Meth and Tenancy Agreements
Question from Juanita updated on 3rd March 2017:
Would it be legal to state that the tenant is responsible for any and all costs relating to any detection of meth or other drug related detection which requires the cleaning of the property after the tenancy has ended and write it on page 3 No. 4 of the residential tenancy agreement supplied by Tenancy services? Would this have some legal standing if needed?
Our expert Allan Galloway responded:
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 AGREEMENTS 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, and 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 (‘RTA’) and can attract an award of exemplary damages 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 AGREEMENTS 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 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 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 Landlords cannot just add any conditions to the tenancy agreement. All conditions added to a tenancy agreement must comply with the law. If something has been written down as an extra condition in a tenancy agreement, but is inconsistent with the RTA, it has no effect. A landlord cannot enforce what is outside the law, and tenants cannot give away any of their rights, unless allowed by the Tenancy Tribunal. Similarly, a landlord cannot require a tenant to either take on the landlord’s responsibilities, or responsibilities over and above what they have under the RTA. 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 a landlord attempts to terminate a tenancy agreement so that another can be put in place to allow this sort of testing, they may be committing an unlawful act under the RTA which can attract an award of exemplary damages up to $2000.
ROLE OF THE TENANCY TRIBUNAL AND TENANCY SERVICES The Tenancy Tribunal and Tenancy Services deal with disputes about residential tenancies (rented homes including boarding houses). The Tribunal holds hearings to settle disputes between tenants and landlords. Before going to the tribunal, you can try and settle your dispute through mediation. Tenancy Services provides information on your rights and responsibilities as a landlord or tenant. If you have a dispute that you cannot sort out together, Tenancy Services can arrange mediation to help resolve the issue. The Tenancy Tribunal can formalise what is agreed at mediation, or can make a ruling on an issue that cannot be resolved and issue an order that is legally binding on the parties involved in the dispute.
For further information regarding landlord and tenant rights and responsibilities, you can visit our website or subscribe to our tenancy landlord e-newsletter.
The Ministry of Business, Innovation and Employment provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.