Published tribunal order
Tenancy Tribunal case 4340456 — Cleanliness at Unit/Flat A, 402 Frimley, Hastings, Hawkesbay 4102
Decided 11 Nov 2023 · Published 11 Nov 2023 · Application 4340456
Landlord favoured
- Cleanliness
Order
- Brendon James Healey must pay Pukeko Limited Andrew Williams $5,892.88 immediately, calculated as shown in table below.
- Tribunal Order 4341802 awarding rent arrears of $4,420.44 (after deducting the bond) made on 12 August 2022 is incorporated into this order for enforcement purposes.
Reasons
- Both parties attended the hearing. Mr Healey attended via telephone.
- The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.
- The tenant has applied for compensation and exemplary damages.
How much is owed for rent?
- The tenancy ended on 12 August 2022 in accordance with a Tribunal Order issued that day terminating the tenancy and granting possession to the landlord.
- That order also dismissed an application for compensation that the tenant had made.
- The order directed the bond centre to release the bond (which has occurred).
- Mr Healey applied for a rehearing of the decision dismissing his application for compensation, on the basis that he had not received notice of the hearing as he was in prison.
- The re-hearing was allowed, the order confirmed that the rehearing was granted, as it relates to the tenant application only.
- The order with respect to rent arrears therefore remains operative and enforceable.
- The landlord requested that the amount ordered be incorporated into this order for enforcement purposes. That is appropriate as no enforcement action has been taken. The landlord also confirmed that no further rent is sought.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.
- The landlord’s claim for additional asbestos testing and cleaning is dismissed. The reasons for this are discussed below in the tenant’s compensation claim.
- The amounts ordered are proved. Tenant application for compensation and exemplary damages
- Brendon James Healey claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must both provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety. Breaching either of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant claims for compensation with respect to the replacement value of goods he had at the property, which he says were contaminated by asbestos.
- There is no dispute that asbestos was discovered during the tenancy. This occurred shortly after a builder had repaired the roof of the carport, that had started to leak.
- Mr Healey has previously worked in the asbestos removal field of work and contacted Mr Williams the property manager on 27 April 2022 to say he was concerned that building materials removed during the carport repairs were contaminated with asbestos.
- Mr Healey did not want Mr Williams to visit the property as he said he wanted experts to attend to the contamination. He instructed NZ Asbestos to do the testing.
- The report from Dowdell and Associates dated 29/4/2022 confirmed “Chrysolite -white asbestos and Amosite – brown asbestos” were present in the under- carport fibre cement that the builder had removed. But that “no asbestos was detected” on any of the storage items swabbed.
- While Mr Healey said that this report was fabricated as he had seen a report from Dowdell and Associates, that confirmed his items were contaminated, he did not provide any evidence of this.
- Mr Williams affirmed (after taking a promise to tell the truth) that he had never seen a different version of the report stating contamination was present on any of the chattels tested.
- Mr Williams arranged for the tenant and his family to move to a motel while the property was cleaned.
- Worksafe was duly notified and the Health and Safety inspector for Worksafe, Lehi Harris, confirmed that an extensive clean-up was required. A company called Demolition 1 Ltd was instructed to clean up the contaminated ground area in the carport.
- Ivan Yukich, managing director of Demolition 1 Ltd has confirmed that the contaminated ground area of the lean to, which was less than 10m2 was “completed to the highest standard”.
- Asbestos Surveys Limited then sent a licensed inspector, Shane Hutchinson to the property. Mr Hutchinson confirmed that the clean-up performed by Demolition 1 Ltd, after the removal of the contaminated material, had been carried out in accordance with the Health and Safety Asbestos Removal Regulations 2016.
- Worksafe inspector, Mr Harris, then confirmed in writing that the tenant could move back into the property as it was safe to do so, on 5 May 2022.
- Mr Healey was not convinced that the property had been properly cleaned. He was also continuing to insist that he was entitled to compensation for replacement of his goods. His assessment of the value of the goods ranged from $10,000 to $20,000. The evidence confirms that the conversations were becoming increasing heated and Mr Healey’s behaviour towards the property manager and Mr Yukich, increasingly threatening.
- On 27 May 2022 Mr Healey had further testing done by Fibresafe NZ. This testing confirmed that a chair, tent and table edge were contaminated with asbestos, but this time with Chrysolite only.
- Demolition 1 Ltd were asked to return to the site and remove contaminated objects and reclean the area. Their subsequent report confirms that the asbestos in the recontamination was different to the original asbestos they had cleaned up and that an unknown person had caused the recontamination.
Is any sum payable as compensation or exemplary damages?
- As noted above, The Residential Tenancies Act 1986 (“RTA”) requires landlords to ensure that renovation work is undertaken in a manner that does not expose tenants to undue health risks. A landlord is a person conducting a business for the purposes of workplace safety responsibilities, and whilst they may hire a contractor who takes primary responsibility for the safety of the work, the landlord has overlapping workplace safety responsibilities under the RTA to the tenants under s45.
- The Health and Safety at Work (Asbestos) Regulations 2016 clarify that a landlord must ensure asbestos, identified at a workplace is safely removed and disposed of and the premises cleaned. Competent contractors must be hired who can recognise and manage risks.
- While Mr Healey said that the landlord should have known there was an asbestos risk, with the renovation of the carport, Mr Williams said he had no reason to suspect this and neither did the builder who attended to that work.
- The builder has subsequently provided a statement saying that he was unaware of the risk and failed to identify that the building materials removed contained asbestos. He has subsequently undertaken training to ensure he is more readily able to identify asbestos.
- In this case, I find that the tenant’s exposure to asbestos contamination is a breach of s45.
- It is not however established that the landlord knew there would be asbestos in the materials removed from the carport or that the landlord has been in any way negligent in attending to the required clean up.
- The asbestos contractor tested both the building material and the chattels stored in the carport. In terms of the tenant’s claim for compensation for replacement of his chattels, that testing clearly showed no signs of asbestos contamination on the objects tested. The landlord was entitled to rely on that testing and is therefore not liable for the cost of replacing those items.
- The initial asbestos exposure caused a risk of harm to the tenants that arose from the renovation, that gives rise to a right to compensation.
- However, the landlord took urgent and appropriate steps to obtain alternative accommodation for the tenant and his family in a motel and to have the asbestos removed as quickly as possible so the tenant could move back. Worksafe confirmed that the clean-up had occurred in accordance with the regulatory requirements.
- I find that the landlord ought not to have charged rent for the period the tenant and his family were unable to live at the property and were relocated at the motel.
- I therefore award one weeks rent to be refunded to the tenant as compensation. This accounts both for the few days he was not able to live at the property and the inconvenience of this.
- The tenant said he has also experienced the stress of not knowing what the effects of the contamination will be longer term for him and his daughter. However, as the area contaminated was a carport and not part of the house and the testing has confirmed the chattels stored in the carport were not contaminated, I decline to award any additional compensation over and above the one week rent rebate.
- I am satisfied that the sum is reasonable to reflect the unexpected outcome of the carport renovations that occurred, and the inconvenience and stress it caused.
- Having regard to the factors set out in s109 of the RTA, I do not consider it is appropriate to award exemplary damages for the breach of s45.
- There is no evidence of the required intentionality on the part of the landlord.
- The tenant selected the initial testing company, and the landlord selected an appropriately qualified contractor to do the work required. Worksafe certified that the property was safe to live in once the work was done (and it is relevant again that the contaminated area was a carport and not the house itself). Landlords claim for retesting premises
- The landlord has also claimed reimbursement for the cost of retesting the premises when the second “mystery” contamination occurred. The implication in the landlord’s submission was that Mr Healey had re-contaminated the premises himself so as to bolster his claim for compensation.
- Perhaps unsurprisingly Mr Healey denied this allegation and at the end of the day I am unable to make conclusive findings that this is what occurred.
- I decline to award this cost. As noted, the Tribunal is satisfied that the landlord took appropriate steps to hire a competent contractor to clean the property. Did the landlord unlawfully dispose of the tenants’ goods
- A landlord must not seize or dispose of any of the tenant’s goods, except where they are disposed of under sections 62 to 62C of the Residential Tenancies Act 1986. See section 33(1) and (4) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $3,000.00. See section 33(2) and Schedule 1A Residential Tenancies Act 1986.
- I accept Mr William’s evidence that by the end of the tenancy, Mr Healey was incarcerated and in consultation with his parents’, rubbish left at the property, was disposed of.
- Mrs Healey is authorised to act as an agent for Mr Healey, she and Mr Healey senior are known to Mr Williams and I find it was reasonable for him to rely on their confirmation that the goods left at the property had no value (at least beyond the value of packing, transporting and storing them) and could be disposed of so that tenancy matters could be concluded. In a very real sense that concluded Mr Healey’s tenancy obligations.