Drugs testing not enough to evict tenant

Ultimate Property Management had applied for termination of the tenancy claiming the property had been used for unlawful purposes and was contaminated by methamphetamine.

The tenant, who has name suppression, and her two young children moved into the two-bedroom property in October 2017. 

In December last year the property manager undertook an inspection and found a power disconnection notice on the front door. When inside the property manager found some minor damage and rotten food in the kitchen, but no sign of anybody having lived there recently. Inquiries with a neighbour established the tenant had not been seen for some time. 

Later in the month the property manager was called by police wanting to know where the tenant and her brother were. Her brother had been bailed to the tenant’s address, a situation the property manager was unaware of. 

Concerned something had happened, the property manager arranged for methamphetamine tests to be done inside and under the house. When combined the tests showed a composite theoretical maximum reading of 34.9.

The tenant told the tribunal her brother had been living at the address for about six months while on bail and she was unaware whether he used methamphetamine or not.

For personal reasons, about five weeks before the landlord’s inspection, she, her children and brother temporarily left the property. She and her children returned about the middle of January this year, without her brother. She says as far as she was aware no one, apart from the property manager, had entered the property while they were away. 

The landlord relied primarily on the fact of methamphetamine contamination occurring during the tenancy as sufficient evidence the tenant has either caused or permitted contamination to occur and her tenancy should be terminated.

Samples testing

Adjudicator G Barnett says there is no evidence concerning the nature of the charges faced by the tenant’s brother, no evidence of drug manufacture, no evidence that any drug utensils were located at the property, no meth pipes or cannabis bongs. “There is no evidence the police have been called to the address, or that the address has been searched for illicit substances. There is no evidence as to how much methamphetamine would have had to have been consumed, or when it would have had to have been used to leave the levels detected.” 

Although a pre-tenancy methamphetamine screening assessment report and certificate of analysis showing samples taken from the kitchen, dining room, bathroom, hallway, toilet, both bedrooms, lounge, downstairs laundry and garage returned a composite reading of < 0.04 μg/100cm2, Barnett says to be satisfied the contamination occurred during the tenancy, the tribunal must be in position to make an accurate pre / post tenancy comparison. 

“Although, there were results and descriptions of the rooms sampled before the tenancy began, there were no photographs of the actual sites sampled within those rooms.” 

The property manager told the tribunal the property owner had used the same testing company and was confident that the areas sampled in the pre-tenancy screening were the same as those sampled in December last year. 

Photos taken in 2017 were later produced, but Barnett says they did not show the exact areas from where the samples were taken and the 2017 and 2021 testing sites may not necessarily have been in the same position. “They should in my view, to make a proper comparison, be at least in close proximity to one another.”

The adjudicator found four of the 10 2021 testing sites - bedroom two, the hallway, the lounge, and the kitchen - were likely in close proximity with those areas sampled for the pre-tenancy test in 2017. “I am satisfied, more likely than not, there has been methamphetamine contamination in those areas and it occurred during the tenancy.

However, Barnett says without evidence of discrete testing, it is not possible to determine whether any of the individual areas sampled are above, or below 15.0 μg/100cm2, a level deemed by the tribunal, and confirmed by the District Court, to constitute damage requiring remedial action.

Barnett then turned to whether the breach should result in a termination order considering the tenancy has been running for over five years. In that time there have not been any breach notices issued nor is there evidence of any warnings issued. Apart from the methamphetamine contamination the tenant appears to have been exemplary. 

“The tenant has personal grief issues to address and recognises this to be the case. Based on her previous conduct there is no reason to expect that she will not continue to honour obligations.” 

Barnett says while the tribunal is satisfied the tenant is responsible for breaching the tenancy agreement, and provisions of the Residential Tenancies Act, grounds existed to decline termination of the tenancy.