Order of the Tenancy Tribunal

Transcription

1 Order of the Tenancy Tribunal Residential Tenancies Act 1986 Office of the Tenancy Tribunal Tenancy Tribunal at Hamilton Tenancy Address 83 Heath Street, Saint Andrews, Hamilton 3200 Applicant Full Name Glasshouse Property Management Ltd as Agent for Matthew Dryland Agent for Landlord Respondents Full Name Astrid Juliana Cardona Lopez Tenant Order of the Tribunal The Tribunal hereby orders: 1. Astrid Juliana Cardona Lopez to pay Glasshouse Property Management Ltd as Agent for Matthew Dryland the sum of $8, immediately calculated as follows: Costs to be paid to Landlord: Locks/keys replacement $ Rubbish removal $ Cleaning $ Remove contaminated materials, dump $2, Eviction costs $ meth testing x 2 $3, Filing fee reimbursement $20.44 Exemplary damages - failing to quit premises $ Exemplary damages - using premises for unlawful purpose $ Less credit from bond refund - $ Amount payable by Tenant to Landlord $8, (Sections 77(2)(k)(n)(o), 78(1)(d), 102(4)(a), and 109(3) Residential Tenancies Act 1986)

2 2. 3. A declaration that Astrid Lopez committed an unlawful act by failing to quit the premises when legally required to do so. (Sections 40(3A)(a) and 78(1)(a) Residential Tenancies Act 1986) A declaration that Astrid Lopez committed an unlawful act by using, or permitting the premises to be used, for any unlawful purpose. (Sections 40(3A)(c) and 78(1)(a) Residential Tenancies Act 1986) Reasons: 1. This is a reserved decision from a hearng on 8 September The tenancy commenced on 19 July 2015 and ended when the tenant was evicted by bailiffs on 19 June A previous order of the tribunal was made on 3 April 2017 under application That was an order for payment of rent arrears and conditional termination if a payment plan was not complied with. The tenant did not comply with the payment plan. 4. The tenant did not attend the hearing on 8 September Eviction and rent arrears paid from bond The landlord gave the tenant 90 days notice to end the tenancy which expired on 10 June The tenant did not vacate the premises and was evicted by bailiffs at 11:20am on 19 June The applicant claimed and I have awarded compensation for the $ eviction costs. The locks needed to be changed on eviction. An invoice was provided and I have awarded this claim of $ Rent was in arrears at the end of the tenancy. The amount owing was shown on the rent ledger as $1, up to 19 June I have reduced this by $41.43 being one day's rent as the tenant should only have to pay rent up to 18 June 2017 as she was evicted part way through the day of 19 June The rent arrears are therefore established at $1, The bond of $1, was paid to the applicant in full on 14 July This was used to pay the rent arrears (which are not included in this order). This leaves a credit balance of $ from the bond which I have applied to this order as a credit to the tenant. Premises not left reasonably clean, rubbish not removed 11. The premises were not left reasonably clean and tidy and rubbish was not removed as is

3 12. required by section 40(1)(e)(iii) of the Residential Tenancies Act 1986 (RTA). Bags of rubbish were removed immediately by contractors in order to prevent rats, dogs, and odour. An itemised invoice showed that two loads were taken to the dump. Photographs verified that there was a considerable amount of rubbish including some in rubbish bags, food, clothes, and household items. I am satisfied that the claim of $ is reasonable. Damage to the premises from methamphetamine contamination The landlord claims that the tenant, or persons the tenant has allowed on the premises, have contaminated the premises with methamphetamine during this tenancy and that this constitutes damage to the premises beyond wear and tear. Section 40(2) of the RTA says that a tenant shall not (a) intentionally or carelessly damage (or permit any other person to damage) the premises, or (c) use the premises, or permit the premises to be used, for any unlawful purpose. It is up to the party who is making a claim to prove that claim - in this case, the landlord. This is called the 'burden of proof'. The standard of proof, or level of evidence needed to prove the claim, is "on the balance of probabilities". This means that the evidence must satisfy the Tribunal that the claim that is being made is "more probable than not". In any claim by a landlord for damage, the landlord must first establish, on the balance of probabilities, that the damage occurred during the tenancy and that it exceeds fair wear and tear. If the landlord can prove that, then it is for the tenant to show that the damage was not caused carelessly or intentionally (by either the tenant or any person at the premises with the tenant's permission); s40(4) RTA. 18. A Court of Appeal decision Holler and Rouse v Osaki CA654/2014 [2016] NZCA 130 has also clarified that sections 268 and 269 of the Property Law Act 2007 (PLA 2007) apply to residential tenancies. The effect of these sections is that, if a landlord holds insurance for the event that caused damage to tenancy premises, the tenant is not liable to pay for the damage caused by his or her carelessness, or that of any person on the premises with the tenant's permission. However, if a tenant has damaged premises intentionally or through an act or omission that constitutes an imprisonable offence then this immunity does not apply The applicant has claimed for the costs of conducting two methamphetamine tests at the premises. The first test was done on 19 June 2017, cost $ and was a composite test of samples from 13 locations within the premises. All samples returned a "positive" result for methamphetamine except the control sample. This type of test does not provide specific levels of contamination. The report was provided as evidence at the hearing. 21. The positive result from the first test indicated that a second "in-depth" test should be

4 conducted. This second test was done on 20 June 2017, cost $2, and returned detailed results from 12 tested locations within the premises. The test report was provided as evidence at the hearing. It states that all of the 12 swabs sent for laboratory analysis registered positive for methamphetamine (except the control swab). A 2016 review report conducted for the Ministry of Health (MoH) recommended the following levels above which a property is considered to be contaminated and requiring decontamination. See, 2016 Review of Remediation Standards for Clandestine Methamphetamine Laboratories : Risk Assessment recommendations for a New Zealand Standard, prepared by ESR (Institute of Environmental Science and Research Ltd) for the Ministry of Health, 7 Oct The recommended levels identified in the 2016 report are: (micrograms per 100 square centimetres) 0.5 µg/100cm2 for houses where the drug has been manufactured (unchanged) 1.5 µg/100cm2 for houses where the drug has only been used carpeted 2.0 µg/100cm2 for houses where the drug has only been used - uncarpeted These levels are the appropriate levels against which to assess the results as at the date the testing was done (20 June 2017). A new Standards New Zealand standard has been adopted for the testing and decontamination of methamphetamine-contaminated properties (NZS 8510) 2 which applies from 29 June This adopts a single level of 1.5 µg/100 cm (1.5 micrograms of methamphetamine per 100 square centimetres of surface sampled). The 20 June 2017 report indicates that the manufacture of methamphetamine may have taken place in the premises. The report writer bases this comment on the results of the testing (that all swabs were positive) and because chemicals sometimes used for the manufacture of the drug were also found at the premises. I accept the report's expert advice in this regard and so consider that the appropriate MoH guideline level to apply in this case is 0.5 mcg per 100cm2. I will also separately set out the results at levels above 1.5mcg per 100cm2. The 20 June 2017 report showed that 4 of the swabs returned results above 1.5mcg per 100cm2. These were 1.51 micrograms (bathroom), 3.0 mcg (kitchen), 3.2 mcg (hallway), and 6.3 mcg (bedroom 2) per 100 square centimeters. A further 2 swabs tested above 0.5 mcg per 100cm2. These were 0.60 (toilet) and 0.79 (bedroom 1). The tester took photographs of items left in the premises which were consistent with methamphetamine use. These included a glass pipe (which tested positive for methamphetamine), small plastic (point) bags, and other items consistent with possible manufacture of methamphetamine (instant cold packs and other items). There was no pre-tenancy methamphetamine test done on the premises. However, on the basis of the evidence of the drug related items left behind in the premises, and in the absence

5 of any contrary evidence from the tenant, I am satisfied that it is more probable than not that the tenant, or persons at the premises with the consent of the tenant, were responsible for the methamphetamine contamination and that this occurred during the tenancy. This is a breach of both subsections 40(2)(a) and (c). I also note that the smoke alarm in the premises was tested for methamphetamine and returned a positive result. The applicant provided a copy of an invoice for the costs of installing the smoke alarm which was dated 29 August The applicant said in evidence that the smoke alarm was a new product and therefore suggested that it could be assumed that it was not contaminated with methamphetamine when it was installed and that any contamination must therefore have occurred during this tenancy. I accept this as adding additional weight to my finding that the tenant is responsible for the contamination and that it occurred during this tenancy. The applicant confirmed at the hearing that the landlord does hold insurance that may cover this loss however as this damage is intentional and constitutes an imprisonable offence then I find that the tenant is liable for the costs of making good the damage. This is in accordance with the finding in Holler and Rouse v Osaki. I have ordered that the tenant pay the costs of the two methamphetamine tests which total $3, The methamphetamine test report dated 20 June 2017 included recommendations for the decontamination of the premises. In summary, these were that some parts of the premises needed to be removed and disposed of (eg; the bathroom fan, internal doors, all carpet and electrical fittings) and that some of the premises may be able to be decontaminated by cleaning (plasterboard walls). The applicant has claimed compensation for the costs of decontamination cleaning of the rooms in the premises that returned contamination results of less than 1.5mcg per 100cm2. An invoice was provided and this cost of $ is awarded. The applicant also presented an invoice for $2, from a company owned by the owner of the premises. It was explained at the hearing that the owner operates a business in building construction and so decided to undertake the labour to remove the contaminated wall linings, ceilings, and carpets himself. The invoice also included the remainder of rubbish removal and cleaning required (as only a preliminary clean-up had been conducted when the tenant first moved out - see paragraph 12 above). This invoice also itemised the costs of dumping contaminated materials (5 loads). I accept this invoice as reasonable and have awarded this compensation. I note that the landlord has not made a claim for the cost of materials or labour in reinstating the premises with new walls, ceilings and carpet. Exemplary damages 37. The applicant has made a claim for the payment of exemplary damages pursuant to two sections of the Act. Section 40(3A)(a) a failure to quit the premises; and

6 Section 40(3A)(c) using the premises for any unlawful purpose. Failure to quit/leave tenancy premises It is an unlawful act under the Residential Tenancies Act 1986 for a tenant to fail to vacate (or "quit") premises when legally required to do so (unless they have a reasonable excuse); section 40(3A)(a) RTA. s provided by the landlord in evidence show that the tenant was finding it difficult to move out of the premises by the end date specified in the 90 day notice - 10 June The landlord allowed some extra time however the tenant had still not moved out by Thursday 15 June 2017 so steps to evict her were initiated. In the absence of any evidence from the tenants of any "reasonable excuse", I find that the tenants did commit an unlawful act by failing to quit the premises on the ending of the tenancy. Not all breaches of the Act are declared to be unlawful acts. This is reserved for actions which Parliament has decided are especially serious and Schedule 1A of the Act sets out maximum penalties which may be awarded for exemplary damages. The maximum in regard to a failure to quit or leave premises is $1, Exemplary damages are not awarded as of right when there has been an unlawful act committed. They should be thought of more as a penalty or a fine rather than compensation (or damages) for loss or harm; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd, CIV , HC Invercargill, 5/8/2010. Section 109 sets out certain matters the Tribunal must take into consideration before awarding exemplary damages. I must first be satisfied that the party who committed the unlawful act/s did so intentionally; see s109(3) RTA. The requirement of intention is not about whether the party was aware that they were breaching the Act. Rather, it is about whether they acted intentionally. That is, whether they intended to do whatever it was they did or did not do; Parton v Fifita TT 1815/00, DC Auckland, 1/5/2001. I am satisfied that the decision by the tenant not to quit the premises was intentional. The landlord gave her extra time to pack up and clean however after 5 days there had not been significant progress. The other factors I must take into account are the effect of the unlawful act, the interests of the person against whom the unlawful act was committed, and the public interest; s109(3). The effect of the unlawful act on the landlord was to have to initiate eviction by a bailiff and a delay in being able to access the premises. I have included the costs of the eviction fee in the money order above however the additional time and inconvenience is relevant. I consider that it is in the public interest to deter tenants from remaining in tenancy premises after they are legally required to leave. The law is clear as to when a tenancy is to end and it is important that this is adhered to so that the right of a landlord to regain occupation of premises is retained and so that new tenants who may be waiting to move in, can rely on having somewhere to live. 49. I have awarded an amount of $ to the landlord for exemplary damages and have taken

7 into account that the tenant did keep in communication with the landlord about the delays. Using the premises for an unlawful purpose It is an unlawful act for a tenant to use tenancy premises (or permit them to be used) for an unlawful purpose; section 40(3A)(c) RTA. I have made a finding that the tenant is responsible for the contamination of the premises with methamphetamine and have noted that the tester of the premises found evidence of manufacture of the drug. Both the use and manufacture of methamphetamine are unlawful under criminal law and so I find that the tenant has committed an unlawful act under the Residential Tenancies Act 1986 in this regard. As stated above, section 109 RTA sets out certain matters the Tribunal must take into consideration before awarding exemplary damages. An unlawful act must have been committed intentionally before exemplary damages are awarded. It is clear that the use and manufacture of methamphetamine must be intentional acts. 53. The other factors to take into account are the effect of the unlawful act, the interests of the person against whom the unlawful act was committed, and the public interest; s109(3) The effect of the premises being contaminated with methamphetamine has been considerable. A large part of the inside of the house has had to be removed and disposed of carefully in accordance with decontamination guidelines. New wall linings, ceilings, carpet and furnishings are required. The landlord has had to pay an insurance excess and there has been an extended period of time during which the premises have not been able to be tenanted or otherwise dealt with. There is a significant public interest in deterring tenants from using residential premises for drug use and manufacture. Methamphetamine renders a house uninhabitable. It puts tenants and their families, other occupants, visitors, contractors who test and clean premises, and the owners and agents of premises at personal risk. Contamination is expensive and destructive. It means that building materials and furnishings have to be disposed of securely and increases the burden on the environment and on the community. Schedule 1A of the Act sets out maximum penalties which may be awarded for exemplary damages. The maximum where a tenant has used tenancy premises for an unlawful purpose is $1, I have awarded $ as I consider that using premises for methamphetamine manufacture is at the more serious end of the scale and that the landlord has been caused considerable expense and inconvenience. If an applicant is wholly successful in their claim the Tribunal must order that the other party pay the applicant the filing fee paid for the application.