 2023, the tenant was reversing the van containing paint up the driveway. In doing so, she drove over some paint leaking out of the van and it spread up the driveway, as shown in a photo produced in evidence. The tenant rang the property manager requesting permission to paint over the driveway with footpath paint to make good the damage. The property manager agreed. Mr Horne also confirmed at the hearing that the tenant had permission to paint the drive. The tenant produced photos showing her and her husband repainting the driveway on 2 May 2023. Therefore, I am satisfied on the evidence that the tenant had permission to paint the driveway and the landlord accepted this as a solution to the damage caused to the driveway in April 2023.

The tenant then says that the set of white painted footprints on the driveway at the end of the tenancy was caused by firemen attending the premises when the garage caught fire on 19 May 2023 at approximately 10am. No-one was home at the time, and she says that firemen kicked the back door open to access the premises. She says that in course of extinguishing the garage fire, water and paint (from paint containers outside in the porch area) was hosed down the driveway. The tenants were not allowed into the premises until 4pm after Fire and Police had attended. The tenant says there were also white painted footprints through the house on carpets also spread by firemen and others in attendance. The tenant produced photos showing painted footprints inside the house which she says she managed to clean off.

I accept the tenant’s evidence as to how the footprints on the driveway occurred. It follows that I do not find that the tenant caused the damage either carelessly or intentionally. Therefore, the claim is dismissed.

Methamphetamine contamination-What must be proved under the RTA?

A tenant must not use, or permit the use of, the premises for any unlawful purpose (s40(2)(b) RTA). To do so is an unlawful act for which exemplary damages may be awarded of up to $1,800.00 (s40(3A)(c) RTA).

A landlord must prove that premises have been damaged during the tenancy and that the damage is the result of an 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 (s49B(8)(a) RTA). The use or possession of methamphetamine is an imprisonable offence. See the Misuse of Drugs Act 1975.

If the landlord proves methamphetamine activity during the tenancy, then the tenant is liable for the costs of “making good the damage” and other reasonably foreseeable losses related to the damage. See ss49A and 49B(1)(b) RTA.

In other words, the landlord must prove: first, that the tenant or someone at the premises they are responsible for has used or been in possession of methamphetamine and, second, that the methamphetamine activity has caused damage.

Whether damage has been caused involves a determination of the level of methamphetamine present at the premises. A New Zealand Standards committee (approved and appointed under the Standards and Accreditation Act 2015) adopted a “maximum acceptable level” of methamphetamine of

5mcg/100cm² for ‘high use areas’ (easily accessed and regularly used). NZS 8510:2017 applies from 29 June 2017. The Standard is based on consideration of a 2016 report by ESR (Institute of Environmental Science and Research Ltd) and does not distinguish between suspected meth labs (where manufacture has taken place) and premises where the drug has been used but not manufactured.

In May 2018, Professor Sir Peter Gluckman, the then Prime Minister’s Chief Science Advisor, released a report “Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards. The Gluckman report makes a distinction between the risks of exposure to chemical residues in premises where methamphetamine has been previously manufactured as opposed to where it has been smoked. It concludes that, where there is no evidence of the manufacture of methamphetamine, exposure to residue levels on household surfaces of below 15mcg/100cm² “would be highly unlikely to give rise to any adverse effects” and that this level still incorporates a 30-fold safety buffer on a conservative estimate of risk.

Where there is evidence suggesting possible manufacture of methamphetamine, both NZS 8510:2017 and the Gluckman report recommend remediation to the 1.5mcg level. The Gluckman report notes that methamphetamine levels over 30mcg/100cm² are considered by forensic experts to signify that manufacture is likely to have taken place.

The Tribunal has most often applied the Gluckman recommendations in recent years. The District Court has consistently confirmed that it is open to the Tribunal to take this approach because of the lack of legislative regulation at present. See Full Circle Real Estate Limited v Piper [2019] NZDC 4947 and Acme Realty Ltd v Alexander James Hogg, Tuitui Grace Polotu, Leigh Sharyn Coughlin [2021] NZDC 3231.

By following the pre-dominance of other Tribunal cases, also supported by the District Court, I accept: a. methamphetamine residue of below 15mcg/100cm² does not cause damage to residential tenancy premises unless there is evidence of manufacture; b. in premises, or parts of premises, where residue is higher than 15mcg/100cm², this is considered damage and decontamination of those areas is appropriate; c. residue levels of higher than 30mcg/100cm² indicate a high level of use and may indicate manufacture. Decontamination of premises to the lower level of below 1.5mcg is justified.

The standard of proof that applies is the civil standard “on the balance of probabilities”. This means that I do not have to be completely certain, but I must be satisfied that what is alleged is “more probable than not”.

Generally, the more serious the claim, the stronger the evidence that is required (Z v Dental Complaints Assessment Committee [2008] NZSC 55). The claim regarding methamphetamine activity is an allegation of criminal behaviour so the evidence must be strong. Facts

Prior to this tenancy commencing on 20 March 2020, the property tested positive for methamphetamine. Twelve areas were tested and found to have readings over 1.5mcg/100cm² and one area exceeded 15mcg/100cm². The premises were cleaned and decontaminated on 4 March 2020. A clearance certificate was issued showing that the level of methamphetamine had been reduced to <0.02mcg/100cm² in 6 samples, and for the remaining 6 samples the level was reduced to between 0.02-0.08 mcg/100cm².

The landlord confirmed that in cleaning the premises, carpets were not removed and replaced. The tenant also gave evidence that the curtains were not new at the start of the tenancy. Therefore, she says they likely were not replaced as part of the cleaning and decontamination process.

This tenant did not know there was a history of methamphetamine contamination at the premises. After this tenancy ended, the landlord arranged to have the premises tested for methamphetamine again. Mr Horne explained that when visiting the premises, he detected a metallic taste which prompted him to arrange testing. Composite test results showed the presence of methamphetamine and subsequent discrete testing of individual samples confirmed methamphetamine in 22 out of 24 discrete samples.

The following table below shows the comparison of results (in mcg/100cm²) from samples collected in February 2020, before and after clean-up (for the previous tenancy), and the results in June 2023 at the end of this tenancy: Room tested3/2/20 results— previous tenancy 6/3/20 results post decontamination— previous tenancy 26/6/23 results— this tenancy Dining4.670.050.86 Conservatory 117.290.072.09 Conservatory 21.61<0.020.54 Bedroom 12.76<0.020.10 Bedroom 28.480.050.04 & 1.69 Bedroom 35.26<0.020.08 Bathroom10.550.080.23 Laundry7.470.047.75 Toilet4.80.050.67 Bedroom 43.36<0.020.10 & 0.47 Bedroom 53.61<0.020.59 Toilet5.790.022.88 HallwayNot tested<0.024.85, 4.53 & 5.96

Additional areas tested on 26 June 2023 returned the following results: Kitchen5.22 Lounge 0.26 Lounge 0.87 Stairs10.3 Covered porch3.45 Garage<0.01 and <0.02

The following conclusions can be made based on the above information: a. Several areas where methamphetamine was detected in 2023 were not tested in 2020 (the kitchen, hallway, lounge, stairs and covered porch); b. In 2020, the level of methamphetamine in the conservatory exceeded “the safe level” of 15mcg/100cm². All other results were between 1.5-15 mcg/100cm²; c. Only one sample of the hallway was taken in 2020, but this was after decontamination/cleaning. This compares with three hallway samples collected in 2023 at opposite ends of the hallway on the ground level and in the hallway on the 1 st floor level; d. Of the rooms tested and decontaminated in 2020, methamphetamine was detected in all of the same rooms in 2023 to varying degrees between

10-15 mcg/100cm² but only four samples exceeded 1.5 mcg/100cm² in the conservatory, bedroom 2, the laundry and one of the toilets; e. In the additional areas tested in 2023 methamphetamine was detected with levels between 1.5-15 mcg/100cm² in six samples from the kitchen, stairs, hallway and covered porch; f. Results can differ markedly for one room depending on the location of the sample (e.g. as shown by the two samples collected in the conservatory with levels of 17.29 and 1.61 mcg/100cm²). Therefore, it is possible that higher levels were present in March 2020 in areas not sampled.

The company contracted to decontaminate the premises in 2020 did not remove carpets and I accept on the evidence of the tenant that they did not remove curtains. The quote provided in evidence specifying the scope of works does not recommend removal of any carpets, curtains or soft furnishings. The quote records that there were no results for the kitchen and hallway but a precautionary clean of those areas would be completed.

Quotes obtained for decontamination of the premises in 2023, recommend removing and disposing of any carpet, underlay, curtains, drapes, blinds and soft furnishings. Discussion and findings

On the face of the evidence, the landlord argues that pre-tenancy testing establishes that the premises were properly decontaminated, and the minor levels of methamphetamine present were at or below the limits for testing and decontamination. Therefore, it would be safe to conclude that the presence of increased levels of methamphetamine at the end of this tenancy is due to the activities of this tenant or those for whom she is responsible during the tenancy. Therefore, the tenant is liable for the consequences.

The tenant disputes that she or anyone at the premises for whom she is responsible carried out any activity involving methamphetamine. She did not know that the property had been contaminated by methamphetamine prior to her tenancy. She notes that she had a small child at the start of the tenancy and had a baby during the tenancy and says she would not expose her children to methamphetamine.

Other questions arise such as: whether the property was sufficiently cleaned after the prior tenancy given that carpets and curtains were not removed and there were still traces of methamphetamine albeit below 1.5mcg/100cm² on 6 March 2020; Methamphetamine was detected at the end of this tenancy in areas not tested prior to the tenancy and, some of those areas were not within the cleaning company’s scope of works. For example, there was no cleaning of the lounge or the covered porch. There is also no explanation as to what the “precautionary” clean of the hallway and kitchen entailed, for which no samples had been collected. The issue is whether traces of methamphetamine present during the previous tenancy have remained because of a failure to clean all areas properly and remove any carpets and curtains. In other words, is it safe to conclude that methamphetamine residue found at the end of this tenancy has likely occurred because of activities during this tenancy? Alternatively, is it possible that it was caused during the previous tenancy?

After carefully considering the evidence and the above questions, I am not satisfied on the balance of probabilities that the presence of methamphetamine at the end of this tenancy was caused during this tenancy. There is some significant evidence that suggests that traces may have remained after the previous tenancy. I take into account the high reading for methamphetamine in excess of 15 mcg/100cm² in the conservatory prior to this tenancy; the lack of testing in other areas at the end of the previous tenancy; and the scope of the cleaning work completed which did not include removal of carpets and curtains, whereas the 2023 cleaning quote recommends removal of carpets and drapes.

As already explained, where there is an allegation of criminal activity, the evidence must be strong and there are too many weaknesses to conclude that this tenant is responsible for the methamphetamine residue detected at the end of her tenancy. There is also no other corroborating or supporting evidence to suggest methamphetamine activity at the premises.

In summary, the landlord has not proved that the tenant used, or permitted the use of, the premises for an unlawful purpose (the use of methamphetamine) during the tenancy. Therefore, the claim for compensation (the insurance excess which applies of $2,500) for the associated costs of testing for methamphetamine and decontaminating the premises, and the claim for exemplary damages must be dismissed.

Even had I found the tenant culpable; she would not be responsible for the decontamination costs because the levels of methamphetamine were not so high (they did not exceed 15mcg/100cm²) as to warrant decontamination.

As the landlord has not succeeded with their claims, the bond is refunded in full to the tenant.

I accept that the landlord obtained and acted on the testing results for the previous tenancy and this tenancy in good faith and has relied and acted on the decontamination recommendations made between tenancies. The landlord will be disappointed by the outcome of the application. However, that is not a matter the Tribunal can consider further, but it remains open to the landlord to raise any concerns with the testing/cleaning companies.

The tenant did not seek suppression, but I consider that her name and identifying details should be suppressed because she has succeeded in defending the landlord’s claims and the allegation of methamphetamine use could be unfairly prejudicial to the tenant in future.

Reasons

Both parties attended the hearing with Mr Horne representing the landlord.

Is the tenant responsible for the damage to the premises?

Methamphetamine contamination-What must be proved under the RTA?

Additional areas tested on 26 June 2023 returned the following results: Kitchen5.22 Lounge 0.26 Lounge 0.87 Stairs10.3 Covered porch3.45 Garage<0.01 and <0.02

Quotes obtained for decontamination of the premises in 2023, recommend removing and disposing of any carpet, underlay, curtains, drapes, blinds and soft furnishings. Discussion and findings

As the landlord has not succeeded with their claims, the bond is refunded in full to the tenant.

Tenancy Tribunal case 4621851 — Leaks at 76 California Drive, Totara Park, Upper Hutt 5018

At a glance

Tenancy Tribunal case 4621851 — Leaks at 76 California Drive, Totara Park, Upper Hutt 5018

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Methamphetamine contamination-What must be proved under the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Methamphetamine contamination-What must be proved under the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions