What was the outcome of Tenancy Tribunal case 4744689?

The tribunal order states: Kelly O'Connor and Raymond Swenson must pay Boutique Rentals Bop Limited

How much money was awarded in case 4744689?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4744689?

The primary dispute was Property damage. Related themes: Cleanliness, Rent arrears, Smoke alarms.

Where can I read the official tribunal order for case 4744689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10900041-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4744689?

The tribunal order states: Kelly O'Connor and Raymond Swenson must pay Boutique Rentals Bop Limited

How much money was awarded in case 4744689?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4744689?

The primary dispute was Property damage. Related themes: Cleanliness, Rent arrears, Smoke alarms.

Where can I read the official tribunal order for case 4744689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10900041-Tribunal_Order.pdf.

1040B Papamoa Beach Road, Papamoa Beach, Papamoa Tenancy Tribunal Case 4744689 — Property damage

Order

Kelly O'Connor and Raymond Swenson must pay Boutique Rentals Bop Limited $460.11 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,400.00 (5229607-005) to Boutique Rentals Bop Limited immediately.

Reasons

Both parties attended the hearing. Ms O’Connor represented the tenants; Mr Swenson did not attend.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant has filed a counterclaim for refund of bond, compensation, and exemplary damages due to methamphetamine contamination.
Each party must prove their claim on the balance of probabilities. Background
The tenancy started on 1 April 2023 and ended on 5 November 2023 by Tribunal order. There were three reasons for the termination: having a dog at the premises without permission; the dog breaching the reasonable peace, comfort, or privacy of neighbours; and alleged methamphetamine use. The tenants did not attend the hearing.
On 31 October, the Tribunal granted a rehearing. Because the tenant only challenged the drug allegations, the Tribunal did not grant a stay of proceedings, and the tenants vacated the premises.
According to the landlord’s application form, the claim is for rent of $457.36, water $166.60, compensation of $46,805.23, and exemplary damages for unlawful use of the premises. However, many of the compensation claims are double-ups, and the corrected figure was confirmed as $21,482.83 (not including water rates). Landlord’s claim

How much is owed for rent and water?

The landlord provided rent records and water rates invoices which prove the amounts owing at the end of the tenancy ($457.36 and $166.60). The rent owing is comprised of two days additional rent at the end of the tenancy, and a shortfall on the penultimate week’s rent due to the landlord allocating part of the rent payment to water.

Did the tenants 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 (s 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
When the tenants first occupied the property at the start of the tenancy it had not been left reasonably clean and tidy by the previous tenants. However, those issues were largely resolved at the time, so the usual obligations applied at the end of the tenancy.
Cleaning: The tenant says she cleaned as best she could at short notice. However, the landlord’s photos show that the interior of the house was not reasonably clean at the end of the tenancy. The claim for $690.00 is proved.
Rubbish: The landlord’s photos show rubbish was left behind at the end of the tenancy. However, not all the rubbish belonged to the tenants. The parties agreed that 50% of the invoice ($920.00) reasonably reflected the cost of removing the tenants’ portion of the rubbish.
Grounds: The landlord provided a quote for $5,175.00 for tidying the garden. The work covered by the quote is “general tidy up of gardens/rubbish. Straighten and mortar pavers back down, scrape of [sic] soil and grass on left side of house and replace with stones plant plants to fill in hedges”. There are no photos of the grounds from the start of the tenancy, the work has not been done, and very little of the description appears to relate to tenant liability. The landlord has provided photos of overgrown grass in some of the gravel pathways. I have allowed $250.00 for the cost of spraying and tidying these areas.
Keys: The tenant says she left the keys on the kitchen bench. The landlord says they were not left there. The landlord provided photos of the house when possession was retaken. Although there are items on the bench obstructing the view from some angles, there is no sign of any keys in the photos. Therefore, I find the claim for $166.80 proved.
Electrical: The landlord claims $517.09 for replacing smoke alarms, deodorising the air conditioning unit, and electrical repairs. The repairs relate to fair wear and tear and are not proved. I have awarded $185.00 for the replacement smoke alarms and deodorising.

