What was Tenancy Tribunal case 5050108 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5050108?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5050108?

The primary dispute was Cleanliness. Related themes: Healthy homes, Unit Titles.

Where can I read the official tribunal order for case 5050108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11235251-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5050108 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5050108?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5050108?

The primary dispute was Cleanliness. Related themes: Healthy homes, Unit Titles.

Where can I read the official tribunal order for case 5050108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11235251-Tribunal_Order_Redacted.pdf.

Room Suite 42, 312 Victoria Street, Hamilton Central, Tenancy Tribunal Case 5050108 — Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord and Tenant names and identifying details.
The application for compensation relating to methamphetamine contamination is dismissed.
The premises were discovered to be uninhabitable due to methamphetamine contamination from 25 October 2024.
The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

All parties attended the hearing on 29 November 2024.
This is a landlord application for rent owing and compensation for an insurance excess ($2,500.00) paid by the landlords under their insurance policy. The insurance claim covers the costs of methamphetamine testing and the removal of methamphetamine residue from the premises.
The tenant disputes the claim for compensation and says she is not responsible for the methamphetamine residue detected in the premises.
This is the landlords’ claim so they have the task of proving it. This is called the “burden of proof”.
The standard of proof that applies is the civil standard “on the balance of probabilities”. This means that I do not have to be completely certain, but I must be satisfied that what is alleged is “more probable than not”.
Generally, the more serious the claim, the stronger the evidence required to satisfy that standard; Z v Dental Complaints Assessment Committee [2008] NZSC 55. This claim concerns an allegation of criminal behaviour so strong evidence is required. Background
This tenancy started on 22 September 2024 and the first few weeks were uneventful.
On 21 October 2024, the landlords arrange for methamphetamine testing at the premises after concerns arise about the tenant or her visitors including a dispute with a neighbour about a carpark, cigarette smoking on the balcony of the apartment, and an allegation of involvement in a police incident outside the apartment block.
On 25 October 2024, the landlords give the tenant written notice that the premises have tested positive for methamphetamine, allege that she or her guests are responsible, and give her written notice that the tenancy is being terminated on 7-days’ notice as the premises are “seriously damaged as to be uninhabitable” which the notice says is “a violation of section 59 of the residential tenancy act”.
The tenant sends email responses which deny responsibility and query the testing results. The landlords repeat that the tenant must move out.
The body corporate at the apartment complex deactivates the tenant’s swipe card access to the garage and main doors to the apartment complex on about 7 November 2024 and the landlords tell her she is trespassed.
The tenant vacates the premises on or about 8 November 2024.

Is there methamphetamine present in the premises?

The landlords have provided evidence that the premises were tested for methamphetamine and other residues on 21 October 2024, about a month after this tenancy started.
The testing company report states that the person who did the sampling is NZQA 1 certified under New Zealand Standard NZS 8510:2017. 2 The Standard is a voluntary industry guidance document setting out good practice for the sampling, testing and decontamination of methamphetamine-contaminated properties.
Accredited laboratory testing of ten individual “wipe” samples from ten different areas in the apartment give the below results:- micrograms (mcg) per 100cm 2 – one microgram is one millionth of a gram a. The highest individual sample result is 16.8mcg for methamphetamine and
21mcg for amphetamine in the hot water and laundry cupboard; b. The nine other results range from 5.9mcg to 1.21mcg of methamphetamine and 0.10mcg to 0.04mcg of amphetamine from samples taken in the bathroom, lounge, kitchen, bedrooms, and wardrobes.
On 6 November 2024, the same testing company returns to the premises and takes a physical carpet sample from a 100cm 2 area in the hallway outside the hot water laundry cupboard. The laboratory results from the carpet sample are reported as below:
I accept the results of the laboratory reports that there was methamphetamine and amphetamine residue present in the tenancy premises on the testing dates of 21 October and 6 November 2024. What does the Residential Tenancies Act 1986 say about methamphetamine damage to tenancy premises?
A tenant must not use, or permit the use of, tenancy premises for any unlawful purpose; section 40(2)(b) Residential Tenancies Act 1986 (RTA). 1 New Zealand Qualifications Authority 2 NZS 8510:2017 Testing and decontamination of methamphetamine-contaminated properties, Standards New Zealand, 2017.
A tenant is liable for meeting the cost to repair or remediate damage to premises if the damage is intentional or the result of an imprisonable offence and caused by the tenant or someone at the premises with their permission; see s49B(1) RTA.
The use or possession of methamphetamine is unlawful and an imprisonable offence; see the Misuse of Drugs Act 1975.
The landlords must first prove that any damage or unlawful purpose occurred during the tenancy; s49B(8) RTA.

What are the issues?

The issues to be decided are:- a. Is it more probable than not that the methamphetamine residue detected in the premises came about during this tenancy? b. Should the rent be reduced? c. Does the tenant owe the landlords any rent? Is it more probable than not that the methamphetamine residue detected in the premises came about during this tenancy?
I must be satisfied from the evidence that it is more probable than not that the methamphetamine and amphetamine residue detected came about during this tenancy.
The most reliable way for a landlord to prove this is to conduct a pre-tenancy methamphetamine test.
The landlords accept that the tenancy premises were not tested for methamphetamine residue at or near the start of this tenancy.
The absence of a pre-tenancy methamphetamine test means that any other evidence is particularly important and must be strong.
This was emphasised in District Court appeals from Tenancy Tribunal cases in which there was no pre-tenancy testing done. See Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210 and Brooking and Hodges v Imrie [2021] NZDC 16976.
In both cases, there was other circumstantial evidence, but this was not enough to prove that contamination had occurred during the tenancy in question.
There is other evidence in this case. In particular, the landlords’ say that the presence of methamphetamine in the carpet sample proves methamphetamine was used during this tenancy. The carpet was new and installed into the apartment just two days before this tenancy began.
I must be satisfied that the most probable explanation for the presence of methamphetamine residue in the carpet is that methamphetamine was used or manufactured during this tenancy.
I have considered the carpet sample report and laboratory results carefully. I accept that these prove that there is methamphetamine residue present in the carpet sample.
However, I note that:- a. the method of testing and presentation of the results in the Hill Laboratories carpet sample report is different from that in the wipe samples report. Wipe samples are the usual samples presented in Tribunal hearings and the results are given as single values in micrograms. This differs from the carpet sample results which show two sets of values: one appears to be related to the weight of the sample. I do not know whether the carpet sample results can be interpreted in the same way that the 100cm 2 wipe samples are. b. the Hill Laboratories Certificate of Analysis of the carpet sample includes an “Analyst’s Comments” section, which says: It should be noted that the method used for the analysis of methamphetamine has not been fully validated on the matrix of this sample. In addition, due to the heterogeneity of methamphetamine and its precursors in miscellaneous sample types (eg insulation), significant variability may be observed on replicate sample analyses. The results should therefore be interpreted with caution. [my underlining] c. there is no such warning on the laboratory report of the individual wipe samples. d. the carpet sample was taken from a location directly outside the hot water and laundry cupboard. This cupboard had the highest wipe sample residue result. It is possible that residue from the cupboard has “moved” or cross contaminated the carpet when the tenant has used the washing machine and other items in the cupboard.
I have considered this type of issue before in another Tribunal case. See Landlord v Samantha Sydney Reardon [2022] NZTT 4322786.
I decided that there was enough evidence to prove that methamphetamine originated during the tenancy where there was residue on five new fittings in the house, and physical items including a glass-stemmed pipe, a snap-lock plastic bag of a white crystalline substance (untested), and several small plastic bags were found.
However, the difference in that case was not only the physical items. The samples from the new fittings were wipe samples and the results did not come with a warning to be cautious with interpreting those results. Importantly, the landlord in that case also arranged for a person qualified and experienced in methamphetamine testing and interpretation of results to give oral evidence during the hearing. I was able to ask the expert questions about the results.
Interpreting scientific results is a specialist task. In this case, there was no additional expert evidence available to assist me to understand what the carpet sample results mean.
My decision is that there are too many uncertainties with the carpet sample result for me to conclude that it most probably shows that the methamphetamine residue originated during this tenancy.
I asked the landlords whether there was any other reason to suspect methamphetamine use during this tenancy.
The landlords referred to the incidents that first caused their concerns. They also said they smelled smoke “tinged with something” and had tingling lips when they conducted the first inspection at the premises. They confirmed there were no physical signs of drug use at the apartment.
I address these concerns now:- a. The dispute with a neighbour about a carpark: one of the tenant’s visitors parked in a neighbour’s carpark and an argument started between the neighbour and the visitor. The tenant agrees that this happened. b. The tenant acknowledges that she and/or her visitors did smoke cigarettes on the balcony of the apartment and that this was not permitted in the tenancy agreement. c. The body corporate manager emailed the landlords after an incident outside the apartment block which the police attended. The manager alleges several things in her email including that the police arrested people, that those people are associated with drugs, that the tenant is associated with them, that there were false licence plates, and that the tenant “took off” in her car. The tenant disagrees with this version of the events. She said that she only became aware of the incident when leaving the apartment to go to work. She said she had met one of the people involved in a work capacity which is why she spoke to him. She advised that the car blocking the driveway was moved so that she could continue on her way to work.
The tenant responded to the body corporate allegations at the time as the landlords did the right thing and asked her to do so. The landlords included her explanation and their own report back to the body corporate.
In summary:- a. there was no pre tenancy methamphetamine test done; b. the carpet sample tested positive, but without expert evidence to interpret the results and considering the analyst’s warning on the laboratory report, I am not satisfied the result reliably proves methamphetamine was most probably used during this tenancy; c. written evidence from the body corporate manager makes allegations against the tenant but the manager did not give direct evidence in the hearing so her views could not be tested. There is no corroborating evidence to support the allegations (such as police reports, CTV footage, proof of false licence plates). The tenant has given a reasonable explanation for the same events; and d. The smell and tingling the landlords observed in the apartment are not strong enough evidence for me to put weight on. These could be caused by many things.
The absence of a pre-tenancy methamphetamine test means that it is possible that the methamphetamine residue was present before this tenancy started.
My decision is that the other evidence presented is not enough to reliably link the methamphetamine and amphetamine residue to this tenancy.
The landlords have not shown that the tenant is responsible for the methamphetamine residue so the claim for compensation is dismissed.

Should the rent be reduced?

The tenant submits that, since the landlords gave her notice to terminate the tenancy on the grounds the premises were uninhabitable and if they have not proved methamphetamine was used during the tenancy, the rent must be reduced.
Sections 59 and 59A of the Residential Tenancies Act 1986 (RTA) apply where tenancy premises are partly or wholly uninhabitable due to serious damage or destruction. The sections allow short notice and say that rent abates (reduces).
This was the reason the landlords gave for terminating the tenancy on 7 days’ notice. They said they relied on advice and information from the testing company, their insurer and from Tenancy Services.
It is difficult for landlords and tenants to know what to do when there is a positive methamphetamine test result.
This is because, at present in New Zealand, legislation has not defined acceptable or uninhabitable levels for methamphetamine contamination. The Residential Tenancies Act 1986 provides for these two levels to be set in regulations (a type of law) but these have not yet been made. 3 3 See section 138C RTA. Public consultation closed on proposed regulations on 10 March 2023.
To be clear, there is currently no legally prescribed standard for methamphetamine contamination levels in housing in New Zealand.
Until regulations are made, there are two different contamination levels that are most often referred to. These are not law. a. The New Zealand Standard NZS8510:2017 which adopts a “maximum acceptable level” of methamphetamine of 1.5mcg in a 100 cm 2 sample area and recommends that above this, premises should be decontaminated (by cleaning or removal of contaminated materials); and b. A 2018 report 4 (“the Gluckman report”), concluding that, where there is no evidence of manufacture of the drug, third-hand exposure to levels below 15mcg/100 cm 2 would be highly unlikely to give rise to any adverse health effects.
The report from the landlords’ testing company also refers to another study from Flinders University in Adelaide, Australia (“the Wright report”). The testing company says that this study “refutes” the Gluckman report findings and should be considered by the Tribunal.
The Wright report has been considered by the Tribunal. In Barfoot and Thompson Limited v Kahui Tu Kaha Limited [2021] NZTT Auckland 4276319, the Adjudicator heard expert evidence and, in the end, preferred the Gluckman report level of 15mcg.
In this case, one of the wipe samples returned a result above 15 mcg (in the hot water laundry cupboard). I agree that this result supports the landlords’ actions to give 7 days’ notice on the grounds the premises were uninhabitable.
I have decided in this case that it is fair and reasonable to reduce the rent payable by the tenant from the date of the 7-day notice.
Before this date, neither the landlords nor the tenant knew there was methamphetamine residue in the premises. After this date, the tenant lost the security of her accommodation. She was suddenly in the position of having to move out.

Does the tenant owe rent?

The parties agree that the tenant has paid 5 weeks of rent which is up to 26 October 2024.
This is one day after the 7-day notice was given. 4 29 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.”
My decision is that the rent abates in full from this date. The tenant does not owe any rent. Refund of the bond
The landlords withdrew a claim for the cost to replace keys as they located the missing set on the day of the hearing.
The tenant is entitled to a full refund of the bond. I have made this order. Suppression of names
The landlords have not proven that the methamphetamine residue came about during this tenancy, so I suppress the tenant’s name.
After considering their interests and the public interest, I also suppress the landlords’ names. The methamphetamine result above 15mcg justified their decision to give notice to terminate the tenancy. They acted in good faith in confusing and difficult circumstances.

Tenancy Tribunal case 5050108 — Cleanliness at Room Suite 42, 312 Victoria Street, Hamilton Central,

At a glance

Tenancy Tribunal case 5050108 — Cleanliness at Room Suite 42, 312 Victoria Street, Hamilton Central,

At a glance

Claims & awards

Order

Reasons

Is there methamphetamine present in the premises?

What are the issues?

Should the rent be reduced?

Does the tenant owe rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is there methamphetamine present in the premises?

What are the issues?

Should the rent be reduced?

Does the tenant owe rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions