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As part of our service at Harris Tate, we produce a range of legal articles that are published in various media, designed to alert our clients to legal developments that may affect them.

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Methamphetamine Contamination. To test or not to test?

16 September 2016

With plenty of publicity both in relation to owner-occupier purchasers buying, and landlords letting, contaminated property, methamphetamine (meth) contamination in rental properties has become a major concern for both landlords and tenants alike.

Recently, pursuant to two separate Tenancy Tribunal rulings in favour of Housing New Zealand, former tenants were ordered to pay $34,000 and nearly $20,000 respectively for remediation cost awards covering initial screening, chemical testing, detailed decontamination and cleaning and re-testing.

Another recent and notable Tenancy Tribunal ruling was against a landlord who unknowingly bought a contaminated property and subsequently rented it out. That landlord was ordered to pay $7500 to refund the tenant’s rent paid during the four months they lived at the property, plus the cost of decontaminating some of the tenant’s belongings.

When can a landlord test for meth contamination?

Notice of an inspection

Experienced residential landlords will no doubt already be aware that under the Residential Tenancies Act 1986 (the Act) a landlord may enter a premises for the purpose of inspecting the premises at any time between 8am and 7pm on a day specified in a notice and upon giving the tenant not less than 48-hours’ notice, but not more than 14-days’ notice before the intended entry. The tenant doesn’t have to be present during an inspection, but they can if they want to.

Unlawful entry

A landlord who enters a property without meeting the Act’s notice requirements can be committing an unlawful act, with the potential for exemplary damages of $1000 against the landlord by the Tenancy Tribunal, so it is important to ensure the notice requirements under the Act are followed.

At the start and end of a tenancy

The Tenancy Tribunal has ruled that renting out contaminated premises is a breach of a landlord’s obligation to provide a property in a “reasonable state of cleanliness” as required by Section 45(1)(a) of the Act. Failure to provide premises in a reasonable state of cleanliness could lead to $4000 of exemplary damages being awarded against a landlord.

As part of the proper management of rental investments, adopting a prudent “meth management” approach is advisable, which would include carrying out meth tests at the start and at the end of a tenancy in order to establish clear evidence that the property is not contaminated at the start, or whether it has been contaminated during the tenancy.

Regular property inspections – testing during a tenancy

As part of the landlord’s regular property inspections (every three months is advisable) landlords should be keeping their eyes out for warning signs as to indications for meth use (or manufacturing).

You would need to obtain the tenant’s permission should you want to carry out a meth test during the term of tenancy. It would be advisable to include a provision in the tenancy agreement specifying details of when and how the landlord would carry out meth testing.

Whilst the writer is not aware of the Tenancy Tribunal having yet considered its enforceability, such a provision in the tenancy agreement is another sensible step in the landlord’s “meth management” of the property. In addition, it would be prudent to notify your tenant in advance of carrying out any such test.

Can a tenant be evicted for using meth?

Whilst the Act restricts a tenant from using premises for an unlawful purpose, it does not allow for a landlord to terminate a tenancy immediately when meth contamination has been identified in a property.

Noting that whilst the level of contamination may vary greatly depending on the extent of the meth use (or manufacture), section 59A of the Act provides the mechanism for the tenancy to end where, as a result of a breach of the tenancy agreement, a premises are so badly damaged as to be deemed uninhabitable.

Where the landlord has sufficient and reputable evidence that the premises are uninhabitable through meth contamination. i.e., being contaminated above the Ministry of Health’s current 0.5 micrograms per 11 sq cm guideline for habitable premises, the landlord may give the tenant in breach not less than seven days’ notice, terminating the tenancy.

It is worth noting that the Ministry of Health’s current guidelines for determining habitability of a property relate to decontaminated meth labs, but these are the only current Government guideline.

What if a meth user doesn’t leave after termination of the tenancy?

If the tenant remained in the property after expiry of notice to terminate the tenancy (as above) a landlord would need to apply to the Tenancy Tribunal for an immediate possession order. When making an application, it would be advisable to let the Tenancy Services staff know of the urgency of the matter.

When a possession order is granted, the District Court bailiff would need to enforce it, with the bailiff then handing possession of the property back to the landlord. If the tenants remained after the landlord receives possession, the landlord should then seek assistance from the police to remove trespassing tenants from the property.              

- Director Grant Harris
Published in UP Magazine (spring edition 2016).