What was Tenancy Tribunal case 4655650 about?

The tribunal order states: [The tenant/s] to pay Port Realty Limited T/A Harcourts Real Estate As

How much money was awarded in case 4655650?

Meth Testing Costs (Uninsured Loss: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4655650?

The dispute type was not classified.

Where can I read the official tribunal order for case 4655650?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10075609-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4655650 about?

The tribunal order states: [The tenant/s] to pay Port Realty Limited T/A Harcourts Real Estate As

How much money was awarded in case 4655650?

Meth Testing Costs (Uninsured Loss: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4655650?

The dispute type was not classified.

Where can I read the official tribunal order for case 4655650?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10075609-Tenancy_Tribunal_Order.pdf.

2 Victoria Avenue, Waiuku, Waiuku 2123 Tenancy Tribunal Case 4655650 — Tenancy dispute

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Order

Claims and awards in Tenancy Tribunal application 4655650 — net $1,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Meth testing costs (uninsured loss	$1,000.00	Meth testing costs (uninsured loss
Net award	$1,000.00
Bond	$2,000.00
Total payable by Tenant to Landlord	$1,000.00

[The tenant/s] to pay Port Realty Limited T/A Harcourts Real Estate As Agent For Anglican Church Of Waiuku $1,000.00 from the bond, calculated as shown in table below.

The Bond Centre is to pay the bond of $2,000.00 (5016717-004) immediately apportioned as follows: Port Realty Limited T/A Harcourts Real Estate As Agent For Anglican Church Of Waiuku: $1,000.00 [The tenant/s]: $1,000.00

Reasons

Both parties attended the hearing. The tenant is represented by counsel Asta Gold whereas the landlord is represented by Amy Melville.

The landlord has applied for compensation and refund of the bond following the end of the tenancy.

The tenancy commenced on 23 April 2015 and ended on 18 May 2023. Is the tenant responsible for damage and/or methamphetamine testing costs 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.

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.

The landlord claims that during the period of this tenancy, the tenant has caused or permitted others living at the premises to have caused the property to be contaminated by methamphetamine use and/or manufacture on the premises which damaged the property. The landlord suffered loss in paying the insurance excess of $1,000.00 for methamphetamine cleaning and testing costs which are not insured. The landlord also seeks curtain replacement costs of $669.36 and 9 weeks lost rent of $5,400.00 while the premises is being cleaned and decontaminated.

While there is no baseline testing of methamphetamine prior to the start of the tenancy 8 years ago, I find on the balance of probabilities that there had been methamphetamine use (which is unlawful) in the premises during the tenancy. The heatpump that was only installed 6 months prior to the end of the tenancy recorded methamphetamine residue. The HRV system, including ducting and vent, that was installed during the tenancy also recorded methamphetamine residue.

I find it unlikely the heatpump and HRV system, which were installed in the premises at different times during this tenancy since 2015, would both record methamphetamine residue from methamphetamine use which took place prior to the tenancy in 2015. I consider it more likely than not that methamphetamine use has occurred during the tenancy, regardless of whether methamphetamine was also used prior to the tenancy in 2015.

Accordingly, I am satisfied that the tenant is liable to pay the landlord the cost of the composite and detailed methamphetamine tests undertaken, limited to the lesser of the insurance excess of $1,000.00.

I consider the methamphetamine testing costs were reasonably undertaken and incurred by the landlord in the circumstances given my finding that it is more likely than not that methamphetamine use has occurred at the premises during the tenancy.

The landlord’s remaining claims for lost rent and curtain replacement costs rest on whether the premises required remediation, cleaning and replacement of chattels based on the methamphetamine test results.

Composite methamphetamine testing results recorded a theoretical maximum reading of 11.4μg/100cm2 on the premises.

Detailed room-by-room methamphetamine testing subsequently undertaken recorded 2.74μg/100cm2 in the dining room, 2.31μg/100cm2 in the hallway,

46μg/100cm2 in the bathroom, 1.51μg/100cm2 in bedroom 1, 2.56μg/100cm2 in bedroom 4, 2.53μg/100cm2 in the laundry, and 5.50μg/100cm2 in the garage.

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, must be based on the prevailing guidelines at that time.

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 levels of contamination on the composite and detailed testings are above the threshold set by current New Zealand Standard of

5μg/100cm2 but below the risk level expressed by the Chief Science Advisor of 15μg/100cm2; objectively, the property did not require remediation.

There is therefore no basis for the landlord to seek decontamination and cleaning costs, and damages in the form of lost rent and replacement of curtains 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 curtains warrant replacement at the end of the tenancy.

That being the case, the landlord’s claim for curtain replacement costs and lost rent while methamphetamine cleaning is being undertaken must fail.

Only the amounts ordered are proved; the bond is apportioned to the parties accordingly.

Order

Claims and awards in Tenancy Tribunal application 4655650 — net $1,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Meth testing costs (uninsured loss	$1,000.00	Meth testing costs (uninsured loss
Net award	$1,000.00
Bond	$2,000.00
Total payable by Tenant to Landlord	$1,000.00