What was the outcome of Tenancy Tribunal case 5021628?

The tribunal order states: The Bond Centre is to pay the bond of $2,480.00 (3499435-005) immediately

How much money was awarded in case 5021628?

Eviction Warrant: $258.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $185.00 awarded to landlord; Rent Arrears: $197.60 awarded to landlord; Property Damage: $750.00 awarded to landlord; Water Rates: $37.81 awarded to landlord; Water Rates: $40.54 awarded to landlord

What type of tenancy dispute was case 5021628?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 5021628?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11425153-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5021628?

The tribunal order states: The Bond Centre is to pay the bond of $2,480.00 (3499435-005) immediately

How much money was awarded in case 5021628?

Eviction Warrant: $258.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $185.00 awarded to landlord; Rent Arrears: $197.60 awarded to landlord; Property Damage: $750.00 awarded to landlord; Water Rates: $37.81 awarded to landlord; Water Rates: $40.54 awarded to landlord

What type of tenancy dispute was case 5021628?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 5021628?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11425153-Tenancy_Tribunal_Order.pdf.

21 Merchant Avenue, Te Atatu South, Auckland 0610 Tenancy Tribunal Case 5021628 — Property damage

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Reasons

Claims and awards in Tenancy Tribunal application 5021628. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 21 August 2024 (by consent	$197.60	Rent arrears to 21 August 2024 (by consent
Water rates from 21 June to 22 July 2024 (by consent	$37.81	Water rates from 21 June to 22 July 2024 (by consent
Water rates from 23 July 2024 to 20 August 2024 (by consent	$40.54	Water rates from 23 July 2024 to 20 August 2024 (by consent
Eviction warrant	$258.00	Eviction warrant
Lock/key replacement	$185.00	Lock/key replacement
Repairs: insurance excess (damage	$750.00	Repairs: insurance excess (damage
Filing fee reimbursement	$27.00	Filing fee reimbursement

Both parties attended the hearing. The landlord was represented by Ms Walker. Ms Salter and Mr Smith both attended.

The parties have already been before the Tribunal in relation to this tenancy. On 2 August 2024 the Tribunal terminated the tenancy and granted possession to the landlord at 11.59pm on 11 August 2024.

The landlord has now applied for rent arrears, water rates, compensation for methamphetamine contamination and intentional damage, refund of the bond, and reimbursement of the filing fee. The landlord also sought exemplary damages in their application but did not pursue these at the hearing.

The tenants have applied for refund of the bond, compensation for failure to maintain/breach of Healthy Homes Standards and exemplary damages for unlawful entry/breach of quiet enjoyment. Onus and evidence

It is for the party bringing the claim to prove their claim to the civil standard (on the balance of probabilities).

For the sake of brevity I have not referred to all of the evidence produced at the hearing but the parties should be assured that I have carefully reviewed all of the evidence before making this decision. The landlord’s claims Rent, water rates, eviction warrant and locks/keys

The landlord said that the tenants did not vacate on the possession date and that they had to obtain an eviction warrant which was executed on 21 August 2024. The landlord produced correspondence with the tenants advising them of the steps being taken.

The landlord said that the tenants left on the morning that the eviction warrant was executed and returned one key, but that not all keys were returned and so the locks still had to be changed.

The landlord agreed with the tenants assertion that they returned the keys two days later but said that the locks had already been changed by then, as they were changed when they attended with the bailiff to take back possession.

The tenants accepted the outstanding rent of $197.60 owing to the end of the tenancy. The tenants had initially been unsure about the water arrears (as they had made a lump sum payment during the tenancy) but, after reviewing the landlord’s statements and invoices, accepted the outstanding sums of $37.81 and $40.54. The outstanding amounts for rent and water are made by consent.

I consider that the tenants are also liable to compensate the landlord for the cost of the eviction warrant, being $285.00 and for locks/keys being $185.00. The tenants did not vacate the property as ordered by the Tribunal and the landlord had to take steps to enforce the order by obtaining and eviction warrant. The landlord was entitled to change the locks as not all of the keys had been returned.

Are the tenants responsible for damage to the premises?

A landlord must prove that damage to the premises 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 RTA.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. First damage claim: Damage caused by installation of security camera by tenants

The landlord said that the tenants installed a security camera on the property without permission. The landlord produced photos showing the camera attached to the soffit and a solar panel drilled into the roof, together with some damage to the nearby guttering. The landlord also produced photos of the area at the start of the tenancy showing that there was no camera installed and that the area was undamaged.

The landlord advised that the cost of repair had been $2,076.00 but that the damage had been covered by the landlord’s insurance. An excess of $750 had been applied by the insurer and the landlord seeks compensation in that amount. All supporting documentation was provided.

The tenants accepted that they had installed a security camera without permission. They explained that they did so following an assault on Mr Smith at the property by a person unknown. The tenants did not tell the landlord about the assault.

The tenants could have discussed security options with the landlord but did not do so. Instead they have installed their own security camera, without permission, causing damage. I accept that the repairs undertaken by the landlord are necessary.

The landlord’s claim is proved in respect of the damage caused by the security camera. The landlord is awarded compensation in the amount of the insurance excess of $750.00. Second damage claim: Methamphetamine contamination

The landlord explained that the tenants had been great tenants at the start of the tenancy but that as time went on the property became untidy and unclean and various damage occurred. The tenants then continually denied access for inspections.

The landlord obtained order termination the tenancy due to the poor condition of the property. The Tribunal found that there was food and rubbish scattered around the grounds, holes in and damage to doors, damage to carpet, tagging, rubbish throughout the property and other various related issues.

The landlord said that the tenants’ erratic behaviour led them to do methamphetamine testing at the property when they took back possession. Composite testing was completed on date and positive tests were returned. The landlord then obtained a comprehensive analysis of each room which also showed positive results, some to a very high level (as discussed below).

The landlord said the cost of repairing the damage and decontaminating the property was over $50,000. The landlord had comprehensive insurance and has made a claim against their insurance policy. The insurer has only applied one excess for the internal damage, and this excess has been applied in respect of methamphetamine contamination. The amount is $750.00. No separate excess has been applied for the internal damage. The landlord seeks recovery of the excess applied in respect of methamphetamine contamination.

The tenants strongly denied using methamphetamine at the property and denied that anybody at the property with their permission had done so. They said that the previous tenant may have used methamphetamine and that they found drug paraphernalia in the garden when they moved in.

The landlord must prove that the tenant caused or permitted the contamination, or that it was caused by someone at the premises with the tenant’s consent. The landlord must also prove that, as a result of the contamination, the premises have been damaged.

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 (NZ Standard). The standard recommended a maximum contamination level of 1.5μg/100cm 2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm 2 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/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 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.

The landlord’s report proves that there has there is methamphetamine contamination in all rooms. The level of contamination varies considerably depending on the room and the area where the sample was taken. The highest levels were found in two tests in the kitchen/dining/lounge (119.00μg and

40μg) the foyer (45.60μg) and the ensuite bathroom off the master bedroom (25.80μg). Of the other tests, 18 were between the NZ standard and the Gluckman Standard and 7 were below the NZ standard.

The landlord has proved that the property has been damaged with methamphetamine contamination.

However the landlord must not only prove that the property is contaminated with methamphetamine to a level that requires decontamination, but they must also prove that the damage occurred during the tenancy.

The landlord did not do methamphetamine testing prior to the start of the tenancy. The landlord says that they can prove that the damage was caused during the tenancy because they specifically tested three items that were installed during the tenancy as follows: a. The downstairs smoke alarm b. The power socket in the entryway c. The glass on a window that the tenants replaced during the tenancy

The landlord explained that all three surfaces returned positive results, although these were below the Gluckman standard. The landlord said that the person who did the testing said that the three areas were very hard, non-porous surfaces and so are very difficult to test for methamphetamine contamination and that they were surprised that positive results were obtained on these items.

I accept that these items showed methamphetamine contamination and, as there are three separate items all showing contamination, it is more likely than not that methamphetamine use occurred during the tenancy.

