Landlords must provide a clean property. Both landlords and tenants should check for any signs of 'P' at the property, before they rent a property.
Public feedback is currently being sought by Standards New Zealand on testing and decontamination. The deadline for responses is 20 February 2017.
Landlords must provide a clean property
If landlords rent out a property that is contaminated by ‘P’, they are breaching their obligations under the Residential Tenancies Act 1986, as well as other legislation such as the Building Act and the Health Act.
The Police and some local authorities have procedures to notify local councils when they identify contaminated properties.
Landlords should check for any signs of 'P' during and between tenancies
The Auckland Regional Public Health Service has identified some warning signs that a lab is operating*. These include:
- unusual chemical smells that are not normally present in the area
- numerous chemical containers (labelled solvent, acid, flammable) stored or stock piled
- stained glass equipment and cookware
- plastic or glass containers fitted with glass or rubber tubing
- numerous cold tablet packages lying around or in the rubbish
- portable gas tanks or other cylinders not normally seen or used in the area
- chemical stains around household kitchen sink, laundry, toilet or stormwater drains
- yellow/brown staining of interior floor, wall, ceiling and appliance surfaces.
Tenants should ask landlords whether the property has been used as a 'P' lab
When you’re considering renting a property, make sure 'P' hasn’t been used or made or it has been properly decontaminated. Note that Auckland Regional Public Health Service and Tenancy Services advises that no decontamination process can guarantee absolute safety*.
What if a tenant thinks the rental property has been affected by 'P'?
Obtain as much information as possible to show whether the property has been used this way. This would include talking to the landlord.
A tenant can ask for the property to be cleaned or possibly have the tenancy ended.
Breaches of the Act for more options on what a tenant can do when they think the property is contaminated by 'P'.
What do I do if I suspect or find a 'P' lab?
If you suspect a property is being used for 'P' use, manufacture, or sale contact the Police and your Local Council.
Where a Landlord wants to reduce or mitigate their exposure to risk or loss relating to the manufacture or use of methamphetamine (‘meth’) by having the ability to undertake testing of the premises during the tenancy, Tenancy Services suggests that landlords consider the following matters.
Please note that the following information should not replace independent legal advice.
Current tenancy agreement
Where there is a current tenancy agreement in place and there is no agreement as to how meth testing is to be undertaken, Landlords are advised to seek the permission of the Tenant to undertake any form of testing on the premises.
If the Tenant agrees it is important to remember that the premises only can be tested. This permission does not extend to any of the Tenant/s personal belongings or effects.
If the Tenant does not agree, the Landlord should consider not proceeding with the testing as there is a risk that this sort of interference may be considered a breach of the Tenant’s right to the quiet enjoyment of the premises. Such a breach can be an unlawful act under the Residential Tenancies Act and can attract a financial penalty of up to $2000.
Tenancy Services accepts that this may prove problematic in proving who has caused damage to the premises where the premises has not been tested between tenancies or at the start of the tenancy. Landlords are again directed to seek their own independent legal advice on this matter.
New tenancy agreement
At the commencement of a tenancy, a Landlord could consider including clauses or extra conditions in the tenancy agreement to clearly explain the understanding of the rights and responsibilities for both the Landlord and the Tenant/s in relation to meth.
The below clauses are suggestions only and their inclusion in a tenancy agreement should not be taken as guaranteeing a successful application or defence of an application at the Tenancy Tribunal.
Methamphetamine testing clauses:
a) The Tenant/s acknowledges that the Landlord has had a professional methamphetamine test carried out at the premises by [name of professional provider ] on the ____day of___________________20XX, prior to the commencement of this tenancy agreement. The professional testing results provided to me shows a negative result throughout the premises for methamphetamine or chemicals involved in the manufacture or use of methamphetamine
b) The Tenant/s acknowledges and agrees that methamphetamine testing may be carried out during the course of the tenancy as a part of the property inspection process (refer to Section 48 of the RTA).
c) The Tenant/s understands that methamphetamine testing may be carried out at the premises upon the termination of this tenancy within a reasonable timeframe and prior to a new tenancy commencing.
d) The Tenant/s understands that the Landlord reserves the right to claim any costs connected with the manufacture or use of methamphetamine at the premises via a Tenancy Tribunal application.
Relevant law and considerations
All conditions added to a tenancy agreement must comply with the law. If something’s been written down as an extra condition in a tenancy agreement that is inconsistent with the Residential Tenancies Act it can’t be enforced.
Adding conditions has more information about conditions that can be added to the tenancy agreement.
Landlords cannot terminate a tenancy agreement for the purpose of entering into a new agreement that includes additional terms and conditions that they are unable to enforce with their current agreement. If you attempt to terminate a tenancy agreement so that you can put another one in place that allows you to do this sort of testing, you may be committing an unlawful act under the Residential Tenancies Act and could receive a financial penalty up to $2000.
Standards New Zealand has started work on developing a New Zealand standard on the testing and remediation of properties used for the manufacture or use of methamphetamine. To stay up-to-date with how the standard is progressing you can subscribe to Standards New Zealand free web-based magazine, Touchstone. (external link)
Other information about 'P'
Tenants should also be aware that local authorities have authority under section 41 of the Health Act 1956 to order the owner of a property to clean it, if cleaning is necessary to prevent danger to health or for rendering the property fit for occupation.
The Tenancy Tribunal ruled in 2004 that renting out contaminated premises is a breach of a landlord’s obligation to provide a property in a “reasonable state of cleanliness” [section 45(1)(a) of the Residential Tenancies Act 1986].
To ensure they meet those obligations, the Tribunal stated that landlords should:
- arrange for the property to be cleansed and decontaminated by a professional cleaning company experienced in the removal and neutralisation of hazardous substances, and
- have the property tested by appropriately qualified and analytical chemists to establish that the level of contaminants is within an acceptable level.
This information is based on a common sense, precautionary approach to the safe management of unknown hazardous substances and contaminated environments. Auckland Regional Public Health Service and the author will not be held liable for any actual or potential economic or adverse effect(s) arising from use of this information.