What was the outcome of Tenancy Tribunal case 4712750?

The tribunal order states: Rosemary Lines has used, or permitted the use of, the premises for an unlawful

How much money was awarded in case 4712750?

Property Damage: $1,200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Initial Methamphetamine Testing: $3,458.05 awarded to landlord

What type of tenancy dispute was case 4712750?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4712750?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9758775-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4712750?

The tribunal order states: Rosemary Lines has used, or permitted the use of, the premises for an unlawful

How much money was awarded in case 4712750?

Property Damage: $1,200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Initial Methamphetamine Testing: $3,458.05 awarded to landlord

What type of tenancy dispute was case 4712750?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4712750?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9758775-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 503 Omahu Road, Frimley, Hastings 4120 Tenancy Tribunal Case 4712750 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4712750 — net $3,678.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Initial methamphetamine testing	$3,458.05	Initial methamphetamine testing
Exemplary damages	$1,200.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,678.49
Total payable by Tenant to Landlord	$3,678.49

Claims and awards in Tenancy Tribunal application 4712750 — net $3,678.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Initial methamphetamine testing	$3,458.05	Initial methamphetamine testing
Exemplary damages	$1,200.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,678.49
Total payable by Tenant to Landlord	$3,678.49

Order

Rosemary Lines has used, or permitted the use of, the premises for an unlawful purpose.
Rosemary Lines must pay Regent Realty Limited as agent for Jeremy & Julia Carlsen $3,678.49 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,000.00 (5912628-002) to Regent Realty Limited as agent for Jeremy & Julia Carlsen immediately.

Reasons

Both parties attended the hearing. The agent appeared for the landlord.
The landlord has applied for compensation for the costs of methamphetamine testing, methamphetamine decontamination and further testing following the decontamination work.
The landlord has also applied for “exemplary damages” (which are like a fine) alleging that the tenant has used, or permitted the use of, methamphetamine at the premises.
This decision may not refer to all of the evidence provided but I have read and considered it all. Background
The term of the tenancy was almost ten years. The tenant has remained a tenant throughout the term of the tenancy though her partner and child who had previously lived there are no longer tenants.
The premises tested positive for methamphetamine in September 2023. The results of the testing are set out below. The methamphetamine levels were particularly high resulting in the landlord terminating the tenancy with urgency on the basis that it was uninhabitable.
Since the positive methamphetamine results, the premises have undergone specialist decontamination works including treating all surfaces, sterilizing surfaces, deodorising, treating ventilation systems, disposing of carpets and curtains and cleaning down to remove excess treatment.
The premises were tested and cleared as being free of methamphetamine in November 2023. What does the Residential Tenancies Act 1986 say about methamphetamine damage to tenancy premises?
A tenant must not use, or permit the use of, the premises for any unlawful purpose; section 40(2)(b) RTA. To do so is an unlawful act for which exemplary damages may be awarded of up to $1,800.00; s40(3A)(c) RTA.
A landlord must prove that premises have been damaged during the tenancy and that the damage is the result of an 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 s49B(8)(a) RTA. The use or possession of methamphetamine is an imprisonable offence; see the Misuse of Drugs Act 1975.
If the landlord proves this, then a tenant is liable for the costs of “making good the damage” and other reasonably foreseeable losses related to the damage; sections 49A and 49B(1)(b) RTA.
The standard of proof that applies is the civil standard “on the balance of probabilities”. This means that I do not have to be completely certain, but I must be satisfied that what is alleged is “more probable than not”.
Generally, the more serious the claim, the stronger the evidence that is required (Z v Dental Complaints Assessment Committee [2008] NZSC 55). This is an allegation of criminal behaviour so the evidence must be strong.

What must be proved in this case?

There was no dispute that there was no methamphetamine test done before the tenant moved into the premises. This means that it is not known for sure whether there was any methamphetamine residue present before her tenancy.
The absence of a pre-tenancy methamphetamine test means that other evidence is particularly important and must be strong. See District Court cases Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210 and Brooking and Hodges v Imrie [2021] NZDC 16976.
In these circumstances, the landlord must prove:- a. That it is more probable than not that the tenant used, or allowed the use of, methamphetamine in the premises during the tenancy, and b. If the answer to the first question is ‘yes’, that it is more probable than not that the methamphetamine use during this tenancy caused ‘damage’ to the premises. Is it more probable than not that the tenant used, or allowed the use of, methamphetamine in the premises during this tenancy?
The landlord says that it is more probable than not that the tenant used, or allowed the use of, methamphetamine at the premises during this tenancy.
The key parts of the landlord’s evidence are:- a. An anonymous source had advised the landlord that methamphetamine had been used at the premises on multiple occasions by the tenant. b. An anonymous source had provided the landlord a photograph of the tenant with a methamphetamine pipe on her chest in the premises. The landlord provided a photograph of the curtains in the premises which are the same as the curtains in the background of the photographs of the tenant with the methamphetamine pipe. c. The landlord had undergone extensive renovation works in 2015 to the bathroom and laundry and that levels of methamphetamine residue were found on the samples taken in those areas. d. Cross contamination can occur, but it wouldn’t evenly spread around the house. e. The methamphetamine report states that the bathroom and toilet area appeared to have been extensively cleaned prior to the testing in September 2023 and that the methamphetamine levels in those areas were likely higher prior to that extensive cleaning.
The tenant’s evidence is that:- a. The renovated areas had the lowest methamphetamine readings and were likely caused by cross contamination from cleaning. b. She had been an exemplary tenant, never missing rent and always keeping the premises reasonably clean and tidy. c. She did not have a criminal record. d. The photograph of her with the methamphetamine pipe has been photoshopped. e. The anonymous source was someone she had previously had a relationship which had turned nasty. f. The previous tenant must have caused the methamphetamine damage. The tenant had received a lot of mail for the previous tenant which appeared to be linked to overdue accounts.
After considering the evidence, I am satisfied that it is more probable than not that the tenant herself engaged in, or allowed, methamphetamine related activity at the premises during this tenancy.
My reasons for this are:- a. The image of the tenant with a methamphetamine pipe in the premises adds to the probability of methamphetamine related activity. Whilst the tenant’s claim relating to the photoshopped image of her with a methamphetamine pipe is plausible, the tenant has provided no evidence supporting her claim such as evidence of the photograph being edited whereas the landlord had provided evidence that the photograph was taken inside the premises. b. The levels of methamphetamine in the laundry and toilet are significant, despite the renovation works undertaken in 2015, meaning that methamphetamine was more than likely used during this tenancy. Did the methamphetamine related behaviour during the tenancy cause damage to the premises?
As set out above I am satisfied that it is more probable than not that there was methamphetamine use during this tenancy, however the tenant is only liable to pay compensation if that use caused damage to the premises.
There is ongoing uncertainty about what level of methamphetamine residue should be considered to be “damage” to residential tenancy premises in New Zealand. There is no standard set in law as yet and the two most accepted sources of (non-legal) guidance are quite different in their recommendations.
A New Zealand Standards committee (approved and appointed under the Standards and Accreditation Act 2015) adopted a “maximum acceptable level” of methamphetamine of 1.5mcg/100cm² for ‘high use areas’ (easily accessed and regularly used). NZS 8510:2017 applies from 29 June 2017. The Standard is based on consideration of a 2016 report by ESR (Institute of Environmental Science and Research Ltd) and does not distinguish between suspected meth labs (where manufacture has taken place) and premises where the drug has been used but not manufactured.
Then, 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 Gluckman report makes a distinction between the risks of exposure to chemical residues in premises where methamphetamine has been previously manufactured as opposed to where it has been smoked. It concludes that, where there is no evidence of the manufacture of methamphetamine, exposure to residue levels on household surfaces of below 15mcg/100 cm² “would be highly unlikely to give rise to any adverse effects” and that this level still incorporates a 30-fold safety buffer on a conservative estimate of risk. 1
Where there is evidence suggesting possible manufacture of methamphetamine, both NZS 8510:2017 and the Gluckman report recommend remediation to the 1.5mcg level. The Gluckman report notes that methamphetamine levels over 30mcg/100cm² are considered by forensic experts to signify that manufacture is likely to have taken place. 2
The Tribunal has most often applied the Gluckman recommendations in the last three years. The District Court has consistently confirmed that it is open to the Tribunal to take this approach because of the lack of legislative regulation at present. See Full Circle Real Estate Limited v Piper [2019] NZDC 4947 and Acme Realty Ltd v Alexander James Hogg, Tuitui Grace Polotu, Leigh Sharyn Coughlin [2021] NZDC 3231.
To be consistent with the predominance of other Tribunal cases, and the support for these from the District Court, I accept that: - a. methamphetamine residue of below 15mcg/100cm² does not cause damage to residential tenancy premises unless there is evidence of manufacture, b. in premises, or parts of premises, where residue is higher than 15mcg/100cm², this is considered damage and decontamination of those areas is appropriate, c. residue levels of higher than 30mcg/100cm² indicate a high level of use and may indicate manufacture. Decontamination of premises to the lower level of below 1.5mcg/100cm² is justified.
The September 2023 detailed methamphetamine testing undertaken reveals methamphetamine levels higher than 15mcg/100cm² in every sample with the exception of the back entrance, laundry, toilet and bathroom. However, those four areas below 15mcg/100cm² were above the 1.5mcg/100cm². All of the other samples were higher than 30mcg/100cm². Applying the Gluckman report recommendations, the methamphetamine levels of above 30mcg/100cm² suggests that manufacture may have been attempted or taken place in the premises at some stage. 1 See ‘Conclusions’ section in Gluckman report, at pages 8 and 29. 2 Gluckman report, at pages 6, 14, 27.
I accept that the September 2023 detailed methamphetamine testing show that the tenancy premises were damaged by methamphetamine residue and may have been used for manufacturing activity at some stage. It was prudent and appropriate for the landlord to decontaminate the premises to the lower
5mcg/100cm² level. The landlord’s insurer has not accepted the landlord’s claim for any of the costs associated with this work.
However, the difficulty with the landlord’s claim against the tenant is the absence of a pre-tenancy test which means that there may have been some methamphetamine residue present already. If there was, there is no way of knowing how much and therefore it is impossible to determine whether the significant damage was caused by the tenant or a previous tenant.
It is too uncertain. I cannot be satisfied that it is more probable than not that the methamphetamine use during this tenancy included attempts at manufacture or resulted in residue of more than 15mcg/100cm2
The landlord has not proven that the tenant caused the damage to the premises. Compensation and exemplary damages claims
The landlord has proven that the tenant used, or permitted the use of, the premises for an unlawful purpose (the use of methamphetamine). This is a breach of the RTA and an unlawful act pursuant to s40(3A)(c) RTA.
However, the landlord has not proven that the use of methamphetamine during this tenancy caused the damage to the premises.
Based on the above decisions:- a. I award the landlord compensation for the cost of the initial methamphetamine testing. The tenant used the premises for an unlawful purpose and in-depth testing was required. I award $3,458.05. The invoice was provided. b. I do not award the decontamination costs because the damage to the premises may not have been caused by this tenant. c. I do not award the post-decontamination test cost because the damage to the premises may not have been caused by the tenant.
I also award exemplary damages for using the premises for an unlawful purpose. Exemplary damages of up to a maximum of $1,800.00 may be awarded; s40(3A)(c) 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. Section 109(3) RTA.
I am satisfied that the methamphetamine use was intentional and that the tenant is legally responsible for it. The toilet and laundry were extensively refurbished and both areas tested positive for methamphetamine residue. This indicates use of methamphetamine in the house. I consider that the tenant must have known about it and permitted it.
After taking into account the tenant’s intent (to use, or allow the use of, prohibited drugs inside rented premises), the effect on the landlord (significant inconvenience from testing, significant cost in decontamination, and taking these proceedings), the interests of the landlord (that their property not be implicated in unlawful activity that may damage it or reduce the ability to rent it out in the future) and the public interest (that tenants be discouraged from using premises for unlawful activity), I award exemplary damages of $1,200.00. This is two thirds of the maximum award, discounted because of the uncertainty about the extent of the methamphetamine use during this tenancy Filing fee
Because Regent Realty Limited as agent for Jeremy & Julia Carlsen has substantially succeeded with the claim I have reimbursed the filing fee. T Lee-Lewis 17 January 2024

Tenancy Tribunal case 4712750 — Exemplary damages at Unit/Flat 1, 503 Omahu Road, Frimley, Hastings 4120

At a glance

Tenancy Tribunal case 4712750 — Exemplary damages at Unit/Flat 1, 503 Omahu Road, Frimley, Hastings 4120

At a glance

Award balance

Claims & awards

Order

Reasons

What must be proved in this case?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What must be proved in this case?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions