What was the outcome of Tenancy Tribunal case 4866720?

The tribunal order states: Mystique Katerina Waitaiki-Smith must pay Te Ahuru Mowai Limited

How much money was awarded in case 4866720?

Compensation: Breach of ceiling insu…: $2,000.00 awarded to tenant; Methamphetamine Decontamination: $7,500.00 awarded to landlord

What type of tenancy dispute was case 4866720?

The dispute type was not classified.

Where can I read the official tribunal order for case 4866720?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10651982-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4866720?

The tribunal order states: Mystique Katerina Waitaiki-Smith must pay Te Ahuru Mowai Limited

How much money was awarded in case 4866720?

Compensation: Breach of ceiling insu…: $2,000.00 awarded to tenant; Methamphetamine Decontamination: $7,500.00 awarded to landlord

What type of tenancy dispute was case 4866720?

The dispute type was not classified.

Where can I read the official tribunal order for case 4866720?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10651982-Tenancy_Tribunal_Order.pdf.

42 Jillett Street, Titahi Bay, Porirua 5022 Tenancy Tribunal Case 4866720 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4866720 — net $5,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Methamphetamine decontamination	$7,500.00		Methamphetamine decontamination
Compensation: Breach of ceiling insulation standard		$2,000.00	Breach of ceiling insulation standard
Total award	$7,500.00	$2,000.00
Net award	$5,500.00
Total payable by Tenant to Landlord	$5,500.00

Claims and awards in Tenancy Tribunal application 4866720 — net $5,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Methamphetamine decontamination	$7,500.00		Methamphetamine decontamination
Compensation: Breach of ceiling insulation standard		$2,000.00	Breach of ceiling insulation standard
Total award	$7,500.00	$2,000.00
Net award	$5,500.00
Total payable by Tenant to Landlord	$5,500.00

Order

Mystique Katerina Waitaiki-Smith must pay Te Ahuru Mowai Limited Partnership $5,500.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing with Mr Masina and Ms Trego attending for the landlord and Ms Waitaki-Smith attending by telephone.
The landlord has applied for compensation for damage caused by methamphetamine contamination at the premises following the end of the tenancy. The tenant has filed a cross application for compensation for failing to maintain the premises and failure to comply with Healthy Homes Standards regarding insulation, heating, ventilation, draught stopping, drainage and moisture ingress.
The tenancy originally commenced with Housing New Zealand Corporation (HNZ) as the landlord. However, sometime in or about 2020 HNZ transferred this and many other tenancies to be managed by the current landlord, Te Ahuru Mowai Limited Partnership.
The tenancy started on 24 December 2013 and was terminated by the tenant giving notice effective on 12 March 2024. Burden of proof
Each party has the burden of proving their claims to the civil standard of proof “on the balance of probabilities”. Put another way, each party must persuade the Tribunal that what they say is more likely than not to be the case. The Tribunal does not need to be completely certain, but it must be more certain than not. In deciding any claim, the Tribunal must consider all the evidence presented including oral testimony. The Tribunal must weigh this evidence to decide what is more probable in the case of competing accounts. Certain types of evidence carry more weight, which must be taken into account.
I consider the landlord’s claims first and then the tenant’s claims. Landlord claim for methamphetamine decontamination costs

What is required to prove damage to the premises?

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 Residential Tenancies Act 1986 (RTA).
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) 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. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
In this case, the landlord is not insured for tenant damage.

What is required to prove methamphetamine contamination?

In June 2017, Standards New Zealand published New Zealand Standard 8510:2017 Testing and decontamination of methamphetamine-contaminated properties (the NZ standard) for testing and decontamination of methamphetamine contaminated properties. It adopted a maximum acceptable level of methamphetamine contamination in an affected property of 1.5μg/100cm² for high use areas, for both manufacture and use. Beyond that level, a property was regarded as needing decontamination. If a property needs decontamination, then for the purposes of the RTA, the property is damaged.
However, on 29 May 2018, Professor Sir Peter Gluckman, the then Prime Minister’s Chief Science Advisor, released a report titled; “Methamphetamine contamination in residential properties: Exposure, risk levels and interpretation of standards” (the Gluckman Report). This report concluded that, in the case of third-hand contact, exposure to methamphetamine at levels below 15μg/100cm² was unlikely to have an adverse effect and remediation to the 1.5μg/100cm² standard was only appropriate if there was reason to suspect manufacturing activity.
In Full Circle Real Estate v Piper [2019] NZDC 4947, the District Court considered an appeal from a decision of the Tribunal which adopted the Gluckman report and stated at paragraph [36] “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”.
Accordingly, the Tribunal has treated Full Circle Real Estate as confirmation that the Gluckman report is to be applied rather than the NZ standard.
In summary, the landlord needs to prove both that the premises were contaminated by methamphetamine beyond the “safe level” promulgated by the Gluckman report such that the premises were damaged, and that the damage occurred during the tenancy.

Does the absence of pre-tenancy testing of the premises weaken or end the claim?

In this case, the landlords did not test the premises for methamphetamine contamination prior to the tenancy starting. If there is no testing of the premises before, or at the start of the tenancy, as is the case here, the immediate hurdle is proving that the contamination at the end of the tenancy was caused by the tenants. In the absence of a baseline test, it is much harder for a landlord to establish that the contamination occurred during the tenancy.
The Tribunal held in Brooking and Hodges v Imrie [2021] NZTT4216438, 4217074) that the absence of pre-let testing was not determinative because there was enough circumstantial evidence to support a finding that contamination more than likely occurred during the tenancy. In that case, there was a wealth of circumstantial evidence which pointed to the tenants likely manufacturing and supplying methamphetamine during the tenancy despite there being no-pre-let testing of the premises for methamphetamine.
In contrast, the District Court in Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210 held that the absence of pre-let testing was determinative of being unable to prove that contamination occurred during that tenancy with the court noting at para [11] “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 the tenancy.” One of the contributing factors in that case was also that the levels of methamphetamine residue detected was well below the contamination level adopted in the Gluckman report.
Accordingly, to determine whether the absence of pre-let methamphetamine testing weakens or ends the landlord’s claim, it is necessary to consider the strength of all the evidence and whether it would be safe to conclude that contamination occurred during the tenancy. Evidence regarding methamphetamine contamination
This tenancy started in December 2013 and ran until March 2024, just over 10 years.
The landlords provided a copy of the pre-tenancy inspection report dated 23 December 2013 which recorded that all rooms in the house had been newly painted prior to the tenancy, and new carpets and curtains had been installed.
After the tenancy ended, and in line with their usual protocol before re-letting the premises, the landlord arranged for some initial composite testing for methamphetamine to be completed. This showed the presence of methamphetamine. The landlord then instructed their contractor to carry out discrete drug testing. Individual samples were collected from the premises on 10 April 2024 and sent to Hills Laboratories for analysis. The discrete testing of 8 samples showed the presence of methamphetamine, at levels expressed as follows in micrograms per 100 square centimetres (μg/100cm²): Entrance hallway wall4.4 Bathroom windowsill12.1 Bedroom 1 wardrobe door11.1 Bedroom 2 wardrobe door52 Lounge heat pump 23 Dining room windowsill87 Kitchen wall10.3 Laundry wall57
The high readings particularly on painted walls and windowsill surfaces tends to prove that contamination occurred during the tenancy because those surfaces were newly painted in 2013 at the start of the tenancy. There was also evidence that the heat pump in the lounge was installed in July 2023, only a few months before the tenancy ended. Therefore, the high reading taken from the surface of the heat pump also tends to prove that contamination occurred during the tenancy. In summary, the length of the tenancy and high levels of contamination in several areas, especially the newly installed heat pump support a finding that the contamination must have occurred during this tenancy and likely quite recently.
While the tenant denied that she used methamphetamine at the premises, she acknowledged that she moved out temporarily for six months to care for a relative and allowed someone else to live at the property. There has also been a third person who lived with her at the property for some time. She commented that she thinks those two other people, at the property with her permission, likely used methamphetamine. The tenant is liable for the actions of people at the premises with her permission (see ss41 and 49B RTA).
After carefully considering the above evidence, I find that the absence of a pre-let methamphetamine test does not weaken the circumstantial case against the tenant, and I consider it is safe to conclude on the balance of probabilities that the tenant is responsible for the methamphetamine residue detected in the premises at the end of the tenancy.

Do the levels of contamination justify the compensation claimed?

The landlords provided evidence of decontamination and remediation costs they incurred of $9,301.34. In addition they seek costs to replace carpets of $3,990.50; and to replace curtains of $2,032.22 which they say is required because of the contamination and also required because those items were damaged during the tenancy. For example the carpet was stained as shown in the exit inspection report. Some of the curtains were also damaged and some had been removed during the tenancy. There is also a separate claim for repainting an exterior shed at a cost of $499.03. The total of the claims is $15,823.09. However, the landlord seeks $7,500 in recognition that replacement costs should be depreciated.
In this case, there are four results which show that the methamphetamine levels exceed 15μg/100cm², with the bedroom 2 reading of 52μg/100cm²; the lounge reading of 23μg/100cm²; the dining room reading of 87 μg/100cm²; and the laundry reading of 57 μg/100cm². In that regard, there can be no dispute, that those areas of the house are contaminated beyond the “safe level” promulgated in the Gluckman report and must be decontaminated.
Four other areas (the entrance way, bathroom, bedroom 1 and the kitchen) had levels in excess of NZS:8510 with readings between 4.4—12.1μg/100cm². The issue is whether those areas are deemed contaminated and require cleaning and remediation. The Gluckman report says that remediation of premises to the 1.5 μg/100cm² standard is appropriate if there is reason to suspect manufacturing activity or excessive smoking. The report also noted that levels of 30μg/100cm² and above are considered by forensic experts to signify that manufacture is likely to have taken place.
I find that there is insufficient evidence to suggest that manufacture took place, but there is evidence, given the extremely high readings elsewhere in the premises, that excessive smoking occurred. Therefore, I consider the landlord is entitled to claim the costs associated with remediating the entire house.
In relation to the costs claimed to replace the carpets and curtains, I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. The carpets and curtains were over 10 years old when the tenancy ended. Current depreciation guidelines estimate the life of curtains in a rental property to be 8 years and carpets to be between 8-14 years depending on whether they are in high use living areas or bedrooms.
After considering depreciation, I find that the curtains must be fully depreciated, so that the landlord is not entitled to compensation. In relation to the carpets, I consider that all areas except the bedrooms should be fully depreciated because they are 10 years old and at the end of their life anyway. In relation to the bedroom carpets, they are almost at the end of their life, and I accept that, but for the stains and damage, the landlord would’ve expected them to last a bit longer. In those circumstances an award of 10-15% of the replacement cost of the carpet in the bedrooms only would be justified. The cost of replacing the bedroom carpets was not separately itemised. However, the landlord advised that they only sought $7,500 for all their claims against the tenant. This is less than the invoice for decontamination. On that basis, and to take depreciation into account. I consider it reasonable to award that sum.
The landlord also seeks costs of repainting the shed. However, there was evidence that some graffiti was present at the start of the tenancy. Also, given that the walls have not been painted for 10 years of the tenancy, then the cost of repainting should be fully depreciated.
In summary, the claims for replacing the curtains, the carpet and painting the shed walls should be fully or mostly depreciated. The claim for the decontamination cost is reasonable. The landlord seeks $7,500 to cover all their claims, which I consider is a fair and reasonable result overall. Tenant claims Did the landlord fail to maintain the premises and comply with Healthy Homes

Standards?

The tenant claims that the landlord has breached their obligations under section 45 RTA as follows: a. Under 45(1)(b)—by failing to provide and maintain the premises in a reasonable state of repair; b. Under section 45(1)(bb) RTA by failing to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) regarding heating, ventilation, draught-stopping, drainage, and moisture ingress; and c. Under section 45(1)(bb) RTA by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI).
Breaching any of the above 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.
It is well settled that, the landlord’s obligation to maintain the property in a reasonable state of repair under s45(1)(b) is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenant made general comments that the premises were not well maintained throughout the duration of her 10-year tenancy; that the premises were cold and damp and very hard to heat. She says that she and her children battled chest infections, asthma, and associated health problems. However, she did not present evidence to show that these issues were raised with HNZ in previous years. She presented evidence, however, that she raised issues with the current landlord about carpet replacement; tree-trimming and healthy homes standards from December 2021 onwards.
On 7 December 2021, the tenant emailed Mr Masina noting that she had some jobs to lodge from the last inspection done by HNZ and a Well-Homes team visit that had taken place. She asked if there were any notes on file about these jobs. Mr Masina replied by email on 14 December 2021 asking the tenant to list the jobs so that he could check if they had been completed or assigned. She then replied on 14 December 2021 that the jobs had been completed but she had two other things she wanted to discuss being: whether the carpet could be replaced as she understood from HNZ that they replaced carpet every ten years; and whether a heat pump could be installed as suggested by the Well Homes person who visited.
On 16 December 2021, Mr Masina emailed the tenant to advise that a Healthy Homes Assessment had been done at the property. He confirmed that if the assessor identified repairs and upgrades then that work would be scheduled. However, he also advised that the work would be completed “between now and 2023.”
On 16 March 2021, the tenant again emailed Mr Masina asking to discuss when a heat pump would be installed and when some tree maintenance she had requested would be done. Mr Masina replied the same day that he would follow up on the Healthy Homes assessment and see whether a heat pump was recommended. He also asked her about the tree trimming required.
On 21 March 2022, the tenant emailed Mr Masina advising: “Thank you and yes it definitely was its very hard and expensive for me to try and warm my home with the current heating that's installed it doesn't reach over 18 degrees and with poor insulation here which was confirmed by the maintenance man when the assessment was conducted is definitely a struggle. And the washing line is being blocked by overgrowth from a large tree which covers 70% of my washing line which makes it very hard to get it dry and the laundromat is becoming too expensive. HNZ used to get a tree cutter out every few months to trim the branches back.”
Mr Masina replied to the above email the same day (21 March 2022) stating: “I have had a look into the report from the healthy homes assessment. It has been highlighted a number of things Heating: Heating source required to meet minimum Heating requirements. Insulation Ceiling: Comment – Additional insulation required to these areas to meet the Healthy Homes requirements. Insulation: - Underfloor: Removal of foil insulation and installation of qualifying insulation required. Ventilation - Kitchen - Kitchen extract: Extraction fan is not ducted to the exterior of the house. Draught Stopping - Draughts: Unintended gaps throughout the house. Maintenance required to ensure any unreasonable draught is stopped. Moisture ingress and drainage - [61] Drainage: - Downpipe requires maintenance. Moisture ingress and drainage - Moisture Ingress: - Enclosed subfloor area requires installation of Ground Moisture Barrier. All remedial works are to be completed before July 2023 however, we are definitely pushing to be completed before this date. Work is being completed in line with scheduling. Will inform you once we have a date for your property.”
Both parties confirm that the tree trimming was addressed soon after the tenant raised the issue. Nothing was done about the carpet. However, there was little evidence to establish that the carpet should have been replaced in December 2021. It also appears that stains and damage to the carpet were caused during the tenancy other than through fair wear and tear, as detailed above. In summary, I find the tenant’s claims that the landlord failed to maintain the premises in respect to these issues is not proved.
The parties agree that the above HHS work was completed in July 2023. However, the tenant complains that it took too long to address the HHS work required and she seeks compensation.
The compliance dates for HHS regarding heating, ventilation, draught-stopping, drainage and moisture ingress vary depending on the tenancy. For this tenancy which was entered in 2013 and is managed by a registered Community Housing Provider, the date for compliance was 1 July 2023.
Therefore, I am satisfied that while it took the landlord some time to complete the work required to comply with the HHS, it was done in accordance with the compliance dates in the regulations.
The compliance dates for insulation are different.
Under the SAI, from 1 July 2016, all HNZ or registered Community Housing Provider tenancies had to be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation required an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation required an R-value of at least 0.9. The insulation had to be in reasonable condition or better and not been the subject of any major repairs on or after 1 July 2016.
Regulation 17(1) SAI sets out the matters that must be taken into account when determining whether any insulation is in reasonable condition (or better) and provides: 17(1) For the purposes of these regulations, the following matters must be taken into account in determining whether any insulation is in a reasonable condition (or better): (a) the extent to which the performance of the insulation is compromised by any aspect of the insulation’s condition; (b) the extent of any dampness, damage, degradation, or displacement; (c) the condition of any materials or other items that are ancillary to the installation of the insulation (for example, strapping or staples). (2) Subclause (1) is not an exhaustive statement of the matters that may be taken into account.
When the SAI came into force, Tenancy Services also published a rule of thumb for assessing compliance with insulation installed before 1 July 2016. The rule of thumb included a statement that if the minimum depth of the insulation installed before 1 July 2016 was less than 70mm, or was damaged or damp, new insulation should be installed. The purpose of the rule of thumb was to provide guidance for landlords and tenants on the effect of degradation from settling, which can be difficult to assess visually. Any insulation with a depth of less than 70mm would not be considered in reasonable condition.
Where insulation is installed after 1 July 2016 or requires upgrading or major repairs after that date, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
From 1 July 2023, all Community Housing Provider Tenancies must comply with the higher insulation standards regardless of when the existing insulation was installed.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
On 12 October 2021, the landlord arranged for its contractor to conduct a healthy homes assessment at the premises to determine any work required to meet compliance requirements in the HHS. The assessment report provides that work was required in respect to all healthy homes standards including insulation. It is accepted that in relation to all standards, except insulation, the landlord had until 1 July 2023 to comply with the HHS. However, in relation to insulation, the landlord was required to comply with the SAI from 1 July 2016 as outlined above. In addition, by 1 July 2023, the landlord was required to comply with the higher insulation standards in the SAI and the HHS unless the insulation had already been upgraded and complied already.
The assessment report records that the underfloor foil insulation present must be removed, and new qualifying insulation must be installed. However, the presence of foil insulation installed before 1 July 2016 was permitted unless it was not in reasonable condition. The report does not make any comment about the condition of the foil insulation. Therefore, there is no proof that it was damaged or not in a reasonable condition. Therefore, I accept that the landlord had until 1 July 2023 to replace the underfloor foil insulation.
The assessment report records that as of 12 October 2021 the ceiling insulation was in poor condition with a thickness of 60mm and additional insulation was required. The report states that the ceiling insulation type is Fibreglass Batts, Insulfluff. However, the R-value and installation date are not recorded and are unknown. It is likely that the insulation was installed prior to 1 July 2016 because it would be a similar age to the underfloor foil insulation which was prohibited from 1 July 2016. In any event, it is clear from the report that as of 12 October 2021, the ceiling insulation at the premises was less than 70mm thick, and the report writer concludes that it was in poor condition. It follows that as from 12 October 2021, the ceiling insulation did not meet the SAI requirements in force because it was not in reasonable condition. It should have been replaced without delay to ensure compliance with the SAI regulations, then in force.
In summary, I am satisfied on the evidence, that the landlord was required to take steps to repair the ceiling insulation as soon as reasonably practicable after learning that it was in poor condition, and it was not open to the landlord to delay the ceiling insulation repairs until 1 July 2023. The SAI in force at the time required that the insulation must be in reasonable condition, and it was not.
The tenant says that once the insulation was installed in July 2023, along with all the other HHS work, she noticed an immediate improvement in the warmth of the house. She is entitled to some compensation for the failure to install ceiling insulation sooner in compliance with the SAI. It took the landlord 20 months to repair the ceiling insulation after the assessment date. I consider compensation of $2,000 is justified. This equates to a rent reduction of approximately $100/month for the period of the breach and the consequences of living in a home that was not insulated as it should be which would impact on the warmth of the home.
The effect of the above orders is that the tenant must pay the landlord $5,500. K Stirling, 6 August 2024

Tenancy Tribunal case 4866720 — Tenancy dispute at 42 Jillett Street, Titahi Bay, Porirua 5022

Tenancy Tribunal case 4866720 — Tenancy dispute at 42 Jillett Street, Titahi Bay, Porirua 5022

At a glance

Award balance

Claims & awards

Order

Reasons

What is required to prove damage to the premises?

What is required to prove methamphetamine contamination?

Does the absence of pre-tenancy testing of the premises weaken or end the claim?

Do the levels of contamination justify the compensation claimed?

Standards?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

What is required to prove damage to the premises?

What is required to prove methamphetamine contamination?

Does the absence of pre-tenancy testing of the premises weaken or end the claim?

Do the levels of contamination justify the compensation claimed?

Standards?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions