What was Tenancy Tribunal case 4741129 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4741129?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4741129?

The primary dispute was Cleanliness. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4741129?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9988424-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4741129 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4741129?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4741129?

The primary dispute was Cleanliness. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4741129?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9988424-Tribunal_Order_Redacted.pdf.

32 Foster Road, Temple View, Hamilton 3218 Tenancy Tribunal Case 4741129 — Cleanliness

Order

The application is dismissed.

Reasons

The landlords named on the tenancy agreement both attended the hearing on 2 February 2024.
The tenant did not attend. The Tribunal telephoned her mobile number during the hearing, but the phone went to voicemail. I continued with the hearing in her absence as notification of the application and the hearing has been sent to her email address for service.
This application seeks compensation for the costs of methamphetamine testing and decontamination of the premises and for lost rent.

What must the landlord prove?

The landlord must prove that the methamphetamine residue came about from actions of the tenant or someone she permitted to be at the premises during the tenancy.
A tenant is liable for loss or damage caused to the premises by an intentional act or something that is an imprisonable offence. See sections 40(2)(a) and (b) and 49B RTA.
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 is the evidence?

The landlords presented evidence that:- a. They purchased the property in early February 2021. b. A new kitchen rangehood and bathroom extractor fan were installed into the house on about 17 February 2021 to comply with the Healthy Homes Standards. 1 c. The landlords say that this tenancy started on 13 March 2021 and ended on 2 September 2023. d. A composite 2 screening methamphetamine test was undertaken at the premises by an accredited testing company on 15 September 2023. Eight samples were taken from eight different rooms inside the house. The composite result was positive for methamphetamine and amphetamine. e. Additional testing of fifteen individual samples was then undertaken. All samples tested positive for methamphetamine (M) and ten samples were positive for amphetamine (A). f. The residue levels from the kitchen rangehood (in micrograms 3 per sample area of 100cm 2 ) were 6.62mcg (M) and 0.35mcg (A). g. Other significant sample results were 13.6mcg (M) and 0.24mcg (A) from a wooden window frame in the kitchen, 17.8mcg (M) and 0.27mcg (A) from the switchboard cover situated in the laundry, and results of higher than
5mcg of methamphetamine from samples taken in the hallway, bathroom, and all three bedrooms in the house. h. The premises were then decontaminated which included disposal of carpet, underlay and drapes, and specialised cleaning of other surfaces. 1 These are contained in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and require bathroom and kitchen extractor fans in tenanted premises along with other requirements. 2 Where individual swab samples are combined into one test tube for one composite test result. 3 One millionth of a gram. i. A “clearance certificate” was issued on 10 November 2023 certifying that samples taken after decontamination recorded methamphetamine levels below 1.5mcg/100cm2.
The landlords confirmed verbally during the hearing that there was no methamphetamine testing done at the time of purchase or at the start of this tenancy.
Their submission is that the methamphetamine and amphetamine residue detected on the kitchen rangehood indicates that it is more probable than not that there has been methamphetamine used in the house during this tenancy. They say that the rangehood was brand new so would have been free of drug residue initially so must have later become contaminated. My decision
As stated above, for a damage claim to succeed, a landlord must first prove that any damage to the premises occurred during the tenancy.
After careful consideration, I have decided that the evidence from the landlords is not strong enough to satisfy me that it is more probable than not that the methamphetamine and amphetamine residue occurred during this tenancy.
The absence of a pre-tenancy methamphetamine test means that other evidence is particularly important and must be strong.
Two District Court cases have noted that it is a “significant problem” for a claim if there has been no methamphetamine test conducted at the beginning of the tenancy; see Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210, at paragraph 11. Also see Brooking and Hodges v Imrie [2021] NZDC 16976.
There are too many uncertainties in this case. I accept that the residue found on the rangehood indicates that methamphetamine may have been used in the premises. However, other difficulties with the evidence are:- a. that there was no expert evidence to assist me to understand other possible sources or explanations for the results from the rangehood, b. that about a month elapsed between the installation of the rangehood and the start of the tenancy and it is possible that someone else had access to the house in this time, c. there was no corroborating evidence of drug-related behaviour at the premises (such as items left at the house). The landlords did say that the neighbours had made mention of police attendance at the property and of “comings and goings”. However, there was no direct evidence from the neighbours and the landlords have decided not to make an information request to the NZ Police.
In other words, it is possible that methamphetamine residue was already present at the premises before this tenancy began, was transferred onto the rangehood during the tenancy, or occurred in the time after the rangehood was installed and before the tenancy started.
My finding means that the claims must be dismissed.
I suppress the tenant’s name as the claim has not been successful. I also suppress the landlords’ names as they made this claim in good faith and are not at fault in any way.
I do not suppress the tenancy address as this may be of interest to future prospective tenants. However, I note the decontamination and that a clearance certificate has been issued.

Order

The application is dismissed.

Reasons

The landlords named on the tenancy agreement both attended the hearing on 2 February 2024.
The tenant did not attend. The Tribunal telephoned her mobile number during the hearing, but the phone went to voicemail. I continued with the hearing in her absence as notification of the application and the hearing has been sent to her email address for service.
This application seeks compensation for the costs of methamphetamine testing and decontamination of the premises and for lost rent.

What must the landlord prove?

The landlord must prove that the methamphetamine residue came about from actions of the tenant or someone she permitted to be at the premises during the tenancy.
A tenant is liable for loss or damage caused to the premises by an intentional act or something that is an imprisonable offence. See sections 40(2)(a) and (b) and 49B RTA.
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 is the evidence?

The landlords presented evidence that:- a. They purchased the property in early February 2021. b. A new kitchen rangehood and bathroom extractor fan were installed into the house on about 17 February 2021 to comply with the Healthy Homes Standards. 1 c. The landlords say that this tenancy started on 13 March 2021 and ended on 2 September 2023. d. A composite 2 screening methamphetamine test was undertaken at the premises by an accredited testing company on 15 September 2023. Eight samples were taken from eight different rooms inside the house. The composite result was positive for methamphetamine and amphetamine. e. Additional testing of fifteen individual samples was then undertaken. All samples tested positive for methamphetamine (M) and ten samples were positive for amphetamine (A). f. The residue levels from the kitchen rangehood (in micrograms 3 per sample area of 100cm 2 ) were 6.62mcg (M) and 0.35mcg (A). g. Other significant sample results were 13.6mcg (M) and 0.24mcg (A) from a wooden window frame in the kitchen, 17.8mcg (M) and 0.27mcg (A) from the switchboard cover situated in the laundry, and results of higher than
5mcg of methamphetamine from samples taken in the hallway, bathroom, and all three bedrooms in the house. h. The premises were then decontaminated which included disposal of carpet, underlay and drapes, and specialised cleaning of other surfaces. 1 These are contained in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and require bathroom and kitchen extractor fans in tenanted premises along with other requirements. 2 Where individual swab samples are combined into one test tube for one composite test result. 3 One millionth of a gram. i. A “clearance certificate” was issued on 10 November 2023 certifying that samples taken after decontamination recorded methamphetamine levels below 1.5mcg/100cm2.
The landlords confirmed verbally during the hearing that there was no methamphetamine testing done at the time of purchase or at the start of this tenancy.
Their submission is that the methamphetamine and amphetamine residue detected on the kitchen rangehood indicates that it is more probable than not that there has been methamphetamine used in the house during this tenancy. They say that the rangehood was brand new so would have been free of drug residue initially so must have later become contaminated. My decision
As stated above, for a damage claim to succeed, a landlord must first prove that any damage to the premises occurred during the tenancy.
After careful consideration, I have decided that the evidence from the landlords is not strong enough to satisfy me that it is more probable than not that the methamphetamine and amphetamine residue occurred during this tenancy.
The absence of a pre-tenancy methamphetamine test means that other evidence is particularly important and must be strong.
Two District Court cases have noted that it is a “significant problem” for a claim if there has been no methamphetamine test conducted at the beginning of the tenancy; see Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210, at paragraph 11. Also see Brooking and Hodges v Imrie [2021] NZDC 16976.
There are too many uncertainties in this case. I accept that the residue found on the rangehood indicates that methamphetamine may have been used in the premises. However, other difficulties with the evidence are:- a. that there was no expert evidence to assist me to understand other possible sources or explanations for the results from the rangehood, b. that about a month elapsed between the installation of the rangehood and the start of the tenancy and it is possible that someone else had access to the house in this time, c. there was no corroborating evidence of drug-related behaviour at the premises (such as items left at the house). The landlords did say that the neighbours had made mention of police attendance at the property and of “comings and goings”. However, there was no direct evidence from the neighbours and the landlords have decided not to make an information request to the NZ Police.
In other words, it is possible that methamphetamine residue was already present at the premises before this tenancy began, was transferred onto the rangehood during the tenancy, or occurred in the time after the rangehood was installed and before the tenancy started.
My finding means that the claims must be dismissed.
I suppress the tenant’s name as the claim has not been successful. I also suppress the landlords’ names as they made this claim in good faith and are not at fault in any way.
I do not suppress the tenancy address as this may be of interest to future prospective tenants. However, I note the decontamination and that a clearance certificate has been issued.

Tenancy Tribunal case 4741129 — Cleanliness at 32 Foster Road, Temple View, Hamilton 3218

At a glance

Tenancy Tribunal case 4741129 — Cleanliness at 32 Foster Road, Temple View, Hamilton 3218

At a glance

Claims & awards

Order

Reasons

What must the landlord prove?

What is the evidence?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What must the landlord prove?

What is the evidence?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions