When the lab detects a significant level of methamphetamine in samples taken in a rental property, surely it’s a simple process to vacate the tenant … right? Unfortunately, the answer is no!
In some cases, the tenant refuses access to undertake further testing and refuses to vacate based on the composite test results.
The next step is individual area by area tests to establish if meth residues in the property exceed applicable Ministry of Health (MoH) guidelines.
If the applicable guideline is exceeded, then the property is not in a reasonable state of cleanliness (Section 45 RTA 1986) and is therefore potentially uninhabitable (Section 59 RTA 1986).
We suggest owners contact the Environmental Health Officer at the Council to confirm the Ministry of Health guideline that is applicable for your property.
What Do I Do If My Tenant Won’t Allow Access For Further Testing?
If access for testing is denied, Tenancy Services advise the following actions:
- Fixed term: tenancy agreement runs through to the termination date
- Periodic agreement: issue a 90 day notice to vacate
Either way, having to wait for the notice period to pass is stressful and allows more time for meth related behaviour to continue and increases the cost of fixing up the problems these criminals leave behind.
When access is denied in a property with known meth contamination:
✓ Increase the frequency of inspections to monthly during the notice period
✓ Undertake inspections in pairs and wear disposable shoe covers and gloves
✓ Do not put any personal items down on any surface within the property
For your new tenancies or when accepting transferred tenancies:
✓ Include a clause in the agreement to secure access for meth testing during the tenancy
✓ Book a Baseline composite meth test when you take over management of any tenanted property
In 2016, MethSolutions completed a Baseline composite test in a rental property and a concerning level of meth residue was detected in the samples. During the 3 months it took to vacate the tenant the levels of methamphetamine had increased significantly and thereby the length of time and costs to remediate.
Case study 1: 18 ug/100cm2 of meth residue as a total accumulative level of the Baseline composite test
- The tenant lived in the home for over 10 years when a Baseline meth test was undertaken
- The property manager advised the tenant of the results and recommended vacating as soon as possible
- The tenant denied access for further room by room testing and a 90 day notice was issued
- The 90 days expired and the tenant vacated and we completed a detailed Contaminated Site Inspection
- All 10 individual samples exceeded the 2010 MoH guideline and five areas exceeded 50ug/100cm2
- Precursor chemicals were also present increasing the likelihood that manufacture had occurred
Who Deems A Property ‘Uninhabitable’?
Under section 59 of the RTA 1986, where a breach of the tenancy agreement occurs and the premises are destroyed, or are so seriously damaged as to be uninhabitable, the rent should abate and either party can give notice to terminate the tenancy.
And under S59 the landlord can give a period of notice of no less than 7 days and a tenant no less than 2 days.
And that’s straight forward except the word ‘uninhabitable’ is not defined in the RTA and this leads to uncertainty for property owners, property managers and tenants.
The situation is further complicated by inconsistent and contradictory information provided by Tenancy Services which is part of the Ministry of Business and Innovation and Employment.
MethSolutions has called Tenancy Services on multiple occasions and been advised that a property must be deemed uninhabitable and can only be done so by the following agencies:
MethSolutions is seeking a meeting with the Principal Tenancy Adjudicator Melissa Poole to gain clarity around the meaning of the word uninhabitable as it appears in the RTA 1986 and how this is applied in regard to meth contaminated properties.
In addition it is important to note that when the Council becomes involved with a meth contaminated property it is likely a permanent record will be made on the Land Information Memorandum (LIM).
Can I Issue The Tenant A 7-Day Notice To Vacate Based On Individual Lab Analysed Meth Results Rhich Exceed Guidelines?
In the following case studies, Tenancy Tribunal adjudicators accepted a lab report of individual area by area test results as evidence the property was ‘uninhabitable’ and; accepted the owner was justified in issuing a 7-day notice.
Case study 2: HNZ v AHU [15/02298/AK] the adjudicator agreed that:
The lab report established the premises had been contaminated by methamphetamine at levels exceeding the 2010 MoH threshold (individual samples) and therefore;
- The premises were so seriously damaged as to be uninhabitable and therefore;
- HNZ was justified in giving 7-day notice of termination
Case study 3: HNZ v TEEPA [15/04385/MK] the adjudicator agreed that:
- The report was reasonable evidence to conclude that the contamination made the premises ‘so seriously damaged’ as to be uninhabitable (individual samples) and;
- HNZ could therefore give a 7-day notice of termination
Proactive MethManagement is the key!
MethSolutions MethManagment strategy is test for use of meth via surface sampling and monitor for manufacture via the MethMinder device!
A small increase in the rent spread out over a 12 month period covers the cost of meth testing between tenancies and attracts a better quality tenant and they tend to stay longer.
A reduced monthly lease fee for the MethMinder device is available for our clients who use Crombie Lockwood Insurance brokers.
In addition to our MethManagement strategies, we have designed a MethRiskManagement Programme specifically for real estate professionals and self managing landlords. You will learn how to exercise greater control over MethRisk including: staff awareness training, policies, templates, sampler training and ongoing support and education.
Please contact our team on 0800METHLAB or 0800 6384522 to discuss.
Photo credit: Stuff.co.nz
