What was the outcome of Tenancy Tribunal case 5002549?

The tribunal order states: The tenancy of Harriet Maaka at Unit/Flat 1, 17 Hilda Street, Fenton Park,

How much money was awarded in case 5002549?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5002549?

The dispute type was not classified.

Where can I read the official tribunal order for case 5002549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10925167-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5002549?

The tribunal order states: The tenancy of Harriet Maaka at Unit/Flat 1, 17 Hilda Street, Fenton Park,

How much money was awarded in case 5002549?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5002549?

The dispute type was not classified.

Where can I read the official tribunal order for case 5002549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10925167-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 17 Hilda Street, Fenton Park, Rotorua 3010 Tenancy Tribunal Case 5002549 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5002549 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Total payable by Tenant to Landlord	$27.00

Order

The tenancy of Harriet Maaka at Unit/Flat 1, 17 Hilda Street, Fenton Park, Rotorua 3010 is terminated, and possession is granted to Airedale Residential Limited As Agent For Donna Norton, at 9:00am, Monday 14 October 2024.
Harriet Maaka must pay Airedale Residential Limited As Agent For Donna Norton $27.00 as calculated in the table below.

Reasons

The landlord attended the hearing. The tenant did not attend.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

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 of 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.
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 possession and use of illegal drugs, 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 who allows the property to be used for drug dealing commits a breach that is incapable of remedy. This is because of the stigma that attaches to the tenanted premises. The Court also stated that use of an illicit drug inside the premises may [emphasis added] not necessarily be a breach incapable of remedy. Consideration of the nature of the breach and the tenant’s part in and knowledge of it is required.

Has the tenant committed a breach incapable of remedy?

The tenancy began on 28 November 2023. The landlord had the property tested for the presence of methamphetamine on 28 September 2023. The results returned very low levels of methamphetamine. The highest reading was
40mcg/100cm² on the cupboard door in bedroom one.
On 27 February 2024, the landlord had the property tested again. The results returned an increase in the levels of methamphetamine present at the property. Site specific samples were not individually tested however, the highest theoretical maximum reading across 9 composite sites was 5.4mcg/100cm².
A third test was completed on 29 August 2024, which showed a further increase in the levels of methamphetamine present at the property. Site specific samples were individually tested. The highest reading was 13.9mcg/100cm² on the laundry door-frame.
The landlord gave evidence that they had spoken with the tenant about their concerns after the test completed on 27 February 2024. Following the test on 29 August 2024, the landlord issued the tenant with a formal breach notice.
The methamphetamine test completed before the tenancy started shows a very low level of methamphetamine present at the property. The tests completed during the tenancy on 27 February 2024 and 29 August 2024 show increased levels of methamphetamine in the property. Therefore, I find on the balance of probabilities, that the tenant or someone at the premises with the tenant’s permission, has smoked or otherwise used methamphetamine inside the premises during the tenancy.
Section 40(2)(b) of the Residential Tenancies Act 1986 (RTA) states that a tenant must not use the premises, or permit the premises to be used, for any unlawful purpose. The use of methamphetamine is unlawful, as it breaches section 7 of the Misuse of Drugs Act 1975. The tenant has breached section 40(2)(b) of the RTA.
I consider that the breach is incapable of remedy for the following reasons: a. The tenancy began on 28 November 2023. Within only three months, the property tested positive for increased levels of methamphetamine on 27 February 2024. b. The tenant was spoken to by the landlord after the first test on 27 February 2024 and warned to stop using or permitting the premises to be used by a third party at the property with the tenant’s permission, for the consumption of methamphetamine. Despite this, continued use of methamphetamine inside the property has occurred, as evidenced by the test completed on 29 August 2024. I find that, on the balance of probabilities, this continued use has occurred with the knowledge of the tenant. c. I consider the nature of the breach to be serious. The offence of using methamphetamine carries a maximum penalty of 6 months imprisonment or a fine not exceeding $1,000.00. See section 7(2)(a) Misuse of Drugs Act 1975. This maximum penalty is greater than the one provided for the consumption of cannabis, which is 3 months imprisonment or a fine not exceeding $500.00. See section 7(2)(b) Misuse of Drugs Act 1975. This indicates that Parliament considers the use of methamphetamine to be more serious than cannabis. d. The damage sustained to the premises as a result of the breach is significant. The test completed on 29 August 2024 returned a high reading of 13.9mcg/100cm² for the laundry door. Readings of 15mcg/100cm² often result in a finding that a property is uninhabitable.

Would it be inequitable not to terminate the tenancy?

I have found that the tenant has committed a breach incapable of remedy. I must now determine whether the nature and extent of the breach is such that it would be inequitable not to terminate the tenancy. See section 56(1)(c) RTA.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether 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.
The Court set out a range of factors that would be relevant in that case, being: a) The history of the tenancy. b) Whether there had been a persistent failure after repeated warnings. c) Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future. d) Whether the breach was inadvertent or deliberately committed. e) The conduct of the landlord. f) The gravity of the breach. g) Whether termination is a proportionate response to the breach.
Applying the above factors to the present case, I consider that it would be inequitable not to terminate the tenancy for the following reasons: a. On the balance of probabilities, I find that the tenant or someone present at the premises with the tenant’s permission, used methamphetamine as early as three months into the tenancy. b. The tenant was warned after about the breach after the first test on 27 February 2024. Despite this, the tenant has allowed the breach to continue for a period of approximately 6 months. c. Considering the length of time the breach has been ongoing and the fact that methamphetamine is a highly addictive substance, I find on the balance of probabilities that it is unlikely that the tenant will comply with their obligations in the future. d. There have been other issues at this tenancy. The tenant owes the landlord $286.37 in repair costs for other damage at the property. e. The gravity of the breach is significant. The presence of methamphetamine at the property is almost at the point where the property is uninhabitable.
In these circumstances, I consider that it would be inequitable not to terminate the tenancy. The tenancy is terminated. Filing fee
Because Airedale Residential Limited As Agent For Donna Norton has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 5002549 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Total payable by Tenant to Landlord	$27.00

Order

The tenancy of Harriet Maaka at Unit/Flat 1, 17 Hilda Street, Fenton Park, Rotorua 3010 is terminated, and possession is granted to Airedale Residential Limited As Agent For Donna Norton, at 9:00am, Monday 14 October 2024.
Harriet Maaka must pay Airedale Residential Limited As Agent For Donna Norton $27.00 as calculated in the table below.

Reasons

The landlord attended the hearing. The tenant did not attend.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

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 of 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.
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 possession and use of illegal drugs, 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 who allows the property to be used for drug dealing commits a breach that is incapable of remedy. This is because of the stigma that attaches to the tenanted premises. The Court also stated that use of an illicit drug inside the premises may [emphasis added] not necessarily be a breach incapable of remedy. Consideration of the nature of the breach and the tenant’s part in and knowledge of it is required.

Has the tenant committed a breach incapable of remedy?

The tenancy began on 28 November 2023. The landlord had the property tested for the presence of methamphetamine on 28 September 2023. The results returned very low levels of methamphetamine. The highest reading was
40mcg/100cm² on the cupboard door in bedroom one.
On 27 February 2024, the landlord had the property tested again. The results returned an increase in the levels of methamphetamine present at the property. Site specific samples were not individually tested however, the highest theoretical maximum reading across 9 composite sites was 5.4mcg/100cm².
A third test was completed on 29 August 2024, which showed a further increase in the levels of methamphetamine present at the property. Site specific samples were individually tested. The highest reading was 13.9mcg/100cm² on the laundry door-frame.
The landlord gave evidence that they had spoken with the tenant about their concerns after the test completed on 27 February 2024. Following the test on 29 August 2024, the landlord issued the tenant with a formal breach notice.
The methamphetamine test completed before the tenancy started shows a very low level of methamphetamine present at the property. The tests completed during the tenancy on 27 February 2024 and 29 August 2024 show increased levels of methamphetamine in the property. Therefore, I find on the balance of probabilities, that the tenant or someone at the premises with the tenant’s permission, has smoked or otherwise used methamphetamine inside the premises during the tenancy.
Section 40(2)(b) of the Residential Tenancies Act 1986 (RTA) states that a tenant must not use the premises, or permit the premises to be used, for any unlawful purpose. The use of methamphetamine is unlawful, as it breaches section 7 of the Misuse of Drugs Act 1975. The tenant has breached section 40(2)(b) of the RTA.
I consider that the breach is incapable of remedy for the following reasons: a. The tenancy began on 28 November 2023. Within only three months, the property tested positive for increased levels of methamphetamine on 27 February 2024. b. The tenant was spoken to by the landlord after the first test on 27 February 2024 and warned to stop using or permitting the premises to be used by a third party at the property with the tenant’s permission, for the consumption of methamphetamine. Despite this, continued use of methamphetamine inside the property has occurred, as evidenced by the test completed on 29 August 2024. I find that, on the balance of probabilities, this continued use has occurred with the knowledge of the tenant. c. I consider the nature of the breach to be serious. The offence of using methamphetamine carries a maximum penalty of 6 months imprisonment or a fine not exceeding $1,000.00. See section 7(2)(a) Misuse of Drugs Act 1975. This maximum penalty is greater than the one provided for the consumption of cannabis, which is 3 months imprisonment or a fine not exceeding $500.00. See section 7(2)(b) Misuse of Drugs Act 1975. This indicates that Parliament considers the use of methamphetamine to be more serious than cannabis. d. The damage sustained to the premises as a result of the breach is significant. The test completed on 29 August 2024 returned a high reading of 13.9mcg/100cm² for the laundry door. Readings of 15mcg/100cm² often result in a finding that a property is uninhabitable.

Would it be inequitable not to terminate the tenancy?

I have found that the tenant has committed a breach incapable of remedy. I must now determine whether the nature and extent of the breach is such that it would be inequitable not to terminate the tenancy. See section 56(1)(c) RTA.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether 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.
The Court set out a range of factors that would be relevant in that case, being: a) The history of the tenancy. b) Whether there had been a persistent failure after repeated warnings. c) Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future. d) Whether the breach was inadvertent or deliberately committed. e) The conduct of the landlord. f) The gravity of the breach. g) Whether termination is a proportionate response to the breach.
Applying the above factors to the present case, I consider that it would be inequitable not to terminate the tenancy for the following reasons: a. On the balance of probabilities, I find that the tenant or someone present at the premises with the tenant’s permission, used methamphetamine as early as three months into the tenancy. b. The tenant was warned after about the breach after the first test on 27 February 2024. Despite this, the tenant has allowed the breach to continue for a period of approximately 6 months. c. Considering the length of time the breach has been ongoing and the fact that methamphetamine is a highly addictive substance, I find on the balance of probabilities that it is unlikely that the tenant will comply with their obligations in the future. d. There have been other issues at this tenancy. The tenant owes the landlord $286.37 in repair costs for other damage at the property. e. The gravity of the breach is significant. The presence of methamphetamine at the property is almost at the point where the property is uninhabitable.
In these circumstances, I consider that it would be inequitable not to terminate the tenancy. The tenancy is terminated. Filing fee
Because Airedale Residential Limited As Agent For Donna Norton has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 5002549 — Tenancy dispute at Unit/Flat 1, 17 Hilda Street, Fenton Park, Rotorua 3010

At a glance

Tenancy Tribunal case 5002549 — Tenancy dispute at Unit/Flat 1, 17 Hilda Street, Fenton Park, Rotorua 3010

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Has the tenant committed a breach incapable of remedy?

Would it be inequitable not to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Has the tenant committed a breach incapable of remedy?

Would it be inequitable not to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions