What was Tenancy Tribunal case 4914336 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $7,130.93, calculated as shown in the

How much money was awarded in case 4914336?

Filing Fee: $20.44 awarded to landlord; Cleaning: $650.00 awarded to landlord; Cleaning: $3,681.15 awarded to landlord; Cleaning: $3,681.15 awarded to landlord

What type of tenancy dispute was case 4914336?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4914336?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10917609-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4914336 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $7,130.93, calculated as shown in the

How much money was awarded in case 4914336?

Filing Fee: $20.44 awarded to landlord; Cleaning: $650.00 awarded to landlord; Cleaning: $3,681.15 awarded to landlord; Cleaning: $3,681.15 awarded to landlord

What type of tenancy dispute was case 4914336?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4914336?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10917609-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4914336 — Cleanliness

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4914336 — net $7,130.93 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Meth testing/Cleaning: detailed assessment	$3,681.15	Meth testing/Cleaning: detailed assessment
Meth testing/Cleaning: post decontamination	$3,681.15	Meth testing/Cleaning: post decontamination
Meth testing/Cleaning: decontamination (insurance excess	$650.00	Meth testing/Cleaning: decontamination (insurance excess
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,130.93
Total payable by Tenant to Landlord	$7,130.93

[The tenant/s] must pay [The landlord/s] $7,130.93, calculated as shown in the table below.

The tenant must pay the debt in order 2 at the rate of $100.00 per fortnight.

The first payment must be made on Tuesday 15 October 2024 and payments must continue every fortnight on Tuesday until the debt is paid in full.

If the tenant fails to make any payment within 2 working days of the due date, the balance of the debt owing will be payable immediately and can be enforced through the District Court.

Reasons

The landlord and one of the tenants attended the hearing on 26 September 2024.

On 13 June 2024 the landlord applied for compensation for methamphetamine testing and decontamination, exemplary damages, refund of the remaining bond ($901.81) and reimbursement of the filing fee following the end of the tenancy. The claim before deduction of the bond totalled $9,832.74. Background

The parties signed a residential tenancy agreement for a fixed term from 27 August 2021 to 26 August 2022. However, given the dates of methamphetamine testing in August-September 2021, prior to the tenant moving in, it is likely the tenancy started on 20 October 2021 as stated on the landlord’s application. The tenancy ended on 5 June 2023.

Methamphetamine testing was performed at the property on 16 August 2021. This identified methamphetamine levels of 1.87ug/100cm², 2.77ug/100cm² and

85ug/100cm² in the kitchen/dining, sunroom, and storage area respectively. Further testing on 24 September 2021, following decontamination, returned one sample of 1.98ug/100cm² in the storage area. The other two samples returned low levels of methamphetamine (below 1.5ug/100cm²).

A screening test was performed, during the tenancy, on 21 April 2023. Composite samples suggested potentially high levels of methamphetamine. The laboratory reported a theoretical maximum of 42.5ug/100cm² in a 10-sample composite and 5.43ug/100cm² in a 3-sample composite (which included bedroom 3).

Further discrete testing was conducted on 7 June 2023. The highest readings were in the kitchen (6.83ug/100cm²) hallway (6.52ug/100cm²) bathroom (10.20ug/100cm²) bedroom 2 (7.53ug/100cm²) and bedroom 3 (15.60 ug/100cm²). The property was again decontaminated, and later detailed testing performed on 25 August 2023 showed methamphetamine levels well below

5ug/100cm². Testing Costs

Section 40(2)(b) of the Residential Tenancies Act 1986 (the Act) provides that a tenant must not use, or permit the premises to be used, for an unlawful purpose. The tenancy agreement provided that the tenant would not use or permit the use of any illegal substances on the property.

It is an offence under the Misuse of Drugs Act 1975 to manufacture, possess or use any controlled drug, or to knowingly permit any premises to be used for the purpose of consuming controlled drugs (sections 6, 7 and 12). It follows that methamphetamine use or manufacture at residential premises is a breach of section 40(2)(b) and an “unlawful act” for which exemplary damages may be awarded.

In an email dated 3 May 2023 the tenant admitted that her daughter’s boyfriend (who was also living at the premises) had been using methamphetamine, but she had no idea he was doing so inside the house. The tenant said it would have happened while they were at work and one of the reasons he was trespassed was because they found out he had been using drugs.

I find that there was a breach of the tenancy agreement and section 40(2)(b) of the Act. There was methamphetamine use at the property. Although the tenant did not herself use or permit the use of the premises for an unlawful purpose, she is responsible for the actions of her visitors pursuant to section 41 of the Act.

The cost of methamphetamine testing represents a loss caused by the tenant’s breach. The landlord had to test to determine whether decontamination was required. I award the cost of the pre-decontamination detailed assessment ($3,681.15). The results of that testing showed decontamination was required in bedroom 3, which had a level of methamphetamine at a level which is considered potentially harmful to health (see the discussion below). It was then inevitable that some further testing would be required to confirm if decontamination had succeeded.

Although post-decontamination testing was performed to areas that were below 15ug/100cm², it was probably necessary to test other areas to confirm no cross- contamination had occurred during the remediation process.

Given the relatively elevated levels in other rooms, although below 15ug/100cm², I consider it was not unreasonable for the landlord to perform a further detailed assessment of the same areas following decontamination. Therefore, I also award the cost of the post-decontamination assessment ($3,681.15). Decontamination Costs

In June 2017, Standards New Zealand published standard NZS 8510:2017 (the NZ Standard) for testing and decontamination of methamphetamine- contaminated properties. This adopted a standard of 1.5ug/100cm² for high use areas, for both manufacture and use. The foreword said that methamphetamine production and use can contaminate properties and expose occupants, particularly young children, to potential health risks. A post-contamination level of 1.5ug/100cm² or less was considered appropriate to minimize exposure risks, acknowledging “safety factors” already built into a risk assessment by Environmental Science and Research Limited in October 2016.

Professor Gluckman, at that time the government’s chief science advisor, authored a report dated 29 May 2018 which concluded that methamphetamine levels exceeding the NZ Standard level of 1.5ug/100cm² “...should not be regarded as signaling a health risk”. The report said that exposure to methamphetamine levels below 15ug/100cm² would be unlikely to give rise to any adverse effects. Remediation to the 1.5ug/100cm² standard was appropriate for former meth labs and properties with high levels of methamphetamine contamination from excessive use. The report said that manufacture in general results in greater methamphetamine residue levels than smoking alone and concluded that: “...levels around or exceeding 30ug/100cm² are regarded as strongly suggestive of manufacturing activity”.

In Full Circle Real Estate v Piper [2019] NZDC 4947 the District Court had to determine whether the level of methamphetamine contamination would present a risk to human health. Where there is a risk to human health from such contamination, the property can be said to be damaged. The District Court said the Gluckman report constituted the best available knowledge of the risks to human health from methamphetamine contamination. I interpret this case as confirmation that the Gluckman report is to be applied rather than the NZ Standard when determining whether there is damage.

Applying these considerations to the facts of this case, bedroom 3 required decontamination, but strictly speaking other areas of the premises did not. I note that the NZ Standard, which adopts an “area-by-area” approach to decontamination, also recommends that carpets in areas that have not been contaminated “...shall at least be cleaned to reduce the risk of any future exposure to occupants” (paragraph 2.1.2). The landlord has not claimed the full cost of decontamination but only the insurance excess of $650.00.

The decontamination process requires decontamination or removal of contents, vacuuming of interior surfaces and cleaning of all interior surfaces using a three-stage process (see the NZ Standard at paragraph 4.3.1).

The Tribunal does not have much cogent information about the cost of decontamination. The landlord provided a quotation for decontamination of different premises, a 2-bedroom property, totaling $6,859.75. This does not provide a precise comparison because the quotation is 5 years old, the tenancy address has 3 bedrooms not 2, and it is unclear what the contamination levels were. However, it is useful so far as the quote indicates a decontamination cost of around $2,000.00 plus GST per room.

There is an email from the owner dated 13 March 2024 with a breakdown of “meth damage repair costs” totaling about $30,000.00. It is unclear whether this only relates to methamphetamine decontamination. For example, the list includes $21,000.00 for plastering and painting and nothing for cleaning. The email does, however, indicate that insurers paid $19,628.97 and it is likely this sum included decontamination costs.

If the decontamination costs were approximately $20,000.00 then the cost of decontaminating bedroom 3 as a proportion of the entire premises would have been considerably higher than the insurance excess of $650.00. Even if the decontamination cost was closer to $2,000.00 per room, which I consider probable, this is still more than the excess.

I award the insurance excess as the cost of decontaminating bedroom 3. Exemplary Damages

A tenant who uses or permits the premises to be used for an unlawful purpose commits an “unlawful act” for which exemplary damages may be awarded, up to a maximum of $1,800.00.

The tenant committed an unlawful act because, as noted above, the tenant is deemed to be responsible for the actions of visitors. However, exemplary damages can only be awarded where the tenant has committed the unlawful act intentionally. The Tribunal must be satisfied that 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.

I accept the tenant’s evidence that she did not know drugs were being used in the house. The emails provided suggest that the situation came as a shock to the tenant, who took steps to trespass her daughter’s boyfriend in March 2023 following a domestic violence incident. While section 41 of the Act renders the tenant liable for her visitor’s actions without fault on her part, I consider it would be unjust to award exemplary damages where the tenant lacked intent to cause or permit illegal activity in the premises.

In written submissions after the hearing, the landlord seemed to suggest that methamphetamine levels had increased between April and June 2023 (i.e., after the trespass notice). The landlord based this on a comparison between methamphetamine levels in one of the screening samples and the laboratory results in the same areas following testing on 7 June 2023. In my view, it is not possible to compare the screening and detailed assessment results in this way and, if anything, the screening assessment of 5.43ug/100cm² seems low given the sample included bedroom 3 (identified as having high levels of contamination following discrete sampling).

An application for exemplary damages must be brought within 12 months of the unlawful act (section 109(2)(b)). The last day of the tenancy was 5 June 2023, and the Tribunal application was filed on 13 June 2024. Although only by a few days, the application was out of time.

For these reasons, I decline to award exemplary damages. Filing Fee and Suppression

The landlord’s application has been largely successful. I award the filing fee.

Both parties requested suppression. The landlord is entitled to suppression.

The tenant has a successful professional career and is concerned that publication could have adverse implications for her. Balanced against this is the public interest in open justice and a right to know about potentially hazardous residential properties. The interest in open justice I consider is met by the publication of this order and its reasons. The interest in health and safety I consider is met by the landlord’s decontamination of the premises.

This leaves the tenant’s privacy interest, and the disproportionate affect publication might have on her professional standing, in circumstances where the Tribunal has found the tenant’s conduct was not morally blameworthy. The landlord did not oppose suppression. I grant suppression pursuant to section 95A(4) of the Act.

Order

Claims and awards in Tenancy Tribunal application 4914336 — net $7,130.93 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Meth testing/Cleaning: detailed assessment	$3,681.15	Meth testing/Cleaning: detailed assessment
Meth testing/Cleaning: post decontamination	$3,681.15	Meth testing/Cleaning: post decontamination
Meth testing/Cleaning: decontamination (insurance excess	$650.00	Meth testing/Cleaning: decontamination (insurance excess
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,130.93
Total payable by Tenant to Landlord	$7,130.93

[The tenant/s] must pay [The landlord/s] $7,130.93, calculated as shown in the table below.

The tenant must pay the debt in order 2 at the rate of $100.00 per fortnight.

The first payment must be made on Tuesday 15 October 2024 and payments must continue every fortnight on Tuesday until the debt is paid in full.

If the tenant fails to make any payment within 2 working days of the due date, the balance of the debt owing will be payable immediately and can be enforced through the District Court.

Reasons

The landlord and one of the tenants attended the hearing on 26 September 2024.

Methamphetamine testing was performed at the property on 16 August 2021. This identified methamphetamine levels of 1.87ug/100cm², 2.77ug/100cm² and

5ug/100cm². Testing Costs

I award the insurance excess as the cost of decontaminating bedroom 3. Exemplary Damages

A tenant who uses or permits the premises to be used for an unlawful purpose commits an “unlawful act” for which exemplary damages may be awarded, up to a maximum of $1,800.00.

For these reasons, I decline to award exemplary damages. Filing Fee and Suppression

The landlord’s application has been largely successful. I award the filing fee.

Both parties requested suppression. The landlord is entitled to suppression.

Tenancy Tribunal case 4914336 — Cleanliness

At a glance

Tenancy Tribunal case 4914336 — Cleanliness

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions