Landlords; caught between
a Rock and a Hard Place?
Meth Xpert have spoken with numerous property managers of late, who have explained to them that the reasons their clients (landlords) are not testing is that they (the property managers) are having their clients sign a waiver to indemnify them against any contamination due to methamphetamine within the properties they are managing.
On the face of it, this seems like a good idea. Get the client (landlord) to “sign away” the fact that no meth testing Is occurring so you are not able to be blamed if drug contamination is found.
You can’t contract yourself out of the law
Unfortunately, you can’t contract yourself out of the law. That is, you cannot have any sort of written agreement that supersedes legislation. You cannot have any sort of agreement that “excuses” you from having to obey and adhere to the laws of the land.
Often over looked is the fact that a property management company is a PCBU under the Health and Safety at Work Act 2015. The Minister of Health and Safety at Work, Hon Iian Lees Galloway has advised Meth Xpert NZ that the New Zealand Standard has not changed in light of the Gluckman report, and that Worksafe will use NZS8510:2017 as the enforceable standard under this Act.
This means that any property exceeding 1.5µg/100cm2 requires appropriate PPE to be worn, even by a property manager conducting a routine inspection. If your landlord has signed a waiver of liability, a property manager is still required under the health and safety at work act to take all practicable steps to ensure a safe working environment. Failing to adhere to these requirements potentially exposes your business to prosecution under this Act.
The Residential Tenancies Amendment Bill No.2 will pass into law soon
Furthermore, The Residential Tenancies Amendment Bill No.2 (RTAB2) passes into law soon. The amendments to the Residential Tenancies Act are very clear. Some of the salient points are:
The RTAB2 provides a lawful and legally enforceable way for a landlord to protect their assets from Methamphetamine Contamination and damage.
Landlords will have a power of entry to their property in order to conduct contamination testing.
Landlords will only be able to evict tenants if they have proof that contamination occurred during their tenancy.
To establish proof, a pre-tenancy and then a post tenancy Methamphetamine Screening test ensures that the obligations of the law are met, along with insurance obligations.
If a tenant has a meth test done and locates excess methamphetamine contamination, Landlords are liable for a $4000 fine per offence and exemplary damages and back paid rent if providing an unlawful premises.
Landlords must also disclose to their tenants their insurance details.
If a Landlord chooses not to have any insurance cover, they must disclose to their tenant that they do not have any methamphetamine contamination insurance. They then have no recourse at any tenancy tribunal hearing to claim insurance for damage.
This of course applies to both landlord and property manager, as, the property manager acts as the landlord in the eyes of the law.
Risk mitigation is critical for your investments, a "waiver" is not miitgation, it is a risk
Whilst we appreciate that some landlords have been “giving instructions” to their property managers to “Not Test” we have already spoken to a number of property managers who have let clients go, because they are not willing to risk their business to a $4000 fine per offence/property) for the sake of a landlord who refuses to test.
As of Monday the 1st of July 2019, a landlord is liable for a $4000 for not insulating their property under the Healthy Homes Standards. It is yet to be tested within the courts whether or not a property manager is liable for all or a portion of the fine, who knowingly accepts a property into their portfolio that does not meet these Standards, regardless of any waiver of liability.
As with the insulation example above, the property manager cannot have the landlord sign a waiver stating that they have “told” their client that they need to test for methamphetamine, which is regarded as a contaminant under the RTAB2, but then rely on that in court to justify why testing was not conducted. That will not stand up in court.
A landlord (property manager acting in their stead) has duty of care to find out whether a property is contaminated or not
Under the RTAB2, a landlord (property manager acting in their stead) has duty of care to find out whether a property is contaminated or not. Before renting out a property, section 36 of the residential tenancies Act 1986 states “The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes”. Landlords must ensure it is lawful for residential use (Also see RTAB2 Section 45 on contaminated properties).
It is an offence to place someone into an occupancy where you know that the dwelling is contaminated at levels over prescribed acceptable thresholds. As per the above clause 36, were all “reasonable” steps taken?
You cannot sign a waiver to get yourself out of that one!
No waiver gets you out of abiding with the law.
If a landlord does not comply with their obligations under the Residential Tenancies Act (such as meeting building, health, and safety requirements) the Tenancy Tribunal may decide that the property is an unlawful residential premises under Section 41 of the Health Act 1956, and rule in favour of the tenant/claimant.
The RTAB2 does not “make” you test for methamphetamine contamination, however, you must meet all relevant building health and safety standards as is outlined in the Residential Tenancies Act 1986 Section 45(1)(c).
No waiver gets you out of abiding with the law.
Would you risk a $4000 fine, or more if Worksafe were to prosecute?
So for the cost of a pre-tenancy, post-tenancy methamphetamine contamination test, you can avoid a $4000 per offence, meet your health and safety obligations under the Health and Safety at Work at Work Act. The question has to be asked: Would you risk a $4000 fine, or more if Worksafe were to prosecute?
At present, there are inconsistencies at the Tenancy Tribunal, there are a number of rulings in favour of tenants and conversely a number of rulings in favour of the landlords/property managers. The only reason for this (as application of the law is quite clear) is inadequately applied laws and standards by the landlords and property managers, and poorly presented cases to the tribunal.
Some property managers may be great at finding tenants, good at conducting property checks and capable of presenting a case before the tribunal for clarification of tenancy laws. However, what they are not, is experts in methamphetamine sampling procedures or interpretation of applicable standards.
When it comes to Meth it’s a specialist area
When it comes to Meth it’s a specialist area. It's about to be heavily regulated with RTAB2 prescribing the adherence to the New Zealand Standard NZS8510:2017. The Standard will move from its “perceived” voluntary requirements to regulated.
At the moment the popular consensus is that the New Zealand Standard (NZS8510:2017) is voluntary, despite the fact that Standards draw from existing laws. i.e. try telling the courts that you tested and found contamination but decided to put tenants in anyway because the Standard is voluntary, you’ll find yourself in very hot water for breaking the Tenancy Act, the Health Act, the Health and Safety at Work Act, resulting in fines and if prosecuted by Worksafe possible jail time. You would want to get yourself a very good lawyer (and have no waiver in existence) if you ever had knowledge of placing tenants into a contaminated environment.
Meth Xpert NZ welcome the coming regulation of the Methamphetamine Testing Industry which will bring about adherence to the law. Note that these are all in place now with the standards recognised as best trade practice and the most precautionary approach. As with the Insulation laws, landlords have had four years to prepare, however, many have failed to meet the deadline and are now at the mercy of the Tenancy Working Group, who have stated there will be no amnesty period.
The Gluckman only made recommendation for two changes to the industry.
Landlords and Property Managers must take note. The New Zealand Standards on Methamphetamine Testing and Decontamination have been published since June 2017 and for over two years, and many still fail to comply with this despite the fact that it is about to become a lawful regulation.
The Gluckman report agrees with the New Zealand Standard and only made a recommendation for two changes to the industry. One was to change the level for methamphetamine use to 15ug/100cm2 instead of the 1.5ug/100cm2. And the other was to not use a method of testing called a “Field” Composite test (which Meth Xpert NZ are proud to say we do not use).
You will note that Gluckman also said that 1.5ug/100cm2 was the correct level for a property contaminated by methamphetamine manufacture, and that the level was to stay at 1.5ug.100cm2.
Landlords and property managers take note
So, out of a New Zealand Standard, with hundreds of points about industry regulation and best practice, Gluckman could only find fault with two things. The rest of the document stands as best practice and will play a major role in the regulations and law making as you have seen in the RTAB2.
Landlords and property managers take note, to be clear, as it stands right now, the Government and Gluckman state that the legal limit for methamphetamine manufacture in a house is 1.5ug/100cm2. The acceptable (not legal) limit for methamphetamine use “should” be 15ug/100cm2. The suggestion of removing Field Composite testing “should” be adhered to and the hundreds of other points contained within the New Zealand Standards NZS8510:2017 are to be adhered to.
The coming regulations will firm up on any misinterpretation that you have surrounding this, but it’s there in black and white right now for you. Just like the Insulation laws, where there is no amnesty, i.e. “If you haven’t done it in the four years that we (the Government) told you about it…tough…you’re now breaking the law.” The Methamphetamine regulations will be the same i.e. “You’ve had two years since we told you about it, if you haven’t done it and you have people living in contamination now…tough… you are now breaking the law.” Instant fines for both landlord and property manager because both are culpable and both are liable, regardless of any waiver you attempted to sign.
You can’t fail to comply with Meth Testing and try to get out of it just because you think the standards don’t apply
You can’t fail to comply with Meth Testing and try to get out of it just because you think the standards don’t apply. Try saying that in court and you will come unstuck very quickly.
If you have done your due diligence, regular property checks and conducted pre and post tenancy methamphetamine sampling, then any Tenancy Tribunal should rule in your favour. But only if you have met the standards. That is, used qualified methamphetamine samplers, followed the standards, met the applicable laws, etc. If you have not, or choose not too, then you may not do so well in court.
Here’s where Meth Xpert come in. We are available to come represent you (either the landlord/property manager, or a tenant) in court. If the report that is being used against you to prove that you have a contaminated property is not from a qualified sampler or from someone who has failed to comply with the standards, we will stand up and explain the reasons why that report cannot be used.
We are an IANZ Accredited company, and have NZQA Certified Samplers
We can do this because we have the highest qualifications available in the industry today. We are an IANZ Accredited company, and have NZQA Certified Samplers. Our testimony in court is unquestionable as to our experience and qualifications.
In order for a report to be accepted without question at the Tenancy Tribunal, the sampler must be qualified as per the standards requirements. If they are not, Meth Xpert NZ samplers can be qualified by the tribunal to act as an independent expert witness to support your case.
If you want to accept anything less than qualified work, you may as well flip a coin, and roll the dice on a $4000 fine. We can help you with this. Don't be caught between a rock and a hard place. All you have to do is ask.