I am mindful however that methamphetamine contamination must be above a certain level before it is regarded as damage, and the level currently applied is the Gluckman standard. While some new items show contamination, that contamination is at a level lower than the Gluckman standard. There is no way of knowing whether there was already methamphetamine contamination above that standard in other areas when the tenants moved in.

I also acknowledge that the previous tenant had the property professionally cleaned, but do not consider that this takes the landlord very far. A standard professional “move out” clean would not effectively remove methamphetamine and so in my view does not prove that there cannot have been any contamination at the start of this tenancy.

I do not consider that the landlord has proved, on the balance of probabilities, that contamination to a level requiring remediation (which would constitute damage) occurred during the tenancy.

The landlord’s claim for the insurance excess for methamphetamine contamination is therefore dismissed. The Tenants’ claims Failure to maintain/Healthy Homes Standards

The tenants claim that the landlord has breached their obligations under: a. section 45(1)(a) of the Residential Tenancies Act 1986 which requires that the landlord provide and maintain the premises in a reasonable state of repair; and b. section 45(1)(bb) which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

The tenants explained that when they moved in the lawns were not mowed, they had to clean out rubbish from the previous tenants and that there was a door broken downstairs. They produced a video from the date that they moved in which showed overgrown lawns and items in the downstairs basement area.

The tenant said that they sorted these issues out themselves and raised them with the landlord. They accepted that the landlord had sought further details so that they could consider compensation but they had not provided invoices or any other details. They confirmed that they do not seek compensation for these issues but raised them as context for the other claims regarding maintenance.

The tenants explained that their claim was based on the following issues a. the property was not insulated and did not have a ground moisture barrier when they moved in. They said that when they moved in during March 2022 it was still warm but that as the weather turned colder the property became damp, mouldy, draughty b. the deck was rotten c. there was a supporting post missing from one of the piles

In support of their claim the tenants produced a photograph of the deck and the underfloor area and a Healthy Homes report dated 10 January 2023 which they obtained.

I note that the tenants’ report covers the Healthy Homes standards but is also a “Homefit” report which identifies areas that are not part of the Healthy Homes standards but could be improved for efficiency (for example double glazing and LED efficient light bulbs).

The tenant’s report identifies two areas of non-compliance with the Healthy Homes standards (ventilation and draught stopping): a. As regards to ventilation the report confirms that there are compliant extractor fans in both kitchen in bathroom but states that bathroom fan is “noisy after operating for a while” b. As regards to draught stopping the report states that the old fireplace must be completely blocked, and that there is a corner that is open. The accompanying photo shows a tiny corner missing

The landlord said that the compliance date for the property was 90 days after the tenancy began. This date was included on the Healthy Homes statement which accompanied the Tenancy Agreement. The landlord confirmed that the property was fully compliant by this date and provided invoices showing the work done prior to that date.

The landlord said that the fireplace was blocked up when tenants moved in but that they took out the wood blocking the fireplace out and painted a fire on it and damaged it when doing so.

I accept that the property had a ground moisture barrier installed by the compliance date.

I am satisfied that the property complied with the ventilation standard. While the tenants’ report states that property has failed this standard there it does not identify any actual failure. The landlord’s report is more squarely focussed on the Healthy Homes standards and I accept the findings in that report.

I am satisfied the that the property complied with the draught stopping standard. The tiny gap in the board blocking the fireplace is very minor, was more likely than no caused by the tenants, and was not raised with the landlord.

The only remaining issues are the deck and the support post.

The photo of the deck shows peeling paint and some knots in the wood but after viewing all photos of the deck I am not satisfied that it was rotten. There was not sufficient evidence regarding the missing pile support post for me to find it proven that that this was a maintenance issue.

None of the issues now raised with the landlord were raised during the tenancy despite there being an obligation on tenants to advise landlords if there are maintenance issues that need to be attended to.

I am not satisfied that there has been a failure to maintain the property.

The tenant’s claims for breach of Healthy Homes standards and failure to maintain are dismissed. Inspection on 30 July 2024

The tenants claimed that the landlord had entered unlawfully and/or that the landlord had breached their quiet enjoyment of the property. They sought exemplary damages from the landlord in respect of this breach.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

The tenants said that the landlord inspected the property without their knowledge or consent on 30 July 2024 and the property manager took photographs of them while they were asleep and had left the door and gate open when she left, endangering their young child.

The landlord said that the inspection occurred in the context of their previous Tribunal application 4896400. They explained that they had sought termination of the tenancy based on the unclean and untidy condition of the property and referred me to the Tribunal order made on 26 July 2024 where the Tribunal had made an order that an inspection take place at 9am on 30 July 2024 and the landlord file a report by the end of the same day. The order recorded that the inspection was to take place as agreed by the parties at the hearing.

The property manager said that she went to the property as ordered and agreed and knocked loudly three times. She said that there was no response so she inspected the outside of the property and took photos and came back and knocked again. As there was not response she drove to the office (estimated 3 minute drive) and returned with the keys. She said she knocked again and entered saying “hello” loudly.

The property manager said that when she entered the property the curtains were closed but she could see that the property had been damaged even further and was in an even worse condition than when previously visited. She said that Ms Salter was asleep in a bedroom with her child and she took photos as best she could of the condition of the property, and took photos of bedroom from the entranceway without opening the door any further and avoiding as far as possible taking photos of any person.

The property manager said that it was not until she had taken photos of the lounge and had gone into the kitchen that she turned around and discovered Mr Smith asleep on the couch undressed. She said that she was shocked and as she had not realised he was in the room and that she immediately left the property and slammed the door. When she got back to the office she deleted all photos taken of the lounge in case Mr Smith was visible in them.

Ms Salter disputed the landlord’s version of events and said that when she awoke she found that the door had been left open. She said that it was also possible to see her and the parties’ child asleep in bed in one of the photos included in the landlord’s report from that inspection.

I find that there is no basis on which the tenants can claim that the inspection was unlawful. The parties attended a Tribunal hearing together and agreed on the time and date for the inspection. That time and date was set out in a consent order and sent to all parties.

I also find that there has been no breach of quiet enjoyment by the landlord in conducting their inspection.

The inspection had been specifically agreed and ordered only four days prior and the Tribunal had set a date for the filing of the inspection report so that a determination on the issue of termination could be made urgently. The property manager entered and inspected the property as carefully as she could have done in the circumstances. Both tenants remained asleep during the entire inspection and so cannot say what occurred. I accept the property manager’s evidence.

I have carefully reviewed the photos and note that of well over 100 photos submitted from the inspection, taken inside and out, in one photo (of a damaged door jam) it is just possible, after enlarging the photo, to see Ms Salter asleep in bed to the very side of the photo, although this a very dark portion of the photo and is not immediately obvious. It is difficult to tell whether a child is visible in the photo as the photos are very small (six to a page). The property manager was completely unaware that she had inadvertently photographed the tenant until it was pointed out to her at the hearing when the photograph was analysed in some detail.

I consider that the photographing of Ms Salter was inadvertent and unobjectionable, particularly given the difficult and urgent circumstances of the inspection.

There has been no breach of quiet enjoyment by the landlord.

The tenant’s claims in respect of the inspection are dismissed. Filing fee and name suppression

The landlord has been the substantially successful party and so I have reimbursed the filing fee.

The landlord did not seek an order for name suppression. The tenants are not entitled to an order for name suppression as they have not been the substantially successful party (see section 95A RTA).

Reasons

Claims and awards in Tenancy Tribunal application 5021628. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 21 August 2024 (by consent	$197.60	Rent arrears to 21 August 2024 (by consent
Water rates from 21 June to 22 July 2024 (by consent	$37.81	Water rates from 21 June to 22 July 2024 (by consent
Water rates from 23 July 2024 to 20 August 2024 (by consent	$40.54	Water rates from 23 July 2024 to 20 August 2024 (by consent
Eviction warrant	$258.00	Eviction warrant
Lock/key replacement	$185.00	Lock/key replacement
Repairs: insurance excess (damage	$750.00	Repairs: insurance excess (damage
Filing fee reimbursement	$27.00	Filing fee reimbursement