What was Tenancy Tribunal case 5045189 about?

The tribunal order states: The Tribunal orders suppression of the witnesses’ names.

How much money was awarded in case 5045189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5045189?

The primary dispute was Healthy homes. Related themes: Property damage.

Where can I read the official tribunal order for case 5045189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11173802-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5045189 about?

The tribunal order states: The Tribunal orders suppression of the witnesses’ names.

How much money was awarded in case 5045189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5045189?

The primary dispute was Healthy homes. Related themes: Property damage.

Where can I read the official tribunal order for case 5045189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11173802-Tribunal_Order_Redacted.pdf.

397 Great South Road, Opaheke, Papakura 2113 Tenancy Tribunal Case 5045189 — Healthy homes

Tenantcheck Insights

Order

The Tribunal orders suppression of the witnesses’ names.

The landlord’s application for termination of the tenancy for breach is dismissed.

The landlord is entitled to enter the premises to complete replacement of the roof and/or for the purpose of testing for the presence of contaminants and/or to carry out decontamination work to the premises, on 24 hours’ notice to the tenant.

Reasons

Both parties attended the hearings on 6 November and 3 December 2024. The hearing was completed on the papers.

On 23 October 2024 the landlord applied to the Tribunal for termination for the tenant’s failure to allow access for roof repairs on several occasions in September and October 2024. The lack of access had caused the re-roofing project to be suspended mid-way through. The landlord sought an urgent hearing.

The old metal roof has been removed but the new roof has not been installed. The roof is covered with tarpaulin to keep out the elements. Access to Replace Roof

The tenant’s main concern is about the potential presence of asbestos containing materials (ACM) in the roof. He said he would allow access but first the asbestos had to be removed. The tenant also raised issues about the quality of the roof repairs, especially relating to the framing.

The evidence presented does not support a finding that the repairs have not been performed to an acceptable standard. Apart from the tenant’s views on this point, there was no expert independent evidence, for example from a builder or building surveyor, to support this part of his case. The Tribunal does not have the necessary expertise to determine, for example, whether the timber framing has been constructed properly.

As to the presence of asbestos, the Tribunal has been provided with a “Roof assessment report” dated 18 July 2024 and a generic “Asbestos management plan”. After the hearing, a Healthy Homes Inspection report following an inspection on 28 March 2023 was produced.

The Tribunal also heard from [Witness 1], who is a team leader with the head contractor. [Witness 1] was not on site, but he had seen photographs of the roof and was provided with photographs of the roof taken by the tenant at the hearing, which he reviewed. There were numerous photographs showing the soffit from inside the roof cavity. [Witness 1] said the soffit would likely contain non-friable asbestos, however, so long as this was not disturbed, for example by a power tool with a cutting instrument, it would not be a risk to health (and if it was disturbed, controls would be put in place to isolate the area).

[Witness 1] also said that fibre cement (the material used in the sofit) is very durable and might degrade over a long period of time, but based on the photographs, he did not think it had.

The Tribunal heard evidence from [Witness 2], who is a health & safety manager at the head contractor. He had not been to the site either, but he spoke about the processes in place to identify and manage health and safety risks relating to asbestos.

I referred [Witness 2] to regulation 26 of the Health and Safety at Work (Asbestos) Regulations 2016 (the Regulations). This provides that, where a home is to be refurbished, all asbestos that is likely to be disturbed by the refurbishment is identified, and so far as is reasonably practicable, the asbestos is removed before the refurbishment is commenced. [Witness 2] said his understanding was that no asbestos was likely to be disturbed by the re-roofing project.

The Tribunal also received an email from a senior inspector at WorkSafe. The inspector conducted a health and safety assessment on 16 October 2024. In the email he explained: A workplace health and safety assessment is a sample of a workplace or work activity to assess the effectiveness of health and safety management. On the day of the assessment no matters that required an enforcement response were identified.

It is unclear what exactly the inspector did and what he looked at, but as noted above, the project was suspended on 16 October 2024, when the tenant refused access. The inspector may have been called because of the tenant’s concerns about the roofing work. The inspector would likely have seen the roof in basically the same condition as it is now.

The tenant was critical of the witness evidence. He said both witnesses gave evidence from a policy point of view, and no testing had been carried out. I take the point that no one who has been working on site was called as a witness. Both witnesses understood how asbestos risks are managed conceptually and [Witness 1]’s experience was more practical. As to testing, the Regulations do not appear to require a person with control of the workplace (a “PCBU”) to identify asbestos or ACM by testing samples.

The tenant remains concerned that there is asbestos dust in the roof space. He expressed concern that there is asbestos in the blackened building paper and in the old insulation. The evidence from WorkSafe and the head contractor does not support this view. The building paper is not considered hazardous. The evidence indicates that the ACM does not need to be removed because it will not be disturbed by the work. In that scenario, the Regulations do not require the contractor to remove the ACM before completing the roofing work. It is not clear from the photographs that the soffit has been disturbed or has degraded.

It is worth emphasising that the head contractor has a duty to ensure, so far as reasonably practicable, that the ACM in the soffit is not disturbed, and that their sub-contractors know what to do if this occurs. This needs to be clearly communicated to those working on site. My impression was that the re- assessment and further management of risk depended on issues being reported by site personnel.

I share the tenant’s concerns about the old insulation. [Tenant 1]’s evidence was that the insulation was not considered hazardous because it had been replaced well after the year 2000. The Asbestos Management Plan indicates that buildings constructed prior to 1 January 2000 may contain asbestos, including in soffits and loose-fill insulation. This is consistent with subpart 4 of the Regulations, which concern the demolition and refurbishment of structures and plant constructed or installed prior to 1 January 2000. [Witness 2]’s evidence was that there was greater risk of asbestos being contained in premises built in the 1980’s. The Healthy Homes Inspection report indicates that the insulation (made of polyester blanket) was in good condition and had the required R-value. However, the date of installation was described as “<=1977”. The tenant said the premises themselves were built in the 1960’s and this is consistent with open-source online information.

The insulation is now in a very degraded condition compared to the condition shown in the Healthy Homes Inspection report. Given how old the ceiling insulation is and that the work is likely to disturb the insulation, I consider the insulation may need to be tested, isolated, or removed before the construction works can recommence. What exactly needs to happen to comply with the Regulations is a matter for the landlord and its advisors.

The available evidence indicates that there might be asbestos in the insulation. If anything, this increases the need for the landlord to gain access to the site. In my view, the tenant must accept that the landlord is entitled to access the premises for necessary maintenance, testing, and/or decontamination work. I direct that the landlord is entitled to enter the premises to complete replacement of the roof and/or for the purpose of testing for the presence of contaminants and/or to carry out decontamination work to the premises, on 24 hours’ notice to the tenant. Termination

I decline to terminate the tenancy pursuant to section 56 of the Residential Tenancies Act 1986 (the Act). In my view, it would not be inequitable to refuse to terminate the tenancy.

The tenant has expressed his views in such a way that the landlord has served two notices under section 55A of the Act (termination for anti-social behaviour). Whether those notices are valid or not (I express no opinion) his concerns were not unreasonable.

While the tenant did sign various repair plans in which he acknowledged his obligation to permit access to work areas on the agreed dates, this should not be taken to preclude him from raising genuine concerns. It is also relevant that the tenant has lived at the premises for a long time, since 2006. However, the tenant must also understand that the landlord has a right to enter the premises for certain purposes under section 48 of the Act, and his tenancy is at risk if he continues to deny access. Interim Order

The Tribunal was informed at the second hearing that a 7-day notice of termination had been served. I infer this is based on section 59 of the Act (the Tribunal has not seen the notice). The Tribunal’s focus has been to urgently determine whether the re-roofing could recommence. I have considered whether to make an interim order pursuant to section 79 of the Act, to preserve the position of the parties while the necessary works are completed.

A landlord may not take possession of residential premises except pursuant to a possession order made by the Tribunal (see sections 63 and 106 of the Act). Therefore, if the landlord wishes to rely on the termination notice, an application for a possession order must be made. The tenant will have an opportunity at the hearing to seek a declaration that the termination notice is invalid. On this basis, there is no need for an ancillary order. Suppression

Neither party requested name suppression. I order suppression of the witnesses’ names pursuant to section 95A(4) of the Act.

Order

The Tribunal orders suppression of the witnesses’ names.

The landlord’s application for termination of the tenancy for breach is dismissed.

Reasons

Both parties attended the hearings on 6 November and 3 December 2024. The hearing was completed on the papers.

The old metal roof has been removed but the new roof has not been installed. The roof is covered with tarpaulin to keep out the elements. Access to Replace Roof

[Witness 1] also said that fibre cement (the material used in the sofit) is very durable and might degrade over a long period of time, but based on the photographs, he did not think it had.

I decline to terminate the tenancy pursuant to section 56 of the Residential Tenancies Act 1986 (the Act). In my view, it would not be inequitable to refuse to terminate the tenancy.

Neither party requested name suppression. I order suppression of the witnesses’ names pursuant to section 95A(4) of the Act.

Tenancy Tribunal case 5045189 — Healthy homes at 397 Great South Road, Opaheke, Papakura 2113

At a glance

Tenancy Tribunal case 5045189 — Healthy homes at 397 Great South Road, Opaheke, Papakura 2113

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions