What was the outcome of Tenancy Tribunal case 4952033?

The tribunal order states: Rene De Monchy is joined to the proceedings as the owner of the premises.

How much money was awarded in case 4952033?

Compensation: $5,900.00 awarded to tenant; Doctor’S Fees: $25.00 awarded to tenant; Drinking Water Purchased By Tenant: $238.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Less: discount from rent already pro…: $700.00 awarded to landlord; Property Damage: $450.00 awarded to tenant; Travel Costs: $174.72 awarded to tenant; Water Testing Costs Incurred By Tena…: $253.00 awarded to tenant

What type of tenancy dispute was case 4952033?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4952033?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10917682-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4952033?

The tribunal order states: Rene De Monchy is joined to the proceedings as the owner of the premises.

How much money was awarded in case 4952033?

Compensation: $5,900.00 awarded to tenant; Doctor’S Fees: $25.00 awarded to tenant; Drinking Water Purchased By Tenant: $238.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Less: discount from rent already pro…: $700.00 awarded to landlord; Property Damage: $450.00 awarded to tenant; Travel Costs: $174.72 awarded to tenant; Water Testing Costs Incurred By Tena…: $253.00 awarded to tenant

What type of tenancy dispute was case 4952033?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4952033?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10917682-Tenancy_Tribunal_Order.pdf.

29 McRobbie Road, Kingseat, RD 1, Pukekohe 2580 Tenancy Tribunal Case 4952033 — Property damage

Claims and awards in Tenancy Tribunal application 4952033 — net $6,367.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Less: discount from rent already provided	$700.00		Less: discount from rent already provided
Compensation for failure to provide potable water		$5,900.00	Compensation for failure to provide potable water
Drinking water purchased by tenant		$238.00	Drinking water purchased by tenant
Doctor’s fees		$25.00	Doctor’s fees
Travel costs		$174.72	Travel costs
Water testing costs incurred by tenant		$253.00	Water testing costs incurred by tenant
General damages		$450.00	General damages
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$700.00	$7,067.72
Net award		$6,367.72
Total payable by Landlord to Tenant		$6,367.72

Claims and awards in Tenancy Tribunal application 4952033 — net $6,367.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Less: discount from rent already provided	$700.00		Less: discount from rent already provided
Compensation for failure to provide potable water		$5,900.00	Compensation for failure to provide potable water
Drinking water purchased by tenant		$238.00	Drinking water purchased by tenant
Doctor’s fees		$25.00	Doctor’s fees
Travel costs		$174.72	Travel costs
Water testing costs incurred by tenant		$253.00	Water testing costs incurred by tenant
General damages		$450.00	General damages
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$700.00	$7,067.72
Net award		$6,367.72
Total payable by Landlord to Tenant		$6,367.72

Order

Rene De Monchy is joined to the proceedings as the owner of the premises.
Rene De Monchy must pay Nikayla Lynley Meyers $6,367.72 immediately, calculated as shown in the table below.

Reasons

The landlord and tenant attended the hearing on 8 October 2024. The owner of the premises was represented by their property manager.
On 25 July 2024 the tenant applied to the Tribunal for compensation for breach of the landlord’s obligations relating to the supply of water to the premises. Background Summary
The parties signed a residential tenancy agreement for the premises for a fixed term from 23 August 2023 to 23 August 2024 at a weekly rent of $500.00. The tenancy agreement disclosed that the landlord was acting as agent for the owner, who was named.
On 4 March 2024 the tenant served a 14-day notice informing the landlord that they were in breach of their responsibilities by not providing safe drinking water.
On 30 July 2024 the landlord emailed the tenant, stating that the owner was planning to put the premises on the market and that the fixed term tenancy was expiring and would automatically convert to a periodic tenancy.
On 26 August 2024 the landlord gave notice, terminating the tenancy from 24 November 2024. The notice said the premises were to be put on the market by the owner within 90 days after termination for the purposes of sale.
The tenant gave notice to terminate and vacated on 7 October 2024.

Who was the landlord?

The landlord was acting expressly as the agent of the owner in signing the tenancy agreement. The contracting parties were the owner and the tenant. The agent managed the tenancy with the owner’s instructions. The owner therefore had the burden of compliance with the landlord’s obligations under the tenancy agreement and the Residential Tenancies Act 1986 (the Act).
The agent confirmed that they were representing the owner at the hearing and that the owner knew about the hearing. I have joined the owner to the application to enable justice to be done between the parties.
The contractual arrangements mean it is appropriate for the order for compensation to be made against the owner, who contracted as landlord through their agent. I am not satisfied that the agent assumed personal responsibility for compliance with the landlord’s obligations or should be held jointly liable, as if they had assumed those responsibilities. Maintenance Work
An overview of maintenance performed by the landlord is as follows: • The roof was cleaned prior to the tenancy, on 14 August 2023. • New kitchen and bath taps were installed on 15 September 2023. • The sewer was inspected on about 19 October 2023. The plumber’s invoice noted that the water system was running clear but there was “no water filtration” on the system. The plumber gave an estimated price for either a UV filter or a standard sediment filter ($,1250.00 plus GST and $2,900.00 plus GST, respectively). • A twin-filter system (a sediment filter) was installed on 2 November 2023. • A leaking fitting on a water tank was repaired on 10 January 2024. • The water filters were inspected on about 15 January 2024 and found to be clogged with debris from the water, which was getting through the twin- filters. The plumber recommended cleaning the tank. • On 12 March 2024 the plumber reported that the tank had been cleaned and the water filters (described as being “in very bad shape”) had been replaced. He said the system had cartridge filters which would stop debris but not bacteria. The water needed to be UV treated at a minimum to be considered potable. The invoice commented that the filter system was found to be “not up to standard”, which I take to be a reference to the proposal for a UV filter. • A quote to add a UV filter light to the filtration system was issued on 26 March 2024. • On 3 April 2024 the landlord texted the tenant that the supplier had cleaned the tank and had recommended UV filters or extra filtration. Quotes were being obtained and the rent would remain at the reduced rate ($450.00 per week since 4 March 2024). A UV filter was subsequently installed. • On 14 May 2024 the tenant informed the landlord that the UV light filter was not working. The UV bulb was replaced on or about 23 May 2024 and it was also upgraded at some point that month. • The water tank was cleaned, and the cartridge and UV filters were replaced, on or about 24 July 2024. • A 5,000-litre water tank was hired from 14 August to 8 October 2024. The tenant said this was not connected. The landlord also provided bottled drinking water from about 8 August 2024. • The gutters were cleaned on 17 August 2024. Water Testing
The tenant collected a water sample on 11 April 2024. The laboratory certificate identified Escherichia coli (E.coli) of 1 part per 100 mL. The assessment page commented: The Drinking Water Standards for NZ state that there should be no Escherichia (E.coli) in water used for human consumption. The presence of these organisms would indicate that other pathogens of faecal origin may be present.
The laboratory said the water should be re-tested. It also commented that the parameters for turbidity, iron and E.coli did not meet the guidelines laid down in the regulations.
The tenant emailed the water test results to the landlord on 14 May 2024. She requested further water testing.
The plumbing company used by the landlord collected and sent a water sample to the laboratory on 11 June 2024. According to an email dated 12 September 2024, the sample was taken from an outdoor hose-tap.
On 17 June 2024, the laboratory reported that there was no E.coli in the sample. Iron and turbidity levels were within maximum acceptable values. There was no result for total coliforms. The assessment page commented: “Results obtained for Total Coliforms are only significant if the sample has not also been tested for E.coli.”
The landlord emailed the test results to the tenant on 19 June 2024.
A Drinking Water Quality Assessment was prepared on 16 July 2024, based on a water sample taken by All Clear from the kitchen tap and subjected to laboratory testing.
The water sample had E.coli of 1 count per 100 mL, more than the maximum acceptable value of less than 1 count per 100mL. The total coliforms were 649 parts per 100mL. Iron and turbidity were within the acceptable range. All Clear said the levels of E.coli and total coliforms detected meant that the water was not considered potable.
The report commented that, while there were no guidelines for coliforms under the Drinking Water Standards for New Zealand 2005, the World Health Organisation guideline was less than 1 part per 100 mL. The report concluded (at paragraph 8.4): ...It is likely that the water supply was contaminated by animal faecal matter on the roof that is then introduced to the rainwater harvesting tank. Based on the reported concentrations, the water is not considered potable and must be treated for E.coli prior to human consumption.
The landlord said they received the report on 18 July 2024 (a Thursday). They emailed the test results to the tenant on 23 July 2024 (the following Tuesday).
A Drinking Water Quality Assessment was prepared on 9 August 2024, based on a water sample taken by All Clear from the kitchen tap and subjected to laboratory testing. The sample had total coliforms above the levels permitted by drinking water guidelines (the reading was 13 parts per 100 mL). The report stated (at paragraph 6.1): There [are] no available guidelines for total coliforms under the [Drinking Water Standards for New Zealand 2005]. Total coliforms can be used as a general indicator of the presence of other pathogens (including the presence of protozoa and giardia). Additionally, elevated levels of total coliforms indicate the likely presence of organic material within the water system...
The report stated that coliforms bacteria are generally non-harmful and naturally occur (paragraph 8.1). If drinking water contained coliform bacteria, it was unlikely to cause illness. Coliform bacteria were an indicator of other potentially harmful pathogens in the water supply.
The report concluded (at paragraph 8.4) that the total coliforms meant the water was not potable and would need to be remediated or tested before consumption: Total coliform bacteria are commonly found in the environment (e.g., soil or vegetation) and are generally harmless. If only total coliform bacteria are detected in drinking water, the source is probably environmental. Faecal contamination is not likely. However, if environmental contamination can enter the system, there may also be a way for pathogens to enter the system. Therefore, it is important to find the source and resolve the problem. E.coli was not detected in the sample.
In additional recommendations (paragraph 8.5) the report said rural water supplies are susceptible to contamination: “Generally, rural water supplies should have a whole house filtration system with one or two sediment filters (to lower turbidity) a carbon filter (to lower heavy metals, taste, odour, and bacteria) and a UV light (to kill 99.9% of bacteria)”. Relevant Law
Under section 45 of the Act the landlord has an obligation to provide and maintain premises in a reasonable state of repair (section 45(1)(b)) comply with any relevant enactment in relation to buildings, health, and safety (section 45(1)(c)) and provide an adequate means for the collection and storage of water if there is no reticulated supply (section 45(1)(ca)).
Failure to comply with any of these requirements is an “unlawful act” for which exemplary damages may be awarded. The maximum award is $7,200.00.
A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)). Landlords must investigate and repair a defect brought to their attention in a timeframe that is reasonable in the circumstances (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085- 001431, 24 February 2010)).
The Tribunal must do its best to assess reasonable compensation arising from a breach, even if there is an element of speculation (Phipps v Consolo (District Court Wellington, CIV-2009-085-232, 14 December 2009)). The assessment of compensation is a question of fact. The contractual measure of damages is to place the relevant party in the position they would have been in if the contract had been performed, so far as money can do so.
Safe drinking water is defined by section 7 of the Water Services Act 2021. Drinking water is not unsafe merely because a person objects to it as a matter of personal preference, or the water does not comply with aesthetic values, or contains substances that comply with the drinking water standards. The drinking water standards are contained in the Water Services (Drinking Water Standards for New Zealand) Regulations 2022. The standards provide that the determinands listed must not exceed the specified maximum acceptable values.
The Water Services Act 2021 excludes a “domestic self-supplier” from the definition of “drinking water supplier”. Domestic self-supply means a stand-alone domestic dwelling with its own supply of drinking water, and “domestic self- supplier” has a corresponding meaning. A domestic dwelling supplied by a rainwater tank is a domestic self-supply.
This does not mean that domestic self-suppliers have no obligation to provide safe drinking water. Section 7 of the Building Act 2004 defines potable water as water that is safe to drink and complies with the drinking water standards made under the Water Services Act 2021. Section 123 of the Building Act 2004 provides that a building is insanitary if it does not have a supply of potable water that is adequate for its intended use.
Section 39 of the Health Act 1956 provides that it is unlawful for any person to, inter alia, let or permit to be occupied any building as a dwellinghouse, unless sufficient provision is made in accordance with the Building Code and the Building Act 2004 for an adequate and convenient supply of potable water. Analysis

Was the water potable?

The findings from the water testing varied, and did not always test the same determinands, but the testing done in April, July and August 2024 identified E.coli and/or total coliforms above maximum acceptable levels. The April 2024 test also identified iron above acceptable levels.
There was some debate at the hearing about the source of the water tested in April 2024. An email from the plumbing company dated 31 May 2024 said they specialised in water treatment and filtration. They said the sample: “...looks like bore water due to the mineral profile”. They had asked their consultant for advice who said there was: “...little to no possibility that the water sample that was taken for that test could be from a rainwater harvesting system that had run through a filter”.
The landlord did not explain how the tenant could have obtained a sample of bore water. I consider the opinion from the plumbing company to be anomalous. The E.coli results from the April 2024 testing were replicated in at least one later test, from samples taken by an independent third party.
The 16 July 2024 assessment report by All Clear found both E.coli and total coliforms above maximum acceptable values. The report’s author wrote an email to the landlord and the tenant on 25 July 2024 about the testing results. Under the heading “Thoughts on previous water tests”, the consultant said it was unclear whether both water samples were collected from the same source/tap and stated: The 1 count of E.coli is not an issue and is likely because either the water container was contaminated, the tap was not flushed/not flushed for long enough or the head of the tap wasn’t cleaned/wasn’t cleaned thoroughly enough.
This comment only makes sense if it is a reference to the testing done by the tenant in April. The consultant confirmed that, based on the testing All Clear had done, the water was not considered potable and needed to be treated prior to consumption (“It is likely that the water supply was contaminated by animal faecal matter on the roof...”). All Clear’s report comments that, when sampling from a tap, the tap is sterilized and flushed prior to sampling, and samples are collected using sterilized containers. The July 2024 report concluded that the water was not potable because of the presence of E.coli. If this was due to a problem with the sampling, it is very likely the report would have said so and recommended further testing.
The Building Act 2004 requires water to be both safe to drink and compliant with the drinking water standards. I find that the presence of E.coli in two different samples, taken on different occasions, establishes that the water was not potable under those standards.
There were also high readings for total coliforms. The landlord referred to an email from the plumbing company dated 12 September 2024, explaining that, based on their conversations with the laboratory: “...total coliforms don’t play a part in whether the water is considered potable but [are] used as more of a guideline on how the water quality is tracking...”. Accordingly, the total coliforms did not determine whether the water was potable,
While the maximum acceptable level of total coliforms is not stated in the drinking water standards, they are a “general indicator of the presence of other pathogens”. All Clear in their reports said that water with total coliforms above the guideline values set by the World Health Organisation was not potable. I find that the presence of total coliforms above guideline values in the April, July and August testing results establishes that the water was not potable.

Did the landlord comply with their maintenance obligations?

The tenant complained that the landlord was unresponsive, took too long to respond, and did not share the July and August 2024 water test results with her in a timely fashion.
In my view, as set out above, the landlord was responsive to the tenant’s concerns and did investigate and try to remedy the problem with the water quality. It is unclear from the correspondence provided by both parties when the final water test results were shared with the tenant, but the tenant already knew, from the July test results (which were forwarded to her within 3 business days) that the water was not potable.
The evidence raises an issue whether the water tank had appropriate filters at the start of the tenancy. One of the invoices in October 2023 seems to suggest the water system had no filtration at all at that stage, although I consider this unlikely. There were upgrades to the filtration system through the addition of double-filters and then a UV filter. The ongoing difficulties with water quality, despite new filters and tank cleaning, suggests the filtration system was not fit for purpose to begin with.
I am satisfied that the landlord complied with their maintenance obligations during the tenancy. They may not have taken all investigative or remedial steps as quickly as they could have or as the tenant would have wished, but there was consistent attention to the issue. It must be acknowledged that the owner has spent significant sums trying to improve the water quality. The difficulty is that the water filtration system seems to have been inadequate and even after several upgrades, did not provide water that was definitely safe to drink.
The landlord is in breach of the Act, not because they failed to maintain the premises, but because the water filtration system did not produce potable water. It is not necessary to find that the landlord acted carelessly or unreasonably, or failed to take some step that they ought to have taken. Section 45(1)(c) of the Act imposes strict liability. It is breached because the landlord did not provide potable water as required by section 123 of the Building Act 2004.

Is the tenant entitled to compensation?

Some of the evidence suggests that the water at the premises made the tenant sick. For example, a campylobacter infection was detected in laboratory tests on 2 August 2024. The Tribunal understands this is bacteria that can be spread in different ways, including by drinking contaminated water.
The doctor’s note said the tenant had been buying her own water but had taken some from the tap, just before becoming unwell. A follow-up appointment with the GP on 27 August 2024 referred to ongoing symptoms, thought likely to be an irritable bowel following the campylobacter infection.
The tenant’s young son was ill in September 2023, with viral gastroenteritis. The medical evidence does not draw an express link between this condition and the water supply at the premises. The tenant said they stopped being sick once they stopped drinking the water.
The tenant claimed a 50% rent refund of $14,750.00. She has already received a rent credit from the landlord of $700.00 as verified by her bank statements.
The tenant first complained about the colour of the water on 11 September 2023. The landlord thought the problems had been resolved by the end of that year. However, on 11 January 2024, after a leak from the water tank was fixed, the tenant complained that the water was still brown. Despite the ongoing water quality issue, on 22 January 2024 the tenant expressed interest in buying the property. This tends to suggest the problem was not so bad, at least at that stage, for the tenant to consider leaving.
The tenancy was approximately 59 weeks long. During most of that period, I accept that the tenant did not have access to potable water. Compensation of 25% of the total rent ($7,375.00) would be justified as a starting point, considering the implications of the water testing for human health and safety. Access to potable water is an essential facility for residential housing and its absence affected the tenant’s ability to perform numerous ordinary domestic activities. A meaningful award of compensation is merited but the landlord’s efforts at remediation and provision of alternative water must also be weighed in the balance. The upgrades to the tank and cleaning efforts did improve the perceived water quality. The tenant had free bottled drinking-water and a 5,000-litre tank from August 2024. It seems unlikely that the tank would be hired, delivered, and filled without being connected so it could be used.
Considering all the circumstances, as already traversed, I award compensation of $5,900.00 for loss of bargain (less $700.00) which equates to 20% of the rent. This compensates for the loss the tenant has suffered because she paid rent for a property that did not have an essential facility.
The tenant claimed compensation for the additional cost of water. She paid for her own drinking water from about 11 April 2024. The landlord supplied 15 litre bottles of water for free from about 8 August 2024. The tenant claimed $238.00 for water costs (17 weeks at $14.00).
The tenant claimed additional costs of $391.20 from 14 May 2024 for travel to a friend’s house for showering. This was based on 163 litres of petrol at $2.40 per litre. She also claimed $400.00 for additional electricity charges, for example to boil water to kill bacteria and for the hot wash on the washing machine. I accept that there would have been additional electricity costs but there is no evidence, such as power bills, to assist the Tribunal to quantify the amount.
There was also a claim for doctor’s fees of approximately $80.00. Again, there is no evidence supporting the actual amount of these costs, although I accept that at least one doctor’s visit was likely caused by the poor water quality at the premises.
Balanced against this is the likelihood of a costs saving insofar as the tenant was using less water at the premises, and therefore less electricity to heat the water than she would have done otherwise. I decline to award additional power charges, on the basis that an increased cost has not been proved. I award $25.00 for a GP visit. I award $238.00 for drinking water as claimed. I also award travel costs of $174.72. This is based on travel of 14km to bathe once per week for 12 weeks from 14 May 2024 to 14 August 2024, at the IRD rate for mileage (14km x $1.04 x 12).
Finally, the tenant incurred water testing costs of $253.00. The testing established that there was an issue with water quality. The cost was a consequence of the landlord’s breach. I award the testing cost.
General damages of $1,000.00 were claimed. While general damages for emotional distress may be awarded in the Tribunal, there must be a breach of the tenancy agreement or the Act which causes significant distress or anxiety. In Palmer v Housing New Zealand (No.2) (Tenancy Tribunal Auckland, TT 2378/92, 25 August 1993) the Tribunal considered the nature and duration of the breach, and its effect on the parties, when determining damages. Awards are usually modest.
The tenant explained that she was concerned for the safety of her son, and embarrassed when people visited. The tenant was also concerned about her personal hygiene while at work. I accept that the difficulties with the water supply caused the tenant meaningful inconvenience, and this continued for an extended period. I award general damages of $450.00. Filing Fee
The tenant’s application has been successful. I award the filing fee.
Neither party requested suppression.

Tenancy Tribunal case 4952033 — Property damage at 29 McRobbie Road, Kingseat, RD 1, Pukekohe 2580

At a glance

Tenancy Tribunal case 4952033 — Property damage at 29 McRobbie Road, Kingseat, RD 1, Pukekohe 2580

At a glance

Award balance

Claims & awards

Order

Reasons

Who was the landlord?

Was the water potable?

Did the landlord comply with their maintenance obligations?

Is the tenant entitled to compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Who was the landlord?

Was the water potable?

Did the landlord comply with their maintenance obligations?

Is the tenant entitled to compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions