What was the outcome of Tenancy Tribunal case 4527349?

The tribunal order states: Whitney Chantel Harris must pay Visionwest Community Trust $394.38

How much money was awarded in case 4527349?

Rent Refund - 10% Abatement: $200.00 awarded to tenant; Rubbish Removal: $842.38 awarded to landlord

What type of tenancy dispute was case 4527349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4527349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9675187-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4527349?

The tribunal order states: Whitney Chantel Harris must pay Visionwest Community Trust $394.38

How much money was awarded in case 4527349?

Rent Refund - 10% Abatement: $200.00 awarded to tenant; Rubbish Removal: $842.38 awarded to landlord

What type of tenancy dispute was case 4527349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4527349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9675187-Tenancy_Tribunal_Order.pdf.

55 Keegan Drive, Massey, Auckland 0614 Tenancy Tribunal Case 4527349 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4527349 — net $394.38 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$842.38		Rubbish removal
Rent refund - 10% abatement		$200.00	Rent refund - 10% abatement
Total award	$842.38	$200.00
Net award	$394.38
Total payable by Tenant to Landlord	$394.38

Claims and awards in Tenancy Tribunal application 4527349 — net $394.38 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$842.38		Rubbish removal
Rent refund - 10% abatement		$200.00	Rent refund - 10% abatement
Total award	$842.38	$200.00
Net award	$394.38
Total payable by Tenant to Landlord	$394.38

Order

Whitney Chantel Harris must pay Visionwest Community Trust $394.38 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $248.00 (3482651-006) to Visionwest Community Trust immediately.
Whitney Chantel Harris’ claims for compensation and exemplary damages for the landlord’s failure to repair and maintain the premises and comply with Healthy Homes Standards in a timely manner are dismissed.
Visionwest Community Trust’s claims for compensation of $1,250.00 insurance excess relating to methamphetamine decontamination/remedial work and $2,873.62 for methamphetamine testing are dismissed.

Reasons

Ms Harris (“the tenant”) entered a tenancy agreement with Visionwest Community Trust (“the landlord”) for the premises at 55 Keegan Drive, Massey, Auckland. The tenancy started on 8 March 2021 and ended on 24 April 2023.
On 11 April 2023, the tenant filed an application claiming the landlord had failed to comply with their obligations to repair and maintain the premises and comply with Healthy Homes Standards in a timely manner. She claimed a rent rebate, compensation of $6,000.00 and exemplary damages. Originally work orders were also sought to remedy some of the issues however as the tenant had moved out of the premises those claims are moot.
The landlord filed a cross application on 13 September 2023 claiming compensation including $1,250.00 insurance excess relating to methamphetamine decontamination/remedial work, $2,873.62 for methamphetamine testing and $842.38 for rubbish removal, refund of the bond following the end of the tenancy.
In general, the onus or burden of proving a particular claim rests with the party who is making that claim. The standard of proof, or level of evidence, required is “on the balance of probabilities”. In other words, the party proving the claim must establish with evidence that their claim is “more probable than not” or “more likely than not” correct. Although I have reviewed all the parties’ evidence and submissions, I have only referenced what I find necessary to give context to my decision. The tenant’s application Did the landlord breach their obligations to repair and maintain the premises in a reasonable state?
A landlord is required to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purpose (see section 45(1)(b) of the Residential Tenancies Act 1986 (“RTA”)). In addition, the landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises (see section 45(1)(c) RTA). There are a number of basic requirements in respect of buildings, health and safety that can be found in the Housing Improvement Regulations 1947. Rule 15 states that “every house shall be free from dampness”. Rule 17 requires every house to be “weatherproof”. Regulation 6 of the Housing Improvements Regulations 1947 states that every living room must be fitted with a fireplace and chimney or other approved form of fixed heating.
The landlord also has obligations under section 45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The HHS came into force on 1 July 2019 and provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage. See section 45(1)(bb) RTA.
Breaching any 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 RTA.
The RTA provides for rent abatement where premises are partially destroyed or so seriously damaged as to be uninhabitable. See section 59(4)(a) RTA.
On 28 October 2022, a tow truck driver lost control of his vehicle whereby it rolled down Keegan Drive, Massey, and crashed into the downstairs and garage area of the tenant’s premises. The tenant says this demolished the garage leaving the house buckled and bent, windows were unable to be locked, there were live wires exposed, and ventilation and heating was unable to work. She said the landlord’s insurance assessor was on site the same day and identified the presence of asbestos.
The tenant claims the landlord failed to undertake repairs and address other associated issues in a timely manner following the tow truck crash incident. The traumatic experience had left the tenant and her child shaken and fearful as they felt their home was no longer secure and were afraid to leave it unattended. The tenant expressed concerns and frustrations that they have had to endure sub-standard living conditions with significant health and safety risks. The tenant said the home was incredibly cold since the crash with significant draught, dampness and mould issues. The tenant felt disappointed that there was no acknowledgement from the landlord in relation to their belongings that had been damaged in the crash or a proposal of any suitable resolution given their dire circumstances. The tenant says the issues had severely impacted on their health, wellbeing and enjoyment of the premises.
The tenant referred to a Healthy Homes Building Assessment report she had commissioned. An inspection of the premises was completed by Mr Molineaux (inspector) from Property Report NZ Ltd on 1 February 2023. In his report, Mr Molineaux noted the significant damage to the premises caused by the tow truck crashing into 55 Keegan Drive, Massey, Auckland and the impact on the tenant. In summary, Mr Molineaux found the dwelling had not been compliant with Healthy Homes Standards and that the overall condition of the dwelling was in a very poor condition.
On 1 March 2023, the tenant issued the landlord with a 14 day notice to remedy several issues including the failure to provide a “safe lockable dry healthy home eg: no heat pump, roof leaks, hot water cylinder leaks, live cable wires, buckled windows, exposed to Asbestos”. She requested an investigation and report regarding building structural integrity and Asbestos. The tenant says this notice was ignored.
In response, the landlord noted the owner’s insurer and contractors were on site on the day of the crash to ensure the property was structurally safe. The heat pump was disconnected for safety reasons. Asbestos was identified and the insurance assessor requested that a methamphetamine test be completed at the premises prior to repair works commencing.
The landlord says two contracting companies reported the presence of methamphetamine at the premises which required the tenant to vacate the property so decontamination and repairs could begin.
On 20 January 2023, the landlord issued the tenant with a 90 day notice to vacate the premises on 21 April 20223. The landlord submitted that it had taken 6 months before the owner would be able to get in and fix the property. Contractors could not go into the property or commence repairs until the methamphetamine decontamination process occurred first. This was the instruction from the owner’s insurer.
While I acknowledge the landlord’s submissions, it does not distract from its obligations in relation to section 45 RTA.
I accept the repairs were urgent and the delay had significantly impacted on the tenant, but the landlord had a reasonable excuse not to undertake repairs as the property was contaminated with methamphetamine and for health and safety reasons work could not begin until the property was decontaminated and the tenant had vacated the property. As such I find no breach of section 45, and therefore the claim for compensation and exemplary damages is dismissed.
However, I find the premises was partially destroyed and so seriously damaged as to be uninhabitable from the time of the tow truck crash into the premises. When uninhabitability is established, the rent must abate. See section 59(4)(a) RTA. There is no formula for this. In the previous court cases, even when premises were considered totally destroyed and therefore uninhabitable for a period, rent abated by around 50%.
In this instance, I am satisfied that the tenant had suffered a loss of amenity and loss of enjoyment of use of the premises. I find that the rent should abate by approximately 10% from the date of the event until the end of the tenancy.
Turning to the the tenant’s claim that the landlord breached its obligations to comply with the HHS. This claim is dismissed because of the compliance dates for the HHS, which vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. This tenancy started on 8 March 2021, so HHS did not apply to tenancy. The landlord’s application Is the tenant liable for damage to the premises due to methamphetamine contamination?
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. See sections 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).
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) RTA.
It is unlawful to possess or consume methamphetamine. See section 7(1)(a) and Schedule 1 of the Misuse of Drugs Act 1975.
Before damages or compensation can be awarded against a party, reasonably foreseeable losses flowing from a breach of the Act or the tenancy agreement, or the common law that applies to contracts (except to the extent that it is displaced or modified by provisions of the Act) must be established.
In this case the premises were tested prior to the start of the tenancy and no detectable level of methamphetamine contamination was found.
As noted above, following the tow truck crash into the tenant’s premises on 28 October 2022, the owner’s insurance assessor requested that a methamphetamine test be completed on the property prior to repair works beginning.
Methamphetamine testing carried out by Precise Consultancy on 11 November 2022 returned the following positive results: Living room 12.31 μg Toilet5.42 μg Dining room 9.74 μg Kitchen2.09 μg Hallway23.3 μg Bedroom 17.69 μg Bedroom 35.05 μg
Further methamphetamine testing was carried out by ALL Clear on 23 November 2022 returning the following positive results: Living room 1.56 μg Toilet3.4 μg Dining room 12 μg Kitchen1.69 μg Hallway19.08 μg Bedroom 15.9 μg Bedroom 35.8 μg
The landlord seeks compensation being the $1,250.00 insurance excess for methamphetamine contamination and remediation and $2,873.62 for methamphetamine testing.
The damage claimed by the landlord is chemical damage. As this damage cannot be physically seen the Tribunal is informed by scientific evidence to establish whether there is damage, the extent of the damage, where it is located and what is required to remedy the damage.
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/100cm2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm2 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/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm2 where contamination resulted from manufacture due to the risk posed by harmful chemicals used in the process.
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.
In Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
Based on the reports from ALL Clear and Precise Consultancy, I am satisfied that the level of methamphetamine contamination in the hallway area at the premises was at a level sufficient to cause damage to the premises. The test results in the hallway area being above the 15 μg/100cm2 level that the Gluckman Report states could be harmful. The other results were below the 15 μg/100cm2 level.
On the evidence, I accept that the premises had been contaminated by methamphetamine at some point during the tenant’s tenancy.
The most likely scenario to explain the presence of this amount of methamphetamine is that someone has smoked methamphetamine in the premises. Methamphetamine can last on surfaces for lengthy periods of time. There is no way to determine when methamphetamine was consumed. I can only be satisfied that it was consumed at some point during the tenancy.
There is no evidence that methamphetamine has been consumed by the tenant herself. She was shocked and upset at what was found. She thought the methamphetamine test report was a scam. She noted that it was only her and her child who lived at the premises. She was adamant that she did not consume methamphetamine and would not permit anyone else to consume methamphetamine at the premises. She believed there was a link between the tow truck crashing into the garage and the detection of methamphetamine. She noted that regular methamphetamine tests carried out by the landlord up until this time were negative.
The tenant’s conduct after the indication of methamphetamine contamination was made are consistent with those of an innocent person. She insisted that the property manager get another test done when the initial test indicated methamphetamine contamination. That indicates a firm belief the test was inaccurate.
There is no evidence that a police raid was carried out at the premises during the tenant’s tenancy resulting in methamphetamine charges being laid. There is no evidence that the tenant has a history of charges with regard to possession or supply of methamphetamine.
In an allegation of this kind, I consider the standard of proof of the balance of probabilities should be more rigorous than for more trivial matters because of the reputational damage that a finding of methamphetamine use could cause.
Ultimately the issue boils down to the fact that an applicant must provide sufficiently robust evidence to establish the claims they are making to the required standard. The landlord has failed to do this. While there is a possibility that the tenant is responsible for the methamphetamine contamination, I am not satisfied there is the required probability.
I am not persuaded on the balance of probabilities that the tenant used or permitted the premises to be used for smoking methamphetamine or any other unlawful purpose that contaminated the premises.
This claim is therefore dismissed.

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) RTA.
On the evidence produced by the landlord, I find the tenant did not remove all rubbish from the premises at the end of the tenancy. The tenant has not disproved liability for this claim.
The landlord relied on the exit property inspection report, photographs and invoice.
The amount ordered is proved. Filing fee and suppression orders
As neither party has wholly succeeded with their claims, I decline to order either party to reimburse the filing fee.
While suppression orders have been requested, neither party has been wholly successful with their claims therefore they are not entitled to a suppression order and no suppression orders apply around publication of this decision.

Tenancy Tribunal case 4527349 — Tenancy dispute at 55 Keegan Drive, Massey, Auckland 0614

At a glance

Tenancy Tribunal case 4527349 — Tenancy dispute at 55 Keegan Drive, Massey, Auckland 0614

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions