Update on meth-contaminated properties
Readers may recall the Property Law Committee’s article entitled “Was your house formerly a P-lab?” from 2014 (Law News Issue 34, 3 October 2014), that sought to shed some light on the growing problem of properties contaminated by methamphetamine (or “P”).
Since that time, the issue has gained prominence in the mainstream media with many “horror” stories being reported of unsuspecting purchasers discovering after settlement that their new home is contaminated and unfit for safe habitation. The Government has responded through a Standards New Zealand initiative. A working party has been established to attempt to determine what the minimum threshold should be for a property to be considered “contaminated”, rendering it unsafe for habitation.
The current Ministry of Health guidelines suggests anything above 0.5ug/100cm is unsafe for habitation and remediation work would be required to make the property safe to live in. However, these guidelines have no statutory effect and are of an advisory nature only. When the 0.5ug/100cm value was set, it was not done in full contemplation of how it is now being used and the scale of the problem we now face.
Testing will also be the subject of the working party’s investigation. At present, there is a variable approach to testing, ranging from a $25 kit bought online, to a professional laboratory-conducted test costing in the region of $2000. The Ministry of Health guidelines recommend that testers operate independently of commercial decontamination companies. But, as noted, these guidelines are merely advisory, and so P-testing is largely unregulated and unpredictable.
The Standards New Zealand working party is expected to complete its findings on 1 February 2017 and undoubtedly the ADLS’s Documents and Precedents Committee will be monitoring its findings with interest. In 2014, the Committee released an update to the Optional Clauses booklet for the sale and purchase agreement adding a toxicology report condition. This clause was specifically drafted to allow purchasers the option of making agreements conditional on a P-test.
Without official standards on testing and what is an unsafe level of contamination, it is very difficult to address the problem directly in the sale and purchase agreement as has been suggested in some media reports. It is pleasing to see that Standards New Zealand is moving in the right direction but, with the investment amount announced for the project at just $60,000, what can be achieved will remain to be seen.
In the meantime, guidance can be found in the paper prepared for the recent ADLS Property Law Pot Pourri seminar by Mark Robinson (contact firstname.lastname@example.org for a copy). In addition, the information contained within the original October 2014 Law News article remains just as relevant two years on.
This update was prepared by Joanna Pidgeon, Pidgeon Law and Ben Thomson, also of Pidgeon Law (and former Secretary to the ADLS Property Law Committee).