Methamphetamine testing – P Problem, No Problem?

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Methamphetamine testing

At a single stroke, the Government has crippled the methamphetamine testing and remediation industry in New Zealand.

There is a new report relating to methamphetamine (“P”) use in homes which will be welcome news for landlords, and which has certainly gathered a lot of attention in a very short period of time.

The report by Professor Sir Peter Gluckman, ONZ KNZM FRSNZ FMedSci FRS, Chief Science Advisor (“the Gluckman Report”), makes a number of dramatic findings. Key findings can be summarised as:

  • There is no evidence that living in a house formerly used only for smoking P is harmful;
  • Testing for P is only recommended where P manufacturing activity or very heavy use is suspected;
  • For initial testing, combining multiple samples taken throughout a house into a single composite sample does not accurately reflect the real level of risk, and can lead to quite misleading interpretations and false impressions of high exposure; and
  • Where lower levels are detected (indicative of smoking but not manufacture), remediation is often not justified.

Landlords will be gratified to know that they do not need to pay extremely expensive clean-up and remediation costs where their property has supposedly been contaminated by methamphetamine exposure. Landlords who have already paid these steep costs will no doubt be extremely upset to learn that this was potentially unnecessary.

The future is somewhat murky and it remains to be seen how councils and government departments will treat the Gluckman Report, which has already come in for criticism from senior real estate industry figures, and academics. Nonetheless, the report is presently the latest and best item of research on the subject of methamphetamine contamination in NZ by smoking, and is likely to be treated as definitive and the basis of all future policy.

But what does this mean for you, a landlord?

If the landlord is required to disclose contamination but doesn’t, could a subsequent tenant claim their rent back in the Tenancy Tribunal?

There is no law in New Zealand that says when contamination exceeds a certain level the landlord must pay back the rent paid by an innocent subsequent tenant. While variations on this order have been made by the Tenancy Tribunal in the past, it is not an automatic right.

There are a number of factors that have led to this outcome:

  • The Ministry of Health and Standards New Zealand set a level of methamphetamine contamination at 0.5 µg per 100 cm², increased in 2017 to 1.5 µg per 100 cm². (New Zealand standard NZS 8510:2017 Testing and decontamination of meth-amphetamine contaminated properties)
  • The Residential Tenancies Act makes it an “unlawful act” to rent out a building which is unclean or unsafe (section 45(a)&(c) of the Residential Tenancies Act).
  • The Tenancy Tribunal can, in appropriate circumstances, require a landlord to pay money, which can be calculated to equal all or part of the rent paid by the tenant while the house was unfit for habitation or unclean.

There is a considerable degree of uncertainty – in at least one previous case the Tenancy Tribunal has found that P contamination at a level under the health cut-off level was still enough to decide that the property was ‘unclean’, and order a partial rent refund.  However every Tribunal case is decided on its own facts and circumstances.

Can a landlord still evict a tenant for a positive P test if the levels are well below the proposed new safe level?

Firstly, without some real suspicion that P manufacture is occurring, the Gluckman Report says that there is no reason to undertake P testing.  However if you do, what use are the results?

Previous evictions for positive P tests were, in theory, about the damage being done to the landlord’s investment by making it uninhabitable as a health and safety risk. This is still the case where test results are very high, indicating either extreme use or manufacture of P. However the Gluckman report undermines this justification by indicating that lower levels of P contamination from smoking are not harmful.

Regardless of whether or not the P levels are a health and safety risk, a tenant is not allowed to use a landlord’s premises for illegal activity. Therefore, if a tenant has been using (or allowing somebody else to use) P in the house then this is a breach of their obligations (section 40(2)(b) of the Residential Tenancies Act).  If the contamination is significant enough to breach health standards then the house is considered uninhabitable.  This is also a breach of the Act which allows immediate termination of the lease.  In either case the Tenancy Tribunal can make an order terminating the tenancy.

Would the landlord need a specific clause in the tenancy agreement & if so, what would it need to include?

The Residential Tenancies Act prohibits a tenant from conducting illegal activities at a house, or causing damage to the house, so the tenancy agreement does not need to prohibit either of these things.

However at present the Act allows for inspections, but not taking swabs or samples.  Therefore a tenancy agreement should expressly allow for the landlord to do testing for contaminants.  This omission from the current law is set to be fixed by the proposed amendment to the law going through Parliament at the moment (Residential Tenancies Amendment Bill (No 2)).

The Amendment also confirms for clarity that contamination of the property (by P or otherwise) would make it uninhabitable, and allow immediate termination under section 59 of the Act.

What is the time frame for eviction?

Any tenancy can be terminated on 90 days’ notice. 

Where a landlord is seeking immediate termination of a tenancy the Tenancy Tribunal will hear such a matter and can potentially make orders within 4 to 6 weeks of the application being made.

If a property previously tested positive for P has been cleaned, retested and found to be safe, is the landlord still required to advise prospective tenants of the original P contamination?

If the tenant asks, yes.

From a health and safety perspective, if the tenant does not ask there is no obligation to volunteer this information.  There is no current health and safety risk, so nothing to disclose.

Arguably, contamination levels under 1.5 µg per 100 cm² (or whatever the new level is, if it changes) can still give rise to cleanliness problems.  Whether a rental is sufficiently clean is a matter of the particular degree and circumstances of the contamination.

What role do Councils take in the assessment and reporting of contaminated houses?  If the Council has noted the P contamination on the LIM report & the level was below the new safe level, can the owner get this removed from the LIM?

The Local Government Act allows Councils to make bylaws protecting, promoting, and maintaining public health and safety (section 145).  Under section 23 of the Health Act it shall be the duty of every local authority to improve, promote, and protect public health within its district.

Councils’ policies can be a little opaque, and inconsistently applied.  In Auckland, typically only P labs are noted on LIMs, although this depends on a case by case basis.

At the moment Councils’ policies have not changed and contamination may still be noted on the LIM.  This may or may not be changed in the near future to reflect the Gluckman Report’s finding that there is no evidence to show that lower levels of methamphetamine contamination (from smoking) are harmful.

If a Council wanted, they could retain a LIM notation on the basis that health considerations are distinct from ‘cleanliness’ considerations.

It remains to be seen how Councils address this, and whether the Government provides any direction.  Media coverage and the degree of landlord agitation and lobbying may influence whether the Gluckman Report results in actual changes, and how quickly this occurs.

Conclusion

At the present time the official standard has not changed, so procedures and obligations continue as usual.  The real effect of the Gluckman Report is to indicate a willingness on the part of the government to relax standards and take an evidence based approach to contamination.

While it is likely that Councils and the Tenancy Tribunal will follow along in due course, the exact nature and timeframe for this is unknown as yet.

For advice and assistance in relation to tenancy disputes, damage to properties or the Tenancy Tribunal, contact Gaze Burt’s litigation and dispute resolution team.

By Nathan Tetzlaff with assistance from Christopher Barry

Associate & Solicitor

 

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