What was Tenancy Tribunal case 4864920 about?

The tribunal order states: The tenancy of Kelly Lee Beetham at [Tenancy address suppressed] is

How much money was awarded in case 4864920?

Property Damage: $250.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $2,779.99 awarded to landlord

What type of tenancy dispute was case 4864920?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4864920?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10386792-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4864920 about?

The tribunal order states: The tenancy of Kelly Lee Beetham at [Tenancy address suppressed] is

How much money was awarded in case 4864920?

Property Damage: $250.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $2,779.99 awarded to landlord

What type of tenancy dispute was case 4864920?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4864920?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10386792-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4864920 — Rent arrears

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4864920 — net $990.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 27 May 2024	$2,779.99	Rent arrears to 27 May 2024
Exemplary damages unlawful use of property	$250.00	Exemplary damages unlawful use of property
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$990.43
Total payable by Tenant to Landlord	$990.43

The tenancy of Kelly Lee Beetham at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s] immediately.

The Bond Centre is to pay the bond of $2,060.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Kelly Lee Beetham must pay [The landlord/s] $990.43 immediately, calculated as shown in the table below:

Reasons

[The landlord’s representative/s] appeared for the landlord. There was no appearance by the tenant.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, rent arrears, exemplary damages for using or allowing the property to be used for an unlawful purpose, and refund of the bond. Termination for breach

Where a landlord applies to terminate for breach, and rent is at least 21 days in arrears on the hearing date, the Tribunal must terminate the tenancy. See sections 55 and 56(2) Residential Tenancies Act 1986 (The “Act”).

On 23 April 2024, the landlord issued a 14-day breach notice to remedy rent arrears by 07 May 2024. The up to date rent summary produced shows that the breach was not remedied, further that as of today the rent arrears are more than 21 days.

The tenancy is terminated, and possession granted to the landlord immediately. The rent arrears claimed are awarded. Unlawful use

The landlord claims the tenant has used the premises unlawfully by using or allowing the premises to be used for the consumption of methamphetamine.

A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the Act.

Using methamphetamine or allowing premises to be used for the consumption of methamphetamine is an offence against the Misuse of Drugs Act 1975.

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.

At the commencement of the tenancy on 08 December 2021, the landlord conducted a pre tenancy composite test for the presence of methamphetamine. A composite test involves taking multiple samples of ten, which are then combined into two single tests of up to five each, analysed to produce an average result and theoretical maximum, representing the accumulative total of methamphetamine in all samples.

The property is a new build, although it appears that the tenant was not the first occupant. The property has two bedrooms, bathroom, ensuite bathroom, open plan kitchen / dining / lounge, and laundry.

The testing on 08 December 2021 included three samples from the open plan kitchen/ dinging lounge, one from the stairs case leading from the living areas to the bedrooms upstairs, two from the master bedroom, one in the hallway, one from the bathroom, one from the ensuite, and one from the second bedroom, totalling ten. Combined, these samples provided a theoretical maximum reading of 0.28 μg/100cm² (micrograms of methamphetamine per one hundred square centimetres of surface area sampled, “ug”).

The technician conducting the testing noted that recent painting or renovation appeared to have taken place 1 – 6 months prior, and on that basis, the testing results may not have been an accurate representation of what was behind the recent paint or renovations. As the levels were both less that the New Zealand standard of 1.5ug and less than the 15ug adopted by the Tribunal and District Court, confirmed by the Court of Appeal in Smith v Accessible Properties New Zealand Limited [2019] NZCA 38, as consisting of damage by contamination or requiring decontamination, no further action was recommended.

During the tenancy, the postal number of the address changed from 106/3 to 110/03. I am satisfied that the testing has been of the same property.

On 15 April 2024, the landlord conducted further testing. Once again, a composite test was completed. This included two samples from the open plan kitchen / dining / lounge area, one from the laundry, one from the staircase, one from the bathroom, one from the ensuite, two from the master bedroom and, one from the second bathroom. Combined these samples provided a theoretical maximum reading of 8.02 μg. Although the levels were again less that the New Zealand standard of 1.5ug and less than the 15ug, the technician recommended a full detailed assessment to determine what areas may require decontamination.

Determining whether a tenant is responsible for contamination occurring during a tenancy involves a before and after comparison. A landlord cannot solely rely on the results of two sets of composite testing alone. As stated in the report some sampled areas in the composite test may, in fact, have no traces of methamphetamine. In making a comparison, the Tribunal will also look at whether the two sets of samples have been taken from the same or proximate sites. Those which are not, cannot be said to be sufficiently comparable to make a proper before and after assessment.

The landlord followed the technician’s recommendation, and on 10 May 2024, conducted a more detailed assessment. This involved sampling and testing of twenty individual sites. The same contractor has conducted all testing.

Four samples from the kitchen / dining / lounge returned readings of 18.70ug ,

31ug, 0.15ug, and 0.09ug ; the laundry 0.05ug, and 0.86ug; staircase 0.15ug , and 0.04 ug ; hallway 0.72ug, 0.14 ug ; four from the master bedroom , 4.61ug ,

40ug , 0.12ug , 2.81ug ; ensuite 0.53 , 3.03ug ; bathroom 0.12ug , 2.27ug; second bedroom 1.82ug , 2.81ug ; and the ceiling cavity 3.01ug , 0.05ug.

Apart from the one result in the kitchen, which relates to the rangehood, none of the other levels constituted damage by contamination or required decontamination cleaning.

To make a proper comparison of the results, the Tribunal must be in a position to determine whether the sites sampled for the initial testing on 08 December 2021 are the same or proximate to those sampled on 10 May 2024.

In this case the rangehood sample site on 18 April 2024 was proximate to that of the initial sample site on 08 December 2021. The site sampled on 10 May 2024 was also proximate to that initially sampled.

From the master bedroom, of the two sites sampled on 10 May 2024, the vent is the same as that initially tested, returning a reading of 4.61ug, the other site sampled in the master bedroom, the windowsill, which returned the higher reading of 12.40ug was not a site previously sampled on 08 December 2021.

In the ensuite bathroom the extractor fan site is the same sampled in all three tests and returned a reading of 0.53ug. The sample site for the heat pump in the lounge was the same and returned a reading of 0.31ug. In bedroom two, one of the sites sampled, namely the windowsill was proximate to that tested on 08 December 2021 returning a reading of 1.82ug.

None of the other areas tested are the same or proximate, and, on the evidence, I am not satisfied that the tenant is responsible for contamination in these areas.

The laundry and ceiling cavity were not the subject of testing on 08 December 2021, and no comparison can be made.

The landlord states that they accompanied the technician during the testing on 10 May 2024 and noted that the tenant had repainted the downstairs entry, lounge, kitchen, and laundry cupboard, without the knowledge or permission of the landlord. The landlord submits that this was done after receiving advice of the results from 15 April 2024 and was more likely to mask the effects of methamphetamine contamination. Again, the technician has noted in their report evidence of recent painting or redecoration.

The landlord also states that during their inspection, on the same date, there was evidence that the tenant was in the process of vacating the property, although no notice has been given.

The onus of proving that the tenant is responsible for the increase in the level of methamphetamine detected at the property during the tenancy rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish that it is more likely than not the increased contamination has occurred during the tenancy. If they can establish this, the inference will be that the tenant has caused or allowed that contamination to occur.

Despite any evidence of contamination occurring during the tenancy, as is the case with liability for any damage, the tenant may nevertheless persuade the Tribunal that they were not responsible in that they did not personally contaminate or allow the contamination to occur.

Where the Tribunal can make a proper before and after comparison, it is satisfied that there has been an increase in the level of contamination detected. Notably, the rangehood in the kitchen which on its own returned a level of

70ug. Additionally, I accept the landlord’s submission that the tenant repainting areas that were not visibly damaged was an attempt to mask contamination, suggesting responsibility.

Having considered the evidence, I am satisfied that it is more likely than not that the tenant has either used or allowed the property to be used for the consumption of methamphetamine. I therefore find that the tenant has committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) and schedule 1A of the Act.

Dealing with exemplary damages, the tenant’s repainting some areas of the property suggests that the tenant was aware of the contamination. It is in the interest of the parties and the wider public that the use of methamphetamine in residential premises, for health and safety reasons, be discouraged. In this case, taking these factors into account I award the landlord exemplary damages of $250.00.

As stated, the only area damaged by contamination is the rangehood in the kitchen with a reading of 18.70ug. The landlord has however indicated that they intend returning to the Tribunal to seek compensation associated with testing and decontamination / cleaning. Without predetermining any subsequent application, in Talk Property Limited v Thomas [2021] NZ TT 4306118, the Tribunal, in refusing to award costs for decontamination of areas with readings of less than 15ug, referred to the cases of Acme Realty Ltd v Hogg , Polotu , Coughlin [2021] NZDC 3231, and Full Circle Real Estate Limited v Piper [ 2019] NZDC 4947, in which the Court held that decontamination was not required for low level contamination of less than 15ug.

In the interests of justice, I am directing that any subsequent application for damages arising from this tenancy be scheduled before me. Costs

As [The landlord/s] has wholly succeeded with the claim I must reimburse the filing fee. Name suppression

The landlord has been wholly successful, seeks, and is granted name suppression. See section 95A of the Act.

Order

Claims and awards in Tenancy Tribunal application 4864920 — net $990.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 27 May 2024	$2,779.99	Rent arrears to 27 May 2024
Exemplary damages unlawful use of property	$250.00	Exemplary damages unlawful use of property
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$990.43
Total payable by Tenant to Landlord	$990.43