What was the outcome of Tenancy Tribunal case 4700859?

The tribunal order states: Vincent Kitson must pay Accessible Properties New Zealand Limited $22,508.90

How much money was awarded in case 4700859?

Filing Fee: $20.44 awarded to landlord; Cleaning: $10,591.20 awarded to landlord; Cleaning: $10,542.05 awarded to landlord; Cleaning: $1,718.93 awarded to landlord; Rent Overpayment: $1,403.32 awarded to tenant; Report- 19/09/23: $1,315.60 awarded to landlord

What type of tenancy dispute was case 4700859?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4700859?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10595832-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4700859?

The tribunal order states: Vincent Kitson must pay Accessible Properties New Zealand Limited $22,508.90

How much money was awarded in case 4700859?

Filing Fee: $20.44 awarded to landlord; Cleaning: $10,591.20 awarded to landlord; Cleaning: $10,542.05 awarded to landlord; Cleaning: $1,718.93 awarded to landlord; Rent Overpayment: $1,403.32 awarded to tenant; Report- 19/09/23: $1,315.60 awarded to landlord

What type of tenancy dispute was case 4700859?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4700859?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10595832-Tenancy_Tribunal_Order.pdf.

Unit/Flat 303, 41 Smythe Road, Henderson, Auckland 0612 Tenancy Tribunal Case 4700859 — Cleanliness

Claims and awards in Tenancy Tribunal application 4700859 — net $22,508.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Meth testing/Cleaning: Detailed assessment	$1,718.93		Meth testing/Cleaning: Detailed assessment
report- 19/09/23	$1,315.60		report- 19/09/23
Meth testing/Cleaning: Decontamination cleaning	$10,542.05		Meth testing/Cleaning: Decontamination cleaning
Meth testing/Cleaning: Building works- less	$10,591.20		Meth testing/Cleaning: Building works- less
Filing fee reimbursement	$20.44		Filing fee reimbursement
Rent overpayment		$1,403.32	Rent overpayment
Total award	$24,188.22	$1,403.32
Net award	$22,508.90
Total payable by Tenant to Landlord	$22,508.90

Order

Vincent Kitson must pay Accessible Properties New Zealand Limited $22,508.90 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $276.00 (6421049-001) to Accessible Properties New Zealand Limited immediately.

Reasons

The landlord attended the hearing. The tenant did not.
I am satisfied that the tenant had received proper notice of the hearing time, date and place and chose not to attend.
The landlord has applied for compensation for the cost of the detailed post tenancy methamphetamine testing costs, the remediation of the contaminated premises, and the post remediation testing, as well as refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy ended on 11 September 2023. The landlord provided rent records that prove the tenant was in rent arrears of $1,403.32. Methamphetamine contamination
To make a successful claim for methamphetamine testing and/or remediation costs, 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, because of the contamination, the premises have been damaged or are not reasonably clean.
Section 138C Residential Tenancies Act 1986 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/100cm2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm2 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/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm2 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.
The landlord had undertaken a composite methamphetamine test of the premises, on 21 July 2021, just prior to the tenancy commencing. The test result confirmed there was no presence of methamphetamine in unit 303.
The composite test the landlord had carried out carried out on 15 September 2023 yielded a result of 35.3μg (micrograms). The comparison of these two tests confirmed to the landlord that methamphetamine had been smoked in or produced in the premises during the tenant’s tenancy either by the tenant or someone at the premises with the tenant’s consent.
The landlord provided a detailed testing report dated 19 September 2023 that disclosed methamphetamine contamination at the following levels: a. Kitchen- sample A: 4.81μg/100cm2; b. Kitchen- sample B: 7.48μg/100cm2; c. Bathroom sample C: 18.2μg/100cm2 d. Bathroom sample D: 2.3μg/100cm2 e. Bedroom 1 sample E: 3.29μg/100cm2 f. Bedroom 1 sample F: 4.58μg/100cm2 g. Lounge sample G: 5.88μg/100cm2 h. Lounge sample H: 7.37μg/100cm2 i. Bedroom 2 sample I:4.42μg/100cm2; j. Bedroom 2 sample J: 2.07μg/100cm2; k. Entry sample K:12.6μg/100cm2 l. Roof space sample L: 6.23μg/100cm2
The landlord’s evidence proved contamination in the premises were at a level greater than the 15μg/100cm2 level in the Gluckman report and well above the NZS 8510:2017 standard recommended maximum contamination levels of
5μg/100cm2 for high use areas (where contamination has resulted from both consumption and manufacture) and 3.8μg/100cm2 for limited use areas. Decontamination costs and the cost of building works remediation
It follows that the landlord’s claim for the costs of decontamination cleaning and the required remedial building repairs must be granted as the landlord has proven the damage to the premises occurred during the tenancy because of the tenant, and/or persons visiting the premises with his permission, smoked or manufactured methamphetamine in the premise. 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.
Extensive damage was done to the inside of the premise and the fixtures and fittings because of the tenant and/or his visitors consumption and/or manufacture of methamphetamine. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The landlord has confirmed its insurance does not cover methamphetamine damage and it has had to foot the full decontamination cleaning and building remediation costs.
The amounts for the building remediation costs ordered are proved.
I have considered 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, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Methamphetamine testing costs
The landlord has not applied for compensation for the cost of the initial post tenancy methamphetamine composite testing costs as it routinely carries out this test on all of its rental premises at the end of each tenancy.
The landlord has applied for compensation for the cost of the detailed post tenancy methamphetamine testing costs and the post remediation testing.
It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (sections 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.
It follows that the manufacture and consumption of methamphetamine on premises amounts to the use of those premises for an unlawful purpose, in breach of section 40(2)(b) RTA. The tenant was therefore in breach of his obligations under the RTA. a. Contaminated Property Investigations NZ Ltd have issued a detailed report to the landlord on 20 September 2023 that confirms the landlord’s property tested positive on 19 September 2023 for contamination with methamphetamine; b. The report shows the contamination may be at a level that presents a danger to the health and wellbeing of any occupants and represents a potential health risk; c. These risks need to be eliminated; and d. No one is permitted to reside in the premises until it had been decontaminated properly by an approved remediation company.
It is appropriate in these circumstances to award the landlord the costs incurred in having the property tested for contamination on 19 September 2023, as it was prudent for the landlord to have the tests done, given the positive proof from the 15 September 2023 composite testing that methamphetamine was manufactured or consumed in the property in breach of the tenant’s obligations.
It is also appropriate to award to landlord the $1,315.60 costs of re-testing after the premises had been decontaminated to prove to the Council that the premises were fit for purpose again and no longer represented a health risk to any occupier. Reimbursement of the filing fee
Because Accessible Properties New Zealand Limited has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4700859 — net $22,508.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Meth testing/Cleaning: Detailed assessment	$1,718.93		Meth testing/Cleaning: Detailed assessment
report- 19/09/23	$1,315.60		report- 19/09/23
Meth testing/Cleaning: Decontamination cleaning	$10,542.05		Meth testing/Cleaning: Decontamination cleaning
Meth testing/Cleaning: Building works- less	$10,591.20		Meth testing/Cleaning: Building works- less
Filing fee reimbursement	$20.44		Filing fee reimbursement
Rent overpayment		$1,403.32	Rent overpayment
Total award	$24,188.22	$1,403.32
Net award	$22,508.90
Total payable by Tenant to Landlord	$22,508.90

Order

Vincent Kitson must pay Accessible Properties New Zealand Limited $22,508.90 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $276.00 (6421049-001) to Accessible Properties New Zealand Limited immediately.

Reasons

The landlord attended the hearing. The tenant did not.
I am satisfied that the tenant had received proper notice of the hearing time, date and place and chose not to attend.
The landlord has applied for compensation for the cost of the detailed post tenancy methamphetamine testing costs, the remediation of the contaminated premises, and the post remediation testing, as well as refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy ended on 11 September 2023. The landlord provided rent records that prove the tenant was in rent arrears of $1,403.32. Methamphetamine contamination
To make a successful claim for methamphetamine testing and/or remediation costs, 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, because of the contamination, the premises have been damaged or are not reasonably clean.
Section 138C Residential Tenancies Act 1986 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/100cm2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm2 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/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm2 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.
The landlord had undertaken a composite methamphetamine test of the premises, on 21 July 2021, just prior to the tenancy commencing. The test result confirmed there was no presence of methamphetamine in unit 303.
The composite test the landlord had carried out carried out on 15 September 2023 yielded a result of 35.3μg (micrograms). The comparison of these two tests confirmed to the landlord that methamphetamine had been smoked in or produced in the premises during the tenant’s tenancy either by the tenant or someone at the premises with the tenant’s consent.
The landlord provided a detailed testing report dated 19 September 2023 that disclosed methamphetamine contamination at the following levels: a. Kitchen- sample A: 4.81μg/100cm2; b. Kitchen- sample B: 7.48μg/100cm2; c. Bathroom sample C: 18.2μg/100cm2 d. Bathroom sample D: 2.3μg/100cm2 e. Bedroom 1 sample E: 3.29μg/100cm2 f. Bedroom 1 sample F: 4.58μg/100cm2 g. Lounge sample G: 5.88μg/100cm2 h. Lounge sample H: 7.37μg/100cm2 i. Bedroom 2 sample I:4.42μg/100cm2; j. Bedroom 2 sample J: 2.07μg/100cm2; k. Entry sample K:12.6μg/100cm2 l. Roof space sample L: 6.23μg/100cm2
The landlord’s evidence proved contamination in the premises were at a level greater than the 15μg/100cm2 level in the Gluckman report and well above the NZS 8510:2017 standard recommended maximum contamination levels of
5μg/100cm2 for high use areas (where contamination has resulted from both consumption and manufacture) and 3.8μg/100cm2 for limited use areas. Decontamination costs and the cost of building works remediation
It follows that the landlord’s claim for the costs of decontamination cleaning and the required remedial building repairs must be granted as the landlord has proven the damage to the premises occurred during the tenancy because of the tenant, and/or persons visiting the premises with his permission, smoked or manufactured methamphetamine in the premise. 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.
Extensive damage was done to the inside of the premise and the fixtures and fittings because of the tenant and/or his visitors consumption and/or manufacture of methamphetamine. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The landlord has confirmed its insurance does not cover methamphetamine damage and it has had to foot the full decontamination cleaning and building remediation costs.
The amounts for the building remediation costs ordered are proved.
I have considered 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, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Methamphetamine testing costs
The landlord has not applied for compensation for the cost of the initial post tenancy methamphetamine composite testing costs as it routinely carries out this test on all of its rental premises at the end of each tenancy.
The landlord has applied for compensation for the cost of the detailed post tenancy methamphetamine testing costs and the post remediation testing.
It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (sections 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.
It follows that the manufacture and consumption of methamphetamine on premises amounts to the use of those premises for an unlawful purpose, in breach of section 40(2)(b) RTA. The tenant was therefore in breach of his obligations under the RTA. a. Contaminated Property Investigations NZ Ltd have issued a detailed report to the landlord on 20 September 2023 that confirms the landlord’s property tested positive on 19 September 2023 for contamination with methamphetamine; b. The report shows the contamination may be at a level that presents a danger to the health and wellbeing of any occupants and represents a potential health risk; c. These risks need to be eliminated; and d. No one is permitted to reside in the premises until it had been decontaminated properly by an approved remediation company.
It is appropriate in these circumstances to award the landlord the costs incurred in having the property tested for contamination on 19 September 2023, as it was prudent for the landlord to have the tests done, given the positive proof from the 15 September 2023 composite testing that methamphetamine was manufactured or consumed in the property in breach of the tenant’s obligations.
It is also appropriate to award to landlord the $1,315.60 costs of re-testing after the premises had been decontaminated to prove to the Council that the premises were fit for purpose again and no longer represented a health risk to any occupier. Reimbursement of the filing fee
Because Accessible Properties New Zealand Limited has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4700859 — Cleanliness at Unit/Flat 303, 41 Smythe Road, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 4700859 — Cleanliness at Unit/Flat 303, 41 Smythe Road, Henderson, Auckland 0612

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions