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Breach of asbestos ID regs results in damages against landlord

27 February 2019

The Tenancy Tribunal at Tauranga has awarded exemplary damages of $2,000 to two tenants whose landlord hired builders to carry out renovations to an adjoining garage which exposed white asbestos.

The full scope of the renovations was not made clear to the tenants at the outset and came along with other problems in their relationship with the landlord.

The tenants had a large number of personal belongings stored in the garage. The renovations were carried out with their possessions covered by thin plastic.The builders used the toilet in the tenants' house during the renovations, which took several weeks.

The father of one of the tenants, a retired builder, commented to the landlord and one of the builders that a piece of removed ceiling panel could be asbestos. His concerns were dismissed, with one of the builders claiming that he had "trained for asbestos" and the panel was definitely not asbestos.

The landlord gave notice of termination after just five months, saying he needed the house for family purposes. Not long after notice was given the tenants themselves arranged for a sample of the garage to be tested for asbestos. The test was positive and further positive swabs followed.

An asbestos removal expert hired by the landlord stated that no-one should be living at the property, and recommended disposal of the tenants' vacuum cleaner and all soft items such as clothing, fabric and cardboard. WorkSafe subsequently issued a prohibition notice and improvement notice confirming that health and safety regulations had likely been breached.

Landlord did not comply

In its decision, Ries v Rayner [2019] NZTT Tauranga 4160626, 4160602, the Tribunal found that the landlord did not comply with the Health and Safety at Work (Asbestos) Regulations 2016, sections 10(1) (duty to ensure asbestos is identified at workplace), 12(1) (duty to ensure presence and location of asbestos indicated) and section 20(2) (duty to determine presence of asbestos when carrying out refurbishments.

The landlord also failed to comply with the provisions of the Health and Safety at Work Act 2015 relating to a primary duty of care of the health and safety of tenants, and ensuring that the work environment it without risks to health and safety.

The Tribunal said it accepted the tenant's submission that the landlord was in business and must ensure the health and safety of tenants and ensure that work environments are without health and safety risks.

"The landlord cannot simply 'put their head in the sand' and pass that risk over to work persons who attend at the work site to undertake the work. The work site should be under the control of the landlord."

Remedies

In all, the landlord was ordered to pay the tenants the sum of $10,084.31. As well as $2,000 in exemplary damages for breach of the regulations relating to asbestos, it comprised $2,000 exemplary damages for breach of building, health and safety regulations under the Health and Safety at Work Act 2015, $250 exemplary damages for breach of section 45(1)(c) of the Electricity Act 1992, $250 for failure to provide an insulation statement, and $500 for disposing of tenant's goods.

Compensation was awarded for a breach of the obligation to provide the property in a reasonable state of cleanliness ($355), breach of quiet enjoyment, comfort and privacy ($1,755), electricity use ($30), loss of use of the garage ($614.42), reimbursement of the asbestos testing fee ($816.75) and a contribution towards damaged possessions and purchases ($1,500).

Last updated on the 16th September 2019