Tenancy Terminated for Methamphetamine Use

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[2025] NZTT 5108728

TENANCY TRIBUNAL AT CHRISTCHURCH | TE TARAIPIUNARA RETIHANGA KI ŌTAUTAHI

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The tenancy of [NAME] at [ADDRESS], [POSTCODE] is terminated, and possession is granted to [COMPANY], at 11.59pm on Sunday 6 April 2025.

2. [NAME] must pay [COMPANY] $627.00 immediately, calculated as shown in the table below:

Description Landlord Tenant Filing fee reimbursement Exemplary damages – using premises for an unlawful purpose

$27.00

600.00

Total award $627.00 Total payable by Tenant to Landlord $627.00

Reasons:

1. This was a rehearing following a decision dated 14 January 2025.

2. Both parties attended the hearing. [NAME] and [NAME] attended on behalf of the landlord.

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3. The hearing began at about 9.32am and the tenant was not present. The Registrar checked the waiting room again at about 9.40am and the tenant was still not present.

4. The tenant arrived at about 10.00am and the landlord’s representatives were asked to review the evidence they had provided up to that point for the benefit of the tenant which they did.

5. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

6. The initial hearing focused on an allegation that the tenant was using the premises for unlawful purposes (methamphetamine use), but the application also included a breach for failing to comply with a 14-day notice in relation to a dog being kept at the property without permission in breach of the Tenancy Agreement.

7. Prior to the rehearing, a more serious alleged breach occurred in relation to the dog and the landlord applied to amend the application to include an application to terminate for this alleged breach (being incapable of remedy and therefore not requiring a 14-day notice).

8. Evidence and submissions were accepted at the hearing from both parties in relation to this additional alleged breach.

9. The tenancy began on 22 June 2021 and [NAME] was allowed to live at the property (that person being the tenant).

10. The Tenancy Agreement allowed for methamphetamine testing to be carried out at paragraph 8.

11. Pets were not permitted at the property without the written permission of the landlord under paragraph 14.

Should the tenancy be terminated for breach of section 40(2)(b)?

12. 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) of the Residential Tenancies Act 1986 (the Act).

13. 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.

14. 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.

15. Under the above section of the Act, the tenant shall not use the premises, or permit the premises to be used, for any unlawful purpose.

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16. It is unlawful to use, possess, cultivate or traffic in illegal drugs under the Misuse of Drugs Act 1975.

17. The property had not been tested for methamphetamine at the beginning of the tenancy as it was brand new before this tenancy commenced. No other person had lived at the property prior to this tenant.

18. On 14 November 2024 methamphetamine testing was undertaken on a number of tenancies at the complex of which this premises is part.

19. The testing was described as random, but the landlord gave evidence that they had reason to want this particular premises to be tested.

20. The tenant had moved out of the property into a motel in early November 2024, to enable repairs to take place and the motelier had complained to the landlord about the tenant taping up vents and leaving evidence of drug use in her motel unit. (There were also complaints about the dog and cat being present in the tenant’s motel unit).

21. The initial report provided following the November 2024 testing showed evidence of methamphetamine at the property so further testing was done of individual samples.

22. This testing showed methamphetamine levels of up to 35µg/100cm² which the landlord said was one of the higher readings they had seen over the many methamphetamine tests carried out by this landlord (being a social housing provider with a number of properties).

23. In 2010, the New Zealand Ministry of Health produced guidelines for the remediation of methamphetamine laboratories which determined that remediation was required if the environmental level of methamphetamine was over 0.5µg/100cm². This became the level at which premises were deemed to require decontamination.

24. In 2017 the level was increased when Standards New Zealand released Standard NZS 8510:2017 “Testing and decontamination of methamphetamine- contaminated properties”. This Standard confirmed that the level at which habitation of residential premises was considered safe was 1.5µg/100cm². At that time, this Standard set the definitive levels at which properties required decontamination.

25. In 2018, the then Prime Minister’s Chief Science Advisor, [NAME], reported that there was little evidence supporting health risks from exposure to residue from methamphetamine consumption (Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards, 29 May 2018). This report concluded that any levels below 15μg/100cm² were unlikely to present adverse effects.

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26. Taken together these factors indicate that methamphetamine levels that exceed the NZS 8510:2017 clean-up standard of 1.5μg/100cm² should not be regarded as signalling a health risk. Indeed, exposure to methamphetamine levels below 15μg/100cm² would be unlikely to give rise to any adverse effects. This level still incorporates a 30-fold safety buffer on a conservative estimate of risk.

27. The matter was considered by the District Court, in relation to a Tenancy Tribunal order, in Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947 where Judge Keller stated that; “the [NAME] represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.”

28. This decision of the District Court has confirmed that the level to be applied by this Tribunal is that expressed by [NAME] which is that there is no risk when levels of contamination are below 15μg/100cm².

29. In the present case, the highest level recorded was 35µg/100cm² in the kitchen/living/dining space. This is more than twice the risk level in the [NAME]. Objectively, the property is contaminated with methamphetamine.

30. The tenant said she had never used methamphetamine and had no knowledge of how the premises came to be contaminated at this level or at all. She said that she had been away on occasion for family matters and the premises could have been contaminated by people she had asked to look after her animals while she was away.

31. At the first hearing the tenant also denied any methamphetamine use and said that she stayed at the property alone with the only regular visitor being [NAME] who stayed on occasion.

32. The landlord submitted that it was highly unlikely that the property had become contaminated prior to the tenancy commencing.

33. To support this, the landlord supplied the following:

a. An email from the contractor who managed the build of the premises (in 2020-2021) who confirmed that his company undertook regular random and just cause drug and alcohol testing of both staff and subcontractors during the period the property was constructed.

b. A copy of a “clean” methamphetamine test conducted on another property in the complex by the same tester and in the same month. The landlord submitted this supported its contention that it was more likely than not that this property was contaminated during the tenancy rather than prior to it.

c. Evidence from the Christchurch police that in both September 2022 and March 2023, the [NAME] was living with her at the property. The

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police email states that this was confirmed to them by the tenant “each time we have visited the address”.

d. Evidence from both a witness (primarily giving evidence in relation to the dog incident) and a landlord representative who had both recently seen the [NAME] at the address (6 December 2024 and 15 March 2025).

e. Evidence from the ESR methamphetamine calculator which confirmed that the highest recorded level of contamination, being 35µg/100cm², reflected up to 2529 smoked methamphetamine doses (that equates to over two smoked doses per day from the beginning of this tenancy to the testing date).

34. The tenant did not dispute the evidence in relation to her partner residing, at least on occasion, at the address.

35. Some of the above evidence was unavailable to the Tribunal at the first hearing of this matter, and it was due to the inability of the landlord to present this evidence that a rehearing was granted.

36. The landlord further submitted that the District Court indications in relation to pre-tenancy methamphetamine testing referred to in the initial order, relate to premises that have been previously inhabited rather than brand new builds.

37. Given all of the above and the lack of any other plausible explanation for the very high methamphetamine levels detected, I consider it is more likely than not, on the balance of probabilities that the tenant used or permitted the premises to be used for an unlawful purpose, being the use of methamphetamine.

38. The tenant has breached section 40(2)(b) of the Act and the breach is incapable of remedy.

39. The breach is of such a nature and of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.

40. The tenancy is terminated as ordered above.

Is the tenant liable for exemplary damages for this breach of the Act?

41. As stated above, a tenant must not use the premises or permit the premises to be used for an unlawful purpose (s40(2)(b)). Allowing premises to be used for an unlawful purpose is an unlawful act (s40 (3A)(c)). Unlawful acts can give rise to exemplary damages under section 109(3) and Schedule 1A.

42. The landlord claims that the tenant has used the premises for an unlawful purpose.

43. It is unlawful to use, possess, cultivate or traffic in illegal drugs under the Misuse of Drugs Act 1975. The landlord has provided evidence that confirms,

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on the balance of probabilities, that the tenant used or permitted the use of methamphetamine on the premises. Methamphetamine is an illegal drug so, therefore, the tenant has used the premises for an unlawful purpose.

44. I find that the tenant has committed an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00 under section 40(3A)(c) and Schedule 1A of the Act.

45. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said:

Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

46. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest under section 109(3) of the Act.

47. The landlord gave evidence that methamphetamine use in their housing stock is becoming more commonplace but is entirely unacceptable to the landlord.

48. Further, the landlord said that dealing with contaminated properties takes housing stock out of the pool of available tenancies at a time when housing is a dire need for many people and waiting lists are long.

49. The cost of remediation of contaminated properties takes funds away from other deserving tenants who may require work to be done on their homes, but money is diverted to urgently deal with contaminated properties instead.

50. It is in the interests of the landlord and in the public interest to deter people from using methamphetamine (an illegal drug) in social housing complexes, and residential rental properties generally, and to punish them when they choose to do so. This is especially so when the levels reflect consistent and prolonged use over time as they do here.

51. I award exemplary damages of $600.00 for the tenant’s unlawful act in relation to the use of methamphetamine on the premises either by the tenant or someone else at the premises with her permission.

Should the tenancy be terminated for breach of section 40(2)(c)

52. The above section says that a tenant shall not, cause or permit any interference with the reasonable peace, comfort or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the

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reasonable peace, comfort or privacy of any other person residing in the neighbourhood.

53. 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 under section 56(1) of the Act.

54. 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 to remedy where the thing done, or its effect, cannot be undone.

55. 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.

56. The landlord alleges that the tenant has breached their obligations by allowing a dog (residing at the property contrary to the Tenancy Agreement without the landlord’s permission) to bite another tenant of the complex (being a 10-year- old child) resulting in a lengthy visit to the hospital for treatment (with photographic evidence and discharge summary provided).

57. This follows a long history of issues in relation to the same dog including two (unremedied) 14-day notices asking for the dog to be removed from the premises and two anti-social behaviour notices relating to specific incidents with the dog as well as council complaints and the involvement of police and the SPCA.

58. This breach is not capable of remedy.

59. The landlord is seeking termination of the tenancy for this breach and although evidence was provided in relation to this claim by both parties (and a witness), I do not need to determine this matter as the tenancy has already been terminated under section 40(2)(b) above.

60. As the landlord has been substantially successful, I have reimbursed the filing fee.

[NAME]

28 March 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

Reasons: