What was Tenancy Tribunal case 5299160 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5299160?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5299160?

The primary dispute was State of repair. Related themes: Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5299160?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12774292-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5299160 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5299160?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5299160?

The primary dispute was State of repair. Related themes: Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5299160?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12774292-Tribunal_Order_Redacted.pdf.

4 Truscott Grove, Awapuni, Palmerston North 4412 Tenancy Tribunal Case 5299160 — State of repair

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Reasons

Both parties attended the hearing.

The tenant’s application was for compensation and exemplary damages arising out of the tenant’s exposure to asbestos from flaking paint in the bathroom and the installation of a rangehood.

The tenant’s claims were for: a. A breach of section 45(1)(b) Residential Tenancies Act 1986 (“RTA’) by the landlord failing to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises. b. A breach of section 45(1)(c) RTA by the landlord failing to comply with all requirements in respect of buildings, health, and safety under any enactment.

The relevant requirement the tenant claimed the landlord had not complied with is the Health and Safety at Work (Asbestos) Regulations 2016 (“the Regulations”). Standard of proof and evidence

The applicant is required to establish the claim to the civil law standard of proof, that is, on the balance of probabilities.

While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.

By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.

It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.

The Tribunal must also have regard to the general principles of law and the substantial merits and justice of the case, as required by section 85(2) RTA.

It is intended that this order be as concise as possible to convey the essential facts, the law and the Tribunal’s reason for its decisions. Agreed facts

The parties agreed on the following relevant facts and timeline as follows: a. Upon taking possession of the property on 15 December 2023, the tenant accepted that the house was in reasonable condition, although the paint on the ceiling of the bathroom was peeling. This did not concern the tenant at this time. b. On the owner’s instruction, a rangehood was installed on 5 February 2024 by a qualified electrician. c. On 8 April 2024 the tenant emailed the landlord: “Today, I had a training session on asbestos, which has prompted me to consider the possibility of its presence within our living space. Specifically, I have learned that textured ceilings are often associated with asbestos content, and upon inspection, I have noted that our ceilings indeed have a textured finish. Given this newfound awareness and the fact that how dangerous asbestos could be, I would greatly appreciate it if you could provide me with information regarding any asbestos materials used in the construction or renovation of the property. Understanding the potential risks associated with asbestos exposure is crucial for ensuring the safety and wellbeing of me and my family. If there is asbestos present, I would also like to discuss any measures or precautions that have been taken to manage or mitigate its risks.” d. On 9 April 2024 the landlord replied to the tenant by email: “With regards to asbestos in the property, I cannot confirm whether this is present at 4 Truscott Grove however this will not cause harm to you or your family if it is not disturbed. It is common that properties built before the year of 1980’s may contain some type of asbestos in the building materials – however, unless the area containing the fibres is drilled into or demolished it will not pose risk to those living in the property.” e. The tenant responded that he was concerned because the ceiling paint in the bathroom was peeling. f. On 10 April 2024 the landlord replied to the tenant by email: “As asbestos isn’t present in the paint – then this should not pose harm to you or your family. If any disturbed holes in the ceiling were created OR if the ceiling was pulled down during construction, then we would need to take appropriate action. This would only be if asbestos is present in the building materials which I am not entirely sure it is. I have just hopped off the phone from AAA Asbestos specialists and they have confirmed the above information too. The potential of asbestos presence will pose no harm if no construction is carried out on the property while you live there – this is where the asbestos fibres present themselves from the dust of the walls or ceiling being removed or drilled into.” g. The tenant disputed that asbestos could not be present in paint. h. The landlord promptly instructed its specialist contractor to carry out tests at the property to determine if the ceilings in the kitchen and bathroom contained asbestos. i. Both the landlord and the tenant continued to follow up the contractor but without successfully getting the contractor to complete the work. The landlord therefore instructed another contractor on 13 June 2024 and the tests were completed the next day on 14 June 2025. j. On 17 June 2024 the contractor reported back to the landlord: “We have received the results from the samples we took from the ceiling coating at 4 Truscott Grove and unfortunately, they have tested positive for asbestos. We recommend avoiding any activities that may disturb the textured coatings, such as cleaning or any form of renovation work. Just because the coating is asbestos, this doesn’t necessarily mean that its dangerous to the occupants. Asbestos is only dangerous if it is disturbed and becomes airborne. A good way to determine if it is becoming airborne, is by testing the air for asbestos fibres, this is something we could do if you would like, I can do up a quote. In terms of future management, I would suggest to the owners they look at a plan either encapsulating the coating (e.g. painting over it) or planning for removal. The best option would be removal, but this is a big cost, and would also involve the tenants having to move out of the property. If the owner wanted to encapsulate, they would need to engage a painter who is trained to work with asbestos and can do the job in a way that doesn’t involve disturbing the coating.” k. The consultant’s report was sent to the tenant on 18 June 2024. l. The landlord received a report from RJ Hill Laboratories Limited dated 3 July 2024 from its contractor on the same day. The contractor advised by email on that date: “As discussed we have received results from the air monitoring carried out yesterday (02 July 2024) in the bathroom and kitchen of 4 Truscott Grove Palmerston North. Please see the results attached. Both samples collected have returned an acceptable result of <0.01 fibres/milliliter of air which is great news. This meaning that the dwelling is safe to occupy as the material sits now, undisturbed. While on site I noted the material is in reasonable condition with the only visible areas of damage being paint flaking in the bathroom. My recommendation would be to engage a competent and asbestos awareness trained contractor to re paint the bathroom ceiling following an appropriate safe work method statement.” m. Upon receipt of this report and acting in accordance with the previous recommendation of its contractor, the landlord requested a quotation from a suitably qualified painter on 3 July 2025. n. The landlord offered to break the fixed term tenancy and allow the tenant to leave the tenancy if he and his family felt the environment was unsafe. The tenant accepted this offer and the tenancy ended on 12 September 2024. Tenant’s further submissions

The tenant made the following submissions: a. The electrician who installed the rangehood took no precautions regarding asbestos and so exposed his wife and five-year-old child to asbestos contamination when he cut into the ceiling. b. As the landlord’s electrician was not aware that there was asbestos in the ceiling and made no complaint to the landlord of its presence, the electrician took no precautionary steps to prevent dispersal and must therefore have caused contamination that was not detected by the landlord’s tests. c. Both tests were undertaken after he had extensively cleaned the areas and so would provide readings lower than they would have been during the rangehood installation. d. While the air sample testing showed a result of <0.01 fibres/milliliter of air, any fibres would have settled and not been airborne as the test was undertaken some months after the installation was completed. e. The landlord had a legal responsibility as a Person Conducting a Business or Undertaking (“PCBU”) to have investigated and identified the asbestos in the property prior to the tenancy and prior to any work being carried out. f. The landlord unduly delayed undertaking the required inquiry and having tests completed. g. Having learned that asbestos was present in the property, the landlord failed to “secure the affected areas” and this was a breach of the landlord’s obligation to provide and maintain the premises. h. Because of the presence of asbestos and fibres <0.01 fibres/milliliter of air, the property was unfit for human habitation. i. He approached Work Safe regarding his and his family’s experience but was advised that it could not do anything for him but that it would contact the landlord’s property management firm to discuss the matter further. j. A branch of the landlord’s property management firm included the following advice on its website: “The legislation does not require records to be required for homes – so when are rental properties affected? Rental properties are in most cases, homes for Tenants, but that changes when repairs and/or renovations are required and the property becomes a work place. As ACM are relatively safe if they are in an undisturbed and stable condition, a possible alternative approach could be considered. Identifying properties that may contain Asbestos is obviously a priority and planning to ensure there are no health and safety risks for tenants or contractors who work at the property. Should repairs or renovations be required, Landlords could choose to at this point to have their property tested by a qualified and experienced person and make plans based on the test results. Where areas of a property that may contain Asbestos are found to be breaking down or disturbed, testing by a qualified person is essential and a plan to remove, encase or remove the ACM becomes critical.” k. The tenant claimed that this public advice shows that the landlord ought to have carried out an investigation and made plans for its removal or encasement. l. The Tribunal has awarded compensation and exemplary damages in application 4160626, 4160602 against a landlord who breached the Health and Safety at Work Act 2015 (“HSWA”) The landlord’s submissions

The landlord made the following further submissions: a. As neither the owner of the property nor his property manager had any knowledge that asbestos was present, it had no obligation to undertake an investigation looking for asbestos. b. The delay in obtaining the reports was outside of its control and was remedied promptly once it became clear that its first contractor was unable to provide the reports in a timely manner. c. The reports identify the presence of asbestos but specifically state that there was no risk to the tenant and his family and that the property was safe to occupy. d. Although it was only a recommendation, the landlord arranged to have the bathroom ceiling painted without delay. e. The tenant was not present when the rangehood was installed and has not therefore produced evidence that the work was not undertaken safely. f. The website advice came from a branch website and included only recommendations for the consideration of landlords. g. Work Safe attended at their offices informally and discussed the tenant’s complaint but no further steps were taken by Work Safe. Discussion

The first question the Tribunal must consider is whether the landlord had a duty to determine whether there was asbestos at the premises.

There is no specific requirement in the RTA or the Healthy Homes Standards that requires a landlord proactively to detect or test for asbestos. If asbestos is identified or suspected, then a landlord must manage the risk appropriately. This would include complying with the Regulations if work was being done that could disturb asbestos.

If the landlord’s electrician had queried whether there was asbestos in the kitchen ceiling, the landlord would have been obliged to undertake testing before the tradesperson could start work. If the test proved positive, the landlord would have then been required to comply with the Regulations for the protection and safety of its tradesperson. There is no evidence that the electrician raised any such concerns. The landlord was not alerted to the possibility of there being asbestos present until the tenant raised his concerns after his professional education made him question his home environment.

The Tribunal must next consider whether the landlord was a PCBU under the Health and Safety at Work Act 2015 (“HSWR”).

When the landlord instructs a contractor to carry out work on the premises, he becomes a PCBU. The landlord was therefore a PCBU when it instructed the electrician to install the rangehood because the premises then became a workplace during the period of the installation.

The duty on a PCBU under Regulation 10 is imposed when the PCBU “knows or ought reasonably to know that there is a risk of exposure to respirable asbestos fibres in the workplace”. There is no evidence before the Tribunal that the landlord had such knowledge or ought reasonably to have had such knowledge.

The purpose of HSWR under section 3(1) is “to provide for a balanced framework to secure the health and safety of workers and workplaces”. The Act provides for the protection of workers and governs the relationship between employers and workers. The landlord’s obligation as a PCBU was to the electrician, not to the tenant. In other words, the landlord’s obligation under the HSWR was to provide a safe workplace for the electrician and does not extend to a third party, such as the tenant.

The Tribunal does not have jurisdiction to determine whether there has been a breach of the Regulations. Work Safe is the appropriate regulatory body with that jurisdiction. In the absence of a finding by Work Safe that the landlord has breached the Regulations, the Tribunal has no evidence that there has been any breach.

This view is in keeping with the analogous decision of the Court of Appeal in Winther v Housing Corporation of New Zealand [2020] NZCA 601 where the Court determined that the Tribunal does not have jurisdiction to determine whether a landlord’s decision to terminate a tenancy was based on unlawful discrimination. The Court held that any such question must be determined by the Human Rights Tribunal as provided under the Human Rights Act 1993.

It remains to consider whether the tenant was exposed to asbestos so that the premises were not in a reasonable state of repair having regard to the age and character of the premises.

The landlord’s scientifically completed test confirmed readings of <0.01 fibres/milliliter of air. The report concludes that “the dwelling is safe to occupy as the material sits now, undisturbed.” Its first report confirms that it is only if the textured coating is disturbed that the asbestos may become a hazard that requires controlling.

While the Tribunal appreciates the tenant’s genuine concern regarding the work that was done in the kitchen and the flaking of paint in the bathroom, the tenant has not produced any evidence to confirm that this has caused contamination that was a risk to his and his family’s health. The landlord has produced reports from suitably qualified professionals that confirm that there was no scientifically unacceptable contamination during the tenancy.

The advice on the branch website of the property management firm does not impose any legal obligations on landlords. It indicates a prudent and cautious approach which landlords may take if they are prepared to spend the money.

The Tribunal’s decision in 4160626/4160602 can be distinguished for the following reasons. In that decision: a. Work Safe was informed of the contamination and provided with tests obtained by the tenants which confirmed extensive contamination. b. Work Safe issued a prohibition and an improvement notice under the Regulations confirming that health and safety regulations had likely been breached, that exposed occupants and workers to the risk of inhalation. c. An asbestos removal expert advised the landlord that nobody should be living at the property and that many of the tenants’ items were so contaminated that they needed to be destroyed. d. In summary, there was extensive contamination at unsafe levels and Work Safe fulfilled its statutory function by issuing the appropriate notices. e. In this case, there is no evidence that Work Safe took any active involvement in investigating the tenant’s complaint, nor that it made any findings about contamination or issued any notices. Indeed, there is no evidence of contamination that was a danger to health. Summary and decision

The tenant’s claims are dismissed for the following reasons: a. The landlord was not under any legal duty to determine whether there was asbestos at the premises. b. There is no evidence that tenant was exposed to asbestos contamination while the ceilings remained undisturbed. c. Once the tenant raised the possibility of asbestos at the property, the landlord arranged to have tests done. Once the tests came back positive, the landlord then arranged to have the air quality tested as recommended by its expert. The landlord then provided the results to the tenant which confirmed that there was no risk to the tenant and his family. d. The tenant has not produced any evidence that displaces the test evidence of the landlord that the premises were not contaminated by asbestos, despite the installation of the rangehood. e. While the landlord was a PCBU when the rangehood was installed, its obligations were to the electrician and not to the tenant. f. Absent a finding by Work Safe that the landlord breached the Regulations, the Tribunal lacks evidence that it has done so. g. Because there is no evidence of contamination that made the property uninhabitable, the landlord’s delay in obtaining tests was of no consequence. h. There was no evidence before the Tribunal to persuade it that the premises were contaminated by asbestos so as to pose a risk to the tenant and his family or to make them uninhabitable or unsafe. i. The tenant has not therefore persuaded the Tribunal that the landlord has breached the Regulations or that there was a maintenance issue that required the landlord’s attention and which it failed to take appropriate steps to remedy.

Reasons