Published tribunal order
Tenancy Tribunal case 4969733 — Rent arrears at 4 Te Kemara Avenue, Paihia 0200
Decided 2 Dec 2024 · Published 2 Dec 2024 · Application 4969733
- Rent arrears
Order
- The tenancy of [The tenant/s] at 4 Te Kemara Avenue, Paihia 0200 is terminated, and possession is granted to Mid North Real Estate Limited (as agent for the Te Tii (Waitangi) B3 Trust) at 12.00 noon on Monday 16 December 2024.
- The Bond Centre is to pay the bond of $1,280.00 (3010618-025) to Mid North Real Estate Limited.
- [The tenant/s] must pay Mid North Real Estate Limited (as agent for the Te Tii (Waitangi) B3 Trust $4,033.45 immediately, calculated as shown in the table below:
Reasons
Background
- The adjournment order dated 30 August 2024 sets out the background to the applications.
- The landlord’s original application sought termination and rent arrears.
- The landlord amended their application to also include costs related to the second asbestos assessment. The landlord holds the tenant liable for these costs on the grounds that Mr Te Kuru intentionally re-contaminated the premises with asbestos materials.
- The tenant’s cross-application was clarified / amended to include the following: a. Asbestos testing costs. b. Refund of rent. c. Compensation for appliances and food in freezer. d. Compensation for missing / damaged chattels. e. Exemplary damages.
- The second hearing took place in Kaikohe on 31 October 2024. Both parties participated in the hearing. Ms Robinson and Ms van Engelen represented the landlord. Mr Te Kuru represented Ms Napier. Mr Tairua (As Best As Us Asbestos Removals and Demolition), Mr Fallon (Asbestos Advice Northern Region), and Mr Jones (Consultex Environmental) gave evidence at the hearing. Second asbestos assessment report and remediation
- Mid North Real Estate (MNRE) arranged for asbestos testing and de- contamination. On 13 July they informed the tenant that the premises were safe to re-occupy.
- Mr Te Kuru was concerned that there may still be asbestos present, inside the house. Mr Te Kuru arranged for further testing.
- The testing was carried out by Asbestos Advice Northern Region (AANR). Mr Fallon was the assessor and the author of the report dated 13 September 2024.
- The report: a. Noted that there are asbestos containing building materials in various parts of the those. The materials were intact and therefore in the ‘low risk’ category. b. Identified that there was fragment of material on the floor near the front entry. This material contained asbestos. The report states: The material sampled has one brown and white painted surface and the reverse side has a clean, almost freshly broken appearance. It is inconsistent with any material present in this part of the house. The only material on the dwelling identically matching both this paint colour and physical appearance was found on the rear elevation under the rear entrance to level one. How this material came to be in the area it was located is best described as “unexplainable”. Furthermore it is an area that was previously inspected and sampled by Consultex staff in the course of the prior investigation phase. c. Some other asbestos-containing dust and debris was located in the same area. The report notes that the type of material (“chunks of cement sheet”) is inconsistent with the incident that caused the initial asbestos concern (water blasting of exterior). Again, the report states that how this material came to be in this location is “unexplainable”. d. At this front entrance area, the dwelling is in “good painted condition”. There are some fractures in the weatherboard, but the fractures are intact with no missing pieces. e. At the rear entrance of the flat, there was some dust / debris on the floor that contained asbestos. Again, the report notes that the type of material is “chunks of cement sheet” and that how that type of material came to be in that location is “unexplainable”. The report also notes: The pattern of dust suggests it is not naturally settled, or items have been moved for reasons unknown.
- AANR carried out removal / encapsulation work, and issued a Clearance Certificate on 25 September 2024. Landlord’s application Rent arrears
- The claim seeks rent arrears of $4,195.62 to 11 November 2024.
- MNRE provided a rent record showing the history of the tenant’s rent payments during the tenancy.
- Ms Robinson confirmed that a proposed rent increase in 2024 was not applied, and the rent arrears claim does not include that increase.
- Rent was waived from 18 April.
- MNRE began charging rent again from 15 July.
- The rent arrears claimed by the landlord accrued from 15 July. Ms Napier and her whanau did not return to the premises, and did not make any rent payments until September 2024, because of concerns about the safety and habitability of the premises.
- My finding is that Mr Te Kuru’s defence to the rent arrears claim, that the premises remained uninhabitable after 15 July, is not proven. The premises were de-contaminated in June, and Consultex issued a Clearance Certificate after that work, on 13 June 2024. For the reasons discussed in more detail below, I am satisfied that the only asbestos contamination that impacted the habitability of the premises after July was caused intentionally by Mr Te Kuru.
- The landlord was entitled to re-commence charging rent from 15 July. The amount of arrears to the date of hearing, 31 October 2024, is proven. The arrears to that date are $3,409.90. Costs associated with second asbestos de-contamination
- The landlord seeks: a. Asbestos removal costs $3,162.50. b. Cost of clearance certificate $815.93. c. Costs of gaining entry as keys not provided $670.09.
- The AANR report found asbestos materials requiring remedial action in two areas only – debris located at the rear entrance to the flat and at the main entrance.
- I have quoted above the report’s comments in respect of those materials. I also heard evidence from Mr Jones, Mr Fallon, and Mr Tairua.
- There are three possible explanations for the presence of the materials found by AANR: a. They were present in April / May / June but were not detected and removed by Consultex; or b. They were not present in April / May /June, but have occurred through a natural process; or c. They were intentionally placed inside the house.
- My finding is that of these possibilities, the most likely is that they were intentionally placed inside the house. I make this finding on the basis of the observations in the AANR report, supported by the oral evidence of Mr Fallon, Mr Jones, and Mr Tairua, that: a. It is very unlikely that Consultex and Mr Tairua would not have noticed these piles of debris during the inspection and remediation process. Mr Jones and Mr Tairua are experienced in asbestos detection and removal. Their training and experience is to ‘spot’ areas of possible asbestos risk. A pile of dust and debris is an obvious area of risk. As shown in the report, the piles are visually obvious and in a high traffic area. The larger piece, discussed at paragraph 9.b. above, was approximately the size of a thumbnail. b. It is very unlikely that the materials got to these locations through a natural process. There are no obvious asbestos-containing source materials near where the debris piles were found. There were no signs of newly damaged material that could be the source of the debris. There was one piece of debris that was large enough that its origin could be reasonably assessed – the thumbnail sized piece located at the front entrance. I sighted that piece at the hearing, and I also saw photographs of it in the report. As noted in the report, the piece clearly has brown paint on its surface, and “the only material on the dwelling identically matching both this paint colour and physical appearance was found on the rear elevation under the rear entrance to level one”. It is possible that this chunk of material may have come loose from that area through a natural process, but it is not possible that it moved from the rear of the house around to the front, and then through the front door, through a natural process. c. Based on these findings, I must conclude that the most likely explanation is that the materials were intentionally placed inside the house. There is no reason why the landlord would do this. The landlord had carried out asbestos assessment and remediation at considerable expense. It was in their interest to have Ms Napier return to the premises as quickly as possible, so that the rent payments could resume. The person with the strongest reason and opportunity to place the materials in the house was Mr Te Kuru.
- Therefore I find that: a. The second contamination was caused intentionally by Mr Te Kuru. b. Tenants are liable for damage to the premises caused by themselves or by anyone who is at the premises with their consent. c. Ms Napier is liable for damage caused by Mr Te Kuru. d. The re-contamination constituted damage to the premises that required remedial action. e. The cost of the remedial action (containment and issuance of a compliance certificate) is proven.
- The claim for gaining entry is linked to a complicated dispute about the tenant’s keys. The dispute was touched on in these proceedings, but not directly addressed as part of the tenant’s compensation / exemplary damages claim. The proceedings were complicated and wide-ranging, and it was simply not possible to address every issue in detail. I do not think that I have adequately heard and understood the ‘key dispute’ and therefore I will not award this part of the landlord’s claim. Termination
- If a landlord files an application with the Tenancy Tribunal seeking termination of the tenancy, the Tribunal must make an order terminating the tenancy if the Tribunal is satisfied that the rent was at least 21-days in arrears on the date that the application was filed. 1
- The landlord’s application was filed on 13 August 2024. The rent arrears at that date were $1,767.04. The rent is $500 per week. The rent was more than 21- days in arrears when the application was filed.
- At the date of hearing, the rent was more than six-weeks in arrears.
- The landlord is entitled to an order terminating the tenancy. Tenant application Refund of rent / compensation - asbestos
- Mr Te Kuru sought general compensation / refund of rent on the basis that the landlord breached its legal duty in respect of asbestos.
- Mr Te Kuru argued that: a. The landlord was obliged to have an asbestos management plan. b. The failure to have a plan meant that the premises were unsafe, and the landlord failed to meet their legal duty. c. Himself and his family were exposed to an unacceptable risk. d. That risk was realised in February 2024, but there could have been prior incidences of airborne asbestos that were not detected. e. The incident in February resulted in significant inconvenience for the family.
- The Health and Safety at Work Act 2015 and the Health and Safety at Work (Asbestos) Regulations 2016 impose obligations on PCBUs (person conducting a business or undertaking) in respect of a workplace.
- A PCBU must: 1 Section 55(1)(a) Residential Tenancies Act 1986 (“RTA”) a. If the person knows or ought reasonably to know that there is a risk of exposure to respirable asbestos fibres at the workplace, ensure that all asbestos in the workplace is identified. 2 b. If asbestos is present, prepare a written plan (an asbestos management plan) for the workplace. 3
- MNRE meets the definition of a PCBU.
- A tenanted property is, at times, a workplace. Property managers carry out inspections there. Tradespeople can carry out work there on behalf of the landlord.
- In previous decisions, the Tenancy Tribunal has held that a landlord is legally required to prepare an asbestos management plan when: 4 a. It is known that there is asbestos containing materials at the premises; and b. Repair work is about to be carried out that creates the risk of generating air-borne particulates.
- I am not aware of any decisions that address the broader question raised by Mr Te Kuru here, as to whether landlords have a positive duty to identify whether asbestos is present and then to prepare an asbestos management plan, irrespective of whether repair work is going to take place at the premises.
- In this instance there does not seem to be any dispute that the landlord should reasonably have known that there was a risk that asbestos could be present in some of the building materials at this property. The age and manner of the construction of the house is such that it would be reasonable to assume that some asbestos containing materials are present. At the hearing Ms Robinson said that there was an asbestos management plan for the building work that took place in February, but unfortunately the plan was not followed when the house was water blasted rather than being washed. It seems that MNRE was applying the principle set out above, that asbestos management plans are certainly necessary where there is asbestos present and repair / renovation work is about to take place that could disturb the asbestos containing materials.
- On the broader question, my preliminary view, reading the relevant sections of the Act and the Regulations, is that landlords do have the duties of a PCBU and that a tenanted dwelling is a workplace. Therefore, landlords must ascertain the presence of asbestos (if the landlord knows or reasonably ought to know that asbestos is present) and must create an asbestos management plan if the presence of asbestos is confirmed. This obligation applies to all tenanted premises at all times. 2 Regulation 10, Health and Safety at Work (Asbestos) Regulations 2016 3 Section , Health & Safety at Work Act 2015 4 Tenant v Hall [2023] NZTT 4575069, Tenant v Kainga Ora [2022] NZTT 4341971 4339636
- However, without purporting to answer that legal question fully and finally, the short answer to Mr Te Kuru’s claim for reimbursement of all the rent paid back to 2016 is that he could not get that remedy even if the landlord’s failure to produce an asbestos management plan in 2016 was a breach of a legal duty.
- Landlords must “comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises”. 5
- A breach of a duty under the RTA can give rise to a claim for compensation, and also for exemplary damages if the breach is declared to be an unlawful act.
- A breach of this landlord duty is declared to be an unlawful act, and exemplary damages of up to $7,200 can apply.
- The Tribunal may award exemplary damages if the Tribunal is satisfied that an unlawful act was committed intentionally. 6
- In this instance: a. There is no evidence that Ms Napier suffered any loss or disadvantage from 2016 until February 2024 as a result of there being no asbestos management plan in place. Although Mr Te Kuru speculated that there may have been specific incidences of risk of exposure before February 2024, there is no evidence of this. b. Therefore, there is no reasonable basis for an award of compensation. c. There are also no grounds for an award of exemplary damages. The Act and the Regulations have been in force for eight years. There is no understanding within the landlord industry that landlords must create an asbestos management plan for all tenanted premises irrespective of whether building work is going to take place. As noted above, I am not able to find any previous Tenancy Tribunal decision that affirms such an obligation. I am not aware of any Work Safe prosecutions against landlords for failing to meet such an obligation. I note that the landlord has now produced a general asbestos management plan for the premises. In my view it would be unjust to retrospectively penalise the landlord for the breach of a possible legal duty that they were not aware of, and could not reasonably have been aware of, given the industry understanding that existed at that time and still exists to this day.
- The situation after February 2024 is different, and requires separate consideration.
- The landlord is responsible for the consequences of the asbestos hazard that was created when the water blasting occurred. 5 Section 45(1)(c) RTA 6 Section 109 RTA
- The landlord’s responsibility encompasses: a. Promptly investigating and assessing the hazard, engaging suitably qualified persons. b. Remediating the hazard as quickly as possible. c. Providing alternative accommodation for the tenant for the period that the premises are uninhabitable. d. Compensating the tenant for all reasonable, and reasonably foreseeable, costs and losses caused by the incident.
- I am satisfied that the landlord met these duties in this instance. The landlord promptly assessed and remediated the hazard. The landlord provided the tenant with alternative accommodation until the hazard was remediated.
- The landlord further compensated the tenant for any inconvenience by: a. Not charging the tenant for the alternative accommodation. b. Paying the tenant compensation of $6,000.00.
- I acknowledge that the incident caused significant inconvenience for the tenant and her family. However, I am satisfied that the landlord acted appropriately in all respects, and that there is no additional quantifiable loss for the tenant beyond what the landlord has already compensated her for.
- Therefore, this part of the tenant’s application is dismissed. Appliances and freezer contents
- It is not disputed that the tenant’s freezer, washing machine and dryer had to be disposed of as part of the remediation process, and that the landlord is liable to reimburse the tenant for the value of those items.
- The landlord’s legal obligation is to reimburse the tenant for the market value of the appliances at the time that they were disposed of. In this instance the landlord has voluntarily accepted a higher obligation – to pay replacement value.
- Mr Te Kuru valued his appliances as follows: Samsung 8kg heat pump dryer $1219.00 Vogue 708l chest freezer $899.00 Washing machine $799.00
- The landlord valued the appliances at $1,800.00 in total.
- The difference relates to the size and make / model of the appliances.
- Mr Te Kuru did not provide any evidence about the size and make / model of the appliances that were disposed of.
- The landlord took a photograph of the appliances, and sent that photograph to the retailer from whom they obtained a replacement cost quote.
- On that basis, I accept that the landlord’s assessment of the replacement cost is likely to be more accurate.
- The landlord also does not dispute that it is liable to either return the food in the freezer to Mr Te Kuru or to compensate him for its loss.
- Given the lack of co-operation and trust that is now present in the relationship, I will not attempt to make an order for the return of the food. I will address the claim on a compensation basis.
- The dispute, and the outcome, is similar to the appliances dispute detailed above. Mr Te Kuru valued the contents of the freezer at $1,100.00, without evidence.
- The landlord detailed out and photographed every item in the freezer and arrived at a replacement value of $181.88. The landlord also indicated that it was willing to give the tenant a $500.00 food voucher in addition to this, for the inconvenience caused to the tenant.
- The proven value of the freezer contents is $181.88. I will not order the landlord to provide the tenant with a food voucher, but I expect the landlord to follow through on that promise. Asbestos testing costs
- For the reasons detailed above I am satisfied that: a. The premises were remediated and safe to occupy after June 2024. b. The only proven contamination that occurred after that date was due to Mr Te Kuru’s intentional re-contamination of the premises.
- Therefore, the landlord is not liable for the re-testing cost. Damaged / missing chattels
- Mr Te Kuru said that some items went missing or were damaged when he was in temporary accommodation, possibly at the hands of the persons carrying out the de-contamination. Mr Te Kuru said that it was obvious that some of his belongings were moved and were handled carelessly, causing damage to them, and some items were missing. The items specified by Mr Te Kuru were: a. A basketball hoop and backboard. b. Some seeds. c. Hose connection pieces.
- There are insurmountable evidential difficulties for Mr Te Kuru in this part of his claim. He is not able to prove that the items went missing or sustained damage over the period when he was away from the property. Even if he could establish that, he cannot establish that the damage / loss was at the hands of the landlord’s contractors rather than some person trespassing on the property.
- The claim is not proven.
- This part of Mr Te Kuru’s claim includes compensation for clothing and curtains allegedly damaged by mould. Mr Te Kuru commissioned a building report, which he received on the day of the 31 October hearing. Any issues / claims arising from that report were not addressed at the hearing. If Mr Te Kuru wants to pursue a new application in respect of maintenance issues based on the findings in that report, his claim for replacement of curtains and clothing can be included in that new application. “Additional breaches”
- Mr Te Kuru sought compensation / exemplary damages for 12 “additional breaches” that he set out in an email to the Tribunal on 30 October, the day before the hearing.
- It is not necessary for me to detail out and respond to all of the 12 items. At the hearing I explained to Mr Te Kuru why most of the claims were misconceived and could not succeed. Some of the Residential Tenancies Act sections cited by Mr Te Kuru relate to boarding house tenancies. This was not a boarding house tenancy. Some relate to obligations that do not apply to this tenancy – such as the healthy homes obligations (the compliance date for this tenancy is 1 July 2025) and obligations about information in the tenancy agreement (the start of this tenancy pre-dates those obligations).
- Mr Te Kuru discussed one incident under the heading “breach of quiet enjoyment” that, in my view, is a proven breach.
- On 24 May 2024, Mr Tairua went to the premises in the evening for the purpose of making the premises safe for asbestos assessment and removal work.
- Mr Te Kuru was living in the temporary accommodation at that time. A neighbour contacted him and told him that there was someone at the Te Kemara Avenue house.
- Mr Te Kuru went to the property, concerned that there could be a trespasser.
- He met Mr Tairua, and there was an unfortunate argument / confrontation between them.
- I heard evidence from Mr Te Kuru and Mr Tairua about this incident. Their recollections conflict to some extent, particularly about who was the aggressor. There is also some conflict about what time in the evening the incident occurred – Mr Te Kuru has it occurring later than Mr Tairua recalls.
- In any event, this was still a current tenancy and although Ms Napier and her family were not occupying the house they still retained their usual rights as tenants. If Ms Napier had been living there, I am certain that MNRE would let her know if a contractor was going to arrive at the property in the evening. Ms Napier and Mr Te Kuru were understandably upset when they were told that there was a stranger at the property.
- This incident did amount to an unreasonable interference with the tenant’s peace, comfort, and privacy.
- I accept that there was no intent to harass the tenant and therefore there is no basis for an award of exemplary damages. 7 Mr Tairua was there for a legitimate purpose, and MNRE probably assumed that he could do what he needed to do and would disturb no-one.
- I will make an award of compensation on the basis that there was an unintended but actual, and avoidable, interference with the tenant’s peace, comfort and privacy.
- The incident was unpleasant but relatively minor.
- I will award $200.00. Outcome
- The landlord has been mostly successful in their application, and I will award the landlord the filing fee of $27.00. 8
- The proven amount owed to the landlord is $5,233.45 per the table above. The bond will be released to the landlord, which will be applied to this debt.
- I must make an order for termination of the tenancy. The landlord has proven that the rent was more than 21-days in arrears when they filed an application seeking termination of the tenancy. This is a very unfortunate outcome, given that Ms Napier is the tenant and the reason for termination is a series of bad decisions made not by Ms Napier but by Mr Te Kuru.
- I have made the date of termination Monday 16 December 2024. A landlord has a period of 90-days from the date of the order to enforce a possession order made by the Tenancy Tribunal. 9 The landlord will undoubtedly give 7 Section 38(3) RTA 8 Section 102(4) RTA 9 Section 64(4) RTA thought to whether they wish to enforce the termination, and if so when is a suitable time to do that, given that the Christmas holiday period is approaching.