What was Tenancy Tribunal case 4667520 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4667520?

Property Damage: $1,200.00 awarded to landlord; Property Damage: $1,500.00 awarded to tenant; Cleaning: $5,000.00 awarded to landlord; Property Damage: $1,103.24 awarded to landlord; Rent Arrears: $1,571.43 awarded to landlord; Water Rates: $1,175.20 awarded to landlord

What type of tenancy dispute was case 4667520?

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

Where can I read the official tribunal order for case 4667520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10381465-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4667520 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4667520?

Property Damage: $1,200.00 awarded to landlord; Property Damage: $1,500.00 awarded to tenant; Cleaning: $5,000.00 awarded to landlord; Property Damage: $1,103.24 awarded to landlord; Rent Arrears: $1,571.43 awarded to landlord; Water Rates: $1,175.20 awarded to landlord

What type of tenancy dispute was case 4667520?

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

Where can I read the official tribunal order for case 4667520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10381465-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4667520 — Cleanliness

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4667520 — net $8,549.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 2/09/ 2023 to 12/09/2023	$1,571.43		8. The landlord has filed a claim against the tenants for rent arrears, water rates arrears, loss of rent due to methamphetamine contamination, decontamination…
Water rates	$1,175.20		Water rates
Meth testing/Cleaning: Kitchen and Rangehood	$5,000.00		Meth testing/Cleaning: Kitchen and Rangehood
Exemplary Damages- unlawful use	$1,200.00		unlawful use
Lock/key replacement and bailiff fees	$1,103.24		Lock/key replacement and bailiff fees
Exemplary damages: HHS		$1,500.00	HHS
Total award	$10,049.87	$1,500.00
Net award	$8,549.87
Total payable by Tenant to Landlord	$8,549.87

The tenancy premises is a large property and comprises of the main house and at least 2 other outbuildings (including a sleepout) and sheds. The property is owned by the landlord and her family. The landlord’s family lived in the property for approximately 20 years as their family home. In or about 2022 they moved out of the property into a new home. The intention was to do some work on the premises and then rent it out to tenants when it was ready.

The tenants were family friends of the landlord’s family. The male tenant described his relationship with [The landlord's father] (the landlord’s father) as being a father figure. Whilst the female tenant knew the landlord’s family, this was not as close a relationship. The other members of the landlord’s family did not know the tenants well.

In June 2022 the male tenant required a property to reside in on an urgent basis to meet parole requirements. [The landlord/s] (landlord) allowed the tenants to rent the premises. This would give the tenants a stable place to live with their young children. The parties entered into a residential tenancy agreement dated 16 June 2022.

The male tenant was recalled to prison in late 2022 and [The landlord/s] came and lived at the address with the female tenant and the young children, he says he did this because he wanted to protect the female tenant and her young children. The tenant’s sister brother and other friends of the tenants sometimes lived in the property with the tenants. The landlord’s friends and acquaintances also stayed at the property from time to time.

In the background of this case, there are also allegations of serious domestic violence (the male tenant was recalled to prison for this offending). The female tenant says that it made it difficult to say no or push back to what the male tenant or his father figure [The landlord/s] asked.

Despite any misgivings that the tenant might have had, it appears that the tenant and [The landlord/s] were working towards a common goal of renovating the property to make it a home for the tenants and family during the period the male tenant was incarcerated. The tenant and [The landlord/s] competed many renovation projects around the property during that period.

The tenants accept that they have a background that the female tenant described as “colourful”. They both have criminal histories have been imprisoned. The female tenant openly admits to being a recovering addict, including methamphetamine, but says that she has been clean for many years and that this tenancy was a further opportunity to set her path on the right track by providing a stable home life for her and her children. The claims

The landlord has filed a claim against the tenants for rent arrears, water rates arrears, loss of rent due to methamphetamine contamination, decontamination costs, costs of methamphetamine testing, bailiff fee, locksmith fee and exemplary damages. The tenant accepts the payment of the locksmith fee.

The tenant claims that the landlord rented her contaminated premises (methamphetamine) and breached the healthy homes standards. The tenant seeks compensation, exemplary damages and filing fee. The procedural history.

This made has had a number of hearings.

On the1 September 2023 I made an order terminating the tenancy, due to the methamphetamine contamination and rent arrears. I also awarded the landlord the rent arrears of $11,884.29 to 1 September 2023. Rent, water locksmith and bailiff fees following the end of the tenancy.

The tenants did not move out of the property as per the order. The landlord had to get the bailiff to evict the tenants. The landlord paid the eviction fee of $200.00. I am satisfied that the landlord should be able to recover the cost of the bailiff’s fee and I award that amount of $200.00 to the landlord.

The tenant also remained in possession of property until the12 September 2023. When a tenant remains in possession of a property after termination then they are liable for rent until they quit the premises- see s60 RTA. The tenant accepted liability for this rent in the hearing on the 1 December 2023. I award the landlord further rent of $1571.43.

The landlord also asked for the locksmith bill. The tenant accepted that she was liable for this fee.

The tenants accepted liability for the water rates but disputed the amount as the amount increased by more than $700 between July and the end of the tenancy. This was because the estimated bills did not reflect the actual amount consumed as per the read amount. The landlord also included debt collection charges, but the tenant is not liable for that amount. The landlord had the account in their name and did not mitigate their loss by paying the bill to [water company] and then recovering the debt from the tenant. The amount of water rates owed by the tenant is $1175.20. Methamphetamine contamination.

The landlord is claiming that the tenants or their invitees used or manufactured methamphetamine at the property during the tenancy contaminating the property.

The landlord is seeking the cost of decontamination and remediation less the insurance monies that the landlord received.

The tenant claims that the landlord rented her a premises contaminated with methamphetamine.

There is no dispute that the premises were contaminated with methamphetamine. The landlord discovered this in July 2023 after undertaking methamphetamine testing at the property. Those composite tests indicated that the property required decontamination.

At what level does methamphetamine contamination require remediation?

The Tribunal has previously found that damage occurs, and decontamination is necessary when levels of methamphetamine contamination are above 15μg/100cm2. Full Circle Real Estate Limited v Piper [2019] NZDC 4797. 1 This is the level adopted by the authors of what is colloquially known as the Gluckman report dated 29 May 2018 (“the Gluckman Report”). 2 The Gluckman Report concludes that there is no evidence of risk of harm from second or third hand exposure to methamphetamine residue measured at or less than 15μg/100cm2 unless there is evidence to suggest that the premises have been used for manufacture. Gluckman also notes that levels in excess of 30 μg/100cm2 may indicate manufacture.

Neither the Gluckman Report nor the previously used New Zealand Standard NZS 8510:2017 3 (NZS) which recommended a level of 1.5μg/100cm2 are embedded into law, they both represent guidelines and are not regulatory.

In the aforementioned Full Circle Real Estate v Piper his Honour Judge Kellar gave consideration as to whether the Tribunal erred in applying the Gluckman level of 15μg/100cm2 over the NZS of 1.5μg/100cm2 and found that;

“it would have been bold for the adjudicator to have ignored that report (the Gluckman 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.” 4

Therefore, the Tribunal continues to adopt a level of 15μg/100cm2as a level that requires remediation for contamination.

Given the nature and extent of the methamphetamine levels above 15 μg/100cm2 the premises required decontamination and remediation.

The question then is when did the property become contaminated and who caused the contamination? 1 1 Full Circle Real Estate v Piper [2019] NZDC 4947- CIV2018-009-2490 2 Methamphetamine contamination in residential properties: Exposure, risk levels and interpretation of standards.” 29 May 2018 - Professor Gluckman – Prime Minister’s chief science advisor; (The Gluckman Report). 3 NZS 8510:2017 New Zealand Standard – testing and decontamination of methamphetamine - contaminated properties. 4 Full Circle Real Estate v Piper at [36] The burden of proof

Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. The Tenancy Tribunal applies a civil standard of proof, determining matters on the balance of probabilities, meaning, was it more likely than not that the alleged event happened. Further, the evidence should be reasonable with no probable defects such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence. Contemporaneous documents, such as email and texts are often important aids in making factual findings, where facts are disputed or there are gaps in the recollection of the parties.

If a landlord does not test the premises for methamphetamine contamination at the beginning of the tenancy, then it will be difficult to prove, in the absence of any other evidence that dates when the premises became contaminated. The District Court has said: The lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of their tenancy. 5

Each party effectively blamed the other for causing the contamination The landlord says that the tenants and their invitees caused the damage, they say: a. The landlord’s family lived in the property for almost 20 years before the tenancy and no one in their family has any history of methamphetamine use. This can be contrasted with the tenants have a history of methamphetamine addiction. b. Whilst there was no pre tenancy methamphetamine testing, the items that were installed into the premises during the tenancy were contaminated with methamphetamine. c. The concentration of methamphetamine found in the items installed during the tenancy infers that manufacture or very high levels of methamphetamine use occurred during the tenancy after those items had been installed. d. [The witness]’s evidence confirmed that he had smoked methamphetamine at the property during the tenancy. e. The landlord produced a urine test in January this year which showed no evidence of drug use. f. The room that [The landlord/s] occupied at the property during the tenancy was the only room that showed very low levels of methamphetamine contamination. That room was kept locked during the 5 Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210. time that [The landlord/s] lived there, and the tenants confirm that they did not go in there.

The tenant submits: a. There was no methamphetamine testing done before the tenancy began. b. She accepts that she does have a history of drug use, but has been clean for a number of years, this is supported by the random drug tests that she undertook as part of her bail conditions (on unrelated charges). The landlord says the tenant did not produce these results. c. That [The landlord/s] lived at the property during the tenancy and that she believed from what she has been told that he used methamphetamine at the property. That [The landlord/s] never told his daughter (the Applicant) that he had seen any methamphetamine use by the tenants or anyone ese at the property. d. [The witness] gave evidence that when he used methamphetamine at the property it was with [The landlord/s]. [The witness] told the Tribunal that he did this multiple times. e. That during the tenancy multiple agencies including Oranga Tamariki, the Police and Probation came to the property for random and organised visits, including one occasion when the Police undertook a through scene examination of the property after the death of the tenant’s brother (off site) who had been living at the property at the time of his death and another when the police executed a search warrant (non-drug related). None of those agencies saw or reported any evidence of methamphetamine use or manufacture at the property. No one living at the property was charged with drug related offending at the property. f. That the rangehood was stored after purchase in a room where [The witness] gave evidence he smoked methamphetamine with [The landlord/s] and that it was [The landlord/s] installed the kitchen sink in the sleepout which was the only other item that showed evidence of methamphetamine contamination. Further [The witness] also identified the sleep out as the place he smoked methamphetamine with [The landlord/s] and another tradesperson who were “doing some work there’ on the occasion [The witness] smoked methamphetamine with them. My decision

Having considered all the evidence I cannot say when it was likely that the property became contaminated except with the rangehood in the kitchen.

The evidence and submissions by both parties have some merit, but fall short of the evidential standard required for me to make a finding as to whether the remainder of the property apart from the rangehood in the kitchen was contaminated before or during this tenancy.

The fact that [The landlord/s] continued to live at the property during the tenancy is problematic for the landlord.

I found [The witness]’s testimony about the places within the property and the situations (who was there and what they were doing) to be quite credible. [The witness] pointed out several locations at the property where he says he smoked methamphetamine that were consistent with the higher readings in the methamphetamine testing. There was no suggestion that [The witness] knew in advance of giving his evidence where the testing had taken place.

What was less credible was [The witness]’s reluctance to tell me if the male tenant (who was his good friend) also participated in smoking methamphetamine. He was reluctant to answer any questions about the male tenant.

As in the case of Eren Limited v Martin and Kukuruzsnayak [2021] NZDC the lack of pre tenancy testing has significantly weaken the landlord’s case and the other circumstantial evidence is not enough to meet the burden that the tenant contaminated the premises during the tenancy.

The exception to this is the rangehood. The tenants purchased the rangehood. They installed the rangehood. During the period the rangehood was installed the landlord did not live at the property. The tenants say that the rangehood was stored after purchase in a box in the ‘office room’ where [The witness] smoked methamphetamine and that is how it must have become contaminated. I disagree. The rangehood was boxed and wrapped in plastic in that room, it is unlikely the rangehood would have become contaminated whilst in the room. The tests were done on the inside or the vents of the rangehood. The results were 20.1 μg/100 cm2 on the Rangehood in the [meth tester 1] scope of work completed 2 October 23 and 30.2 μg/100 cm2 on the [meth tester 2] test. I am satisfied that the rangehood was contaminated during the tenancy and that this is damage caused by the tenants during the tenancy.

The landlord submits that the level of methamphetamine contamination on the rangehood of 30.2 μg/100 cm2 is indicative of manufacture, because the whilst the Gluckman states “levels around or exceeding 30 μg/100 cm2 are regarded as strongly suggestive of manufacturing activity” 6

There is no other evidence of manufacturing at the property. The [meth tester 2] report and the [meth tester 1] report both record that there is evidence to suggest methamphetamine manufacture, in the first instance because a glass beaker was seen in a shed. The landlord took a photograph of this, and it appears that it is just a glass beaker, there is nothing else to suggest that it was being used in methamphetamine manufacture (the tenant says she thought it was a vase!). In the [meth tester 1] report is refers to an unknown substance being sprayed throughout the house, to ‘mask’ manufacture and presence of methamphetamine. There is no evidence of what this substance is, when or who put it there, or how it would ‘mask’ methamphetamine manufacture. 6 Page 14 of the Gluckman Report. The rangehood.

Given the level in the rangehood I am satisfied that the tenants contaminated the rangehood and the kitchen during their tenancy and are therefore liable for the remediation of the damage to the kitchen and rangehood area.

The landlord did not provide a breakdown of the costs per room. However, I am able to see from the remediation documents what work was undertaken. Removal of ducting, cleaning of the rangehood, cleaning of all surfaces and fogging. I award the landlord $5000.00 towards testing costs (in so far as they relate to these matters) and remediation of the kitchen and rangehood. The sleepout.

I am not satisfied that the tenants contaminated the sleepout where the kitchen sink was installed and had a very high reading of 227 μg/100 cm2. This is because [The landlord/s] and his acquaintances installed that sink, it was brought second hand and [The witness] gave evidence that he had smoked methamphetamine in the room whilst it was being installed with [The landlord/s] and his acquaintance. The landlord’s claim for exemplary damages.

Having determined that the tenants used methamphetamine at the property thereby contaminating the rangehood and kitchen. I am also satisfied that the tenants used the property for an unlawful purpose during the tenancy by using methamphetamine in the kitchen or around the rangehood. I say this because of the very high readings on the rangehood. Using methamphetamine is an unlawful act (see s 40(2)(b) RTA) because it is a criminal act pursuant to the Misuse of Drugs Act 1975. The level of the methamphetamine damage is of itself indicative of intention. To reach that level of contamination use in that area would be very frequent. 7

When awarding exemplary damages, I must take into account the effect on the other party and the public interest. The effect on the landlord has been considerable, the landlord says that this has been very stressful, both financially and for their family. They have been without rent whilst they have remediated the property. It has also ruined the relationship and trust between the landlord and tenant family.

Methamphetamine use in New Zealand is a scourge on our society. The level of contamination in the rangehood suggests that methamphetamine was being used on the kitchen often and in high levels, and this would have been toxic for those living there, including the tenants’ own children. 7 See page 14 Gluckman Report on the number of times that methamphetamine would be smoked in an area producing levels of 30ug or more.

I therefore award the landlord $1200.00 in exemplary damages taking into account the above factors.

As I am unable to determined when the rest of the premises apart from the rangehood in the kitchen became contaminated then the tenant’s claim that the landlord rented her a contaminated premise also fails. The Healthy Homes Standards claims

The tenant claims that the landlord failed to comply with her obligations to comply with the Healthy Homes Standards. The tenants seek exemplary damages for this breach.

The landlord accepts that they failed to comply with the Healthy Homes Standards and therefore breached s 45(1)(bb) RTA. As the tenancy began in June 2022 the landlord should have ensured that the house complied 90 days after the tenancy began.

The tenant obtained a Healthy Homes Report in early August 2023. That report shows failure of the insulation standard (no underfloor insulation), the moisture and drainage standard (broken downpipes or gutters, downpipes not affixed to gutters), no ground moisture barrier, the ventilation standard, the draught stopping standard (gaps and holes) and the heating standard inadequate heating in the living area.

The tenant says that the house was cold and damp and that she had to have dehumidifiers going in each room. (The inspection report photographs support this). However, the tenant was also helping the landlord renovate the property and some of that included replacing old doors and windows etc and I consider that the tenant may have been responsible for some of the gaps etc because of the work that she was doing.

There is no evidence that the tenant complained to the landlord of the cold or damp before the fallout between the parties in late July 2023.

I am satisfied that the landlord breached s 45(1)(bb) by failing to comply with the Healthy Homes Standards. I find that they have committed an unlawful act.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.

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.

I consider it just to make an award of the $1500.00 for failure to comply with the Healthy Homes Standards, the landlord made no attempt during the tenancy to comply with the HHS. All the standards were breached. Young children lived at the property. It is in the public interest that when landlords do not comply with their obligations under the HHS, especially when young children live at the property that an award is made that has a sufficient deterrent factor.

I acknowledge that these landlords were first time landlords who say that they were trying to do a friend a favour, but that does not accurately reflect the commercial realities of the situation. The landlord received considerable rent from the tenant. The landlord had an obligation to educate themselves as to their obligations and ensure that they and the property complied with the RTA. Filing fee and name suppression.

Both parties have been somewhat successful and unsuccessful in their claims. I do not award the filing fee to either.

I do however grant name suppression to the parties; this is because they have both been partly successful in their claims.

I also suppress the names of all witnesses and the property address. The landlord has asked me to do that, and I consider it appropriate.

Reasons

Claims and awards in Tenancy Tribunal application 4667520 — net $8,549.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 2/09/ 2023 to 12/09/2023	$1,571.43		8. The landlord has filed a claim against the tenants for rent arrears, water rates arrears, loss of rent due to methamphetamine contamination, decontamination…
Water rates	$1,175.20		Water rates
Meth testing/Cleaning: Kitchen and Rangehood	$5,000.00		Meth testing/Cleaning: Kitchen and Rangehood
Exemplary Damages- unlawful use	$1,200.00		unlawful use
Lock/key replacement and bailiff fees	$1,103.24		Lock/key replacement and bailiff fees
Exemplary damages: HHS		$1,500.00	HHS
Total award	$10,049.87	$1,500.00
Net award	$8,549.87
Total payable by Tenant to Landlord	$8,549.87