What was Tenancy Tribunal case 4934736 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4934736?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4934736?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4934736?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10754273-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4934736 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4934736?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4934736?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4934736?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10754273-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4934736 — 14-day notice

Order

The application is dismissed.

Reasons

The landlord appeared. There was no appearance by the tenant.
The tenancy commenced on 10 November 2021 and ended on 04 July 2024. On 09 July 2024, the landlord filed a claim for termination of the tenancy and exemplary damages, alleging that the tenant had either used or permitted the property to be used of an unlawful purpose, in this case, using or allowing the property to be used for the consumption of methamphetamine, see section 56(1) and 40(2)(c) of the Residential Tenancies Act 1986 (The “Act”). The landlord also claimed for servicing the heat pump and cleaning the carpet, on the basis that they had been contaminated by methamphetamine. A further claim, not linked to the allegation of unlawful use, concerns ranchslider that the landlord states was damaged during the tenancy more than fair wear and tear. Law
The onus of proving the remaining claim rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Act.
A tenant must not use the premises or knowingly permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the Act.
It is unlawful to knowingly permit any premises to be used for the purpose of the commission of an offence against the Misuse of Drugs Act 1975.
Section 41 of the Act states that the tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord's behalf or with the landlord's authority) who is in the premises with the tenant's permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.
Where the breach is capable of remedy, the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
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.
In Clarke v Housing New Zealand, DC Blenheim, CIV 2008-006-33, 19 March 2008, the Court held that a breach of section 40(2)(b), concerning allegations of drug use, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice.
In Terangi v Housing New Zealand, DC Porirua, CIV 2021-019-110, 28 June 2021, the Court held that a tenant’s allowing the property to be used for drug dealing, due to the stigma that may be subsequently attached to the property, was a breach that was incapable of remedy. In Terangi v Housing New Zealand the Court, also stated that on its own, the using of an illicit drug may [my emphasis added] not necessarily be a breach incapable of remedy.
The discretion not to terminate following a breach is set out in section 56(1)(c) of the Act. Under this provision the Tribunal, whether or not the breach is capable of remedy, may nevertheless refuse to make an order to terminate, if it is not satisfied that the breach is of such a nature or to such an extent that it would be inequitable to refuse termination.
In determining the exercise of the discretion in section 56(1)(c) of the Act the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: • The history of the tenancy; • Whether there has been a persistent failure after repeated warnings; • Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future; • Whether the breach was inadvertent or deliberately committed; • The conduct of the landlord; • The gravity of the breach; • Whether termination is a proportionate response to the breach. Facts
No breach notice was issued by the landlord. However, in this case the tenancy had already ended by the time the claim for termination was made. There is no need to consider termination for unlawful use, so I set that aside. This leaves the matter of exemplary damages. The issue is whether the Tribunal can be satisfied that more likely than not the tenant is responsible for any contamination occurring during the tenancy.
In this case, the landlord conducted pre tenancy composite testing on 11 November 2021. The result of that testing is stated in a report produced, “Methamphetamine was NOT detected in the samples retrieved from the surfaces within the property.” On 05 July 2024, the landlord conducted post tenancy composite testing, engaging the same company. The report concludes, “Methamphetamine was detected at a level of 4.16 micrograms (ug) from the sample retrieved from surfaces within the property.” Conclusion
The onus is on the landlord to produce sufficient evidence to establish, first, that it is more likely than not the contamination concerned occurred during of the tenancy, and second that the tenant either caused or allowed the contamination to occur.
To be satisfied that the contamination occurred during the tenancy, the Tribunal must be in position to make an accurate pre / post tenancy comparison. To conduct a proper comparison, the Tribunal must be able to determine that the sites sampled before and after are either the same or in close proximity to one another.
In this case, however, apart from a brief summary, no analysis of results, description of the rooms sampled, or photographs of the sites sampled within those rooms, before or after, have been produced.
There is insufficient evidence to be satisfied that the tenant is more likely than not responsible for the contamination detected in the end of tenancy testing. The claim that the tenant has used or allowed the property to be used for an unlawful purpose is dismissed. Similarly, the claims for servicing the heat pump and carpet cleaning are also dismissed, as they relied on a finding that the tenant is culpable. Damage to ranchslider
Regarding the claim for the ranch slider door. To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
“Fair wear and tear” are generally described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
This claim fails at the first hurdle. There is no evidence, such as a pre tenancy inspection report or photographs, showing the condition of the ranch slider at the commencement of the tenancy, nor is there any evidence, such as an end of tenancy inspection report or photographs, of the ranchslider in its damaged state at the end. The Tribunal is unable to make any objective assessment. The claim is dismissed. Costs
The landlord has not been successful and There is no basis to award reimbursement of the filing fee. Name suppression
As the landlord has not been wholly or substantially successful there are no statutory grounds under section 95A to grant them name suppression. On the other hand, the tenants have been wholly successful in these proceedings, and on that basis, I suppress their names and the address of the property.

Order

The application is dismissed.

Reasons

The landlord appeared. There was no appearance by the tenant.
The tenancy commenced on 10 November 2021 and ended on 04 July 2024. On 09 July 2024, the landlord filed a claim for termination of the tenancy and exemplary damages, alleging that the tenant had either used or permitted the property to be used of an unlawful purpose, in this case, using or allowing the property to be used for the consumption of methamphetamine, see section 56(1) and 40(2)(c) of the Residential Tenancies Act 1986 (The “Act”). The landlord also claimed for servicing the heat pump and cleaning the carpet, on the basis that they had been contaminated by methamphetamine. A further claim, not linked to the allegation of unlawful use, concerns ranchslider that the landlord states was damaged during the tenancy more than fair wear and tear. Law
The onus of proving the remaining claim rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Act.
A tenant must not use the premises or knowingly permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the Act.
It is unlawful to knowingly permit any premises to be used for the purpose of the commission of an offence against the Misuse of Drugs Act 1975.
Section 41 of the Act states that the tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord's behalf or with the landlord's authority) who is in the premises with the tenant's permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.
Where the breach is capable of remedy, the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
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.
In Clarke v Housing New Zealand, DC Blenheim, CIV 2008-006-33, 19 March 2008, the Court held that a breach of section 40(2)(b), concerning allegations of drug use, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice.
In Terangi v Housing New Zealand, DC Porirua, CIV 2021-019-110, 28 June 2021, the Court held that a tenant’s allowing the property to be used for drug dealing, due to the stigma that may be subsequently attached to the property, was a breach that was incapable of remedy. In Terangi v Housing New Zealand the Court, also stated that on its own, the using of an illicit drug may [my emphasis added] not necessarily be a breach incapable of remedy.
The discretion not to terminate following a breach is set out in section 56(1)(c) of the Act. Under this provision the Tribunal, whether or not the breach is capable of remedy, may nevertheless refuse to make an order to terminate, if it is not satisfied that the breach is of such a nature or to such an extent that it would be inequitable to refuse termination.
In determining the exercise of the discretion in section 56(1)(c) of the Act the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: • The history of the tenancy; • Whether there has been a persistent failure after repeated warnings; • Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future; • Whether the breach was inadvertent or deliberately committed; • The conduct of the landlord; • The gravity of the breach; • Whether termination is a proportionate response to the breach. Facts
No breach notice was issued by the landlord. However, in this case the tenancy had already ended by the time the claim for termination was made. There is no need to consider termination for unlawful use, so I set that aside. This leaves the matter of exemplary damages. The issue is whether the Tribunal can be satisfied that more likely than not the tenant is responsible for any contamination occurring during the tenancy.
In this case, the landlord conducted pre tenancy composite testing on 11 November 2021. The result of that testing is stated in a report produced, “Methamphetamine was NOT detected in the samples retrieved from the surfaces within the property.” On 05 July 2024, the landlord conducted post tenancy composite testing, engaging the same company. The report concludes, “Methamphetamine was detected at a level of 4.16 micrograms (ug) from the sample retrieved from surfaces within the property.” Conclusion
The onus is on the landlord to produce sufficient evidence to establish, first, that it is more likely than not the contamination concerned occurred during of the tenancy, and second that the tenant either caused or allowed the contamination to occur.
To be satisfied that the contamination occurred during the tenancy, the Tribunal must be in position to make an accurate pre / post tenancy comparison. To conduct a proper comparison, the Tribunal must be able to determine that the sites sampled before and after are either the same or in close proximity to one another.
In this case, however, apart from a brief summary, no analysis of results, description of the rooms sampled, or photographs of the sites sampled within those rooms, before or after, have been produced.
There is insufficient evidence to be satisfied that the tenant is more likely than not responsible for the contamination detected in the end of tenancy testing. The claim that the tenant has used or allowed the property to be used for an unlawful purpose is dismissed. Similarly, the claims for servicing the heat pump and carpet cleaning are also dismissed, as they relied on a finding that the tenant is culpable. Damage to ranchslider
Regarding the claim for the ranch slider door. To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
“Fair wear and tear” are generally described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
This claim fails at the first hurdle. There is no evidence, such as a pre tenancy inspection report or photographs, showing the condition of the ranch slider at the commencement of the tenancy, nor is there any evidence, such as an end of tenancy inspection report or photographs, of the ranchslider in its damaged state at the end. The Tribunal is unable to make any objective assessment. The claim is dismissed. Costs
The landlord has not been successful and There is no basis to award reimbursement of the filing fee. Name suppression
As the landlord has not been wholly or substantially successful there are no statutory grounds under section 95A to grant them name suppression. On the other hand, the tenants have been wholly successful in these proceedings, and on that basis, I suppress their names and the address of the property.

Tenancy Tribunal case 4934736 — 14-day notice

At a glance

Tenancy Tribunal case 4934736 — 14-day notice

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