What was the outcome of Tenancy Tribunal case 4678969?

The tribunal order states: Sharee Prime must pay Tuxedo Investments Limited (Occupy Property

How much money was awarded in case 4678969?

Cleaning: $200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $127.79 awarded to landlord; Rubbish Removal: $290.00 awarded to landlord

What type of tenancy dispute was case 4678969?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4678969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10277432-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4678969?

The tribunal order states: Sharee Prime must pay Tuxedo Investments Limited (Occupy Property

How much money was awarded in case 4678969?

Cleaning: $200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $127.79 awarded to landlord; Rubbish Removal: $290.00 awarded to landlord

What type of tenancy dispute was case 4678969?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4678969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10277432-Tenancy_Tribunal_Order.pdf.

84 Ngamotu Road, Spotswood, New Plymouth 4310 Tenancy Tribunal Case 4678969 — Cleanliness

Claims and awards in Tenancy Tribunal application 4678969 — net $638.23 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$200.00	17. I award the landlord $200 for cleaning which I consider a reasonable sum based on the evidence presented.
Lock/key replacement	$127.79	Lock/key replacement
Rubbish removal: Skip hire	$290.00	Rubbish removal: Skip hire
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$638.23
Total payable by Tenant to Landlord	$638.23

Claims and awards in Tenancy Tribunal application 4678969 — net $638.23 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$200.00	17. I award the landlord $200 for cleaning which I consider a reasonable sum based on the evidence presented.
Lock/key replacement	$127.79	Lock/key replacement
Rubbish removal: Skip hire	$290.00	Rubbish removal: Skip hire
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$638.23
Total payable by Tenant to Landlord	$638.23

Order

Sharee Prime must pay Tuxedo Investments Limited (Occupy Property Management Limited As Agent) $638.23 immediately, calculated as shown in table below.
The landlord’s claims for compensation for damage to walls and a door, methamphetamine decontamination and the fee for possession warrant is dismissed.
The landlord’s claim in respect of lawns/garden work is withdrawn.

Reasons

The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy. Service
Only the landlord’s property manager attended the hearing. My order in this case made on 20 February 2024 considered that additional investigations were required in relation to service prior to this case proceeding. This is because the application was filed more than 2 months after the end of the tenancy. This means the usual service rules do not apply (s 91A, Residential Tenancies Act 1986 (RTA)).
The landlord says it has since located the tenant via a credit report (copy provided) and has successfully obtained an attachment of earnings order at that address (a letter from Collections was provided but it did not show the address).
The landlord also provided evidence that the tenant is still actively using the email account set out as a service address on the tenancy agreement. The landlord says that it can see when the tenant opens emails that it sends to her and it can see that she opened an email the landlord sent her attaching details of the hearing today. A screen shot showing this was provided.
Following my order of 20 February 2024 Tenancy Services sent the application and notice of hearing by email to the tenant. The landlord thought it had provided the updated physical address but there was no record of this from Tenancy Services or the landlord. The landlord says that in any event she went to the identified address and taped the notice of hearing to it. She had a photograph of this.
I am satisfied that the action that has been taken are steps likely to bring the application to the attention of the tenant and therefore I proceeded with the hearing in the tenant’s absence (s91B, RTA). This is because the application and notice of the hearing was sent to an email address that I accept the landlord has shown me is actively used by the tenant, the landlord also sent notice of the hearing to the tenant to the same email which is marked as being read and notice of the hearing was also taped physically to the door at the address the tenant is presently connected to via a credit report. The landlord’s claims
The tenancy has ended and the tribunal must hear landlord claims for the following compensation: a. cleaning costs; b. rubbish removal; c. lock replacement; d. costs of a possession warrant; e. replacing damaged master bedroom door; f. painting walls.
The landlord’s claim in relation to the lawn was withdrawn.
The Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

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. Cleaning and rubbish removal
The landlord says the tenant did not leave the property reasonably clean and tidy.
The RTA does not require the premises to be in an immaculate condition – only in a reasonably clean state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. There is no scientific way to determine what is reasonably clean. What is required is for the Tribunal to evaluate the evidence available (particularly photographs presented) and then consider whether the premises would be reasonably clean.
The landlord provided a property inspection report for the end of the tenancy with photographs. I find that the tenant did not leave the property reasonably clean and tidy. The photographic evidence showed that certain areas of the house needed significant attention including the oven, the laundry and parts of the kitchen and bathroom.
The landlord claims $460 for the cleaning of the property. I consider that the cleaning described by the landlord that was undertaken, and the nature of the clean described, would have likely taken the property above the standard the tenant would have required to return it in. Many landlords choose to undertake such additional cleaning, but they do so with this being a business cost to them.
I award the landlord $200 for cleaning which I consider a reasonable sum based on the evidence presented. The sum ordered is proven.
The landlord seeks $290 for the hire of a skip for the removal of rubbish. Given the rubbish evidenced as being left on the property I consider this to be a reasonable sum. The sum ordered is proven. Eviction costs – Warrant fee and locks
The tenancy was terminated on 21 April 2023 following an order of Adjudicator Brennan for rent arrears. The landlord states that the tenant did not move out and failed to leave the premises. The landlord required a warrant of eviction for the tenant to be removed.
The landlord claimed $200.00 for reimbursement of the warrant fee. This is a cost which attaches to the original order and it is inappropriate to add it to this order. Further, ordering it may result in double recovery because usually this would be added to the sum collected on the original order by Collections. This original order is presently subject to an attachment of earnings order. The landlord may investigate this with Collections. This part of the claim is dismissed.
In these circumstances, it is usual practice to change the locks. The landlord provided an invoice for changing the locks. The landlords claim for reimbursement of these costs is fair and reasonable. The amount ordered of $127.79 is proved. Garden
The landlord withdrew its claim for reseeding and tidying the garden.

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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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 Tribunal must take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, the Tribunal takes into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Methamphetamine contamination
The landlord seeks to recover the insurance excess of $2,500 following a finding of methamphetamine at the property. A methamphetamine report undertaken by Betta Property Compliance on 15 May 2023 was provided by the landlord. The report refers to the test as being a composite report. The landlord says this is a mistake and it is in fact a detailed sample report. I find that this is supported by the fact that 22 samples are said to have been taken and 22 separate results are then listed. The report also sets out the results of a recent composite sample.
The highest reading in the report is bedroom 1 which has a reading of 35 μg/100cm² (micrograms of methamphetamine per one hundred square centimetres of surface area sampled, “ug”). The next highest reading is 10.6 μg/100cm² in the hall. The other samples are lower still – some over 1.5 μg/100 cm² and some are not.
The landlord says that this tenant was the first person who lived at the property after it was purchased by the landlords. The landlord had no information about the history of the house prior to buying it. The landlord agreed that the property was likely 1960/70s. No pre-tenancy methamphetamine test was conducted.
In the absence of a pre-tenancy methamphetamine test the landlord submitted evidence it says shows the tenant’s drug use at the property. I heard from the property manager how, on an inspection in 2022, there was a smell of drugs and a photograph of what she says is a bong observed at the property was provided. The landlord also reported that after the tenant was evicted the neighbours had told her that they thought the tenant was involved in drugs.
There is a difference in approach to methamphetamine contamination as between the methamphetamine testing industry and the Tribunal. In short, the New Zealand Standard NZS 8510:2017 “Testing and decontamination of methamphetamine-contaminated properties” sets out that the level at which habitation of residential premises was considered safe, was a level of 1.5 μg/100 cm2. However, in more recent times, a report produced by the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman (Report entitled ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018) determined that there was little evidence concluded that any levels below 15 μg/100 cm2 were unlikely to present adverse effects.
I do not need to consider the range of results in detail in this case because ultimately the reason why the landlord’s application cannot succeed here is not based on contamination levels.
In this case, the fact that the landlord failed to undertake methamphetamine testing at the beginning of the tenancy is significant. A landlord in this type of claim would usually rely on a pre-tenancy negative methamphetamine test and a positive outgoing test to establish methamphetamine use during the course of the tenancy. Such evidence is often enough to prove that the contamination found in the second test occurred during the tenancy.
There is a District Court decision highlighting the importance of such testing. In Anthony James Brooking v Colin Imrie [2021] NZDC 16976, Judge Cameron considered a case where the Tenancy Tribunal accepted that contamination was caused by the tenants, in circumstances where there was no pre-tenancy testing performed. The Tribunal had accepted evidence from a witness, who worked in a childcare centre across the road from the Tenancy, who described the windows covered with a film, security cameras having been installed, and strong chemical smells arising from the premises. The witness also described gang members and other “undesirable” people attending the premises regularly, with cars regularly driving in an (sic) out of the premises often, as well as regular visits from the police. On appeal the District Court did not accept that evidence was sufficient to prove that methamphetamine had been used or manufactured on the premises during that tenancy, and concluded that the difficulty with the landlords claim is that there was no methamphetamine test conducted at the beginning of the tenancy, and no actual proof of what occurred during the tenancy. The District Court allowed the appeal, overturning the Tribunal’s decision. In short, the Court considered that there was no evidence to support that the tenants in that case caused the contamination.
In the earlier case of Eren Limited v Louise Martin [2021] NZDC 15210, Judge de Ridder also considered a dispute over who caused the contamination. In that case, the Tribunal had declined the claim for the contamination remediation costs, on various grounds, including that the landlord had not established that the tenant contaminated the premises in the first instance. The appeal to the District Court was by the landlord. In that case, the landlord reports finding evidence of drug use in rubbish left by the tenants, and also that the neighbours had reported the tenants using drugs at the premises.
The District Court confirmed that was circumstantial evidence that the Tribunal could consider. However, the Court found that the circumstantial evidence was not sufficient to get over the problem of no pre-tenancy methamphetamine testing: However, the significant problem for this claim is that there is no evidence of any methamphetamine testing carried out at the start of this tenancy. If there had been such testing and it revealed no methamphetamine then clearly the methamphetamine residue that was found at the end of this tenancy could only have occurred during the tenancy and could only have occurred by either the tenants using methamphetamine or permitting others to use methamphetamine inside the house. 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.
In Yan v Weggery TT 4303380, 12 January 2022 the Tribunal considered a claim for methamphetamine damage where the premises concerned were brand-new at the start of the tenancy. It was accepted that of itself did not prove that there could not have been methamphetamine contamination before the start of the tenancy. The Tribunal noted that methamphetamine use does occur from tradespeople: just like it does in almost any element of society. The fact that the property was new at the start of the tenancy was insufficient to prove that the contamination occurred during the tenancy.
In Lodge City Rentals Limited v Hamilton TT4242075 6 July 2020, the Tribunal considered a claim for methamphetamine damage. One of the ways in which the landlord sought to prove methamphetamine contamination during the tenancy concerned an oven that had been installed during the course of the tenancy. A methamphetamine sample was taken from the oven. Analysis of the sample returned a positive result for the presence of methamphetamine with a reading of 0.41 μg/100cm². The Tribunal had the benefit of an expert report. The author considered that the area from which the sample was taken was one not typically handled and that hand to hand (object) contamination would be unlikely. The author stated that in their opinion, on the balance of probabilities, the oven was not contaminated when it was delivered, and the contamination occurred during the tenancy. The Tribunal disagreed finding that the area was one that could have been touched daily. The Tribunal was also unable to rule out the possibility that the contamination may have been left by those delivering or installing the oven at the property.
A common theme arising from the authorities is that without pre-tenancy test for the presence of methamphetamine, it will be difficult for a landlord to discharge the burden of proof on the balance of probabilities that the contamination of methamphetamine occurred during the tenancy.
As there is no pre-tenancy test in this case the landlord faces an obvious difficulty in proving the claim of methamphetamine contamination during the tenancy. It is possible to prove the claim by other means, but compelling evidence is needed.
In this case, the landlord has provided very limited evidence that methamphetamine was used during the tenancy and some of the evidence is second-hand. I can place very little weight on the evidence provided. There is no evidence at all as to the history of the property. Even if there was, this is unlikely to be sufficient in any event.
None of the evidence before me addresses the probability that other parties might have introduced methamphetamine to the property before the commencement of the tenancy. I therefore find that the evidence is insufficient to prove that the tenant has used or has permitted others to use methamphetamine at the premises. The absence of a pre-let methamphetamine test substantially weakens the circumstantial case against the tenant to the point where it is simply not possible to conclude on the civil balance of probabilities that the tenant was responsible for the methamphetamine residue detected at the premises.
Therefore, the landlord’s claim for compensation in respect of the methamphetamine insurance excess is dismissed. Damage to Door of bedroom
The landlord says that the tenant damaged the bedroom door and architrave. I am satisfied that the tenant damaged the bedroom door and architrave during the course of the tenancy. The landlord provided pre-tenancy and post tenancy photographs. A lock has been added and I accept the landlord’s submission that it appears that the door has then been forced to get access to the room. The landlord says the property is of 1960/70s build and the door is an internal hollow core door likely to be original. There was no other evidence of age.
The landlord says that the door also needed replacing due to the methamphetamine. This can be seen from the insurance schedule which also refers to the replacement of doors and refers to the same quote as that the landlord filed with its application.
I have considered if an award can be made in respect of the door but ultimately conclude that no award can be made.
This is because the landlord did not have sufficient evidence of the actual cost to replace the door and/or architrave. That originally filed was an overall quote setting out the cost to restore 7 doors and replacing two doors including hardware and to repair two architraves. I offered the landlord time to obtain evidence of a breakdown during a short scheduled break.
The landlord could not find a further breakdown but did then provide an invoice (rather than a quote). The invoice was for a different amount to the quote and did not break down the cost any further than the quote. The absence of sufficient evidence of the replacement cost of the door/architrave means that the landlord is unable to prove the loss it claims and the claim fails.
As a result of the above finding, which is sufficient to dismiss the claim, I do not need to decide the following issue, but I note that the cost of replacing the doors and repairing the architrave has been accounted for as part of the insurance claim for methamphetamine contamination. The landlord said that the methamphetamine contamination damage, which I have found the tenant is not liable for, required the work to be done. The landlord has been unable to prove the tenant is liable for the methamphetamine contamination.
Given that the landlord said that work also needed to be done due to the methamphetamine (the reading in this room was 35 μg/100cm²) I find that this would likely be a superseding event that would event break the chain of causation resulting in the tenant not being liable for this damage in any event.
In any event, the fact that the door needed replacing due to methamphetamine contamination, which the landlord is unable to attribute to the tenant, would also have a significant effect on the condition of the door and therefore impact significantly on depreciation. Therefore, only a nominal sum if any would be awarded even if liability and loss was proven. Living room wall and bedroom 1 wall
The landlord says that the tenant damaged two-bedroom walls with holes, spray paint and stickers. The landlord claims $300 in respect of all of the above damage.
I am satisfied that the tenant damaged one of the bedroom walls during the tenancy as there are several holes left in it. The landlord provided photographs of the condition of the room from the start and end of the tenancy. I am satisfied this damage is not fair wear and tear given the number of holes left. The tenant has not disproved liability for the damage.
On another wall in the same room, a clock has been left. The clock’s design means that it has adhesive stickers for the numbers that are placed directly onto the wall. It has a separate centre piece for the clock’s hands. The landlord says that the clock could not be removed without causing damage. However, there were no photographs of the state of the wall when the clock was removed.
I accept that the clock more likely than not caused some damage because the photographic evidence provided, showed that the same clock in the lounge, tore wallpaper when removed and the bedroom has wallpaper that has been painted. I am satisfied the damage is not fair wear and tear and the tenant has not disproved liability for the damage.
However, the claim is dismissed because the landlord has not provided sufficient proof of its loss in relation to this part of the claim.
The invoice from the painter/handyman that is relied upon did not break down the costs to repair the above damage. The painter had also undertaken other painting at the house as part of the same job. The landlord referred to a different quote from a different builder to support the sums claimed but I do not regard this as sufficient. The overall sum charged by the painter was different to the overall sum anticipated in the quote.
Although it is not determinative here, because the above is sufficient to dismiss the claim, I also note that the cost of this redecorating this room has been accounted for as part of the methamphetamine contamination insurance claim. The reading in this room was 35 μg/100cm². Therefore, the same analysis (causation and deprecation) would apply to this part of the claim as set out in paragraphs 52-54. Living room wall
The same type of clock that was stuck to the wall in the bedroom is also on the wall in the lounge. The landlord says that the clock could not be removed without causing damage. The landlord points to some ripping of the wallpaper where a couple of the stickers had been removed. There were no photographs of the state of the wall when the clock was fully removed.
The landlord says that the wall was painted but the remainder of the lounge was not. The landlord claims $126.50 for this. The landlord says this has been calculated by taking the amount in the quote (to repaint the whole room) and dividing it by 4 (because in fact, only one wall was remedied).
I am satisfied that the removal of the clock from the wall caused damage and that it is more than fair wear and tear. The tenant did not disprove liability for the damage.
However, this part of the claim is dismissed because the landlord could not provide sufficient proof of its loss in relation to this part of the claim. The invoice from the painter/handyman relied upon provided did not break down the costs to repair the above damage. The painter had also undertaken other painting at the house. The landlord referred to a different quote from a different builder to show the sums claimed but I do not regard this as sufficient. The overall sum charged by the painter was different to the overall sum anticipated in the quote.
Further, although it is not determinative of the claim as the above is sufficient to dismiss the claim, I also note that the wallpaper pictured looks older in style and there was no evidence of age. The pre-let property report refers to the “wallpaper/doors” has having some small tears and lifting in some areas. Given the extent of the damage pictured (which is minor) and the recorded condition of the wallpaper in the inspection report I would have likely declined to make an award in any event. Filing fee and suppression
I have awarded the landlord the filing fee as it did have some success.
The landlord sought name suppression in its application. Under section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings. The landlord was not been wholly or substantially successful and therefore I decline to award name suppression.

Tenancy Tribunal case 4678969 — Cleanliness at 84 Ngamotu Road, Spotswood, New Plymouth 4310

At a glance

Tenancy Tribunal case 4678969 — Cleanliness at 84 Ngamotu Road, Spotswood, New Plymouth 4310

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions