Published tribunal order
Tenancy Tribunal case 5480853 — Mould & damp
Decided 4 May 2026 · Published 4 May 2026 · Application 5480853
- Mould & damp
- Cleanliness
Party names are redacted in the official published order.
Order
- There is an order for non-publication of the names and identifying details of the parties.
- The tenancy at [suppressed] is terminated immediately, and possession is granted to [The applicant/s]
- [The tenant/s] must immediately pay [the landlord] the sum of $28.00 being the filing fee.
Reasons
- At the hearing on 1 May 2026, the landlord was represented by Mr [Y] and Mr [Z}. The tenant was not present, but his representative, Mr [T] attended. His appointment as a representative had been approved in a brief minute made on the morning of 23 April 2026.
- On 23 April 2026 both parties attended the hearing which was conducted at 2pm via Microsoft Teams. After hearing from the parties, I allowed the tenant’s adjournment so that his representative, could fully understand the basis of the application and respond to each ground. The notice to the parties refers to “Destruction of premises” under section 59 and 59A. I did not consider that properly summarised the landlord’s application for termination.
- I therefore adjourned the hearing and set out some relevant law in an order dated 23 April 2026, for the parties to address.
- The hearing was adjourned to Friday 1 May at 2pm.
- The landlord filed some submissions and an email from the manager of TechClean Asbestos and Restoration.
- The onus of proof is on the landlord. The standard of proof is on the balance of probabilities. Background
- The landlord applied for termination of the tenancy on a number of grounds, all of which arise from methamphetamine test results recorded in a report dated 27 March 2026 from Meth Test Canterbury Ltd.
- The report records the following results: Sample name Individual Sample Result μg (micrograms) per 100cm2 Kitchen/Living-a65 Kitchen/Living-b 96 Kitchen/Living-c 28 Bedroom 1-a 27 Bedroom 1-b 0.94 Bathroom-a 45 Bathroom-b 17.1 Bedroom 2-a 55 Bedroom 2-b11.3
- As noted in the 23 April order, the application required an urgent hearing because the results show very high levels of methamphetamine, based on which the landlord says the property is uninhabitable. This places the landlord in a difficult position. The tenant uses a wheelchair and is blind, and so termination is not desirable, but the landlord has responsibilities when the premises are not inhabitable.
- A day or two after receiving the report, Mr [Y] had taken the report to the tenant within a couple of days of receiving it. He discussed the results with the tenant and left his card there so that family members could contact him to discuss the situation.
- On 1 April 2026 the landlord applied for termination on the basis of the meth testing.
- The tenant’s son argues that the tenant and his family are not at fault.
- The tenant is 71 years old, is blind and uses a wheelchair. His son wanted an opportunity to clean the premises with bleach. He also wanted more than 90 days to find a new property. The law
- The following summary of relevant law was sent to the parties on 23 April, following the first hearing. Section 56: Breach of a term of agreement or Act
- Under section 56 of the Residential Tenancies Act 1986 (the Act), where a tenant has breached a term of the tenancy agreement or an obligation under Act, 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.
- 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 to remedy where the thing done, or its effect, cannot be undone. Section 40(2)(b): using premises for unlawful purpose
- Section 40 of the Act sets out the tenant’s obligations, which include that the tenant must not use the premises, or permit the premises to be used, for any unlawful purpose. 1
- Presence of methamphetamine in a property may indicate that the tenant has breached his obligations under section 40(2)(b) but is not conclusive.
- In Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210, 2 the District Court said: the lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of their tenancy. Contamination
- Contaminant and contamination are defined in section 2: contaminant means any of the following: a. methamphetamine: 1 See section 40(2)(b). 2 The same approach was taken in Brooking and Hodges v Imrie NZDC 16976 b. any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of this Act contaminated, in relation to premises, means that a contaminant is present in any part of the premises at a level above any relevant prescribed maximum acceptable level. Section 59: destruction or damage making premises uninhabitable
- Section 59 covers the situation where the premises are destroyed, or are so seriously damaged as to be uninhabitable, but not because of a breach of the tenancy agreement. It says that the rent must abate and the tenancy may terminate by either party giving notice. The landlord must give at least 7 days’ notice. The tenant must give at least 2 days’ notice.
- It also provides that if the premises are so seriously damaged as to be uninhabitable, either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent.
- Methamphetamine contamination is regarded as damage. This is because it is a physical alteration (not necessarily permanent or irreparable), which impairs the value or usefulness of the item or property damaged, and which cannot be removed by normal cleaning. 3
- Section 59(5) says that this section does not apply in relation to damage that is contamination by a contaminant if regulations prescribe a relevant method of testing for, and a relevant maximum inhabitable level of, that contaminant. 4 Section 59A: uninhabitable because of breach of tenancy agreement
- Section 59A makes similar provision for termination where the damage is as a result of a breach of the tenancy agreement.
- Again, the section does not apply in relation to damage that is contamination by a contaminant if regulations prescribe a relevant method of testing for, and a relevant maximum inhabitable level of, that contaminant. 5 Section 59B: uninhabitable because of contamination
- Section 59B is the section that covers contamination. 3 Residential Tenancy Law in New Zealand S. Benson, 6.16. 4 At the time the landlord filed their application, there were no regulations in force. 5 See section 59A(6).
- Again, the Act provides for shortened notice periods to terminate the tenancy: 7 days for the landlord and 2 days for the tenant.
- In the High Court decision of Nisbet v Te Ahuru Mowai Ltd Partnership [2025] NZHC 2467, the Court discussed the considerations that apply in assessing whether a methamphetamine contaminated premises is uninhabitable. The decision confirmed that the Tribunal could not apply section 59B to terminate a tenancy, because there were no regulations currently in force that prescribe either a method of contamination testing, or a maximum inhabitable level for methamphetamine.
- On 16 April 2026 the Residential Tenancies (Managing Methamphetamine Contamination) Regulations 2026 (the regulations) came into force. Regulation 6 provides that 30 μg/100 cm 2 is the maximum inhabitable level of methamphetamine for premises. The landlord’s position
- A summary of the landlord’s position is that the tenancy should be terminated because: • the extent of methamphetamine contamination is significant and pervasive; • the premises are uninhabitable; and • it would be unreasonable to require reinstatement of the property. Sections 56 and 40(2)(b): termination for using premises for unlawful purposes
- The landlord advised that they did not want to pursue the termination under sections 56 and 40(2)(b), the allegation that the tenant has used or permitted to be used for unlawful purposes.
- Accordingly, the landlord did not pursue termination under section 56. Section 59A:Termination Where Breach Renders Premises Uninhabitable
- The landlord acknowledged the tenant’s position that the contamination was caused by third parties, namely carers, without the respondent’s knowledge.
- The landlord does not accept this explanation, but nonetheless considers it is both more appropriate and more straightforward to rely on section 59(1) and (4) in the present circumstances. Section 59: uninhabitable without breach
- The landlord relies on section 59.
- They submit that contamination levels recorded throughout the premises are such that the property must be considered contaminated in its entirety. All sampled areas returned results exceeding 15 micrograms per 100 cm², with four individual samples exceeding 40 micrograms per 100 cm².
- The landlord decided not to issue a 7-day notice to remedy or terminate the tenancy, in light of the complexities of the matter and the practical difficulties anticipated in achieving compliance in the circumstances.
- The landlord referred to section 59(4), which says that a landlord may apply to the Tenancy Tribunal for termination where it would be unreasonable to reinstate the premises. They submit that, given the extent and distribution of contamination, reinstatement would be unreasonable.
- The landlord acknowledges that section 59(5), which provides that section 59 does not apply to contamination where regulations prescribe both a method of testing and a maximum inhabitable level for that contaminant. However, they submit that section 59 remains applicable in the present case. At the time the methamphetamine testing was conducted, and at the time the application was filed, no such prescribed regulatory framework was in force. Therefore, section 59(1) and (4) may properly be relied upon.
- In this context, the landlord further submitted that section 59 does not require proof of tenant culpability. The extent of contamination, as evidenced by the testing results, is sufficient to support termination under this provision. Section 59B: contamination where regulations prescribe maximum levels
- The landlord referred to the Residential Tenancies (Managing Methamphetamine Contamination) Regulations 2026, which came into force on 16 April 2026.
- Sections 5(2) and 6(2) of those regulations prescribe: • a maximum acceptable level of 15 micrograms per 100 cm²; and • a maximum inhabitable level of 30 micrograms per 100 cm².
- The landlord acknowledges that the methamphetamine testing relied upon in this application was conducted on 25 March 2026, prior to the commencement of the regulations. Accordingly, there is some uncertainty as to whether those provisions apply retrospectively.
- The landlord submits that: • the present hearing occurs after the regulations have come into force; and • the Tribunal is now equipped with a prescribed maximum inhabitable level for methamphetamine contamination.
- The landlord further submits that, had the testing been conducted shortly after the commencement of the regulations, the landlord would have been entitled to issue a 7-day notice to terminate the tenancy.
- The landlord says that in any event, the testing results clearly demonstrate that contamination is widespread throughout the premises and cannot be characterised as minor or localised. The contamination exceeds both the acceptable level and, in multiple instances, the maximum inhabitable level now prescribed.
- Referring to Nisbet v Te Ahuru Mowai Ltd [2025], where it was held that section 59B could not be applied in the absence of prescribed thresholds, the landlord submitted that this position has now materially changed. The regulations provide both a prescribed testing methodology and a maximum inhabitable level. Accordingly, there is no longer any barrier in principle to the application of section 59B in cases of methamphetamine contamination. Tenant’s position
- As noted above, the tenant denies any responsibility for the damage, but his son agrees to clean the property, and is very concerned about finding alternative accommodation. Discussion
- The landlord has applied to terminate the tenancy.
- At the time the landlord applied for termination, the Residential Tenancies (Managing Methamphetamine Contamination) Regulations 2026 had not yet come into force. I agree with the landlord’s interpretation that this means that section 59 is the relevant section. The standards that have now been set into regulations are nonetheless useful in informing the Tribunal of whether the premises may be uninhabitable. As this Tribunal has previously noted in a decision dated 10 March 2026: 6 While the Regulations are not yet in force (they come into force on 16 April 2026), they provide support that a level over 30 μg/100 cm2 is a level at which the premises become uninhabitable. I am also minded that had the landlord applied under section 59B of the Act after 16 April, they would have been entitled to an order enforcing the termination notice based simply on the readings found in the kitchen.
- There is a similar situation here. The application was made just two weeks before the regulations came into force. It could have been made on or after 16 April. The Tribunal may have been asked to infer that the methamphetamine levels 6 [2026] NZTT 5392377 at [8]. The kitchen result was 33.9 μg/100cm². recorded on 28 March were still present on 16 April. However, given the high readings of methamphetamine, it was responsible and appropriate that the landlord did not delay in seeking termination.
- The readings in the present case show that the samples taken from the kitchen record readings of 65, 96 and 28. Even the lowest of those is well over the maximum acceptable level of methamphetamine for premises under the present regulations, of 15 micrograms/100 cm. The other two readings in the kitchen are well above the maximum inhabitable level of 30 micrograms per 100 cm².
- A sample in bedroom 2 has a reading of 55 and the bathroom shows 45 micrograms per 100cm 2 , which are above the maximum inhabitable level of 30. The reading of 27 in bedroom 1 is within the habitable level, but still above the maximum acceptable level found in regulation 5. Overall, I am satisfied that there is damage to the premises from methamphetamine and it pervades the property such that the premises are rendered uninhabitable.
- The landlord could have given the tenant 7 days’ notice under section 59(2) on the basis that the premises were so seriously damaged as to be uninhabitable. They say they decided not to do so, in light of the complexities of the matter and the practical difficulties anticipated in achieving compliance in the circumstances.
- Based on the representations made by the tenant’s son, I agree that such a notice would not have been complied with, which would have led to an application for possession under section 64 and the current legal arguments would still needed to have been explored in considering the validity of any notice given.
- Section 59(4) provides the alternative that either party may apply to the Tribunal for termination, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent.
- The landlord wants to take possession of the premises and attend to professional decontamination to reinstate the property. The landlord has provided an email from the manager of TechClean Asbestos and Restoration. In the manager’s opinion, the levels will require specialist cleaning with dedicated meth cleaning solutions – Decon7, which penetrates the gib and draws out all contamination. Moisture can draw out dangerous levels “voc’s”. 7 He says it is therefore not advisable for anyone, other than a professional to do the remediation works. He concludes that there are no “joe public” available methamphetamine cleaning solutions at stores, and a licence is needed to buy the cleaning product.
- Although it would have been preferable to have had the manager’s full name, and/or signature, the email is nonetheless of assistance to the Tribunal. If it was 7 It is understood that this refers to volatile organic compounds. simply a matter of cleaning the premises with bleach, Parliament would not have issued regulations saying that a level above 30 micrograms per 100cm 2 renders a property uninhabitable. I accept that professional chemical cleaning is required in order to reinstate the premises.
- The landlord says that currently, because of the levels of methamphetamine in these premises, there is a health and safety issue for any staff member or contractor being in the premises, and more importantly, there is a significant concern for the tenant’s wellbeing and compromise of his health.
- I accept that termination and possession to the landlord is the only reasonable option. The decision to evict a 71-disabled man is not taken lightly. However, the landlord is a social housing agency with a property that has very high levels of methamphetamine contamination. No landlord would want to rent out a property in this condition to a member of the public.
- The premises cannot be left as they are, and I do not accept that cleaning the premises with bleach is an appropriate remedy.
- Accordingly, the tenancy is terminated, and possession is granted to the landlord immediately.
- Because the landlord has been successful the filing fee must be reimbursed.