What was Tenancy Tribunal case 4647429 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4647429?

Cleaning: $287.50 awarded to landlord; Cleaning: $138.00 awarded to landlord; Cleaning: $345.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $326.00 awarded to landlord; Painting Ensuite Door And Bedroom Do…: $299.00 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $1,518.00 awarded to landlord; Rent Owed: $1,900.00 awarded to landlord

What type of tenancy dispute was case 4647429?

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

Where can I read the official tribunal order for case 4647429?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9942997-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4647429 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4647429?

Cleaning: $287.50 awarded to landlord; Cleaning: $138.00 awarded to landlord; Cleaning: $345.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $326.00 awarded to landlord; Painting Ensuite Door And Bedroom Do…: $299.00 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $1,518.00 awarded to landlord; Rent Owed: $1,900.00 awarded to landlord

What type of tenancy dispute was case 4647429?

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

Where can I read the official tribunal order for case 4647429?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9942997-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4647429 — Property damage

Claims and awards in Tenancy Tribunal application 4647429 — net $4,173.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent owed to 16 August 2023	$1,900.00	Rent owed to 16 August 2023
Exemplary damages - failure to leave	$500.00	Exemplary damages - failure to leave
Insurance excess - replacement carpets	$1,000.00	Insurance excess - replacement carpets
Carpet Cleaning: and deodorising	$287.50	Carpet Cleaning: and deodorising
Cleaning: to remove smell of smoke	$345.00	Cleaning: to remove smell of smoke
Insurance excess - replacement blinds	$500.00	Insurance excess - replacement blinds
Painting ensuite door and bedroom door and 2 x door jambs	$299.00	Painting ensuite door and bedroom door and 2 x door jambs
Repairing walls and patch painting	$1,518.00	Repairing walls and patch painting
Lock/key replacement: front door and garage remote	$326.00	Lock/key replacement: front door and garage remote
Cleaning	$138.00	Cleaning
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,173.94
Total payable by Tenant to Landlord	$4,173.94

Order

The tenant’s application is dismissed.
Robbie Mitten must pay [The landlord/s] $4,173.94 immediately, calculated as shown in table below.
All other landlord claims are dismissed.

Reasons

The landlord attended the hearing.
The tenant was notified about the hearing using the contact details previously confirmed by the tenant. I find the tenant was properly served and the hearing went ahead.
The tenant’s application was dismissed.
The landlord has applied for rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The parties reached an agreement that the tenancy would end on 4 August 2023. On 2 August the tenant emailed and said he was not able to move to his new address until 13 August 2023. From the emails provided by the landlord it does not look like the parties reached an agreement the tenant could stay until 13 August. In any event the tenant did not pay rent or move out. I accept the evidence from the landlord that the tenant moved out on 16 August. I find 16 August 2023 was the day the tenancy ended.
The landlord provided rent records which prove the amount owing at the end of the tenancy.

Should the tenant pay exemplary damages?

The landlord has claimed exemplary damages because the tenant did not vacate the premises on 4 August 2023. A tenant must vacate the premises on the termination of the tenancy. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(1)(e)(i), 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986 (RTA).
Apart from the email sent on 2 August – provided by the landlord – I do not have any explanation from the tenant as to why he left the apartment almost two weeks after he agreed the tenancy would end. I find there was an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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) RTA.
It seems most likely to me the tenant acted intentionally. The effect on the owner was a delayed sales process. The landlord had to spend additional time, including time negotiating, corresponding with the owner and the tenant, and visiting more than once in an attempt to compete a final inspection. It is in landlords’ interests that tenants move out when they say so the landlord can complete maintenance and repairs and meet any other contractual obligations. There is public interest that tenants comply with the RTA.
I allow exemplary damages in the amount of $500. This is at the lower end of the scale because I am not aware of any previous, similar orders against the landlord.

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) RTA.
I have been provided with photos taken by the landlord at the end of the tenancy. I have also been provided with emails from the businesses who cleaned. I find there was a strong smell of cigarette smoke inside the apartment. This meant there were additional costs as the landlord tried to remove the smell.
The tenant did not return the front door key or the garage door remote.
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. See section 49B(3)(a) RTA.
There are two claims for the insurance excess – for replacement carpet (excess $1000) and for two roller blinds damaged by mould (excess $500). The carpet was replaced because of two burn marks found in the bedroom, most likely from cigarettes. The blinds were quite stained and could not be cleaned. There was no damage at the start of the tenancy and carpets and the blinds are expected to last eight years in a residential tenancy. Both claims seem reasonable to me. The amount claimed is less than four weeks rent and the landlord provided proof of the insurance excess. The claims are proved and allowed.
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.
There was damage to two doors and to the walls during the tenancy. I have been provided with photos. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. It seems most likely to me the damage was intentional. The amount claimed is proved and allowed. I have taken betterment and depreciation into account.

Should the tenant pay the insurance excess for methamphetamine remediation?

The landlord has applied for compensation for the cost of methamphetamine remediation. The landlord must prove that the tenant caused or permitted the contamination, or that it was caused by someone at the premises with the tenant’s consent. The landlord must also prove that, as a result of the contamination, the premises have been damaged.
The claim is for the insurance excess of $1000. This claim was approved by the insurer because there was a reading for methamphetamine in the lounge at
56 μg/100cm 2 . The landlord submitted the Tribunal should allow the claim because the contamination was higher than the level recommended in the New Zealand Standards.
Section 138C RTA 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.
There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm 2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm 2 for limited use areas.
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 report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.
The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).
The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]): 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.
The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, 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 [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
Based on the advice provided in the Gluckman Report I do not find the landlord has proved there was a need to remediate the tenancy premises. There is no evidence of manufacturing. The very low level of contamination was unlikely to cause damage or pose a risk to health. The insurer’s decision to accept the claim is not the determining factor here. Should the tenant pay exemplary damages because the contamination occurred during the tenancy?
The landlord also claims the tenant has used the premises unlawfully, by smoking methamphetamine or allowing methamphetamine to be used during the tenancy. A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) RTA.
As said, the landlord must prove the contamination happened during the tenancy. The landlord said that no pretesting was done because the apartment was brand new when the tenant moved in, in January 2021. The landlord also submitted that a reading of 1.56 μg/100cm 2 was the product of regular and ongoing use of methamphetamine inside the apartment.
I am not persuaded by this submission. The reality is that a number of people had access to the tenancy premises while they were being built. The only way the landlord can prove the contamination happened during this tenancy is with a test done at the start of the tenancy showing no contamination. I have not been provided with any scientific evidence that this reading indicates ongoing use and therefore is more likely to be the tenant. This claim is not proved and it is dismissed. Other orders
The bond is refunded to the landlord.
Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.
The landlord’s application for suppression is allowed because the landlord is the most successful party.

Claims and awards in Tenancy Tribunal application 4647429 — net $4,173.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent owed to 16 August 2023	$1,900.00	Rent owed to 16 August 2023
Exemplary damages - failure to leave	$500.00	Exemplary damages - failure to leave
Insurance excess - replacement carpets	$1,000.00	Insurance excess - replacement carpets
Carpet Cleaning: and deodorising	$287.50	Carpet Cleaning: and deodorising
Cleaning: to remove smell of smoke	$345.00	Cleaning: to remove smell of smoke
Insurance excess - replacement blinds	$500.00	Insurance excess - replacement blinds
Painting ensuite door and bedroom door and 2 x door jambs	$299.00	Painting ensuite door and bedroom door and 2 x door jambs
Repairing walls and patch painting	$1,518.00	Repairing walls and patch painting
Lock/key replacement: front door and garage remote	$326.00	Lock/key replacement: front door and garage remote
Cleaning	$138.00	Cleaning
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,173.94
Total payable by Tenant to Landlord	$4,173.94

Order

The tenant’s application is dismissed.
Robbie Mitten must pay [The landlord/s] $4,173.94 immediately, calculated as shown in table below.
All other landlord claims are dismissed.

Reasons

The landlord attended the hearing.
The tenant was notified about the hearing using the contact details previously confirmed by the tenant. I find the tenant was properly served and the hearing went ahead.
The tenant’s application was dismissed.
The landlord has applied for rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The parties reached an agreement that the tenancy would end on 4 August 2023. On 2 August the tenant emailed and said he was not able to move to his new address until 13 August 2023. From the emails provided by the landlord it does not look like the parties reached an agreement the tenant could stay until 13 August. In any event the tenant did not pay rent or move out. I accept the evidence from the landlord that the tenant moved out on 16 August. I find 16 August 2023 was the day the tenancy ended.
The landlord provided rent records which prove the amount owing at the end of the tenancy.

Should the tenant pay exemplary damages?

The landlord has claimed exemplary damages because the tenant did not vacate the premises on 4 August 2023. A tenant must vacate the premises on the termination of the tenancy. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(1)(e)(i), 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986 (RTA).
Apart from the email sent on 2 August – provided by the landlord – I do not have any explanation from the tenant as to why he left the apartment almost two weeks after he agreed the tenancy would end. I find there was an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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) RTA.
It seems most likely to me the tenant acted intentionally. The effect on the owner was a delayed sales process. The landlord had to spend additional time, including time negotiating, corresponding with the owner and the tenant, and visiting more than once in an attempt to compete a final inspection. It is in landlords’ interests that tenants move out when they say so the landlord can complete maintenance and repairs and meet any other contractual obligations. There is public interest that tenants comply with the RTA.
I allow exemplary damages in the amount of $500. This is at the lower end of the scale because I am not aware of any previous, similar orders against the landlord.

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) RTA.
I have been provided with photos taken by the landlord at the end of the tenancy. I have also been provided with emails from the businesses who cleaned. I find there was a strong smell of cigarette smoke inside the apartment. This meant there were additional costs as the landlord tried to remove the smell.
The tenant did not return the front door key or the garage door remote.
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. See section 49B(3)(a) RTA.
There are two claims for the insurance excess – for replacement carpet (excess $1000) and for two roller blinds damaged by mould (excess $500). The carpet was replaced because of two burn marks found in the bedroom, most likely from cigarettes. The blinds were quite stained and could not be cleaned. There was no damage at the start of the tenancy and carpets and the blinds are expected to last eight years in a residential tenancy. Both claims seem reasonable to me. The amount claimed is less than four weeks rent and the landlord provided proof of the insurance excess. The claims are proved and allowed.
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.
There was damage to two doors and to the walls during the tenancy. I have been provided with photos. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. It seems most likely to me the damage was intentional. The amount claimed is proved and allowed. I have taken betterment and depreciation into account.

Should the tenant pay the insurance excess for methamphetamine remediation?

The landlord has applied for compensation for the cost of methamphetamine remediation. The landlord must prove that the tenant caused or permitted the contamination, or that it was caused by someone at the premises with the tenant’s consent. The landlord must also prove that, as a result of the contamination, the premises have been damaged.
The claim is for the insurance excess of $1000. This claim was approved by the insurer because there was a reading for methamphetamine in the lounge at
56 μg/100cm 2 . The landlord submitted the Tribunal should allow the claim because the contamination was higher than the level recommended in the New Zealand Standards.
Section 138C RTA 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.
There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm 2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm 2 for limited use areas.
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 report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.
The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).
The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]): 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.
The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, 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 [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
Based on the advice provided in the Gluckman Report I do not find the landlord has proved there was a need to remediate the tenancy premises. There is no evidence of manufacturing. The very low level of contamination was unlikely to cause damage or pose a risk to health. The insurer’s decision to accept the claim is not the determining factor here. Should the tenant pay exemplary damages because the contamination occurred during the tenancy?
The landlord also claims the tenant has used the premises unlawfully, by smoking methamphetamine or allowing methamphetamine to be used during the tenancy. A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) RTA.
As said, the landlord must prove the contamination happened during the tenancy. The landlord said that no pretesting was done because the apartment was brand new when the tenant moved in, in January 2021. The landlord also submitted that a reading of 1.56 μg/100cm 2 was the product of regular and ongoing use of methamphetamine inside the apartment.
I am not persuaded by this submission. The reality is that a number of people had access to the tenancy premises while they were being built. The only way the landlord can prove the contamination happened during this tenancy is with a test done at the start of the tenancy showing no contamination. I have not been provided with any scientific evidence that this reading indicates ongoing use and therefore is more likely to be the tenant. This claim is not proved and it is dismissed. Other orders
The bond is refunded to the landlord.
Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.
The landlord’s application for suppression is allowed because the landlord is the most successful party.

Tenancy Tribunal case 4647429 — Property damage

At a glance

Tenancy Tribunal case 4647429 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Should the tenant pay exemplary damages?

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

Is the tenant responsible for the damage to the premises?

Should the tenant pay the insurance excess for methamphetamine remediation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Should the tenant pay exemplary damages?

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

Is the tenant responsible for the damage to the premises?

Should the tenant pay the insurance excess for methamphetamine remediation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions