Published tribunal order
Tenancy Tribunal case 4800279 — Mould & damp at 103 Waikawa Beach Road, Manakau, RD 31, Manakau
Decided 4 Apr 2024 · Published 4 Apr 2024 · Application 4800279
- Mould & damp
- Healthy homes
- Exemplary damages
- Leaks
- Boarding House
Party names are redacted in the official published order.
Order
- Jason Fulford and Lani Fulford must pay Vanessa Leigh Campbell and Ashley Allmand the sum of $700.00 immediately.
- Vanessa Leigh Campbell’s health information is suppressed.
Reasons
- Both tenants attended the hearing. Mr Fulford attended on behalf of himself and his wife.
- The tenants seek repayment of bond of $700.00, damages for breach of Healthy Homes Standards, and $40,000 compensation for loss of business resulting from contracting campylobacter.
- The burden of proof is on the party that seeks to establish a fact. The standard of proof is on the balance of probabilities. That means that it is up to the relevant party to produce the evidence to prove they facts they rely on and that they must establish that it is more likely than not that a matter is true.
- There was no formal written tenancy agreement and both parties had difficulty recalling specific dates of events. The tenant’s application and statement in support of the claim rely on the tenancy starting on 30 August, with other events described as “about a week later” and “roughly a couple of weeks had gone by”. This was not helped by some errors in one communication. An email or text dated 27 July 2023 reads: Hi Vanessa and Aj That’s good you’s are all moved in and I’m happy the place is now occupied. We left it to you guys to sort the power reconnection hoping it wasn’t a problem and giving a discount for the first week rent is ok. So $500 for the first week starting 30 August 2023 with a weeks bond of $700. $1200 first payment and $700 weekly there on or $1400 fortnightly. What ever suits. ... As agreed you have the house; the sleep out and the 1 st paddock that has the chicken coop and what was 2 cattery boarding house things. You can use them as you like and we’re ok with a dog too. You’re welcome to put a shipping container on the property for personal use. I’m using the small sheds for storage and taking care of the 3 paddocks to the back of the property and will always notify you’s if we make entry witch will be in the 2 nd gate passed the house. ...
- Although this correspondence referred to a start date of 30 August, the parties agreed that it should have read July. However, in an earlier text dated 6 July 2023, the tenants asked if they could move in on Saturday 22 July, which was agreed to. And it is evident from the 27 July communication that the tenants had already moved in before 27 July.
- Therefore, based on the records of text communications produced and discussions at the hearing, the parties agreed that the tenancy commenced on 22 July 2023 and ended on 10 December 2023. The first week’s rent was $500.00 and after that it was $700.00. There was to be a bond paid of $700.00.
- The property is rural, covering about 1 hectare of land. The premises covered by the agreement were the house, sleepout and one paddock which had a chicken coop and some former cattery boarding houses. Bond
- [The tenant/s] has not been lodged with the Bond Centre.
- The landlord said that there was no bond paid.
- It is clear from a text communication sent by the landlord on 27 July 2023 that the parties had intended there to be a bond of $700.00. In a text communication of 30 July 2023 at 18.28 Ms Fulford said, “Sorry I ask but my husband just checked his house ACC to be able to pay for the plumber and water. He can’t see your rent payments??”
- The tenant(s) replied, “Hi there, it was due today the 30 th as what it says via email. I paid it about an hour ago $1200 first week rent + bond has now been paid”.
- This was reference to a message from the landlord on 27 July 2023 above, which indicated that the first week’s payment was due on 30 August. In fact, the usual system is for rent to be paid one week in advance, and so the $500 for the first week plus the bond of $1200 should have been paid on 22 July, with the next week’s rent due on 29 July.
- The tenant produced no other evidence of payment of the bond.
- The landlord produced bank records to show payments into his account for the tenants. It was not in the form of a rent summary, but it shows that on 30 July 2023 one payment of $1,200 was made. A week later two weeks’ rent was paid and then next payment was two weeks later.
- It is understandable that the tenants relied on Mr Fulford’s email of 27 July 2023, and therefore believed that they had paid a bond of one week’s rent. However, they produced no records of payments to persuade me that they had paid a bond. Accordingly, their claim for a refund of the bond is dismissed. Healthy Homes Standards
- [The tenant/s] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Their evidence of this was that family members contracted campylobacter because of a problem with the water tank. Such a matter does not fall within the HHS, but may be an issue of failing to provide an adequate means for the collection and storage of water and is discussed below.
- At the hearing the tenant also gave evidence of the house being draughty, cold and damp. However, no further evidence such as an independent assessment was produced to show that the house did not comply with Healthy Homes Standards which provide specific standards to be met in relation to heating and draught stopping.
- The tenants’ claim lacked specificity and corroborative evidence for their claim of non-compliance with the HHS and so it is dismissed. Water
- There is no dispute that the tenants encountered issues with the water supply from early in the tenancy. The text communication shows that the tenants raised these promptly and the landlord made several attempts to address issues and did so in a timely manner.
- The water was supplied by a rainwater tank. The tenants say that there was inadequate water, the tank was constantly low and that the water quality was not safe, leading to their family and workers of their roofing business to contract campylobacter.
- At 8.51am of Sunday 30 July 2023 the tenants texted saying that the wetback had fully blown a pipe and there was water everywhere. The landlord replied and they had discussions about a suitable plumber who attended that day.
- Later that morning the tenants notified the landlords that the tank was bone dry. They said that it was completely full as no-one had been living there and it has been “absolutely pissing down here”, adding that something was not right with the water.
- The plumber attended that day.
- The tenants say that from the time they moved into the tenancy the water had a funny smell and felt slimy. There is no evidence that this was raised with the landlord.
- The next time the issue of water was raised in the text communication was about 2 ½ weeks into the tenancy on 9 August 2023 when the tenant texted that they thought there was a water leak in the tank. They said that they had turned off all valves etc, it had been absolutely bucketing down with rain, “the tank has been filling up but now it’s right down again as we’ve been checking and the water pump hasn’t been turning on so the water hasn’t been wasting.” They suggested there may be a leak in the tank but the whole area was dry around the tank. They had been on rainwater at their previous house and so knew how much the tank should hold. The landlord replied that he would ring them.
- Arrangements were made for the landlord to visit the property on or around 18 September 2023. The tenants owned a roofing business and Mr Allmand said that he had worked in roofing for 20 years as well as building including plumbing early in his career. It was his view that the water supply was inadequate because insufficient water was being collected from the roof. In a text dated 18 September they said “Look forward to seeing you. I’ll be able to show you the tank etc and the spouting where the house is only collecting around 40 to 50% of water.”
- On 22 September 2023 the tenants texted again, saying “We were hoping for the heavy rain to fill the tank but we are out of water again.” They said that the bottom of the tank was full of sand which had blocked the pipe. They said they had about 400ml of water in the tank. They sent a photo showing the inside of the tank. They said that the tank would need to be cleaned before water goes in it and that it smelt “absolutely feral”.
- On Saturday 23 September 2023 the tenants texted asking the landlord to stop on his way down and get a filter. They said they had tried to turn the pump on and off to restart but “it keeps coming up as a failure on the pump”.
- On Monday 2 October 2023 the tenant texted saying that they just checked the tank after a downpour and it still sat at 300ml. They said that when they moved in, it wasn’t even a quarter full (which differs from the content of their text on 30 July which indicated that it had been completely full at the start of the tenancy). They said they may need more water and added that they would see what the plumbers said on Wednesday.
- At an unspecified date in late September or early October, the tenant’s daughter was in hospital for surgery. She tested positive for campylobacter. The tenant provided an undated notification from the Health Protection Team at MidCentral Public Health confirming the diagnosis.
- On 4 October the tenant texted explaining that she could not meet the plumber, but her mother was there. She said that she had been admitted to hospital.
- Between the text on 4 October, and a further one on 16 October the tenant texted asking for any news on the testing, saying that her son had ended up admitted to hospital on Thursday. The landlord responded that the kit was expected the next day and that Char (the landlord’s relative) would be in touch.
- On 16 October the tenant texted saying that James was sick as hell and they were all going to end up in hospital.
- Then on 17 October the tenant texted saying that she was on the phone to the Ministry of Health who wanted to know the pore size of the filter. She said, “By law you need to have a few filters plus a uv system... so this needs to be sorted out asap ...” She asked for a decrease of rent and said they were buying water to do dishes, drink, brushing teeth and she was taking the kids to her mother’s for a bath.
- The landlord replied on 18 October that they were going through 3 different sources to get a new double filter with a UV system. They said that once the results were back, they would prioritise what gets done first.
- The landlord produced an Analytical Report from Central Environmental Laboratories showed the presence of ecoli in the water on 18 October. There is no mention of campylobacter.
- On 1 November the tenants texted again saying that they had no water despite a massive downpour.
- The landlord replied that they had had it all checked and tested from tank to pump and through the house. The tenant agreed that it was weird. They said that after the downpour it should have been 100% filled but at 5pm the previous night it had been half full and yet the next day it was less than half full.
- On 11 November the tenant advised that they would be looking for somewhere else to live.
- On 20 November the tenant texted that even after rain they still had only a quarter of a tank of water and they were using a laundromat, the children were bathing every third day. They asked for a rent reduction.
- The tenancy ended 10 December 2023.
- The landlord produced plumbing invoices: a. for 31 July 2023 (following the issue with the wetback) b. 12 October to check for leaks, clean out filters on kitchen tap and ensuite vanity c. 27 October for supply and fit filter and UV set up.
- It was not disputed that the landlord supplied water from Aqua Gold Water Supply Ltd on 7 August, 5 September, 5 October and 29 October. He said there was no issue raised about the quality of the water before the first three deliveries of water and before livestock were introduced.
- The landlord said that the tenants did not have permission to have livestock on the property, and that the problems with water loss were caused by the tenant supplying water to the trough in the paddock that was part of their tenancy.
- The landlord said that there is currently not an issue with the water supply. Family members stay from time to time, but there is no current permanent tenant.
- The landlord called a witness Julian Dempsey, who is his brother-in-law. He has been a farmer for over 35 years. At the start of the tenancy he advised the landlord on the water system and pumps. There was a tank for the house. Two thirds of the tank was above ground and one third below. There was an overflow pipe which filled four other little tanks for the farm. This relied on gravity. There was a pump for the house supply and one for the farm supply. Because the farm was not included in the lease, it was only the house tank that needed to be connected to its pump. There was no need for a non-return valve from the farm troughs.
- Mr Dempsey said that after the tenancy was ended he was asked to look at the house again because the tenants had said that they had been losing water. Mr Dempsey noticed that all water lines were now off one pump, all feeding from the house tank. Part of the house tank was below ground and there was no non-return valve. This would have caused contamination of the house supply of water. The tenants’ claim for loss of business due to campylobacter
- The tenants said that because they and their workers were sick with campylobacter, they had to close their business and seek $40,000 in compensation.
- They provided a statement from a Aizea Tiller, who says that they work for Legend Roofing and following a drink of water “there” they got sick and could not make it to work for a few days.
- The tenants have provided evidence that their daughter was diagnosed with campylobacter.
- The tenants have provided no evidence that any of the rest of the family had campylobacter. The information provided from MidCentral Health showed that Ms Campbell [redacted].
- The tenants provided no evidence that their daughter had contracted campylobacter from the water at their rented premises. They provided no evidence that there was any campylobacter present in the water at their premises.
- The tenants have not established on the balance of probabilities that anyone contracted campylobacter as a result of contact with the water at the premises. That claim is dismissed.
Should the tenants be compensated for a lack of water during the tenancy?
- Section 45(1)(ca) provides that if the premises do not have a reticulated water supply, the landlord must provide adequate means for the collection and storage of water.
- There is no dispute that the water levels in the house tank were often very low. The tenants say this is because of a fault with the water collection system. The landlord says it was because the tenants interfered with the water system and used water to feed stock.
- The tenants deny changing the water system. About one month after moving in they got 5 lambs and 3 kunekune pigs. They were unaware that this was not allowed. They denied using the trough in the paddock. They said they carried buckets of water to the trough.
- When the landlord visited on or about 23 September he noticed the livestock. He did not at any point tell them they were in breach of their tenancy agreement or ask them to remove the animals. Nor did he undertake an inspection of the water pumps and supply at that time. He said that he did not pay for any water after that, but the invoices show that he did do so on 5 and 29 October.
- I note that one paddock was included in the tenancy. There was no written tenancy agreement prohibiting the introduction of any livestock and upon discovering the livestock, the landlord took no action to have them removed. I therefore find the tenants did not breach any term of the tenancy agreement by having lambs and pigs on the premises.
- The tenant denies interfering with the water supply. It would have been helpful if the landlord had investigated the pumps and tanks again during the time of the tenancy to see whether they had been altered. I am not satisfied on the balance of probabilities that the tenants altered the pumps during the tenancy or that such alteration if it occurred was the cause of the insufficient water during the tenancy.
- The tenants first encountered a problem with the water supply on 30 July and again on 9 August. This was before any livestock had been introduced to the premises. I am not persuaded that the introduction of livestock was the cause of the water shortage.
- I find that the landlord made reasonable efforts to try to address the issue of water supply and for that reason, it would not be appropriate to order exemplary damages. However, despite his efforts, the problem persisted. The system for the collection of water was not adequate. The landlord has compensated the tenants by providing some water and he reduced the rent during one week by $200.
- I have decided that the tenants should be compensated further by payment of $700.00 representing one week’s rent.
- Where an applicant has been substantially successful, I may order reimbursement of the filing fee. In this instance, the tenants’ success has been minimal and it was reasonable for the landlord to defend the claim for $40,000. There is no order for reimbursement of the filing fee.
- There are no applications for name suppression, but I order that the health information relating to Ms Campbell is suppressed from any published order.