What was Tenancy Tribunal case 4712211 about?

The tribunal order states: The tenant must conduct the following work to the premises, which must be

How much money was awarded in case 4712211?

Filing Fee: $20.44 awarded to landlord; Previous Order Application [Redacted: $20.44 awarded to landlord; Door Bedroom Three And Bathroom: $500.00 awarded to landlord; kitchen cabinetry and bathroom vanit…: $627.17 awarded to landlord; Walls: $997.50 awarded to landlord

What type of tenancy dispute was case 4712211?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4712211?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9751445-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4712211 about?

The tribunal order states: The tenant must conduct the following work to the premises, which must be

How much money was awarded in case 4712211?

Filing Fee: $20.44 awarded to landlord; Previous Order Application [Redacted: $20.44 awarded to landlord; Door Bedroom Three And Bathroom: $500.00 awarded to landlord; kitchen cabinetry and bathroom vanit…: $627.17 awarded to landlord; Walls: $997.50 awarded to landlord

What type of tenancy dispute was case 4712211?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4712211?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9751445-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4712211 — Property damage

Claims and awards in Tenancy Tribunal application 4712211 — net $2,165.55 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application [Redacted	$20.44	Previous order application [Redacted
Repairs: door bedroom three and bathroom	$500.00	Repairs: door bedroom three and bathroom
Repairs: kitchen cabinetry and bathroom vanity	$627.17	Repairs: kitchen cabinetry and bathroom vanity
Repairs: walls	$997.50	Repairs: walls
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,165.55
Total payable by Tenant to Landlord	$2,165.55

Claims and awards in Tenancy Tribunal application 4712211 — net $2,165.55 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application [Redacted	$20.44	Previous order application [Redacted
Repairs: door bedroom three and bathroom	$500.00	Repairs: door bedroom three and bathroom
Repairs: kitchen cabinetry and bathroom vanity	$627.17	Repairs: kitchen cabinetry and bathroom vanity
Repairs: walls	$997.50	Repairs: walls
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,165.55
Total payable by Tenant to Landlord	$2,165.55

Order

The tenant must conduct the following work to the premises, which must be completed by 12 January 2024: a. Remove staining to carpet in hallway, lounge, and bedroom three.
If the tenant fails to comply with the work order, the landlord may undertake the work, and charge the tenant the costs of this work up to $ 337.00. These costs may be treated as rent in arrears and enforced accordingly.
The tenant must pay the landlord $2,165.55 immediately as set out in the table below:

Reasons

[The property manager/s] appeared for the landlord. There was no appearance by the tenant.
The tenancy commenced on 01 June 2022 and is periodic. On 13 October 2023, the landlord filed a claim for termination of the tenancy on the basis that the tenant had failed to remedy a 14-day breach notice issued for rent arrears on 22 September 2023. The landlord also seeks termination on the basis that the tenant has used, or allowed the property to be used, for an unlawful purpose, namely the consuming of methamphetamine, which they state is a breach incapable of remedy. The landlord also seeks a work order that the tenant remove stains from the carpet, and compensation for damage to doors, walls, the kitchen cabinetry, and the bathroom vanity which they state has occurred during the tenancy and is more than fair wear and tear.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Under section 40(1)(c) of the Act the tenant must maintain the property in a reasonably clean condition during the tenancy. What is reasonably clean will involve an objective assessment. The property had recently been renovated and the carpet replaced in March 2022, prior to the commencement of the tenancy in June 2022. The landlord has produced tenancy inspection reports which include photographs of the carpet from 22 August 2023, 22 September 2023, and 21 November 2023, each recording staining to the carpet. The landlord has issued a 14-day notice requiring the tenant remove the stains, but they have not complied. The landlord is seeking a work order requiring the tenant remove the staining in the hallway, lounge, and bedroom three. After considering the evidence I am satisfied that the tenant has failed to maintain the carpet in a reasonably clean condition, and that a work order is appropriate.
Where the Tribunal concludes the tenant has failed to comply with any of their obligations, where appropriate, it may make an order for the landlord to conduct the work. See section 78(1)(e) of the Act.
If the work order is not being made by consent, the Tribunal must also make a monetary order as an alternative to compliance with the work order.
A work order may also authorise the landlord to undertake the work and charge the tenant the costs of doing the work if the tenant should fail to comply with the work order or alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be treated as rent in arrears and enforced accordingly. See sections 78(2AAB) and 78(2AAC) (a) of the Act.
The tenant must remove staining to carpet in hallway, lounge, and bedroom three by 12 January 2024. If the tenant fails to comply with the order, then the landlord may undertake the work and charge the tenant the costs of this work up to $
00. Unlawful use of property / termination
The landlord claims the tenant has used the premises unlawfully, by using or allowing others at the property to use methamphetamine.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the Act. The possession of methamphetamine, a class A drug, is an offence under the Misuse of Drugs Act 1975.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A) (c) and Schedule 1A of the Act.
The landlord also seeks termination of the tenancy under section 56(1) of the Act on the basis that the unlawful use of the property is a breach which is incapable of remedy.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone.
In Clarke v Housing New Zealand, DC Blenheim, CIV 2008-006-33, 19 March 2008, the Court held that a breach of section 40(2)(b), concerning allegations of drug use, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice. In Terangi v Housing New Zealand, DC Porirua, CIV 2021-019- 110, 28 June 2021, the Court held that a tenant’s allowing the property to be used for drug dealing, due to the stigma that may be subsequently attached to the property, was a breach that was incapable of remedy. In Terangi v Housing New Zealand the Court went on to state that on its own however, the using of an illicit drug may [emphasis added] not necessarily be a breach incapable of remedy.
Under section 56(1)(c) of the Act, the Tribunal may nevertheless refuse to make an order to terminate, if it is not satisfied, taking into account the nature or extent of the breach that it would not be inequitable to refuse.
On 18 May 2022, prior to the commencement of the tenancy on 01 June 2022, the landlord arranged for a methamphetamine test. An eleven-sample composite produced a reading of 0.02 μg/100cm² (“μg”). This indicates that methamphetamine was not detected in the samples taken. At the inspection on 22 September 2023 the landlord formed the view that it may be prudent to have the property retested. On 28 September 2023, an eight-sample composite returned a reading of 21.8 μg. Further discrete testing of the sites sampled returned readings of 10.7 μg in the kitchen,
56 μg in bedroom one, 1.24 μg in the lounge, 1.81 μg in bedroom two, 0.87 μg in bedroom three, 0.55 μg in the bathroom, 2.08 μg in the laundry and 0.02 μg in the hallway. None of the readings were above 15 μg, a level over which which the Tribunal has previously held is damage by contamination 1 . The landlord is claiming testing costs of $1,849.89 and cleaning costs of $6,762.00.
Section 138C of the Act 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 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg 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 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg 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 1 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 most persuasive evidence usually relied on to prove a claim that the tenant has used or allowed the use of methamphetamine is evidence that contamination has occurred during the tenancy.
To be satisfied that the contamination occurred during the tenancy, the Tribunal must be able to make an accurate pre / post tenancy comparison.
While testing sites may not necessarily have to be in exactly the same position, they should in my view, to make a proper comparison, be at least in close proximity to one another. A careful examination of all the reports and photographs produced shows of the areas sampled that the only one in close proximity, pre tenancy, and on 28 September 2023, is that taken from a door in lounge/ dining room leading to the hallway, which yielded a positive result of 1.24ug. None of the other samples can be used to make a comparison. [The property manager/s] concedes that the other areas sampled are not the same, nor are they in close proximity. [The property manager/s] states that the landlord did not use the same testing contractor, nor did they provide the contractor undertaking testing on 28 September 2023 with a copy of the pre tenancy screening report, and importantly details of locations of the sites sampled at the commencement.
[The property manager/s] states on 22 September 2023 she arrived at the property to discover police in attendance. [The property manager/s] states that the tenant advised that police were there for a flatmate and something to do with a vehicle parked on the back lawn. [The property manager/s] states that police suggested that the landlord may wish to have the property screen for illicit substances. [The property manager/s] has also referred to a photograph of a set of electronic kitchen scales and a mixing bowl in the cupboard under the kitchen sink.
[The property manager/s] has referred to a “Meth calculator” on the Institute of Environmental Science and Research (“ESR”) website, which he states has been referred to in other Tribunal decisions. [The property manager/s] states using the reading from the kitchen taken on 28 September 2023, and the area of the room, which has been taken from the Healthy Homes report, that the calculator shows that up to 343 doses of methamphetamine would have needed to be smoked to produce the reading of 10.07 μg.
As stated, the only site sampled pre tenancy and on 28 September 2023 which appears the same or in close proximity is the door leading from the lounge / dining room into the hallway. This yielded a low reading of 1.24 μg which is less than the New Zealand Standard of 1.5 μg.
There is no evidence from police as to why they may have suggested screening. The scales and mixing bowl appear to be of a type that are commonly used for cooking or baking. The result of the Meth calculator assumes that the tenant is responsible for that contamination. While the property had been renovated prior to the commencement of the tenancy, which included painting the walls and door frames, [The property manager/s] stated that while painting may temporarily mask, it would not remove contamination, which may then over time seep through. I also note that the pre tenancy testing was conducted on 18 May 2022, fourteen days before the commencement of the tenancy.
After considering the evidence and submissions by [The property manager/s] I am not satisfied to the required standard that the tenant has used or permitted the property to be used for an unlawful purpose. While I may be satisfied that the contamination on the lounge door leading to the hallway has likely occurred during the tenancy, on the evidence produced, I am not satisfied that this was more likely than not the case. The claim is dismissed. Damage
To succeed with a claim for damage the landlord must prove that damage 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 of the Act.
Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
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) of the Act. 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) of the Act.
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) of the Act.
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.
In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
In awarding compensation for damage, the Tribunal must also consider 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 must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Door’s bedroom three and bathroom
At an inspection on 22 August 2023 the landlord discovered that the door to bedroom three had a hole in it covered over by a piece of paper. The landlord has produced a photograph. At an inspection on 10 November 2023 the landlord discovered that the bathroom door was damaged. A photograph produced shows a crack in the outside of the door about chest height. A subsequent photograph taken of the bedroom door shows that the tenant has attempted a repair. The landlord states that they have issued a 14-day notice to repair the doors, but it has not been remedied. The doors were undamaged at the commencement of the tenancy. I am satisfied that the damage occurred during the tenancy and that it is more than fair wear and tear. The tenant has not disproved liability. The landlord has produced a quote for $1,518.64 to replace both doors. The actual cost of the doors is not shown in the quote. The damage in my view does not warrant replacing both doors. [The property manager/s] concedes that both could be repaired. I award the landlord $500.00 to repair the damage. Kitchen cabinetry and bathroom vanity
At the inspection in August the landlord discovered that a cupboard door in the kitchen had come away from its hinges and the handle was missing, and that the runners for one of the drawers in the bathroom vanity had been bent. The landlord states that both sets of cabinetries were less than two years old and that the damage was more than fair wear and tear. Having viewed the photographs I accept that submission. I am satisfied that the damage occurred during the tenancy, is more than fair wear and tear, and more likely the result of carelessness. The landlord has insurance for careless damage with an excess of $550.00 per claim. This excess would apply to the damage in the kitchen and bathroom. The invoice produced is for $627.17 to repair both and is less than the combined excess. The amount claimed is reasonable and awarded. Walls
The landlord has produced photographs showing the condition of the walls at the commencement of the tenancy. The inspection reports and photographs from August 2023, September 2023, and November 2023, show an increasing amount of minor damage occurring to the walls, consisting of scrapes, dings, nicks, dents, drawings, and some holes. The landlord has produced a quote for $997.50 to repair the damaged areas only. [The property manager/s] submits as the damage has occurred over a relatively brief period of time, and appears to be increasing, that it is more than fair wear and tear. I have considered the photographs. I accept that submission. I am satisfied that the damage has occurred during the tenancy and that it is more than fair wear and tear. In my opinion the damage is likely the result of carelessness. The amount claimed to repair the damage is reasonable and awarded in full.
I make no deduction for betterment or depreciation in these claims. The property had been newly renovated shortly before the commencement of the tenancy. Any repainting required is to the damaged areas only and does not result in betterment. Costs
The landlord has substantially succeeded with the claim I have reimbursed the filing fee. Other matter
There has been another hearing involving this tenancy in which the landlord was awarded rent arrears and reimbursement of the filing fee. [The property manager/s] states that the tenant has settled the arrears but the filing fee of $20.44 is outstanding. The previous order has not been enforced. The landlord is seeking that the filing fee from the previous order be added to this award.
The landlord seeks to withdraw the claim for termination for failing to remedy a 14- day breach notice for rent arrears. No evidence has been offered and the claim is dismissed. Name suppression
The landlord seeks name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The landlord has been substantially successful and is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
Although the tenant has not appeared they have avoided termination of the tenancy. On that basis I consider that they have also been substantially successful. Accordingly, I exercise the discretion in section 95A (4) and supress the tenants name and address of the property.

Tenancy Tribunal case 4712211 — Property damage

At a glance

Tenancy Tribunal case 4712211 — Property damage

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions