What was Tenancy Tribunal case 4824662 about?

The tribunal order states: The tenant’s applications are dismissed.

How much money was awarded in case 4824662?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4824662?

The primary dispute was State of repair. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4824662?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10741549-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4824662 about?

The tribunal order states: The tenant’s applications are dismissed.

How much money was awarded in case 4824662?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4824662?

The primary dispute was State of repair. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4824662?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10741549-Tribunal_Order_Redacted.pdf.

Unit/Flat 7, 6 Nelson Crescent, Napier South, Napier 4110 Tenancy Tribunal Case 4824662 — State of repair

Order

The tenant’s applications are dismissed.
Suppression of the tenant’s name and identifying details is continued.

Reasons

Both parties attended the hearing. The landlord was represented by counsel. The tenant was supported and represented by [The tenant’s representative] Background
There have been a series of applications concerning this tenancy.
The landlord bought an application for termination of the tenancy on the grounds that the tenant had engaged in anti-social behaviour. That application was dismissed in an Order made on 10 May 2023 (TT 4545269).
The tenant then bought a claim that the landlord had breached its obligation to ensure that its other tenants did not breach her right to peaceful enjoyment of the premises. That application was dismissed in an Order made on 10 January 2024 (TT 4578133).
On the same day the Order in TT 4578133 was made, the landlord issued a notice of termination on the grounds that the premises needed to be vacated to remediate methamphetamine contamination and refurbish the premises.
The tenant then brought this application claiming: a. that the notice of termination should be set aside as retaliatory and without lawful grounds; b. compensation and exemplary damages for the landlord failing to meet its obligation to ensure the premises were adequately maintained.
An Order was made on 26 March 2024 in these proceedings, (”the March Order”) dismissing the tenant’s application to set aside the notice of termination.
As noted in that Order the available hearing time was used hearing evidence on that issue and the proceedings were adjourned for a further hearing to determine the tenant’s remaining claims.
At commencement of this hearing, the tenant confirmed that her remaining claims are that: a. the landlord breached its obligations by allowing her to remain living in the premises and not addressing the methamphetamine contamination. b. she should be compensated for having destroyed some belongings after being misinformed by the landlord about the need to do so.
The tenant also raised issues about events around the time she vacated the premises. Those are not issues raised in the application, but the opportunity was taken to address them as well. Failure to Maintain
Section 138 RTA provides for the making of regulations dealing with substance contamination of residential tenancies.
No such regulations have been made, so the issue must be determined under the more general provisions of s.45(1)(a) and (b), which require that a landlord provide and maintain the premises in a reasonable state of cleanliness and repair.
That obligation extends to ensuring that the premises are not unclean by reason of methamphetamine contamination.
The tenant’s claim is that the landlord was aware that the premises were contaminated by methamphetamine, but did not take adequate steps to ensure she was not exposed to the associated health risks, by requiring she vacate immediately or by cleaning the premises. She says that the only cleaning work done after the contamination was found, was work she did herself to clean the areas noted as most significantly contaminated.
The landlord first became aware that the premises were contaminated by methamphetamine residues, when a composite test was carried out in November 2023, after concerns had been raised by neighbouring residents.
The property manager met with the tenant and [The tenant’s representative] to advise that contamination had been found. The property manager indicated that more detailed testing would be carried out, following which it was expected that cleaning/ decontamination work would be done.
The tenant says that a recording of that meeting will show that promises were made about the premises being cleaned. However, the appropriate response to the contamination was necessarily modified by the outcome of the subsequent testing.
A detailed methamphetamine assessment was undertaken by Drug Free Testing NZ Limited. The report is dated 20 December 2023 (“the contamination report”). It was received by the property manager during the first week or early in the second week of January 2024.
The contamination report was discussed in detail at the hearing which led to the March Order being made. It identifies contamination of various degrees throughout the premises, with contamination at levels above the ”Gluckman standard” in two of the sites tested. It recommends remediation by decontamination. The March Order found that decontamination will require the premises to be vacated.
After receipt of the contamination report, the property manager prepared the notice of termination which is dated 10 January 2024 and sets out in detail the process followed by the landlord to have the premises tested, the findings of the assessment report and the landlord’s proposed response.
The notice and its other content were discussed with the tenant and the tenant’s mother in a meeting with the property manager held immediately thereafter. A copy of the contamination report was provided to the tenant.
The tenant had made it clear to the property manager that having had hair follicle testing carried out, she did not consider herself at risk of harm from exposure to methamphetamine residues. For that reason and because of the difficulties the property manager expected the tenant would encounter in finding alternative accommodation quickly, the decision was made not to require the tenant to vacate on 7 days’ notice, on the basis that the premises were uninhabitable (see s.59). Instead, 90 day’s notice was given under s.51(2)(f) on the basis that extensive repairs and redevelopment were to be carried out. The tenant was advised that she could vacate on 2 days’ notice, rather than the 28 days’ notice that might otherwise be required, which would be the notice period if the premises were considered uninhabitable for the purposes of s.59.
The notice given to the tenant clearly identifies the extent of the contamination and the possible associated health risks, giving the tenant the option to vacate immediately.
Those steps all seem to me to be consistent with the landlord’s obligations. When the landlord was aware, from the composite testing, that the premises were contaminated, the appropriate step was to promptly inform the tenant and obtain a detailed assessment so that the nature and extent of the contamination and associated health risks could be assessed. That was done. The tenant was advised of the outcome of the composite testing immediately. She was immediately advised of the outcome of the detailed assessment and given a copy of the assessment report. The tenant was given the option to leave immediately should she choose.
It is difficult for the tenant to assert that the landlord should really have required her to leave the premises, while at the same time the tenant has remained in occupation for several months, seeking to have the notice of termination set aside.
Really, the only question in my mind has been whether steps were available to the landlord to mitigate the health risk posed by the high levels of contamination found, which ought to have been taken when the landlord knew that the tenant had remained occupying the premises.
The property manager’s evidence is that the landlord was in regular contact with the testing company and the decontamination contractor and received consistent advice that no decontamination could be carried out with the tenant in occupation.
Clear evidence was given at the previous hearing, that cleaning of a tested area where a high level of contamination had been found was not a useful exercise because that would do nothing to mitigate contamination elsewhere on sites not tested but potentially affected by just as high a degree of contamination.
This is the tenant’s claim and it is for her to provide evidence that proves on balance that the landlord breached an obligation owed to her. The evidence does not persuade me that there were steps available to the landlord to remediate the contamination found at the premises that it did not take. Nor do I find that the landlord breached an obligation owed to the tenant by allowing her the choice of whether to remain living in the premises during the notice period, after fully informing her of the situation and risks.
Finally, for the sake of completeness, I note that the notice of termination states, “As Napier City Council has only recently implemented baseline testing of units before tenancies begin, this reference point is not available to us so we will not be treating this as a breach of your tenancy agreement.” The landlord nevertheless maintains that it is more likely than not that the contamination was caused by the tenant’s daughter, while at the premises with the tenant’s consent.
My assessment of the landlords’ obligations in these circumstances does not reflect any assumptions about how the contamination was caused. Compensation for loss of belongings
The notice of termination, in explaining the content of the contamination report and the landlords plans to respond to it, says, “Further, the report also makes recommendations regarding your personal furniture and property, stating: “Tenants possessions should be removed from the dwelling prior to decontamination. Once the tenant’s permission has been obtained the possessions should be double bagged and disposed of in the appropriate manner. (Items from contaminated properties should be classed as infectious or hazardous waste - referred to local authority requirements for disposal). The possessions must not be reused donated on sold or traded in any circumstances.”
The tenant says that based on that passage in the notice, she began destroying some of her clothing and possessions, until noting from the contamination report that, “This report may only be reproduced in full. Reproduction of any part or parts of the report by themselves is strictly prohibited.” The contamination report also notes, “Standard NZS 8510: 2017 is not applicable to the testing of personal positions. The tenant’s private property was not tested so the level of contamination, if any, is not known.”
The tenant’s position is that by improperly taking that extract from the report in isolation and emphasising it in the notice of termination, the landlord misled the tenant about the level of risk posed by possible contamination of her belongings, leading her to dispose of some of them unnecessarily.
The property manager says that the landlord was simply a meeting its obligation to identify possible areas of risk for the tenant (and for others if contaminated belongings were not disposed of safely) and while that passage was noted, the tenant was also given the whole of the report so was able to see that advice in context.
Again, I struggle to see how providing that information to the tenant could be seen as a breach of the landlord’s obligations. It would seem to me more remiss of the landlord not to pass on to the tenant information provided to it about the possible health risks to her or others, from contamination of her belongings.
I do not find it proved that the landlord breached any obligation owed to the tenant by inclusion of that extract in the notice of termination. Other matters
Although no application or evidence had been filed by the tenant, the opportunity was taken to address some concerns raised by her about recovery of her belongings from the premises when she vacated.
After the Tribunal dismissed the tenant’s application to set aside the notice of termination, the landlord issued the tenant a notice giving her further time to vacate. By the end of the day on which the tenant was required to vacate, the tenant had been unable to remove all of her belongings. She returned the next morning to find that the locks had been changed. She contacted the property manager, was given a key, was able to arrange to collect the remainder of her belongings and she returned the key to the property manager.
The tenant suggests that the landlord ought to have been aware that she had not been able to remove all of her belongings and let her know in advance that the locks had been changed.
The property manager’s evidence is that instructions were given to the locksmith to secure the premises immediately after the tenant was to vacate, noting too the context of the premises needing to be made secure from a contamination point of view.
The tenant was able, without obstruction, to retrieve the rest of her things, which it was her obligation to have removed the day before. I do not find the landlord to be in breach of any obligation in that regard.
The final matter relates to recovery of a couch that was left in a carport on the property.
The property manager was contacted by neighbouring residents wanting it removed. The landlord contacted the tenant asking her to remove it.
Before then, after concerns had been raised by other tenants, the landlord had issued a trespass notice preventing the tenant’s partner coming to the property. The tenant would otherwise have relied on her partner to collect the couch and so did not make arrangements with the landlord for the couch to be collected.
It was subsequently removed and disposed of by the landlord.
Section 62A provides that if a landlord is unable to make arrangements with a tenant to remove items left at the premises: “(1) The landlord may deal with the goods to which section 62(3) applies, other than personal documents belonging to the tenant, by making all reasonable efforts to assess the market value of those goods. (2) If the assessment under subsection (1) indicates that any of the goods have a value below the cost of storing, transporting, and selling them, the landlord may immediately dispose of those goods in any way the landlord thinks fit.”
The property manager says that in terms of s.62A(1), an assessment was made that the value of the couch (which photographs confirm was by then outside and exposed to the weather - not through actions of the landlord), was less than the cost of storing, transporting and selling it. That seems a reasonable assessment and no loss is proved. Bond
The landlord has not released the tenant’s bond.
I have expressed a view that as the landlord has acknowledged in the notice of termination that no breach of the tenant’s obligations is claimed by reason of the premises being contaminated, the remediation costs could not be a basis for the landlord retaining the tenant’s bond.
There may be other claims the landlord wishes to bring following the end of the tenancy. Those claims are not precluded. The landlord agrees however that the bond can be released to the tenant now and an order is made accordingly.
No order is made in respect of the filing fee.

Tenancy Tribunal case 4824662 — State of repair at Unit/Flat 7, 6 Nelson Crescent, Napier South, Napier 4110

At a glance

Tenancy Tribunal case 4824662 — State of repair at Unit/Flat 7, 6 Nelson Crescent, Napier South, Napier 4110

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions