What was the outcome of Tenancy Tribunal case 4946833?

The tribunal order states: The tenancy is terminated and possession granted to the landlord at 9am on Friday

How much money was awarded in case 4946833?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4946833?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4946833?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10847033-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4946833?

The tribunal order states: The tenancy is terminated and possession granted to the landlord at 9am on Friday

How much money was awarded in case 4946833?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4946833?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4946833?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10847033-Tenancy_Tribunal_Order.pdf.

4 Rakaia Place, Palmerston North, Palmerston North 4410 Tenancy Tribunal Case 4946833 — 14-day notice

Order

The tenancy is terminated and possession granted to the landlord at 9am on Friday 27 September 2024.

Reasons

The landlord attended the hearing. There was no appearance by the tenant.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations under section 40(2)(b), which states that the tenant shall not use the premises, or permit the premises to be used, for any unlawful purpose.
The onus of proof is on the landlord and the standard of proof is on the balance of probabilities.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
On 22 July 2024 a tenancy officer attended the property for a routine inspection. The tenant was not home, but there was another person asleep on the couch. The landlord noted drug paraphernalia and took photos which were produced of a glass pipe and two bongs.
The next day the tenancy officer hand-delivered a letter to the tenant advising that drug paraphernalia was found that suggested the potential use of controlled substances, specifically methamphetamine, within the premises. She said that testing by the Drug Detection Agency had been arranged for 29 July 2024.
English is not the tenant’s first language, but he has lived at the premises for some time and the tenancy officer believes he understands some English. She explained the letter to the tenant and to his friend that was present.
Testing was conducted. A screening assessment report shows that a returned level from a composite sample was 3mcg/100cm 2 .
It was pointed out to the landlord that this would not meet the threshold required for contamination of the property according to the standards that have been applied in the Tribunal since the Gluckman report of 2018. However that is not the question here.
No baseline screening was undertaken of the premises before the tenant moved in in March 2019 because the tenancy officer had not considered there was a need. It was the detection of drug paraphernalia in July 2024 that brought this on.
Taking into account the evidence of the tenancy officer, including the photographs of three items of drug paraphernalia and the evidence of methamphetamine in the premises, I find that it is more likely than not that the tenant has breached his obligations by using or permitting others to use, or having in his possession at the premises methamphetamine, and/or cannabis all of which are offences under the Misuse of Drugs Act 1975. In the absence of any evidence from the tenant, there is no other plausible or likely explanation for the presence for the paraphernalia at the premises.

Is the breach capable of remedy?

The next question is whether the breach is capable of remedy.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
As has been noted in previous Tribunal decisions, 1 there are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Whether a negative covenant is capable of remedy depends on the nature of the breach and whether the harm that might be caused by the breach can be effectively remedied within 14 days. 2
However, where the breach or harmful effect of the breach, is serious, it may not be capable of remedy. 1 For example 4928273 2 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, para [46]-[47]
In Clarke v Housing New Zealand, DC Blenheim, CIV 2008-006-33, 19 March 2008, the Court held that a breach of section 40(2)(b), concerning allegations of possession and use of illegal drugs, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice.
In Terangi v Housing New Zealand, DC Porirua, CIV 2021-019-110, 28 June 2021, the Court held that a tenant allowing the property to be used for drug dealing, due to the stigma that may be subsequently attached to the property, was a breach that was incapable of remedy, but that on its own however, the using of an illicit drug may not necessarily be a breach incapable of remedy.
I have decided in the present case that the breach is not capable of remedy for the following reasons: a. The landlord has an obligation to keep the premises safe. They should not be put to ongoing expense of monitoring and testing the premises to ensure no increase in methamphetamine levels or contamination. b. The harm caused by the breaches cannot be remedied within 14 days.
For the same reasons, I have also decided it would be inequitable to refuse to terminate the tenancy. This is a serious breach of the tenant’s obligations. Not only must the landlord ensure that the premises are safe for this tenant and subsequent ones, but they must also ensure the safety of their other tenants. The Palmerston North City Council should not have to tolerate the use of methamphetamine or cannabis in their properties.
The tenancy is terminated. In order to allow the tenant an opportunity to move out, the landlord seeks termination and possession from Friday 27 September 2024.

Order

The tenancy is terminated and possession granted to the landlord at 9am on Friday 27 September 2024.

Reasons

The landlord attended the hearing. There was no appearance by the tenant.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations under section 40(2)(b), which states that the tenant shall not use the premises, or permit the premises to be used, for any unlawful purpose.
The onus of proof is on the landlord and the standard of proof is on the balance of probabilities.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
On 22 July 2024 a tenancy officer attended the property for a routine inspection. The tenant was not home, but there was another person asleep on the couch. The landlord noted drug paraphernalia and took photos which were produced of a glass pipe and two bongs.
The next day the tenancy officer hand-delivered a letter to the tenant advising that drug paraphernalia was found that suggested the potential use of controlled substances, specifically methamphetamine, within the premises. She said that testing by the Drug Detection Agency had been arranged for 29 July 2024.
English is not the tenant’s first language, but he has lived at the premises for some time and the tenancy officer believes he understands some English. She explained the letter to the tenant and to his friend that was present.
Testing was conducted. A screening assessment report shows that a returned level from a composite sample was 3mcg/100cm 2 .
It was pointed out to the landlord that this would not meet the threshold required for contamination of the property according to the standards that have been applied in the Tribunal since the Gluckman report of 2018. However that is not the question here.
No baseline screening was undertaken of the premises before the tenant moved in in March 2019 because the tenancy officer had not considered there was a need. It was the detection of drug paraphernalia in July 2024 that brought this on.
Taking into account the evidence of the tenancy officer, including the photographs of three items of drug paraphernalia and the evidence of methamphetamine in the premises, I find that it is more likely than not that the tenant has breached his obligations by using or permitting others to use, or having in his possession at the premises methamphetamine, and/or cannabis all of which are offences under the Misuse of Drugs Act 1975. In the absence of any evidence from the tenant, there is no other plausible or likely explanation for the presence for the paraphernalia at the premises.

Is the breach capable of remedy?

The next question is whether the breach is capable of remedy.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
As has been noted in previous Tribunal decisions, 1 there are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Whether a negative covenant is capable of remedy depends on the nature of the breach and whether the harm that might be caused by the breach can be effectively remedied within 14 days. 2
However, where the breach or harmful effect of the breach, is serious, it may not be capable of remedy. 1 For example 4928273 2 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, para [46]-[47]
In Clarke v Housing New Zealand, DC Blenheim, CIV 2008-006-33, 19 March 2008, the Court held that a breach of section 40(2)(b), concerning allegations of possession and use of illegal drugs, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice.
In Terangi v Housing New Zealand, DC Porirua, CIV 2021-019-110, 28 June 2021, the Court held that a tenant allowing the property to be used for drug dealing, due to the stigma that may be subsequently attached to the property, was a breach that was incapable of remedy, but that on its own however, the using of an illicit drug may not necessarily be a breach incapable of remedy.
I have decided in the present case that the breach is not capable of remedy for the following reasons: a. The landlord has an obligation to keep the premises safe. They should not be put to ongoing expense of monitoring and testing the premises to ensure no increase in methamphetamine levels or contamination. b. The harm caused by the breaches cannot be remedied within 14 days.
For the same reasons, I have also decided it would be inequitable to refuse to terminate the tenancy. This is a serious breach of the tenant’s obligations. Not only must the landlord ensure that the premises are safe for this tenant and subsequent ones, but they must also ensure the safety of their other tenants. The Palmerston North City Council should not have to tolerate the use of methamphetamine or cannabis in their properties.
The tenancy is terminated. In order to allow the tenant an opportunity to move out, the landlord seeks termination and possession from Friday 27 September 2024.

Tenancy Tribunal case 4946833 — 14-day notice at 4 Rakaia Place, Palmerston North, Palmerston North 4410

At a glance

Tenancy Tribunal case 4946833 — 14-day notice at 4 Rakaia Place, Palmerston North, Palmerston North 4410

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is the breach capable of remedy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is the breach capable of remedy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions