What was Tenancy Tribunal case 4926295 about?

The tribunal order states: The tenancy of Davina Nisbet at [tenancy address suppressed] is terminated,

How much money was awarded in case 4926295?

Compensation: Rent reimbursement and…: $3,417.14 awarded to tenant; Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 4926295?

The dispute type was not classified.

Where can I read the official tribunal order for case 4926295?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10748365-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4926295 about?

The tribunal order states: The tenancy of Davina Nisbet at [tenancy address suppressed] is terminated,

How much money was awarded in case 4926295?

Compensation: Rent reimbursement and…: $3,417.14 awarded to tenant; Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 4926295?

The dispute type was not classified.

Where can I read the official tribunal order for case 4926295?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10748365-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4926295 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4926295 — net $3,390.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Filing fee reimbursement	$27.00		Filing fee reimbursement
Compensation: Rent reimbursement and abatement from		$3,417.14	Rent reimbursement and abatement from
Total award	$27.00	$3,417.14
Net award		$3,390.14
Total payable by Landlord to Tenant		$3,390.14

Claims and awards in Tenancy Tribunal application 4926295 — net $3,390.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Filing fee reimbursement	$27.00		Filing fee reimbursement
Compensation: Rent reimbursement and abatement from		$3,417.14	Rent reimbursement and abatement from
Total award	$27.00	$3,417.14
Net award		$3,390.14
Total payable by Landlord to Tenant		$3,390.14

Order

The tenancy of Davina Nisbet at [tenancy address suppressed] is terminated, and possession is granted to [the landlord], at 11:59pm on Monday 9 September 2024.
[The landlord] owes Davina Nisbet $3,390.14, calculated as shown in the table below:
[The landlord] must pay Davina Nisbet the $3,390.14 ordered in paragraph [2] above, minus any proven debt amount owing by her to the landlord at the end of the tenancy.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for the following reasons: a. Breach of the tenant’s obligations pursuant to s42(1)(a) of the Residential Tenancies Act 1986 (“RTA”) and clause 29 of the tenancy agreement not to make any renovation, alteration, or addition of or to the premises, except in accordance with the tenancy agreement or with the prior written consent of the landlord; and/or b. Breach of the tenant’s obligations not to destroy or so seriously damage the premise it is rendered uninhabitable, pursuant to s59A of the RTA; and/or c. The premise has been rendered uninhabitable after methamphetamine testing, undertaken in accordance with a relevant prescribed method, has established contamination by methamphetamine, in a part of the premises, is at a level that is above a relevant maximum inhabitable level prescribed.
The landlord has also applied for reimbursement of the filing fee, pursuant to s102(4) of the RTA, if it is wholly or substantially successful in its application for termination of the tenancy.

Should the tenancy be terminated?

A. Breach of clause 29 of the tenancy agreement and section 42(1)(a) of the RTA

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
Where the breach is capable of remedy, the Tribunal requires the landlord to have served a 14-day breach notice on the tenant warning the tenant about the likely consequences of failing to remedy the breach before the Tribunal will exercise its discretion to terminate.
Clause 29 of the tenancy agreement states: “If you want to build structures, such as sheds, sleepouts or garages on the premises, or make alterations to it, you must get our permission in writing”.
The landlord has proven that the tenant has repeatedly breached her obligations, set out in clause 29 of the tenancy agreement and s42(1)(a) of the RTA, by: a. Erecting a fence without its written consent; b. Erecting a terraced garden that required significant modification to the premises such as the building of a retaining wall, installing electrical wiring and building four terraces of boxing for the gardens; c. Renovated the bathroom (removing the bathtub and installing a spa bath and renovating the shower and tiling); d. Installing outdoor sensor lighting; e. Installing cameras; f. Creating an unconsented room in the basement and cutting a hole in the hallway to create an internal access to the basement; and g. Installing and modifying electrical wiring inside the premise.
The breaches are all capable of remedy, but the landlord has confirmed to me today that it has never issued any breach notices to the tenant for any of these breaches. It has proven it has had numerous informal discussions with the tenant about these breaches and that the tenant applied for consent to retain the fence and that this consent was granted.
The tenant has confirmed the four relationship managers, she has had during her tenancy, have given her implied consent by praising her bathroom renovations, putting her four terraced garden in the landlord’s magazine, allowing her to retain the fence and never issuing her with any 14-day notices to remedy any of the renovations/modifications she has made to the premise.
The landlord issued a letter to the tenant on 9 May 2024, requiring her to move out of the premises immediately for 7 days to enable the premise to be fully assessed for structural, electrical and fire risks that it was concerned may have resulted from a series of unconsented and unlawful modifications to the premise. The letter states that the landlord will require at least two weeks to undertake these assessments and it will provide the tenant with temporary accommodation for 7 days (to midday on 17 May 2024) at no cost to the tenant after which the tenant will have to find her own accommodation until the assessment is complete. This is not a letter terminating the tenancy, it is a letter asking the tenant to temporarily relocate until the assessment is complete and the landlord has a better understanding of the remedial work that will be required to ensure the premise is compliant with building codes and all other relevant regulations. The letter is silent about whether the landlord will give the tenant rent abatement for the period she will not be able to reside at the premise or whether the landlord will provide any compensation or assistance for the costs of having to move and store her belongings while the assessment is undertaken. It is unclear to me why the landlord did not issue a 14-day notice to remedy the breach of the tenancy agreement and the tenant’s statutory obligation or alternatively to issue a 7-day notice termination the tenancy pursuant to s59A of the RTA.
S59A of the RTA confirms if, because of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy) by a party, the premises are destroyed or are so seriously damaged as to be uninhabitable a landlord may give the tenant notice (of not less than 7 days) of termination of the tenancy.
It am not satisfied it would be equitable to terminate the tenancy under section 56(1) of the RTA for the tenant’s breaches of s42(1)(a) of the RTA and the tenancy agreement, when the landlord has given continuous implied consent to the tenant for some significant modifications to the premise by allowing the modifications to remain in place, not issuing her with 14-day breach notices requiring her to remedy the breaches or face the potential consequence of having her tenancy terminated, and praising one major modification by using it in the landlord’s newsletter.
I dismiss the landlord’s application for termination of the tenancy under s56(1) of the RTA, for breaches of s42(1)(a) of the RTA and clause 29 of the tenancy agreement, the reasons set out above. B. Breach of s59A of the RTA
Section 59A of the RTA confirms that the landlord may terminate the tenancy, by the giving of no less than 7 days’ notice if the premises are destroyed or are so seriously damaged as to be uninhabitable.
The landlord says the ongoing issue throughout this tenancy has been the unauthorised modifications to the property made by the tenant.
The tenant says the landlord has not issued any 14-day notices to her to remedy any of these modifications, nor has it applied to the Tribunal for a work order to force the tenant to remedy the unconsented modification or give it permission to do so. As such, the tenant says it has given her implied consent to make alterations and has condoned her doing some significant renovation work on the premise by its inaction. This is a reasonable argument.
The landlord says the tenant took remodelling the premise to far when she constructed a concealed room in the basement that required digging out the soil around the piles of the house, undertaking some illegal electrical work and making a hole in the wall by the hallway to create an internal entrance to the basement. The internal entrance was concealed by a mirror, as such it was not noticed by the landlord until it paid a visit to the tenant on 26 April 2024. It is note that when the comprehensive methamphetamine test was undertaken on 18 March 2024, the inspection team specifically asked for access to basement and were directed, by the tenant, to an exterior access through a manhole around the side of the house. The landlord the tenant did not at any time reveal the concealed room, even when specifically asked for access to the basement. In addition, when the tenant was asked if there was another access point to the basement, the landlord says she advised that there was not another entry point.
The landlord says there was no way for it to know that there was a concealed room created in this space as it was pitch black under the house when the team were looking through the narrow crawl space.
During the hearing, the tenant confirmed she had finished modifying the basement about one month prior to the landlord’s 26 April 2024 visit. This means the modifications to the basement were well underway, if not complete, at that time.
The landlord says the tenant has done significant damage to the property by the creation and concealment of this room and to create the room, the tenant: a. Cut an entranceway/hole from the hallway into the void basement space; b. Dug out soil under the house around the property’s piles; c. Completed extensive electrical work of poor quality; and. d. Set the room up as a lounge space, installing walls, floors, stairs and a bar area.
When this room was found, the landlord says it urgently requested that the tenant vacate so that it could get electrical and structural engineers to complete an assessment of the premise to ascertain whether the property was safe. The landlord says it was concerned about electrical or fire-based risk from the illegal wiring and also concerned whether the tenant may have caused structural damage to the premise. The landlord says it offered short term accommodation to the tenant, this was declined, and the tenant refused to vacate the house.
The landlord confirmed it had assessments done and the assessors found: a. There was no material damage to the structural integrity of the home; b. There is unconsented and illegal electrical work that created a fire hazard at the property; c. The wrong sized cabling was use, which posed a serious safety risk to those that live at the property; d. The conductors were tampered with, and cables manipulated which is incredibly dangerous, and could cause electrocution; e. The work wasn’t completed by a registered electrician, which could void the landlord’s insurance in the event of an electrical fire.
The tenant confirmed to the landlord the electrical work had been done by her son, who is not a registered electrician.
The electrical assessor recommended all illegal wiring be removed immediately (the landlord confirmed this has been done) and the premise have a complete rewire and upgrade to ensure all fire and electrocution risk be eliminated as there had been such extensive tampering.
The landlord says the premises are destroyed or are so seriously damaged as to be uninhabitable because the illegal electrical work still poses a potential threat to the inhabitant’s life, and it would be negligent if it permitted the tenant and her family to continue to reside at the premise with the real threat of electrocution or fire based harm.
The landlord has not given the tenant 7 days’ notice to vacate the premise because of this threat to life and limb has made the house uninhabitable. It did issue the tenant a letter to the tenant on 9 May 2024 requiring her to vacate the premise immediately and offering her temporary accommodation for 7 days and thereafter requiring her to find herself another place to live until the landlord had undertaken an assessment of the property (which it estimated to take about 2 weeks) and then undertook any remedial work required.
The tenant refused to move to the temporary accommodation as she says it was two doors away from where a family member of hers was shot dead. She says she did not want to put her and her family’s life at risk by moving to an unsafe place. In addition, the tenant pointed out the landlord could not force her to move out immediately with no notice.
While I agree with the landlord that the premise in uninhabitable, due to the electrical based risk posed by the extensive illegal electrical work undertaken by the tenant’s son combined with the high methamphetamine levels in the dining room, I find the notice to vacate the premise immediately, albeit temporarily, unlawful. The landlord did not meet its obligations under s59A of the RTA to give the tenant no less than 7 days’ notice to vacate the premise if the landlord considered the premise uninhabitable.
I am satisfied the landlord has proven the premise is so seriously damaged, by the tenant and her son, as to be uninhabitable. However, the landlord did not give the tenant a notice specifying the nature of the breach complained of, and requiring the tenant to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given. Had the landlord done so, I would be satisfied that I could terminate the tenancy, pursuant to s56 of the RTA, if the tenant failed to remedy the breach. Had the tenant failed to remedy the breach after receiving such a notice I would find that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy because of the tenant’s significant breach of clause 29 of the tenancy agreement and of s42(1)(a) of the RTA.
The landlord did not give the tenant any opportunity to remedy the breach and so I dismiss its claim to terminate the tenancy, pursuant to s56 of the RTA. C. Breach of s59B of the RTA
Sections 59B(1) to (4) and subsection (6) of the RTA confirm that the landlord may terminate the tenancy, by the giving of no less than 7 days’ notice if all or part of the premises are found to be contaminated with methamphetamine above the maximum inhabitable level and these parts of the premise are not a remote and inconsequential part of the premise.
The comprehensive tests carried out by a reputable laboratory, on 18 March 2024, yielded results that show the premise tested positive for methamphetamine at the following levels: a. 0.55μg/100cm2 in the entrance; b. 1.5μg/100cm2 in bedroom 1; c. 4.3μg/100cm2 in bedroom 2; d. 8.4μg/100cm2 in the lounge; e. 3.5μg/100cm2 in the bathroom; f. 0.15μg/100cm2 in the toilet; g. 1.79μg/100cm2 in bedroom 3; h. 0.07μg/100cm2 in bedroom 4; i. 17.5μg/100cm2 in the dining room; j. 3.0μg/100cm2 in the kitchen; k. 1.75μg/100cm2 in the laundry; and l. 9.8μg/100cm2 in the entrance to the basement.
The test carried out, by a reputable laboratory, of the premise’s basement, on 30 April 2024, yielded a result of 12.1μg/100cm2. This is significantly higher than the 18 March 2024 test results from the entrance of this room.
Section 138C Residential Tenancies Act 1986 provides for regulations to be made prescribing the maximum acceptable level for contaminants, but as yet no regulations have been made in relation to methamphetamine.
There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm2 for limited use areas.
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.
The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).
The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]): “The Tenancy Tribunal was in a difficult position. The best state of knowledge of risk to human health from methamphetamine contamination available to the adjudicator was the Gluckman Report. It would have been bold for the adjudicator to have ignored that report in favour of the New Zealand Standard given that the Gluckman report represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.”
The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5μg standard.
More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
Based on the evidence presented by both parties, I am satisfied that the premise is uninhabitable by the standard set out in the Gluckman Report and that it would be unreasonable for me to leave the tenant residing in a premise contaminated with methamphetamine levels that are above the 15μg/100cm2. At this level of contamination, the landlord is required to decontaminate the premise, and this requires the tenancy to be terminated so extensive decontamination processes can be carried out. Such extensive remedial work cannot be carried out while the premise is occupied.

Should the tenant receive a rent rebate/abatement?

It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (sections 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.
It follows that the consumption of methamphetamine on premises amounts to the use of those premises for an unlawful purpose, in breach of section 40(2)(b) RTA. The tenant was therefore in breach of his obligations under the RTA.
The evidence produced by the parties today did not prove, on the balance of probabilities, the methamphetamine contamination is as a result of the tenants, or persons visiting the premise with consent of the tenant have consumed methamphetamine on premises.
The tenant says the house was a well-known drug house prior to her tenancy and had been in the news for a drug related shooting. In addition, the tenant say there was a door to the basement from the inside of the downstair bedroom wardrobe that had been boarded up. She claims this is the reason for the methamphetamine results in the basement. Further, the landlord has not got any pre-tenancy methamphetamine testing results for the premise that prove what the methamphetamine levels were at the start of the tenancy.
The landlord says it is relying on the composite testing it had done in January 2021, as a baseline for the level of methamphetamine in the premise at that time. The composite level was 0.4μg. A composite test result cannot be used on a per100cm2 basis and does not give an accurate comparison to the comprehensive test results done in March and April 2024.
Section 59A of the RTA provides for the tenant to receive a rent abatement if the whole of the premises is treated as uninhabitable, where the tenant is not at fault for the premise becoming uninhabitable.
I have found that the whole of the premise is uninhabitable and that the evidence does not lend itself to proving, on the balance of probabilities, the tenant’s breach of the tenancy agreement resulted in the premise being uninhabitable.
The landlord has been aware that the premise is uninhabitable since it received “All Clear’s” test results on 2 May 2024. Therefore, I award the tenant a rent rebate from 2 May 2024 to 23 August 2024 and a rent abatement from 24 August 2024 to 9 September 2024. This rent rebate/abatement totals $3,417.14, based on 130 days rent relief at $26.2857143 per day or $730.00 per week. Reimbursement of the filing fee
Because [the applicant] has wholly succeeded with the claim I must reimburse the filing fee. Name suppression
The landlord applies for non-publication of its name and identifying details.
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 has wholly succeeded in these proceedings, and I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
Non-publication of the landlord’s name is ordered.
The tenant did not make an application for name suppression during the hearing. Had she done so, it would not have been granted as I consider that publication is in the public interest and is justified because of the tenant’s conduct and the circumstances of the case. I find, the public interest in this case outweighs any negative impact the publication of the tenant’s name and identifying details may have on her ability to secure future tenancies.

Tenancy Tribunal case 4926295 — Tenancy dispute

At a glance

Award balance

Tenancy Tribunal case 4926295 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Should the tenant receive a rent rebate/abatement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Should the tenant receive a rent rebate/abatement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions