Published tribunal order
Tenancy Tribunal case 4502660 — Rent arrears at Flat 6, 146 Spring Street, Tauranga 3110
Decided 9 Aug 2023 · Published 9 Aug 2023 · Application 4502660
Landlord favoured
- Rent arrears
- Property damage
Order
- Nathan Hall must pay Barfoot & Thompson Property Limited $820.44 immediately, calculated as shown in table below.
Reasons
- The landlord attended the hearing. The tenant did not attend. An order for substituted service was made on 19 May 2023. The tenant’s mother attended the hearing and gave evidence on his behalf.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The fixed term tenancy ended on 22 July 2022. The landlord provided rent records which prove the amount owing to that date.
- The tenant’s mother says the previous property manager was advised that the tenant would be leaving before the end of the fixed term (late May or early June) and was happy for him to do so. However, a new tenancy did not start until after the end of the fixed term, so the tenant is liable for rent until the end of his tenancy.
Is the tenant responsible for the damage to the premises?
- The landlord claims the cost of repairing wall damage, and also costs for methamphetamine testing, cleaning, and remediation.
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission (s 40(2)(a), 41 and 49B RTA).
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for (s 49B(1) RTA). Methamphetamine
- The premises were tested prior to the start of the tenancy and no detectable level of methamphetamine contamination was found. The premises were tested after the tenant vacated. The highest individual reading was 3.13 μg.
- There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm 2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm 2 for limited use areas.
- In 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”. The report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.
- The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).
- The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]): The Tenancy Tribunal was in a difficult position. The best state of knowledge of risk to human health from methamphetamine contamination available to the adjudicator was the Gluckman Report. It would have been bold for the adjudicator to have ignored that report in favour of the New Zealand Standard given that the Gluckman report represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.
- The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5μg standard.
- Because the highest reading is well below the Gluckman level, I find that the methamphetamine use did not damage the premises, and that compensation cannot be ordered for the testing, cleaning, and replacing curtains and carpet. Wall damage
- The landlord provided 3 photographs of minor wall damage. The representative who attended the hearing was not the property manager at the time, so was reliant on documentary evidence on the file.
- The tenant’s mother accepted that there was a small amount of damage to the lounge wall where a 3M sticker was peeled off, removing paint. She says the photo provided does not reflect the condition the wall was left in, as her husband plastered over the area where paint was removed. However, they could not paint the patch as they could not match the paint. She says she thoroughly cleaned the house and did not see any damage to the kitchen wall. There is insufficient evidence about the pre-tenancy condition to prove the tenant caused any damage there. The landlord could not provide any information about the third photo.
- The claim is for $410.00 and appears to cover repairs to more than one area. I have therefore allowed $200.00 to cover the one area proven. Exemplary damages
- The claim form also includes exemplary damages for using the premises for an unlawful purpose (methamphetamine use). The landlord made not supporting submissions.
- Although there is evidence that methamphetamine was consumed on the premises during the tenancy, I have not awarded any damages in the particular circumstances of the case. The tenant’s mother described her son’s very difficult personal situation, which for privacy reasons need not be recorded in the decision. In light of this, no obvious purpose would be served by adding a punitive element to the compensation already ordered. Filing fee
- The landlord has only been partially successful. Nevertheless, the application was necessary to cover the rent arrears and a proportion of the repair costs. Therefore, I have reimbursed the filing fee. J P Smith 09 August 2023