What was the outcome of Tenancy Tribunal case 4857261?

The tribunal order states: The application for rehearing is granted.

How much money was awarded in case 4857261?

Takapuwahia, Porirua 5022 at 11:59pm…: $20.44 awarded to landlord

What type of tenancy dispute was case 4857261?

The dispute type was not classified.

Where can I read the official tribunal order for case 4857261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10410898-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4857261?

The tribunal order states: The application for rehearing is granted.

How much money was awarded in case 4857261?

Takapuwahia, Porirua 5022 at 11:59pm…: $20.44 awarded to landlord

What type of tenancy dispute was case 4857261?

The dispute type was not classified.

Where can I read the official tribunal order for case 4857261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10410898-Tenancy_Tribunal_Order.pdf.

22 Takapuwahia Drive, Takapuwahia, Porirua 5022 Tenancy Tribunal Case 4857261 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4857261. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Takapuwahia, Porirua 5022 at 11:59pm on Friday 14 June 2024. 3. Waimakere Coker is to pay Te Ahuru Mowai Limited Partner	$20.44		Takapuwahia, Porirua 5022 at 11:59pm on Friday 14 June 2024. 3. Waimakere Coker is to pay Te Ahuru Mowai Limited Partner

Claims and awards in Tenancy Tribunal application 4857261. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Takapuwahia, Porirua 5022 at 11:59pm on Friday 14 June 2024. 3. Waimakere Coker is to pay Te Ahuru Mowai Limited Partner	$20.44		Takapuwahia, Porirua 5022 at 11:59pm on Friday 14 June 2024. 3. Waimakere Coker is to pay Te Ahuru Mowai Limited Partner

Order

The application for rehearing is granted.
The tenancy is terminated and Te Ahuru Mowai Limited Partnership is granted possession of the premises at 22 Takapuwahia Drive, Takapuwahia, Porirua 5022 at 11:59pm on Friday 14 June 2024.
Waimakere Coker is to pay Te Ahuru Mowai Limited Partnership $20.44, as reimbursement of the filing fee, immediately.

Reasons

Both parties attended the hearing which was held remotely by teleconference. Ms Trego, Ms Kingi and Ms Englebretsen represented the landlord. Ms Coker attended with her support person Mr Maher.
Ms Coker wished for Mr Maher to represent her although a formal application as required by section 93(5) of the Residential Tenancies Act 1986 (RTA) had not been made. Ms Maher explained that she has learning difficulties and other stressors which makes it difficult for her to participate in such hearings. With the consent of the landlord, I approved Mr Maher’s representation.
On 8 May 2024 the Tribunal made an order for possession of the property following the landlord’s notice of termination dated 21 March 2024.
On 15 May Ms Coker applied for a rehearing on the grounds that she was prevented from attending the hearing. This hearing was set down to consider that application.
Section 105(1) of the RTA provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”. Usually, the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing, or they were not able to properly present their case.
Ms Coker says that she was not able to attend the remote hearing as the Tribunal had the wrong phone number for her. She says she had told the landlord of her new number on 29 February and despite this they provided the Tribunal with her outdated number, thereby misleading the Tribunal.
Ms Coker says she was awaiting the hearing but never received the call. As such she contacted the Tribunal but was told they could not connect her to the hearing.
The landlord’s submission is that it was Ms Coker’s responsibility to ensure that the Tribunal had the correct number as is stated in the Notice of Hearing. Ms Trego agrees that Te Ahuru Mowai did have the correct number for Ms Coker and was under the impression that it had been provided to the Tribunal.
Looking at the documents Adjudicator Price had at the initial hearing, I can see that she had an incorrect number for Ms Coker. It was this number that she referenced calling in her decision. I am satisfied that, due to an administrative error, of which I have no clarity as to the origin, the Tribunal called an incorrect number for Ms Coker on the day of the hearing.
Ms Coker was not able to attend the hearing as an incorrect number for her was called and when she contacted Registry, they were not able to connect her to the hearing. She was willing, but unable to attend. Accordingly, having considered both parties submissions carefully, I am satisfied that a miscarriage of justice may have occurred, and as such a rehearing should be granted.
Following my approval of the rehearing application, both parties clearly agreed that the matter could be heard immediately by me as I was not the original adjudicator and was available to do so. Both stated they were prepared for such a process. Section 85 of the RTA requires the Tribunal to be administered expeditiously; accordingly I considered it appropriate to progress the matter immediately for the parties.
The landlord has applied for a possession order following the service of a termination notice on Ms Coker. The questions therefore for the Tribunal are: i. Was the termination notice valid? ii. What is the appropriate result?
I discuss each question separately below whilst noting that I gave an oral decision at the hearing in an effort to give all the parties clarity. This decision details the reason I made the findings I did.

Was the termination notice valid?

Ms Trego’s submission is that there have been extensive issues with alleged anti- social behaviour 1 during this tenancy. As such, several hui have been held and korero engaged in. As a result of one of the hui, a methamphetamine test of the property was undertaken in March 2024. The results were as follows:
Upon receipt of these results Te Ahuru Mowai issued a notice to terminate the tenancy on 21 March pursuant to section 59B of the RTA. Ms Coker did not vacate the property in accordance with the notice and therefore Te Ahuru Mowai applied to the Tribunal for a possession order.
Ms Trego says they have attempted to work with Ms Coker and her support people on a number of occasions to assist her to obtain emergency housing and vacate. She says they cannot have anyone living in a home that presents such a risk to their health. 1 Including allegations of illicit drug use
Ms Englebretsen’s evidence is that Te Ahuru Mowai’s policy is that if methamphetamine testing elicits results of the presence of methamphetamine at levels lower than 15μg /100cm2 they will provide an opportunity to remediate the premise. If the levels exceed 15μg /100cm2 then they will vacate the premise and have it assessed by professionals as to what steps are required to make it safe.
Te Ahuru Mowai is clear that they do not consider it safe for Ms Coker to remain in the property and as such wish her to vacate so they can attend to it.
Mr Maher made comprehensive submissions in response to the application. Summarised, he states: a. There is no evidence that the presence of methamphetamine to these levels in a property is injurious to a person’s health. b. Te Ahuru Mowai did not, and should, provide Ms Coker with an opportunity to remediate rather than requiring her to leave. c. Te Ahuru Mowai do not have the evidence available to establish that the property needs to be vacant in order for it to be remediated, if remediation is in fact necessary. In short, there is no evidence that the property is uninhabitable. d. There is no regulatory regime therefore section 59B is non-operational. e. Te Ahuru Mowai has ulterior motives in evicting Ms Coker.
I discuss each of Mr Maher’s submissions as follows. Is the property contaminated with methamphetamine to a level that renders it unsafe to reside in?
Mr Maher submits that the danger to a person’s health is “absurdly remote” given the levels of methamphetamine detected in these premises. He says that there is no evidence to support a contention that levels of over 15μg/100cm2 are dangerous to a person. He further submits that it is the precursors to manufacturing methamphetamine that are the dangerous elements and these were not present in this whare.
Te Ahuru Mowai submit that they base their policy that a level of over 15μg/100cm2 is considered dangerous on previous Tribunal decisions. Their policy is that if levels of over 15μg /100cm2 are found, a property is deemed as too unsafe to enter other than by the professional companies equipped to do so.
Firstly, I note that there is no challenge to the findings of the methamphetamine testing, therefore I accept the results as conclusive.
The Tribunal has previously found that decontamination of a property is necessary when levels of methamphetamine contamination are found to be above 15μg/100cm2. This is the level adopted by the authors of what is colloquially known as the Gluckman report. 2 The District Court 3 has consistently confirmed that it is open to the Tribunal to apply the Gluckman report recommendations because of the lack of legislative regulation currently.
I do note however that neither the Gluckman Report nor the previously used New Zealand Standard NZS 8510:20173 (NZS) which recommended a level of
5μg/100cm2 are embedded into law; they both represent guidelines/recommendations and as such are not regulatory.
In the District Court case of Full Circle Real Estate v Piper his Honour Judge Kellar considered whether the Tribunal erred in applying the Gluckman level of 15μg/100cm2 over the NZS of 1.5μg/100cm2 and found that: “it would have been bold for the adjudicator to have ignored that report (the Gluckman 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.” 4
No contrasting scientific reports were provided to me during these proceedings although I specifically asked if Mr Maher had any he wished to rely on.
On the evidence I have before me, I am satisfied that the Gluckman Report level of 15μg/100cm2 continues to be the best level of evidence to apply in line with the current scientific knowledge on the potential risk to human health from methamphetamine contamination in dwellings. It is simply the most reliable guidance currently available. This means that if levels of methamphetamine above 15μg/100cm2 are found in a property, decontamination is required to avoid potential health risks to the occupants.
Mr Maher made the alternative argument that the threshold for termination should be different to that of finding damage or the need for remediation. I accept his submission that it must only be in extreme circumstances that a person’s home should be withdrawn from them, however I cannot accept that there should be differing levels of methamphetamine contamination in these scenarios.
The level set of 15μg/100cm2 for requiring decontamination is based on the premise that it is not conclusively safe for a person to reside in a home where the levels are higher. The potential risk to their health of doing so means that the property must be decontaminated in order to ensure their safe residence. 2 Methamphetamine contamination in residential properties: Exposure, risk levels and interpretation of standards. 29 May 2018 - Professor Gluckman – Prime Minister’s chief science advisor; (The Gluckman Report). 3 See Full Circle Real Estate Limited v Piper [2019] NZDC 4947 and Acme Realty Ltd v Alexander James Hogg, Tuitui Grace Polotu, Leigh Sharyn Coughlin [2021] NZDC 3231.
Therefore, if a property is found to require decontamination, it cannot be safe for occupation. As such, an application to end a tenancy on the basis of contamination to the same levels must likewise be appropriate.
Mr Maher refers to the following statement in the Gluckman report: There is currently no evidence that methamphetamine levels typically resulting from third-hand exposure to smoking residues on household surfaces can elicit an adverse health effect. 4
He says that this makes it clear that there is no danger in residing in a home where there is a presence of methamphetamine.
I think however the referenced section is taken out of context and I refer to others that provide further guidance: Passive, third-hand exposure to methamphetamine can arise through residing in a dwelling previously used as a clandestine meth lab, or where a significant amount of methamphetamine has been smoked. Former meth labs generally have relatively high levels of methamphetamine residue on sampled surfaces (levels greater than 30 μg of methamphetamine per 100 cm2 surface area are thought to be indicative of manufacturing activity). 5 Remediation is certainly warranted if high levels of methamphetamine are present that are indicative of manufacturing activity or excessive smoking. Levels >30 μg/100 cm2 are considered by forensic experts to signify that manufacture is likely to have taken place [10]. Testing for lower levels that still suggest relatively high levels of smoking (e.g. >15 μg/100 cm2 ) could be used to identify specific areas of contamination that warrant remediation. 6
As I have said, the Tribunal and the District Court have accepted that the Gluckman report has set the minimum level requiring decontamination at 15μg/100 cm2 because levels above that are potentially dangerous to a person’s health. The Tribunal is bound by decisions of the District Court.
As such, I am satisfied that this property, with levels of methamphetamine well exceeding 15 μg/100 cm2 is a potentially unsafe environment, sufficient to require the premises to be vacated. It is helpful to say here that the evidential onus is the balance of probabilities, the civil standard of proof. This means that I do not need to be certain that residing in such a property is dangerous to one’s health, just that it is likely to be unhealthy, or at least more likely than not. I am satisfied of that on the basis of the Glukman report.
I do note that although Mr Maher raised the issue of the precursors to methamphetamine production being the more dangerous element in a home, no 4 Page 7 5 Page5-6 6 Page 27 evidence or further submission on the point was made. Accordingly, I can find no basis in evidence for his argument that although methamphetamine is present in this home, the precursors are not and therefore it is safe for occupation.

Is the premise uninhabitable?

Mr Maher submits that even if the levels of methamphetamine render the need for remediation, this does not mean the property is uninhabitable as the relevant areas could be decontaminated whilst Ms Coker’s tenancy continues. He says it is not in line with Kaupapa Maori 7 or Whenua Ora 8 principles to terminate a tenancy without considering whether selective remediation could occur first.
Ms Trego submits that they are not aware of what measures will need to be taken to remediate the home as they cannot make such an assessment whilst Ms Coker resides there. She says that it is not appropriate for them to leave Ms Coker and her whanau at potential risk of harm while an assessment is made.
The following is a plan of the home: 7 A philosophy that service providers working with Māori need to acknowledge Māori ways of being and perspectives in their work and they should work together ensuring that the relationships and mahi is based on mutual trust, respect, reciprocity and whanaungatanga. 8 A philosophy that people and services should be working together to provide the best outcomes.
As above, the levels in the back porch, 9 laundry 10 and toilet 11 all exceed 20μg of methamphetamine per 100 cm2. Given the size of the whare, the contaminated area is a highly utilised section of the home and essential to the functioning of the home.
I am satisfied on the evidence before me that it would not be reasonable, and may well be dangerous, for Te Ahuru Mowai to allow people to continue to reside in the home whilst it was being assessed and it is highly unlikely that selective remediation could occur.
In coming to this finding, I have also taken into account section 49 of the RTA which requires Te Ahuru Mowai to mitigate their loss. Contamination is damage and pursuant to section 49, Te Ahuru Mowai is required to take steps to mitigate any loss they suffer from that damage. This I mention as an aside however as the main issue here is the safety of Ms Coker, her whanau and any guests and especially children she allows into the home in its current state.
I also note that section 59B(2) of the RTA states that if the contamination has resulted as a breach of the tenancy agreement the whole of the premise is to be treated as uninhabitable. I recognise that in the absence of regulations this provision potentially may not be currently operative (see my discussion below), but it does provide an indication as to the approach taken by Parliament around contamination.
The tenancy agreement states that the tenant must not damage the property 12 and must abide by the RTA. Section 40(2)(b) of the RTA states that a tenant must not use the premises for an unlawful purpose. 13 It is unlawful to use premises or allow them to be used, for the purpose of consuming controlled drugs (ss7 and 12 Misuse of Drugs Act 1975). Methamphetamine is a controlled drug and appears 14 to have been used in the premises. The high levels of methamphetamine found and the length of the tenancy (seven years to date) persuade me of this.
Accordingly, I am satisfied on the evidence before me that the property has more likely than not been used for an unlawful purpose and is damaged by the methamphetamine contamination. 15 I further consider that given the extent of the contamination, in particular the very high levels, that the whole of the premise is to be treated as uninhabitable. 9 45μg/100 cm2 10 26μg/100 cm2 11 23μg/100 cm2 12 Paragraph 16 13 I note that tenants are responsible for the actions of guests they allow onto the property. 14 To the civil standard of proof; the balance of probabilities 15 See also my discussion at paragraph 54(b) below
For these reasons I find it established that the whare with levels such as these recorded, is uninhabitable.

Is section 59B operational?

Mr Maher submits that section 59B cannot be utilised until the regulations referred to in the section come into force. He says they have not yet been created by Parliament because of the level of controversy and confusion surrounding methamphetamine contamination and any potentially harmful effects. Therefore, he submits, the landlord cannot utilise this section to force the end to the tenancy.
Section 59B was inserted into the RTA on 30 January 2021, by section 35 of the Residential Tenancies Amendment Act 2019 (amendment Act). It was intended by the amendment Act that regulations would be enacted to prescribe testing methods and maximum inhabitable levels of contaminants (the regulations). To date these regulations have not yet been promulgated.
As such, Mr Maher submits that section 59B is not enforceable until the regulations have been enacted.
The wording of section 59B(1) is as follows: This section applies if testing in accordance with a relevant prescribed method establishes contamination by a contaminant, in any part of the premises, at a level that is above a relevant maximum inhabitable level prescribed for that contaminant.
The section has been passed into law. Whilst the regulations have not, I do find it appropriate to consider the intent of the section and the RTA. A major focus of the RTA is to ensure that homes rented out are safe and healthy. Parliament therefore intended by s59B to end tenancies where occupants were potentially at risk by methamphetamine contamination. It would therefore not be in keeping with the spirit of Act to allow a home contaminated with high levels of methamphetamine to be resided in.
Specifically, no reasonable landlord would or should allow a tenant to live in a whare as highly contaminated as this one, especially if children are present. This section was intended to provide another avenue to address such a potentially unsafe situation. I therefore consider it just pursuant to section 85 of the RTA to allow the landlord’s application for possession based on their termination notice.
However, even if my analysis of s59B is wrong, I would still have ordered a termination of the tenancy under section 56 for these reasons: a. The original application included a claim pursuant to section 56 of the RTA for termination. Ms Coker was therefore aware of this. b. Ms Coker has breached the tenancy and RTA 16 as above. As discussed, whether or not it was her or her guest that permitted methamphetamine to be used in the property, she as the only tenant, remains liable for the consequences of doing so. Although there is no pre-tenancy methamphetamine test in evidence, the high levels satisfy me that it has been used during the tenancy. 17 It is simply not likely that the contamination has been present for the seven years of the tenancy as the levels are currently extremely high and it is accepted that surface levels of methamphetamine reduce over time. Also contributing to that finding is the evidence of neighbourhood complaints regarding drug use and gang affiliation, and the Police attendances. c. The breach is of such a nature that it would be inequitable to refuse to terminate the tenancy. 18 The levels are so high that extensive remediation is going to be necessary; accordingly the whare is considerably damaged.
Therefore, in all the circumstances it is just that the tenancy be terminated.

Does Te Ahuru Mowai have ulterior motives?

Mr Maher submits that Te Ahuru Mowai is attempting to terminate the tenancy for other reasons than their need to remediate the property. He says that he is aware of another tenancy in which the tenant was provided the opportunity to remediate prior as an alternative to termination.
As Mr Maher did not provide the particulars of the tenancy he refers to, Ms Trego could not comment specifically on the situation. She did say however that if levels are below 15 μg/100 cm2, it is Te Ahuru Mowai policy to allow a tenant an opportunity to remediate the situation. This situation is different as the levels are higher.
I find no evidence that Te Ahuru Mowai has ulterior motives in terminating this tenancy. I accept their submission that they are acting within their policy, in the interest of safeguarding Ms Coker and her whanau’s health and to cease the damage to the property.
In my assessment, any reasonable landlord faced with methamphetamine levels as found in this tenancy would have, or should have sought to terminate the tenancy, and then proceed with remediation. 16 Section 56(1)(a) RTA 17 Surface residue of methamphetamine decreases over time (see page 14 of the Gluckman report) and this tenancy has been in place for 7 years. 18 Section 56((1)(c) RTA

What result is appropriate?

As discussed above I consider it reasonable that the tenancy end. Accordingly, the tenancy is terminated, and a possession order is made in favour of Te Ahuru Mowai at a date intended to provide Ms Coker time to make alternative arrangements.
Because Te Ahuru Mowai Limited Partnership has substantially succeeded with the claim I must reimburse the filing fee.
No applications for suppression have been made and I do not consider any warranted pursuant to section 95A of the RTA.

Tenancy Tribunal case 4857261 — Tenancy dispute at 22 Takapuwahia Drive, Takapuwahia, Porirua 5022

At a glance

Claims & awards

Tenancy Tribunal case 4857261 — Tenancy dispute at 22 Takapuwahia Drive, Takapuwahia, Porirua 5022

At a glance

Claims & awards

Order

Reasons

Was the termination notice valid?

Is the premise uninhabitable?

Is section 59B operational?

Does Te Ahuru Mowai have ulterior motives?

What result is appropriate?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Was the termination notice valid?

Is the premise uninhabitable?

Is section 59B operational?

Does Te Ahuru Mowai have ulterior motives?

What result is appropriate?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions