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You want to test for meth but your tenant says 'No'

Friday, September 20, 2019

Landlords can now enter onto the property* to test for meth contamination. 

The latest amendment to the Residential Tenancies Act gives landlords the right to enter onto the property to test for meth contamination provided that the following s48(ba) conditions are met: 

  1. That a minimum of 48 hours and a maximum of 14 days notice has been given to the tenant advising the reason for entry i.e. to take samples and test for meth contamination; 
  2. That the notice includes the contaminants that are to be tested; 
  3. That entry is between 8 am and 7 pm; 
  4. That the test results (in writing) are shared with the tenant within 7 days of the landlord receiving them. 
Can the tenant refuse the landlord entry? No, at least not without a reasonable excuse. In fact, the tenant commits an unlawful act if she refuses the landlord entry after receiving the above notice (s48(4)(b)). 

If the tenant refuses nevertheless, can the landlord just 'show up' to test for meth? No. Just as it is unlawful for the tenant to refuse entry in this instance, it is also unlawful for the landlord to force or threaten to use force to enter while the tenant is at the property (s48(5)). To do so could land the landlord in jail for up to 3 months or cost him a fine of up to $2,000 (s48(6)). Even if the landlord's intention is not to forcibly enter, we still don't think it is a good idea to just turn up at the property seeing that the tides are so against landlords at the moment. 

If the landlord becomes sufficiently suspicious and unsettled for being refused entry, can he issue a 90-day notice to terminate? Best not. This will likely result in a retaliatory claim by the tenant under s54 and costing the landlord a $4,000 penalty. 

Can the landlord call the police? If you have reason to suspect that the property is being used as a meth lab then yes, by all means, call the police. But if your suspicion is purely based on the tenant refusing you entry to test and nothing else then you are not likely to get relief. 

So, what is left for the landlord to do? Be mindful that one refusal may not be a red flag in and of itself. The suggestion of meth can get many people's backs up. Sometimes all it takes is a civil conversation about the new law for the tenant to relent. It is not always appropriate to hit the nuclear button from the word 'go'. Still, if despite the engagement the tenant still refuses we would recommend the landlord to make an immediate application to the Tenancy Tribunal to get access and seek exemplary damages from the tenant for breaching s48(4)(b). 

Some common misconceptions in this area to clear up: 

  • No different between baseline and presence tests - For the purpose of entering the rental property to take samples and test for meth contamination, it is not material whether the test is to establish a baseline or simply the presence of contaminants. 
  • No need to establish cause - There is no requirement for landlords to show reasonable cause to suspect the property is contaminated in order to carry out the test. 
  • Meth testing clause in TA no legal effect - It is a statutory right for the landlord to enter the property to test for meth contamination. The right is not further strengthened by a meth testing clause in the tenancy agreement. The effect of such a clause is therefore simply to caution tenants that meth tests could occur during the tenancy. 
  • Notice to test cannot be circumvented - Though there is nothing stopping a landlord from carrying out the meth test during a scheduled property inspection, the fact that the test is taking place means that the proper s48(ba) notice must still be given to the tenant. 

This short video features Kristine King from Duncan King Law going over the latest rules concerning meth contamination at the rental property: 



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