Landlord Granted Possession Due to Meth Contamination

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[2025] NZTT 5113229

TENANCY TRIBUNAL - Wellington | Te Whanganui-a-Tara

APPLICANT: [redacted]

RESPONDENT: [redacted]

TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE], [ADDRESS]

ORDER

[NAME] is granted immediate possession of the premises at [ADDRESS], [POSTCODE], ([ADDRESS]) .

Reasons:

Both parties attended the hearing at Wellington District Court.

Did the landlord have grounds for termination of the tenancy?

1. The landlord has applied for possession of the premises following the termination of the tenancy by 90 day notice to the tenant on 10 September 2024. By that notice the tenancy ended on 16 December 2024. The tenant has remained in possession. The application for possession is made under section 64(1) of the Residential Tenancies Act 1986 (RTA). The tenant disputes that the landlord had grounds for termination of the tenancy and disputes the application for possession.

2. The applicant made an application to the Tribunal for possession on 18 December 2024, 2 days after termination. The requirements of section 64(1) of the Residential Tenancies Act 1986 are satisfied. Section 64(1) requires that an application for possession is within 90 days of the date of termination.

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3. In the Notice of Termination to the tenant the landlord referred to section 51(2)(f) RTA to be the reason for termination. This section provides that the landlord may terminate a tenancy with 90 days notice if -

“extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and—

(i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and

(ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.”

4. The need to have the tenant vacate the premises for repair was based on methamphetamine contamination. [NAME] had arranged for an accredited methamphetamine inspection company, ‘[NAME]’, to carry out methamphetamine testing at the tenancy premises on 19 August 2024. This was the second test carried out at the property. The results of the test were as follows:

• Kitchen 104μg/100cm²

• Lounge 270μg/100cm²

• Lounge 310μg/100cm²

• Hallway 350μg/100cm²

• Bathroom 71μg/100cm²

5. [NAME] requested the tenant to terminate the tenancy because the levels far exceeded 1.5μg/100cm² (NZ Standard NZS 8501:2017) and 15μg/100cm² set out in the 2018 report by [NAME] and would require extensive cleaning.

6. [NAME] disputes that the landlord had grounds to terminate the tenancy. He states that the grounds for termination are flawed in several respects. These include:

a. the methamphetamine testing results are unreliable and he wants an adjournment to arrange further testing

b. there was no methamphetamine testing at the start of the tenancy,

c. there is no regulation that has been passed by Parliament setting a maximum inhabitable level for methamphetamine,

d. that he was not given adequate notice regarding testing,

e. that he was at work and did not see if the sample testing procedure was correctly carried out.

a. Are the results reliable?

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7. At the hearing today [NAME] stated that the tests could not be relied on however he did not provide evidence in support of his allegation of manipulation of the results. The person who carried out the testing was present as a witness and opportunity was given to explore whether the results could be faulty. I am satisfied that the Tribunal can rely on the results.

The adjournment request.

8. [NAME] requested time to have another test be carried out. I declined that request. [NAME] has had since August 2024 to have the premises retested. He has not done so. He said he did not see the need for further testing because a previous Tribunal decision, [2024} NZTT 4897186, dated 20 June 2024, in which he was the respondent, stated that there was no prescribed level of contamination determining when premises become uninhabitable. However that decision makes very clear that the Tribunal views contamination to be above 15μg/100cm². Paragraphs 7 through 12 are copied below.

7. “There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 [NAME] published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5µg/100cm2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8µg/100cm2 for limited use areas.

8. In May 2018 [NAME], the then Prime Minister's Chief Science Advisor, released a report "Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards”. The report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15µg/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5µg/100cm2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.

9. The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).

10. The Tribunal has generally applied the [NAME] recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]):

The Tenancy Tribunal was in a difficult position. The best state of knowledge of risk to human health from methamphetamine contamination available to the adjudicator was the [NAME]. It would have been bold for the adjudicator to have ignored that report in favour of the New Zealand Standard given that the [NAME] report represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.

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11. The District Court took a similar approach in [COMPANY] v [NAME] and others [2021] NZDC 3231, where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5µg standard.

12. More recently, in [COMPANY] v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the [NAME].”

13. I am satisfied that it was made clear to [NAME] in that decision that the Tribunal and the District Court accept that levels over 15μg/100cm² renders a premises contaminated. In [2024] NZTT 4897186 the Tribunal declined to terminate [NAME]’s tenancy because the applicant’s termination notice stated that the level of contamination was above a prescribed level. Currently there is no prescribed level. The Tribunal determined that the applicant’s ground for termination was incorrect in that case.

b. No methamphetamine testing at the start of the tenancy.

14. [NAME] stated that the results could reflect the condition of the premises at the start of his tenancy in 2016. I accept that where testing has not taken place at the start of the tenancy there can be significant doubt about when the contamination occurred. However where there is more than one test during a tenancy and the results show a change in the contamination levels, this is proof that methamphetamine has been used during the tenancy. A comparison between the methamphetamine test carried out on 2 May 2024 and the test carried out on 19 August 2024 shows the level of methamphetamine contamination has changed significantly in just three months of [NAME]’s tenancy.

2 May 2024 19 August 2024

Kitchen 77μg/100cm² 104μg/100cm²

Lounge 192μg/100cm² 270μg/100cm²

Lounge 10.4μg/100cm² 310μg/100cm²

Hallway 3.6μg/100cm² 350μg/100cm²

Bathroom 81μg//100cm² 71μg/100cm²

15. I am satisfied that the testing on two different occasions during the tenancy proves that there has been use and possibly manufacture at the premises.

c. No methamphetamine regulations set by Parliament.

16. I have addressed this issue in the information set out above. Until there is a prescribed level for contamination established by Regulation, the Tribunal relies

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on the best evidence about contamination. That is the level of 15μg/100cm² set out in the 2018 report by [NAME]. [NAME] has misunderstood the relevance of regulations prescribing contamination levels in the current environment.

d. That he was given insufficient notice regarding the testing.

17. I am satisfied that [NAME] was emailed at the email address that is the same as is used for service of this application. There is also a copy on file of the Notice to Enter that was put in his letterbox. The landlord has proved that notice was served. [NAME] has not proved that a valid notice was not given by the landlord.

e. That he did not see if the sample testing procedure was correctly carried out.

18. [NAME] was not present when the contractor carried out the testing. The RTA permits the landlord to enter and carry out testing without the tenant present. See s.48(2)(ba) RTA.

Summary

1. I am satisfied that the landlord has proved that the premises is uninhabitable. The landlord had grounds for termination under section 51(2)(f). The landlord could also have terminated the tenancy under section 59A. That section applies if, as a result of a breach of the tenancy agreement by a party, the premises are destroyed or are so seriously damaged as to be uninhabitable.

2. The landlord required termination to carry out repairs to the premises resulting from the contamination. The repairs cannot be carried out with the tenant being present. The tenant is in breach of the RTA by failing to vacate the premises on 16 December 2024. Possession is granted to the landlord. The seriousness of the contamination warrants immediate possession. These readings are the highest I have seen in any methamphetamine case I have dealt with.

[NAME]

18 February 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions

Reasons: