What was Tenancy Tribunal case 4799160 about?

The tribunal order states: Toni Wilson and Stephanie Wilson must pay [The landlord/s] $2,527.01

How much money was awarded in case 4799160?

Filing Fee: $20.44 awarded to landlord; Cleaning: $2,500.00 awarded to landlord; Rent Arrears: $6.57 awarded to landlord

What type of tenancy dispute was case 4799160?

The primary dispute was Cleanliness. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4799160?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10308856-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4799160 about?

The tribunal order states: Toni Wilson and Stephanie Wilson must pay [The landlord/s] $2,527.01

How much money was awarded in case 4799160?

Filing Fee: $20.44 awarded to landlord; Cleaning: $2,500.00 awarded to landlord; Rent Arrears: $6.57 awarded to landlord

What type of tenancy dispute was case 4799160?

The primary dispute was Cleanliness. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4799160?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10308856-Tribunal_Order_Redacted.pdf.

415B Waiuku-Otaua Road, Waiuku, RD 2, Waiuku 2682 Tenancy Tribunal Case 4799160 — Cleanliness

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Reasons

Claims and awards in Tenancy Tribunal application 4799160 — net $2,527.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$6.57	Rent arrears
Meth testing/Cleaning: Excess	$2,500.00	Meth testing/Cleaning: Excess
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,527.01
Total payable by Tenant to Landlord	$2,527.01

Both parties attended the hearing.

The landlord had applied for rent arrears, compensation, and reimbursement of the filing fee following the end of the tenancy.

The hearing was adjourned open for the landlord to respond with: a. The outcome of the insurance claim, b. The applicable insurance excess, c. The related testing costs incurred, and d. The date of last external painting.

This information was delayed but has now been received.

The landlord has also taken the opportunity after the hearing to expand the claims beyond those heard. These have not been considered in this order.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

How much is owed for rent?

The tenancy ended on 5 November 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy is as ordered.

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. 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 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.

“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.

Damage to some of the premises weatherboard and a stormwater downpipe were identified by the landlord at the end of the tenancy. Having considered the entry and exit photos, as well as the respective submissions, I decline to order compensation for any related repairs undertaken as I have not been satisfied the damage is more than fair wear and tear. I also considered repainting costs as claimed but even if accepted, after allowing for the age of the painting (seven years) depreciation allowance would have significantly reduced any compensation.

Methamphetamine contamination was found during end of tenancy testing. The tenants have not disproved liability for the damage. Methamphetamine

The New Zealand Standard 8510:2017 Testing and decontamination of methamphetamine-contaminated properties (“NZS8510:2017”) provides industry guidance on good practice methods in the testing and clean-up of methamphetamine contamination in houses. NZS8510:2017 was released on 29 June 2017. The standard adopts a single level of 1.5μg/100cm² (1.5 micrograms of methamphetamine per 100 square centimetres of surface sampled) that ‘high use areas’ of affected properties should be decontaminated to, regardless of whether the properties were involved in the production or use of methamphetamine. Consider high use areas as those areas that can be easily accessed by the occupants.

On 29 May 2018, Professor Sir Peter Gluckman (the Prime Minister’s Chief Science Advisor at that time) determined that there was little evidence supporting health risks from exposure to residue from methamphetamine consumption (See ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018.

His report concluded that in the absence of other evidence of manufacture, any levels below 15μg/100cm² are highly unlikely to present adverse effects therefore there should be no need for remediation. Where there is evidence of manufacture the NZS8510:2017 standard is appropriate (noting there is no suggestion of manufacturing during this tenancy).

In 2019 there was a judgement in the District Court which dismissed an appeal after the Tribunal adopted the Gluckman Report to determine whether the tenant had caused damage to the premises or permitted any other person to do so (Full Circle Real Estate Limited v Piper [2019] NZDC 4947).

Finally, I consider further validating are the 2019 comments of the Court of Appeal in Smith v Accessible Properties New Zealand Limited [2019] NZCA 38 where, in paragraph [16], with reference to the Gluckman Report, the decision stated: “We acknowledge that the testing in this case yielded results now considered not to raise any health and safety concerns.”

Was there a need to decontaminate/clean?

The premises was tested for methamphetamine prior to the tenancy commencing. No methamphetamine was detected at that time.

A composite test was conducted on 4 November 2023 after the tenancy ended. A subsequent comprehensive test of 15 samples was carried out after the initial testing indicated methamphetamine contamination. The testing was carried out by the agent of the landlord, who claimed Decon Systems certification in the report.

The report to the owner details the areas with reportable levels of methamphetamine contamination. However, it was surprising that the report only referenced the NZS8510:2017. Given it is reasonably settled that this Tribunal works to the higher levels in the Gluckman Report that are deemed safe, some caution to the owner regarding any decontamination and later cost recovery might have been reasonably expected.

As it is, the report identified only two areas, bathroom 1 (16.2μg) and bathroom 3 (21.8μg), that were in excess of the 15μg level considered as the safe level ceiling.

Section 40(1)(e) (iii) of the RTA requires the tenant to leave the premises in a reasonably clean and reasonably tidy condition. Section 41 assigns the tenant the responsibility for the actions of others.

The owner’s insurer has accepted a related insurance claim and applied an excess of $2500.00 to the settlement. The extent of costs covered from the remediation strategy far exceeds any proven tenant liability. I have considered the invoiced costs for testing, and remediation of the two bathrooms – being tenant liabilities. These total close to the actual excess amount and I award the excess of $2500.00 as the tenant liability for the testing and remediation. All other claims of the landlord regarding any additional related costs are dismissed. Application filing fee

Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

The landlord requested suppression in its application. As it has been substantially successful, suppression of its name is ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4799160 — net $2,527.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$6.57	Rent arrears
Meth testing/Cleaning: Excess	$2,500.00	Meth testing/Cleaning: Excess
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,527.01
Total payable by Tenant to Landlord	$2,527.01

Both parties attended the hearing.

The landlord had applied for rent arrears, compensation, and reimbursement of the filing fee following the end of the tenancy.

This information was delayed but has now been received.

The landlord has also taken the opportunity after the hearing to expand the claims beyond those heard. These have not been considered in this order.

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

How much is owed for rent?

The tenancy ended on 5 November 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy is as ordered.

Is the tenant responsible for the damage to the premises?

Methamphetamine contamination was found during end of tenancy testing. The tenants have not disproved liability for the damage. Methamphetamine

Was there a need to decontaminate/clean?

The premises was tested for methamphetamine prior to the tenancy commencing. No methamphetamine was detected at that time.

As it is, the report identified only two areas, bathroom 1 (16.2μg) and bathroom 3 (21.8μg), that were in excess of the 15μg level considered as the safe level ceiling.

Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression

The landlord requested suppression in its application. As it has been substantially successful, suppression of its name is ordered.

Tenancy Tribunal case 4799160 — Cleanliness at 415B Waiuku-Otaua Road, Waiuku, RD 2, Waiuku 2682

At a glance

Tenancy Tribunal case 4799160 — Cleanliness at 415B Waiuku-Otaua Road, Waiuku, RD 2, Waiuku 2682

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Is the tenant responsible for the damage to the premises?

Was there a need to decontaminate/clean?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Is the tenant responsible for the damage to the premises?

Was there a need to decontaminate/clean?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions