Published tribunal order
Tenancy Tribunal case 4842929 — Mould & damp at 43 Postman Road, Dairy Flat, RD 4, Dairy Flat 0794
Decided 2 Aug 2024 · Published 2 Aug 2024 · Application 4842929
- Mould & damp
- Cleanliness
Party names are redacted in the official published order.
Order
- The tenants’ names and identifying details must not be published.
- Prestige Realty Limited as agent for Jing Huang & Yifan Hu must pay [the tenants] $13,394.69 immediately, as calculated in the table below.
Reasons
- [Mrs tenant] attended the hearing for the tenants.
- Cynthia Dai, who was the property manager for the tenancy, attended the hearing for the landlord.
- The tenants claim compensation for loss of amenity and costs or water testing due to the premises’ poor water provide potable water quality. Background
- The tenancy began on 20 November 2022 and ended on 21 March 2024. The premises is located a semirural area and has expansive grounds that include a swimming pool and expertly landscaped gardens. The house is large and modern. The rent of $1,470.00 per week reflects that it is high-level, expensive accommodation.
- The tenants are a couple, and they lived at the premises with their daughter and their daughter’s new-born baby.
- The property has many delightful attributes. Regrettably, water quality was not one of them. Within three days of the tenancy beginning in November 2022, the tenants reported that the tap water was “brown and smells”.
- The landlord took positive steps to remediate the problem. On 2 December 2022 the gutters were cleaned. On 6 December 2022, the water tank was cleaned, fresh water supplied, and the water filters were replaced.
- However, the tenants continued to find the water quality poor even after this work was done. On 16 December 2022, the landlord’s water contractor found: 1 x Dead bird lying on bottom of tank, possibly another one but water to murky to tell.
- The tank was cleaned, and the water and the filters were replaced again.
- The contractor advised that the concrete water tank’s roof’s lid should be replaced (the concrete lid had broken, leaving a gap that small animals such as birds and rodents could enter and fall in), and that UV filters should be installed.
- The tenants continued to find the water smelly and discoloured. For instance, the ensuite bathroom basin’s water looked discoloured. The tenants would sometimes have to rewash their laundry because their clothes were not sufficiently clean after the first wash.
- The tenants suspect the new-born granddaughter suffered diarrhoea from sucking a damp washcloth when being bathed and that the family dog suffered similarly.
- The tenants and their family avoided drinking water from the tap. They either bought bottled drinking water or got drinking water from other hygienic sources. They used the dishwasher and showered and cooked with the water. However, they always felt uncomfortable with the water’s quality even for those purposes.
- The landlord never replaced the water tank’s lid as their contractor recommended. However, the landlord had the tank cleaned, and the filters and water replaced on 1 September 2023.
- The contractor quoted for a UV filtration system, noting on 19 September 2023: Currently no UV filtration in place. We recommend urgent attention to this to ensure a continued supply of potable water...In the meantime please ensure water is boiled before drinking, cooking, brushing teeth, bathing young children, etc.
- On 27 September 2023, the landlord installed a UV filter system as recommended about a year earlier (at a cost of about $4,000.00).
- Despite the landlord’s efforts, a little more than two months later, the landlord’s contractor found on 7 December 2023: 1 x concrete tank at back of house. Tank is dirty and poor water quality, needs fully service clean.
- That latest confirmation of concerning level of uncleanliness had occurred only about three months after the water tank had been cleaned, and two months after the UV filtration had been installed. The contractor’s invoice states: Water tanks should be cleaned every 12-18 months ...
- The fact that the tank was “dirty”, and the tank water was “poor...quality” indicates serious problems with the collection and storage of water for drinking and general use.
- The tenants continued to experience problems with the water quality and confirmed that the water was “smelling bad” by text to Ms Dai on 31 January 2024.
- Finally, on 7 February 2024, the tenants had the premises’ water quality professionally tested by Forensic Specialists Limited. The testers sampled the water quality at the tank and out of the ensuite basin tap. They submitted their samples to R J Hill Laboratories Limited for analysis. Hill Laboratories used the Water Services (Drinking Water Standards for New Zealand) Regulations 2022 and the Aesthetic Value for Drinking Water Notice 2022 standards as a reference point for quality.
- Hill Laboratories’ report found that: water coming from the bathroom tap showed the presence of a low level of Manganese: 0.0047g/mgL (maximum safe level under 0.4g/mgL); water from the water tank tested positive for E. Coli at a high level: 93MPN/100mgL (maximum acceptable level under 1MPN/100mgL). 1 The report recommended: Based on the result it is recommended: a) This report is read in conjunction with any other relevant reports (e.g. weather tightness, building surveying, mould, asbestos etc); 1 See, Water Services (Drinking Water Standards for New Zealand) Regulations 2022. These set quality standards for drinking water suppliers. b) Ensure no-one drinks the water until remediation / decontamination work is undertaken and retesting is completed with a clearance certificate showing the water quality is within acceptable levels as per the Drinking Water Standards for New Zealand Regulations 2022; c) Engage suitably qualified contractors wearing appropriate RPE / PPE; d) Regular replacement of good quality filters is strongly recommended; e) The properties water pipe system should be investigated further due to the elevated manganese and slightly lower PH levels to determine whether corrosion is the cause of the discoloration and smell of the water observed at the time of the survey; f) Check / consider the installation of Point-Of-Use water filter & Backflow prevention devices; g) The properties external water collection system should be investigated further to improve the water quality from the roof.
- The landlord also had testing done and a water sample taken on 8 April 2024. All Clear Healthier Homes and Businesses found an excessive result for Manganese of 1.09. Manganese is an element that naturally occurs in soil and metal pipework which may cause water to stain, taste bad, and smell foul. 2
- The testing and analysis vindicated the tenants’ belief that that the premises water quality was poor throughout the tenancy. They suffered significant stress and inconvenience and were exposed to the risk of disease as a consequence. Legal principles
- Under s 45(1)(c) of the Residential Tenancies At 1986 (RTA), landlords must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
- Under clause 7 of the Housing Improvement Regulations 1947, premises’ kitchens must have an adequate supply of potable water. “Potable water” is water that is safe to drink and complies with the drinking water standards. Under s 123 of the Building Act a building is unsanitary if it does not have a supply of potable water that is adequate for its intended use. Discussion 2 The Water Services (Drinking Water Standards for New Zealand) Regulations 2022 schedule sets the maximum acceptable value for Manganese in drinking water at 0.4. mg/L.
- The landlord accepts the water was not up to an acceptable standard. The landlord apologises and explains that it was not initially aware of the extent of the problem. It was only after the testing was done that it appreciated how serious the matter was.
- The tenants ask for compensation at the rate of 30 per cent of the rent for the duration of the tenancy. They were entitled to good quality water, which is a fundamental human need and in New Zealand, a right.
- The landlord agrees the Tribunal would be justified to order compensation but submits that 30 per cent is too high.
- The premises water was most probably not potable for most of the tenancy.
- The expert evidence indicates the water was not healthy to drink from the tap before or after the installation of the filters, but the UV filters would have significantly reduced the risks. It is probable the UV filtration prevented the E. coli bacteria getting through to the premises taps, although it is likely that Manganese and elevated levels was present.
- I have decided the landlord should be ordered to compensate the tenants at the rates of: 15 per cent of the rent from the beginning of the tenancy until 26 September 2023, after which date the ultraviolet light filters were introduced; and 7.5 per cent after that date until the end of the tenancy. Conclusion
- It follows, the Tribunal orders the landlord to compensate the tenants $12,741.75 for loss of amenity in respect to the water.
- The landlord is also ordered to reimburse the tenants for the cost of the water sampling and analysis.
- The landlord must reimburse the tenants for the cost of their filing fee.