The New Zealand Standard for the Testing and Decontamination of Methamphetamine Contaminated Properties

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1 Information Sheet Meth: Guide for Property Managers This Information Sheet has been prepared for Property Managers and is intended as a guide only. Every situation is different and must be assessed on its unique facts. If a Property Manager becomes aware that a property is, or may be, contaminated with methamphetamine, it is important to discuss each situation with the business owner, branch manager, team leader and/or legal advisor in the first instance. Background A property where meth or P has been used or manufactured is likely to be contaminated with dangerous chemical residues which can cause serious health effects. Contaminated properties may include residential houses, apartments, boarding house rooms and commercial properties. The effects of exposure to these residues may include asthma-like symptoms, breathing difficulties, skin rashes, eye irritations, headaches, and nausea. As some people are more sensitive than others, one member of a family may experience symptoms, while another may not. How do I recognise a possible meth lab or meth use? Possession and/or the manufacture of methamphetamine are criminal offences. Indicators of possible use or manufacture of methamphetamine activity may include: Neighbours complaining of strange chemical smells and/or sounds; Fumes/vapour escaping from windows or ventilators; Windows being covered/sealed day and night; The presence of drug paraphernalia such as glass pipes; Occupants acting nervous, jittery, being agitated and having major changes in behavior; Appearing to dry lips, dilated pupils, sores on face or hands; The presence of drug making ingredients such as pseudoephedrines, iodine, hypophosphorous acid, (especially in large quantities). Numerous chemical containers labelled solvent, hazardous, acid, and/or flammable; Presence of Contact NT (a cold and flu medicine which contains pseudoephedrine) in capsules or packages. The capsules usually contain pink and yellow granules. The presence of chemical equipment, such as beakers, distillers or scales or par bombs ; Large quantities of plastic or glass containers fitted with glass or rubber tubing; Portable gas tanks or other cylinders not normally seen in the property (and may be listed as not being allowed in the property under the Tenancy Agreement). Brown stains around household kitchen sinks, laundry tubs, toilets and/or stormwater drains; Yellow/brown staining of interior floor, wall, ceiling and/or appliance surfaces; Blocked drains; Missing light bulbs. Worksafe NZ has more information for Property Managers, property owners and tenants on its website. 1 The NZ Police website also provides information on detecting possible meth labs. National Standard for Methamphetamine Testing and Decontamination (P8510) The New Zealand Standard for the Testing and Decontamination of Methamphetamine Contaminated Properties 1 Page 1 of 10

2 Information Sheet Meth: Guide for Property Managers (the Standard) is a national standard which covers the screening, sampling, testing and decontamination of properties that have been contaminated because of the use or production of methamphetamine. Importantly, the Standard provides the revised remedial levels for methamphetamine contamination (Remedial Levels): μg per 100 cm 2 for high use areas (cl 2.1.1) μg per 100 cm 2 for limited use areas (cl 2.1.2) A. A high use area is defined under clause 1.4 of the Standard as an area in a property that can be easily accessed and is regularly used by adults and children. B. A limited use area is defined as an area that is likely to be accessed only by adults and for short periods of time. This includes crawl spaces and wall cavities not used as duct runs that are unlikely to be renovated. These remedial levels are a departure from the levels published in the Ministry of Health Guidelines (MOH Guidelines) and, as discussed below, are likely to form the basis for the Tenancy Tribunal s determination of whether a property is clean/ habitable in the future. Specifically, it is likely that a property owner will be in breach of the Residential Tenancies Act 1986 (RTA) if they rent out a property with meth contamination at or above the remedial levels in the Standard. However, until the Tenancy Tribunal confirms that it will adopt the levels in the Standard, REINZ recommends that Property Managers continue to apply the MOH Guidelines (being 0.5 for labs, 1.5 for carpeted areas and 2.0 for non-carpeted areas). REINZ is awaiting confirmation from the Chief Adjudicator as to how the Tenancy Tribunal will apply the levels in the Standard. The Standard also sets out the approved methods for screening assessment tests (which is initial testing to determine the presence or absence of methamphetamine) and detailed assessment tests (which is testing carried out to determine the level and extent of contamination) under section 2, Table 1. Overall, the Standard should be read in conjunction with this information sheet to provide additional and more detailed guidance. What are property owners obligations in respect of rental properties and meth? The Tenancy Tribunal considers renting a contaminated property to be a breach of the property owner s obligation to provide premises in a reasonable state of cleanliness under s45(1)(a) of the RTA. 2 It has therefore affirmed that, if a property is contaminated with meth, the Property Owner must professionally decontaminate the property and have it tested by qualified meth testers to check that any residual contamination is at an acceptable level before the property can be rented. 3 Under the new Standard, it is anticipated that the Tenancy Tribunal will require the Property Owner to professionally decontaminate the property and obtain a clearance report and certificate prior to being able to let the property. The Standard requires the decontamination to be carried out by a decontamination contractor who is independent from the testing company who has performed the contamination-level assessment on a property, to avoid any conflict of interest issues (see cl 3.1 of the Standard). 2 Tenancy Services Website, 3 Wilson & James v Residential Property Management Ltd (trading as Quinovic Property Management) TT 1708/03, Waitakere, 14 June 2004). June 2017 Page 2 of 10

3 Information Sheet Meth: Guide for Property Managers The Property Owner s obligation may arise even in the absence of actual knowledge of contamination. 4 The potential for a property owner to be held responsible in the absence of actual knowledge supports REINZ s recommendation (see below) that meth tests to be carried out before and after each tenancy. The Property Owner may be liable to pay exemplary damages of up to $4,000 for contravening s 45(1)(a) RTA. The RTA allows for the termination of a tenancy on short notice where the premises are so seriously damaged that they are considered uninhabitable. In light of the Tribunal s treatment of the MoH Guidelines, it is anticipated that the Tenancy Tribunal will consider the new remedial levels under the Standard as of primary importance, if not conclusive indications as to whether a property is habitable. Termination by Property Owner Where a property owner seeks to terminate a tenancy due to meth contamination under s59 of the RTA, the Property Owner must ensure that the level of contamination is such that it would be unreasonable to require the Property Owner to reinstate the property. 5 For example, in the recent Tribunal decision Teepa, the Property Owner sought termination of the tenancy on the ground that the premises were not habitable as a result of methamphetamine contamination and that a 7-day notice period under s 59A of the RTA terminating the tenancy had been met. 6 Eight of the twelve swabs taken from the house revealed a level of contamination higher than the MOH Guideline threshold. The Tribunal held that the notice was validly issued. Rights of Tenants If a tenant wishes to end the tenancy because they believe the premises are contaminated, they can apply to the Tenancy Tribunal to do so under s 56 of the RTA. They can also apply to have the property cleaned. If local authorities are notified, they can issue a Cleansing Order under s 41 of the Health Act The Council may also issue a dangerous building notice which prevents anyone living or staying at the property until it has been cleaned and has passed a retest. It is important to note that the tenant s possessions and belongings may have also been contaminated. The Tenancy Services website has more information for tenants if they have questions on the topic of meth. It is recommended that Property Managers read this information too. 8 Liability of the Property Manager In certain circumstances, a Property Manager may be held jointly and severally liable with the Property Owner in respect of a breach of the Property Owner s obligations in the Tenancy Tribunal. To minimise this risk, Property Managers must not sign the tenancy agreement as Landlord but as Agent for the Landlord, must always act within the scope of their management authority, and must act reasonably given the set of circumstances. Testing for meth 1. REINZ strongly recommends that Property Managers engage independent, appropriately qualified 4 TT Pukekohe, 15/06955/MK, 16 March See also Mendez-Gray v Jennes and Realty Link Taupo Limited TT Taupo, 18 August 2016; See however Housing New Zealand v Mita, TT 15/05142/MK; 15/05571/MK, Manukau, 21 January TT Tauranga, 15/01248/TG, 26 November Housing New Zealand v Teepa, TT 15/04385/MK, Manukau, 7 August Tenancy Services Website, June 2017 Page 3 of 10

4 Information Sheet Meth: Guide for Property Managers professionals to carry out meth testing on the properties they manage and do not attempt to complete these tests themselves. Engaging a suitably qualified meth tester ensures the process is arms- length to avoid any conflict of interest. REINZ also recommends that business owners and team leaders ensure their Property Managers are made aware of their own professional indemnity insurance and its coverage to understand what the insurer will and will not cover in respect of meth testing. 2. REINZ also strongly recommends that Property Managers gain consent from the Property Owner to test all properties that they manage both before and after the property is tenanted (i.e. at the commencement and the end of the tenancy). Obtaining a test at the commencement of the tenancy (a baseline test) is necessary to provide evidence about how a property has become contaminated. 3. See Appendix A for suggested steps to follow if a Property Manager suspects that an untenanted property may be contaminated with meth. 4. See Appendix B for suggested steps to follow if a Property Manager suspects that a tenanted property may be contaminated with meth. Under the new Standard, tests are referred to as either screening assessments (which are basic tests to determine the presence or absence of meth) or detailed assessments (which are used when meth is present in order to determine the extent and magnitude of contamination). The costs for screening assessments vary but they are significantly less than the tests for a detailed assessment. Section 2, Figure 1 of the Standard is a helpful diagram for the actions that should be undertaken by the Property Owner/Manager to determine if there has been methamphetamine contamination in the property. Meth clauses in tenancy agreements To facilitate the above, REINZ recommends that all tenancy agreements include a clause which provides that: a. the storage and/or use of illegal substances on the property will result in an application to the tenancy tribunal seeking that the tenancy be terminated; and b. the property has or will be tested for meth prior to commencement of the tenancy and that the results of that test must be clear for the tenancy to commence; and c. the landlord reserves the right to test for meth during the tenancy. The Tenancy Agreement between the Property Owner and the Tenant should contain wording in respect of liability for testing, remediation and any other costs associated with contamination should it be proven that the Tenant (or other occupants/visitors) caused the damage to the Property. Property Managers should draw the prospective tenant s attention to these clauses before or during the signing of the tenancy agreement. The Property Manager should also raise the question with the Property Owner as to whether they have adequate insurance to cover contamination should it occur. The Property Owner should check their own policy and its wording and advise the Property Manager accordingly. Meth clauses in the property management authority It is important for the Property Manager to have permission to arrange meth testing on the Property. REINZ recommends that the Property Management Authority grant this permission by way of a clause where the Property Owner permits the Property Manager to arrange meth testing at the beginning and end of all tenancies (and further if the Property Manager reasonably suspects contamination during a tenancy). The clause should June 2017 Page 4 of 10

5 Information Sheet Meth: Guide for Property Managers also specify that the Property Owner is responsible for the cost of the testing. Property Managers should draw the Property Owner s attention to these clauses before or during the signing of the management authority. What is involved in decontamination? The Property Owner will need to consult their insurer. Recent changes in policy wordings provided by insurance companies tend to place restrictions around meth contamination. Many insurers will specifically exclude claims for chemical contamination from their policies as they are updated. If not excluded, they may impose a cap on the maximum they will pay for such a claim. Section 4 of the Standard sets out detailed steps required for the decontamination process. The Standard requires the property owner to obtain a clearance report and certificate (defined under cl 1,4, see also cls 5.5 and 5.6) from an accredited sampler after the completion of the decontamination. If the post-decontamination test shows that contamination is still present above the remedial levels set out in the Standard, no clearance report or certificate can be issued (cl 5.2). According to the Auckland Regional Public Health Service, no decontamination procedure can guarantee absolute safety. This means that even if the property has been decontaminated and any notification removed from LIM reports then, with the Property Owner s permission, Property Managers should let potential tenants know of the history of contamination (and provide them with the clearance report and certificate (if applicable)). Will LIM reports show contamination history? Many territorial authorities add the notification of meth contamination permanently on LIM reports whilst others remove it once decontamination has been completed. However, property file searches (as opposed to LIM reports) usually contain the history of contamination. If Police are not involved, Councils will not necessarily know about any possible meth contamination unless they have been approached by the Property Owners. Property Owners may only become aware of a potential contamination if they receive a notification from the Council. In this regard, the Property Manager may only hear of an issue directly through the Property Owner following police involvement and subsequent notification to the Council who will then notify the Property Owner. Disclaimer: The material and information contained herein is for general information purposes only and is not intended to form professional legal advice. REINZ does not accept liability for any claim or other action that may arise directly or indirectly from the use of or reliance on the material and information provided herein. REINZ recommends you seek independent legal advice if you are unsure of your legal position.. June 2017 Page 5 of 10

6 Appendix A Untenanted Properties This Appendix accompanies and should be read in conjunction with the REINZ Information Sheet entitled Meth: Guide for Property Managers. It is intended as a guide only. Every situation is different and must be assessed on its unique facts. If a Property Manager becomes aware that a property is, or may be, contaminated with methamphetamine, it is important to discuss each situation with the business owner, branch manager, team leader and/or legal advisor in the first instance. If a Property Manager becomes suspicious or has reason to believe that an untenanted property may be contaminated, the Property Manager should consider the following: Step 1 Step 2 Discuss matters with your business owner, branch manager and/or team leader. Discuss concerns in the first instance to ensure compliance with any internal policies around meth contamination. Inform the Property Owner a. It is important to inform the Property Owner as soon as possible. This will potentially be a difficult conversation and the reaction from the Property Owner may be of disbelief, shock and anger. It is important to be able gather further information by asking relevant questions as the Property Owner may be able to assist with the situation. Use the possible signs of contamination listed in the REINZ Information Sheet in your questioning to gain a better understanding of the situation. Write a file note to keep a record of the discussions you have with the Property Owner. b. Ensure good file notes are taken at each step. These can be recorded in your property management software system as note s. Note the date, time and whom the conversation was with. c. If applicable, you may wish to seek the permission of the Property Owner to speak to the person or company who previously managed the property, to gain further information. d. Discuss with the Property Owner whether their insurance policy covers meth contamination. There may be a requirement to notify the Property Owner s insurer immediately if contamination is detected. e. It is also recommended that you call the Police to check for any history of meth related reports or incidents at the house. If the property has a history of meth contamination and the Police were involved, they usually will have notified the local Council and directed the Property Owner on appropriate remedial measures. If the Police reported the meth contamination to the Council, it may appear on the LIM report for the property. f. Involve Police if a meth lab is present. Labs are extremely dangerous and if one is present at the property, the Police will need to be informed immediately. It is important that items are not removed from the property and that it is not entered unless by Police or by appropriately qualified personnel. June 2017 Page 6 of 10

7 Appendix A Untenanted Properties Step 3 Step 4 Arrange to have the property meth tested REINZ strongly recommends that Property Managers engage independent and appropriately qualified professionals to carry out meth testing on the properties they manage. It is important that Property Managers do not do these tests themselves as it is likely to be considered a conflict of interest and may expose you to unnecessary liability. Seek permission from the Property Owner to engage a suitably qualified person to undertake a screening assessment test (cl 3.2 of the Standard) or detailed assessment test (cl 3.3 of the Standard), depending on the level of suspicion. If you are sure there is meth contamination, it may be worth skipping a screening assessment and doing a detailed assessment in the first instance. Screening assessments should be completed by an accredited sampler (defined under cls 1.4 and 7.2 of the Standard). Detailed assessments should be completed by an accredited assessor. Take action based on the test results PLEASE NOTE: Currently there are differing views amongst Tenancy Tribunal Adjudicators as to whether the presence of any level of meth at all, even small amounts, will mean the property is uninhabitable/ unclean, or if it is only uninhabitable/unclean if meth levels exceed the levels in the MOH Guidelines. Until clarity on the correct approach is received from the Chief Tribunal Adjudicator, any level of meth at a property, even if it is below the levels in the Standard, should be treated very seriously. a. If the screening assessment returns a negative result, then the property can be rented. b. If a screening assessment returns a positive result, recommend that the Property Owner contact an accredited assessor (defined under cls 1.4 and 7.2 of the Standard) to carry out a detailed assessment. c. If the detailed assessment confirms contamination above the remedial levels set out in the Standard, the property should be treated as contaminated/uninhabitable and needs to be decontaminated, before being rented. d. The Property Owner will need to obtain a clearance report and certificate prior to being able to let the property. The Standard requires the decontamination to be carried out by a decontamination contractor who is independent from the testing company who has performed the contamination-level assessment on a property, to avoid any conflict of interest issues (see cl 3.1 of the Standard). e. Do not allow access to the property and do not rent the property until evidence of decontamination is provided, in the form of a clearance report and certificate under cl of the Standard. Disclaimer: The material and information contained herein is for general information purposes only and is not intended to form professional legal advice. REINZ does not accept liability for any claim or other action that may arise directly or indirectly from the use of or reliance on the material and information provided herein. REINZ recommends you seek independent legal advice if you are unsure of your legal position. June 2017 Page 7 of 10

8 Appendix B Tenanted Properties This Appendix accompanies and should be read in conjunction with the REINZ Information Sheet entitled Meth: Guide for Property Managers. It is intended as a guide only. Every situation is different and must be assessed on its unique facts. If a Property Manager becomes aware that a property is, or may be, contaminated with methamphetamine, it is important to discuss each situation with the business owner, branch manager, team leader and/or legal advisor in the first instance. If a Property Manager becomes suspicious or has reason to believe that a tenanted property may be contaminated, the Property Manager should consider the following: Step 1 Step 2 Step 3 Discuss matters with your business owner, branch manager and/or team leader Discuss concerns in the first instance to ensure compliance with any internal policies around meth contamination. Inform the Property Owner It is important to inform the Property Owner as soon as possible. This will potentially be a difficult conversation and the reaction from the Property Owner may be of disbelief, shock and anger. It is important to be able gather further information by asking relevant questions as the Property Owner may be able to assist with the situation. Use the possible signs of contamination listed in the REINZ Information Sheet in your questioning to gain a better understanding of the situation. Write a file note to keep a record of the discussions you have with the Property Owner as well as steps that have already been taken Consult with the Property Owner and agree on appropriate steps Ensure good file notes are taken at each step. These can be recorded in your property management software system as notes. Note the date, time and whom the conversation was with. Discuss the following with the Property Owner: a. Was a baseline test completed at the commencement of the tenancy? If a baseline test was not completed, it will be extremely difficult to prove that the existing tenant has caused the contamination. In the absence of a baseline test, the tenant could allege that previous tenants, or another third party, caused the contamination. Also, if the results of the new test are positive for meth, the tenant could allege that the premises are unclean or uninhabitable, and seek compensation from the property owner in the Tenancy Tribunal (such as compensation for rent, moving costs and replacement of furniture). b. Gaining access to the property to test for meth Access to a property to test it for meth must be by agreement with the tenant. Check the Tenancy Agreement for any clauses allowing access to the property for testing. A tenant cannot withhold their consent unreasonably. If the RTA Amendment Bill is passed, landlords and Property Managers will be able to access a property at short notice to test for meth, without having to obtain the permission of the tenant. The Bill was introduced into Parliament in May 2017 and REINZ is keeping a watching brief on the passage of the Bill and any changes to the law it creates. June 2017 Page 8 of 10

9 Appendix B Tenanted Properties c. Engaging a suitably qualified meth tester REINZ strongly recommends that Property Managers engage independent and appropriately qualified professionals to carry out meth testing on the properties they manage. It is important that Property Managers do not do these tests themselves as it is likely to be considered a conflict of interest and may expose you to unnecessary liability. A suitably qualified person will need to be engaged to undertake a screening assessment test (cl 3.2 of the Standard) or detailed assessment test (cl 3.3 of the Standard), depending on the level of suspicion. If you are reasonably sure there is meth contamination, it may be worth skipping a screening assessment and doing a detailed assessment in the first instance. Screening assessments should be completed by an accredited sampler (defined under cls 1.4 and 7.2 of the Standard). Detailed assessments should be completed by an accredited assessor (defined under cls 1.4 and 7.2 of the Standard). d. Options available depending on results PLEASE NOTE: Currently there are differing views amongst Tenancy Tribunal Adjudicators as to whether the presence of any level of meth at all, even small amounts, will mean the property is uninhabitable, or if it is only uninhabitable if meth levels exceed levels in the MOH Guidelines. Until clarity on the correct approach is received from the Chief Tribunal Adjudicator, any level of meth at a property, even if it is below the levels in the new Standard, should be treated very seriously. Test Result: No Meth Present If the screening assessment returns a negative result, then no action is required. Test Result: Meth Present If only a screening assessment was carried out and it returns a positive result, seek permission to engage an accredited assessor (defined under cl 1.4 and 7.2 of the Standard) to carry out a detailed assessment to find out the extent and magnitude of the contamination. If a baseline test was completed and was negative, the existing tenant may be liable for the property owner s testing and decontamination costs. An application to the Tenancy Tribunal will need to be made for an order for compensation against the tenant. If the detailed assessment confirms contamination above the remedial levels set out in the Standard, the property should be treated as contaminated/uninhabitable and a 7-day notice under s59 of the RTA needs to be issued. If the detailed assessment confirms contamination above the remedial levels set out in the Standard, the property will need to be decontaminated before it can be re-let. The property owner will need to obtain a clearance report and certificate prior to being able to re-let the property. The Standard requires the decontamination to be carried out by a decontamination contractor who is independent from the testing company who has performed the contamination-level assessment on a property, to avoid any conflict of interest issues (see cl 3.1 of the Standard). June 2017 Page 9 of 10

10 Appendix B Tenanted Properties Step 4 Do not allow access to the property or let the property out until evidence of decontamination is provided, in the form of a clearance report and certificate under cl of the Standard. e. If there is evidence of a meth lab on the property you must report it to the Police Labs are extremely dangerous and if one is present at the property, the Police will need to be informed immediately. f. Insurance Discuss whether the Property Owner s insurance policy covers meth and the need to notify the insurer immediately if contamination is detected. Proceed with the steps agreed with the Property Owner Be sure to record in writing the steps agreed with the Property Owner and keep excellent records of the steps you take. Disclaimer: The material and information contained herein is for general information purposes only and is not intended to form professional legal advice. REINZ does not accept liability for any claim or other action that may arise directly or indirectly from the use of or reliance on the material and information provided herein. REINZ recommends you seek independent legal advice if you are unsure of your legal position. June 2017 Page 10 of 10