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 (s 40(2)(a), 41 and 49B RTA).
Where the damage is careless, s 49B RTA applies. Where the damage is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (s 49B(3)(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 (s 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 (Guo v Korck [2019] NZHC 1541).
Blinds: The landlord claims $732.30 for repairing blinds. From the quote it appears that three blinds needed repair. However, there is only photographic evidence of damage to two. The tenant says one of the blinds had pre-existing damage at the start of the tenancy. Based on the photos I find the claim for two of the three blinds proved ($488.00).
Garage door opener: The landlord claims $620.00 for the cost of a new garage door opener. The tenant says it was working when she left. Apparently, the contractor indicated that the damage was likely due to fair wear and tear. Therefore, the claim is not proved.
Drains: The landlord claims $225.12 for the cost of unblocking an external drain. The plumber found the drain blocked with stones and children’s toys, and that there was no lid on the gully. The tenant says her children are teenagers and do not play with toys. I am not satisfied that the tenant’s children were responsible for the toys, and the lack of a lid most likely contributed to surrounding stones getting into the gully. The claim is not proved.
Wall and door damage: The landlord claims 14 insurance excesses of $550.00 for internal repairs. The individual claims have not been itemised. The landlord provided photos from the end of the tenancy but none from the start. The landlord accepts that much of the damage from the end of tenancy photos is either fair wear and tear or was caused by the previous tenants, for example, significant damage to the main bedroom door and the wall behind the bedroom door. The only damage the landlord can point to caused by the tenants is to the end of a dividing wall in the lounge. However, the extent of the damage is minor, and I am not satisfied that the insurance excess accurately represents the cost of repairing the damage shown in the photographs. I have allowed $250.00. Methamphetamine contamination
The landlord claims $1,481.91 for methamphetamine testing, the insurance excess of $2,500.00 for remediation, and exemplary damages.
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, as a result of the contamination, the premises have been damaged or are not reasonably clean.
Section 138C RTA 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/100cm 2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm 2 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/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 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. 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.
Ordinarily the Tribunal requires methamphetamine testing from both before and during (or after) the tenancy to establish that contamination occurred during the tenancy. Here the owners did not think that pre-tenancy testing was necessary, as the previous tenants were known to them, and the premises had been tested before their tenancy. There is little information about the previous tenants. However, the fact that they left the premises in an unclean, untidy, and damaged state suggests they may not have been model tenants.
The landlord relies on several factors to prove that the tenants (rather than the previous tenants) were responsible for the contamination: a. A Police acknowledgement form timed 1:00pm on 28/08/23 which refers to reported offences of “Procure/Possess Methamphetamine And Amphetamine. Unlawfully Carry/Possess Firearm/Restricted Weapons/ Explosives. Unlawfully Possess Ammunition”. The tenant says that this form merely records a complaint that the owner made to the Police and is not proof of methamphetamine use at the premises. b. The Police have confirmed there were nine service calls relating to the premises, not all of which required Police attendance. There was one serious incident which resulted in Court proceedings. The Police would not confirm case details, or the identity of the parties involved. A summary of attendances refers to an attendance at 12:37pm on 28/08/23 for “Warrant” and again at 7:33pm the same day for “Drug, unlawful possession of restricted weapon and ammunition charges”. c. On 4 September a methamphetamine testing contractor went to the premises to conduct a test. He positioned swab templates at several locations throughout the house. When he went to swab the en suite template, he noticed a “glossey [sic] greasy” substance on the test area and edges of the template. He found a similar substance on two test areas in the kitchen. He abandoned the test and remove the templates. When he returned to the kitchen he found his unused disposable gloves on the ground. The tenant says the gloves could have blown off the kitchen bench, and she denies interfering with the test. She says both she her co-tenant remained in the garage throughout. d. On 4 October 2023, Hills laboratory provided an analysis of 91μg for a composite test. On 9 November, Analytica Laboratories provided a composite analysis for 10 samples. The total was 17.4μg, with a theoretical maximum of 174μg. The landlord believes the increased reading indicates usage between October and November. However, it is not possible to directly compare the two analyses as the results are presented differently, testing most likely occurred at different locations, and the calculation of a theoretical maximum from the test result depends on the number of samples taken (5 for the October test).
The detailed analysis of the November sample shows that six out of 10 samples were above the Gluckman level, ranging from 15.0μg to 35.7μg. However, it is not possible to determine whether the tenants were responsible for the level of contamination disclosed. The Police evidence does not specifically identify the particular drug charges the co-tenant is facing. Although the Police acknowledgement form refers to methamphetamine, it appears to be timed before the Police attendance at 7:33pm that day, and it is not clear that it provides any independent verification from the Police that it was the drug involved.
The interference with the test on 9 September creates a strong suspicion that someone in the house thought there was a risk of a positive testing result, which in turn implies that methamphetamine was used during the tenancy. Although the tenant denies any involvement by herself or her co-tenant, I have no reason to doubt the tester’s evidence. However, this only goes as far as establishing that some contamination may have occurred during the tenancy. It does not prove the level of contamination or that it exceeded the Gluckman level. To be sure, the owner should have allowed the premises to be tested after the end of the previous tenancy.
Because there is insufficient evidence to prove the tenants were responsible for contamination above the Gluckman level, with one exception I have not allowed the testing costs or the insurance excess for remediation. I have however allowed the claim for $249.00 for the abandoned test on 4 September.
The September test was originally booked for 31 August, but the tenant asked for it to be rescheduled for medical reasons. The invoice includes a fee of $113.85 for the late cancellation. However, the tenant says the tester agreed to change the date and made no mention of a fee being incurred. For that reason, I have not allowed the fee. Tenants’ claim
The tenants’ claim is based on the allegation that the premises were contaminated with methamphetamine at the start of the tenancy. I have already made a finding that the landlord has not proved on the balance of probabilities that contamination above the Gluckman level occurred during the tenancy. The same applies to the tenants’ claim. As there was no testing at the start of the tenancy, there is insufficient evidence to prove on the balance of probabilities that the house was contaminated above the Gluckman level when the tenants moved in. Therefore, the tenants’ claim is not proved. Bond and filing fee.
As the landlord was only successful to a minor degree, and the tenant was unsuccessful, I have not reimbursed either filing fee. J P Smith 28 October 2024

Tenancy Tribunal case 4744689 — Property damage at 1040B Papamoa Beach Road, Papamoa Beach, Papamoa

Tenancy Tribunal case 4744689 — Property damage at 1040B Papamoa Beach Road, Papamoa Beach, Papamoa

Order

Reasons

How much is owed for rent and water?

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

Is the tenant responsible for the damage to the premises?

Property management

Order

Reasons

How much is owed for rent and water?

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

Is the tenant responsible for the damage to the premises?

Property management