Was your house formerly a P-lab?
Until recently, a practitioner would not expect to be consulted in relation to a property that was formerly a clandestine methamphetamine laboratory or, a “P-lab”, as they are better known.
However, in recent times the chance of such an instruction has increased substantially. Accurate statistics are hard to come by, but between 2000 and 2009, the number of labs detected by the police has risen fifteen-fold. If faced with such a property, what advice should be offered to clients and what steps can be taken?
A property could formerly have been used as a P-lab without the vendor having any inkling. If a period of approximately six months has passed since the property was last used as a lab, it is likely that any smell would be indistinguishable. However, the health risks and potential for damage to property would still remain.
If you discover that a property has been rented out in the past, then you may wish to alert your client to the possibility of it having been used as a P-lab. It cannot be said that this risk is limited to certain areas or property types, as cases have been uncovered across the board, including high value properties in affluent areas. Councils must note former P-labs on LIM (Land Information Memorandum) reports if the contamination is known to the territorial authority, but in many cases they are not aware and so it is not included on the LIM report. It is worth noting that once a LIM report declares a history of contamination at a property, there is no way to remove this from the report, regardless of what remedial work has been undertaken.
The Ministry of Health currently recommends that surface wipes for methamphetamine should not exceed a concentration of 0.5μg/100cm2 as the acceptable post-remediation, re-occupancy level for a dwelling that has formerly been used as a clandestine methamphetamine lab. If a concentration greater than 0.5μg/100cm2 has been established, an extensive decontamination process will be required. The cost of this process can range from $5,000 to $50,000, depending on the extent of the damage.
If a client wishes to investigate a property further, the client should consider P-lab testing. There are different ways to test for a P-lab – individual swab testing, surface testing and composite testing. The individual swab is the most reliable, and also the most expensive, of the three options. It involves taking eight swabs (approximately, although this can vary with the size of the property) of approximately 100cm2. Using this method, an average three bedroom home would cost in the region of $1,500 to test. If this seems too expensive, a client would be best served with obtaining a surface test. These can be obtained for around $200-$500 and can provide peace of mind to a client who may have doubts about a property.
The composite test is regarded as unreliable by forensic scientists and can produce misleading results. A composite test adds up multiple swabs so that, cumulatively, a result will be produced that is over the 0.5μg/100cm2 threshold. The house may not have been P-lab at all, but the cumulative effect of all these small readings means the test result may suggest that it was. It may have been the case that methamphetamine was once smoked in the property, although it was not used as a lab. Whilst still contaminated, it is not comparable to a property that is unsafe for occupation. Caution must therefore be exercised by vendors and their lawyers when presented with a positive composite test result.
It is possible for a misleading composite test to be used as a tactical tool to negotiate a lower sale price or to hold up auctions. Vendors should be aware what type of P-lab test the purchaser is relying on before accepting its findings. A comprehensive individual swab test is the only way to uncover the true extent of the damage to a property and to properly estimate the cost required to rectify.
If a P-lab test is to be undertaken, then a due diligence clause should be inserted into the ADLS/REINZ Agreement for Sale and Purchase of Real Estate, which would advise that the agreement is conditional on the purchaser carrying out methamphetamine testing at the property. The ADLS Documents and Precedents Committee is developing a specific P-lab testing clause to add to its “Optional Clauses” booklet for its next update.
Currently, the practice of P-lab testing is unregulated and many tests are undertaken by people without any qualifications. If practitioners are ever faced with a P-lab problem, the guidelines published by the Ministry of Health in 2010 are a good starting point and can be viewed on its website: http://www.health.govt.nz/publication/guidelines-remediation-clandestine-methamphetamine-laboratory-sites.
If acting for a landlord client, it might be prudent to suggest the installation of a methamphetamine alarm system. For a monthly fee of approximately $30, a company such as MethMinder will monitor the property remotely via its network. The alarm will monitor the atmosphere of the property for the production of methamphetamine and it will also sound if tampered with. Landlords should also be advised to check the wording of insurance policies to identify whether P-lab contamination would be covered.
Hard data on the scale of the problem is not readily available. However, it cannot be disputed that this is a real problem. It is one more thing that property lawyers must be aware of when advising their clients.