What was Tenancy Tribunal case 4849786 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,625.00 ([Bond number suppressed]) to

How much money was awarded in case 4849786?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849786?

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

Where can I read the official tribunal order for case 4849786?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10749145-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4849786 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,625.00 ([Bond number suppressed]) to

How much money was awarded in case 4849786?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849786?

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

Where can I read the official tribunal order for case 4849786?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10749145-Tribunal_Order_Redacted.pdf.

14 Coyle Street, Sandringham, Auckland 1025 Tenancy Tribunal Case 4849786 — State of repair

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Reasons

Both parties attended the hearing.

Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, it is for the parties to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

The parties both submitted documentation in support with their online applications. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.

The premises consist of a 3-bedroom house with a garage and a sleepout. The tenant was living there with her son and daughter. The sleepout was used as a music room/office space/playroom.

The landlord confirmed during the hearing that the water claim is no longer being continued.

The landlord claims the tenant has used the premises unlawfully, by using or allowing persons at the property with their permission to consume methamphetamine.

Section 40(2)(b) of the Act states that the tenant must not use the premises or permit the premises to be used for an unlawful purpose.

Tenants are responsible for the acts or omissions of others at the property with their permission that may result in breach of the terms of the agreement or provisions the Act.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.

Under the Misuse of Drugs Act 1975 possessing methamphetamine is a criminal offence.

The landlord filed a Methamphetamine Report dated 15 February 2024 from All Clear Limited.

The landlord says that there was a fixed term tenancy which began on 15 July 2022 for 12 months and ended by mutual agreement on 4 February 2024. The methamphetamine testing for the sleepout was over 15 μg/100cm2. Based on the reading the landlord advised the tenant that he would need to apply to the Tenancy Tribunal to terminate the tenancy and that maybe it was better for her to move out. The test result for inside of the house was under 15 μg/100cm2.

The landlord says that the reason for the testing was that he undertook a routine inspection in December 2023. He stated that the outside room smelt of marijuana. The owner then suggested that a comprehensive methamphetamine test should be carried out. Other than a routine inspection there was nothing to suggest that there was anything unlawful taking place at the property.

On 30 January 2024 testing was carried out by an accredited tester. Discrete samples were taken returning readings of 17.8 μg/100cm2 (“ug”) in the sleepout (carpet dust) and 5.4ug from the sleepout carpet ,0.03ug from the kitchen oven door and 0.73ug from the hallway smoke alarm. The landlord states that the smoke alarm and oven were new at the start of the tenancy.

The tenant asked the landlord what her options were. She was then advised that she had two weeks to get out.

The first testing for methamphetamine was carried out on the 10 January 2024.

The next test of individual items was carried out on 30 January 2024. A post-test was caried out on 1 March 2024.

The landlord stated during the hearing that no insurance cover is available in respect of this matter.

As a result the landlord is claiming the following amounts: a. Decontamination cost for outside room of $1909.00 b. Carpet and underlay replacement for outside room $1091.00. The landlord says that the carpet was brand new. c. Painting of the sleep out (outdoor room) $230.00 d. Carpet cleaning for inside of house $287.50 e. Methamphetamine 1 st test $517.33 f. Methamphetamine 2 nd test $1241.31 g. Methamphetamine 3 rd test $919.66 h. Methamphetamine 4 th test and clearance certificate $402.33

The landlord states that ‘Methamphetamine 3’ was for testing individual items and the carpet in the outside room. The landlord says that the carpet, oven and smoke detector were brand new when the tenant moved in. No evidence of this has been provided with application.

The landlord advises that ‘Methamphetamine 4’ was the final ‘clearance test’ to confirm that the premises are at a safe level.

There is no dispute that the levels detected, other than the sleepout carpet dust, do not constitute damage caused by contamination 1 . However, levels above 1 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/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.

4ug but below 15ug may result in liability for failing to leave the property reasonably clean.

There is no direct evidence that the tenant has either used methamphetamine or allowed others with their permission at the property to use methamphetamine. The evidence is circumstantial.

The landlord states that together the evidence is sufficient to establish more likely than not that the tenant is either directly or indirectly responsible for the breach.

The landlord seeks exemplary damages in respect of the premises being used for an unlawful purpose.

The landlord also seeks return of the tenant’s bond.

The tenant responded by stating that she felt very insulted by the landlord’s allegations. She further says that there is no evidence of the state of the premises when she first moved in.

During the hearing the tenant provided a written summary in support of her response. She says that there was no evidence of the results being attributable to her. She says that there was no pre tenancy testing. She took the landlord’s advice to terminate the tenancy as she was worried about her own professional reputation. She also says that the landlord acknowledged that there was no pre tenancy testing and that they were ‘covering themselves’.

The tenant did her own carpet cleaning on 4 February 2024 and therefore disputes the landlord’s carpet cleaning claim for $287.50.

The tenant says she left the house in a pristine condition. She says she looked after the property very well.

The tenant accepts that the oven was brand new although maintains that there is no evidence to connect her with these results. She also says that the readings from the oven and the smoke alarm were so minute that the results are unreliable.

The tenant denies the use of marijuana in the outside house.

I am not satisfied on the balance of probabilities that the tenant has conducted the activity as claimed by the landlord.

After hearing from the landlord and considering the other evidence produced, I cannot be satisfied to the required standard that, more likely than not, the tenant has used or allowed others to use the property for an unlawful purpose.

The significant problem for the landlord’s claim is that there is no evidence of any methamphetamine testing carried out at the start of this tenancy. If there had been such testing and it revealed no methamphetamine then clearly the methamphetamine residue that was found at the end of this tenancy could only have occurred during the tenancy and could only have occurred by either the tenant using methamphetamine or permitting others to use methamphetamine inside the house. The lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenant to the point where it is not possible to conclude on the balance of probabilities that it was the tenant who was responsible for the methamphetamine residue located at the premises during their tenancy.

There was no pre tenancy testing for the presence of methamphetamine. There is insufficient evidence to be satisfied that any contamination discovered occurred during the tenancy.

The level of contamination detected on the smoke alarm was small, and the Tribunal cannot discount the possibility there may have been an inadvertent transfer of contaminant occurring during the installation of the alarm.

The tenant has denied using methamphetamine.

Accordingly, the claims by the landlord are dismissed.

The bond will be refunded to the tenant. Tenant’s cross application:

The tenant seeks return of her bond in full.

The tenant also claims the following: a. Compensation of $2630.00 being the time she was homeless (alternative accommodation and expenses) b. Section 38 breach of quiet enjoyment for extra property inspections and meth testing c. Section 12 for discrimination. The tenant says that she felt discriminated against with the treatment from the landlord. d. Section 45 – failure by landlord to maintain property. e. Section 51 – breach of proper notice period to terminate. The tenant says she felt pressured to agree to a termination.

The tenant says that this has had an impact on her mental health. She states that she had to move out quickly which meant she and her daughter had to move out with nowhere to go.

The tenant filed medical certificates dated 23 February 2024 and 28 March 2024 in support of her application.

I have also considered the photographic evidence and the series of text messages filed by the tenant.

The tenant says that her daughter went to stay with her father. She was then faced with financial hardship due to the bond not being released. She had to borrow money to move into another place. She says the house out the back was completely separate from the house and the test results from within the house were within safe limits.

The tenant maintains that there is nothing linking the results to her tenancy.

The landlord responded by stating that at no time has he ever accused the tenant of smoking methamphetamine at the property. He says that he always kept her informed of the process. He says the methamphetamine inside the property, although not over 15ug is indicative given the new items testing positive links this to the tenant.

The landlord also says that they are required to advise any future tenants of the test history. The landlord does not accept the tenant’s suggestion that the carpet outside was contaminated by the flood. He did advise her that she should not use the sleepout given the high reading.

The landlord accepts that the tenant always kept the house clean and tidy.

The landlord says that the tenant cleaning the carpet with a rug doctor was good but not helpful for meth contamination.

The smoke detector reading was 0.73ug which the landlord says is reasonably high.

The landlord says that after smelling ‘weed’ in the outside house they were obligated to follow up and take action. He says that if they had done nothing then the landlord could have been liable further down the line.

The landlord says that he did not disturb the tenant other than for methamphetamine testing. All other times were with the consent of the tenant.

The tenant says that the rug doctor would have addressed the contamination issue even though it was not her job to get rid of it.

The tenant stated that the reading of 24ug is from the outside room door frame. The door frame was not a new item and therefore is not linked to her tenancy. The tenant also says that testing was taken from ‘carpet dust’ and does not accept that this is evidence. She also says the smell of marijuana could have been anything. She maintains that she did not allow marijuana to be smoked at the property.

Under section 45 Residential Tenancies Act 1986, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair and comply with any relevant enactments in relation to buildings, health and safety.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. In the case of methamphetamine discovery, a landlord is obligated to act promptly and decisively.

The landlord has obligations under the Residential Tenancies Act. These obligations extend but are not limited to obligations that a landlord must not only maintain the premises in a reasonable state of repair but also adhere to relevant health and safety enactments.

The tenancy ended by mutual agreement. Based on the initial test results the landlord was obligated to end the tenancy to ensure the safety of this tenant and future tenants. For the landlord to ignore the findings and allow the tenancy to continue would have exposed him to severe criticism and possible legal proceedings under the RTA.

I find that the landlord took the action which was necessary in response to the positive test results for methamphetamine.

The claims of discrimination and breach of privacy are not supported by the evidence filed with the application.

The cross application filed by the tenant is dismissed.

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 – section 95A Residential Tenancies Act.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

In the case of Erceg v Erceg [2016] NZSC 135, the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.

The allegations made against the tenant have not been proven. While the facts and reasoning of the decision may be in the public interest, in these circumstances, I do not consider that interest necessarily extends to the tenant’s name or address of the property.

Accordingly, I order suppression of the tenant’s name.

Both applications have been unsuccessful. I make no order for reimbursement of the filing fees.