Bhara & Anor v De Costa & Anor (Residential Tenancies)
[2024] ACAT 62
•15 July 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BHARA & ANOR v DE COSTA & ANOR (Residential Tenancies) [2024] ACAT 62
RT 175/2024
Catchwords: RESIDENTIAL TENANCIES – breach of standard terms of Residential Tenancies Act 1997 – interference with peace, comfort and privacy – whether the premises fit for habitation, reasonably clean, in a reasonable state of repair and secure – compensation – rent reduction – mould – whether lessor to make repairs – whether damage is caused by tenant – duty to mitigate – inspection notice
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Residential Tenancies Act 1997 ss 38, 71, 83(1)(d), sch 1 standard terms 52, 54, 55, 56, 57, 59, 60, 72, 75, 77, 79, 82
Cases cited:Banco de Portugal v Waterlow and Sons [1932] AC 452 at 506
Brogan Prestige Properties v Strand & Black [2010] ACAT 60
Faulder v Tran [2018] ACAT 80
Halcombe v Hitchman [2018] ACAT 5
Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Lee v Guo [2017] ACAT 60
Nichols v Amers Pty Limited ACN 112 055 366 (No. 2) [2020] ACAT 79Salem & Gizgeez v Abeeygunasekara & Jeevanthan [2011] ACAT 9
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57
Withers-Norris v Pastrello [2016] ACAT 95
List of
Texts/Papers cited: Chi-Ching Tsang et al, Taxonomy and evolution of Aspergillus, Penicillium and Talaromyces in the omics era - Past, present and future (Computational and Structural Biotechnology Journal, 2018)
Collins English Dictionary (online at 24 July 2024) ‘permit’ (def 1)
Christopher Adkins, Peter Christensen, and Allan Anforth, Residential Tenancies Law and Practice (Federation Press, 8th ed, 2022)
Tribunal:Member P Hatami
Date of Orders: 15 July 2024
Date of Reasons for Decision: 20 August 2024
Date of Publication: 28 August 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 175/2024
BETWEEN:
GURDHAIN BHARA
First Applicant/Tenant
NICOLE ARCHER
Second Applicant/Tenant
AND:
LAWRENCE DE COSTA
First Respondent/Lessor
GABRIELLE SULLIVAN
Second Respondent/Lessor
TRIBUNAL:Member P Hatami
DATE:15 July 2024
IN CHAMBERS ORDER
The lessors are to pay to the tenants the sum of $2,076.50 by 12 August 2024, being comprised of:
(a)Compensation for loss of amenities –$1,207.50;
(b)Compensation for faulty toilet – $495.00;
(c)Compensation for purchase of surveillance camera – $198.00; and
(d)ACAT Application fee – $176.00.
ACT Rental Bonds on behalf of the Territory is directed to release the whole bond of $2,300.00 to the tenants.
The tenant’s claim for $1,725.00 for 50% rent reduction for 6 weeks loss of use and enjoyment of the property is dismissed.
The tenant’s claim for $76.70 for medical expenses is dismissed.
The tenant’s claim for $2012.50 for the loss of amenities and loss of use of bedroom 3 is partly successful for $1,207.50 as ordered at 1(a).
The tenant’s claim for $1,610.00 for rent reduction for mould in bedroom 1, 2 and 3 is dismissed.
The tenant’s claim for $262.89 for printing costs is dismissed.
The tenant’s claim for $176.00 for the application fee for RT76/2024 is dismissed.
The tenant’s claim for $1,620.00 for moving expenses is dismissed.
The tenant’s claim for $505.00 for the Mould Group's inspection and report is dismissed.
The Tribunal notes:
(a)The tenants requested that rental arrears overpaid to the lessors are repaid to them in full. At hearing on 22 April 2024, the lessors agreed to refund the overpayment to the tenant's nominated bank account.
(b)The tenants have sought in their amended application that "LJ Hooker Kaleen remove and destroy Nicole Archer’s medical records in an appropriate and confidential manner from all data bases, paper files and other means of information collection and storage”. At hearing on 22 April 2024, the lessors agreed to remove and destroy any medical records pertaining to Ms Archer which they hold on file.
………………………………..
Member P Hatami
REASONS FOR DECISION
The application
This dispute arises out of a residential tenancy agreement between the tenants (Gurdhain Bhara and Nicole Archer) and the lessors (Gabrielle Sullivan and Lawrence De Costa). This application is brought by the tenants who are seeking financial compensation from the lessors. The tenants allege that during their tenancy, the lessors breached some of their obligations under the Standard Terms, schedule 1 of the Residential Tenancies Act 1997 (RT Act), causing the tenants to suffer loss. The tenants have applied to the ACAT seeking financial compensation for the loss they say they have suffered because of the lessor’s alleged breach.
In the application they filed with the Tribunal on 15 February 2024, the applicants claim $8,892.09. In their amended application filed on 8 April 2024, they amend their claim to $8,121.38. Apart from the moving costs which changed from a quote for $2,150 to an invoice for $1,620 there appears to be no other difference in their claims for financial compensation. Upon itemising and adding the sums claimed by the tenants, the Tribunal notes that the claim in the amended application adds up to $8,362.09.
Background
The tenants entered a fixed-term tenancy agreement for 11 months and 30 days on 7 September 2023. The rent was $575 per week for a three-bedroom home. The tenants paid $2,300 bond to the Office of Rental Bonds. Neither party had made a claim on the bond at the date of hearing.
The tenancy agreement commenced on 7 September 2023. The agreement was entered into by Mr Gurdhain Bhara on behalf of himself and Ms Archer. Ms Archer was not present at the open home at which Mr Bhara first viewed the property and later applied for tenancy.
On 22 January 2024, the tenants filed an Application for a Resolution of a Dispute under the RT Act seeking a Termination and Possession Order for the alleged 7 breaches of the Standard Terms by the lessor and his agents.
On 2 February 2024, the lessor through their agents, emailed the tenants with an offer to terminate the tenancy agreement without imposing early termination fees and asked them to leave the premises in a clean state and steam clean the carpets in compliance with the pet clause in the agreement.
On 5 February 2024, the tenants wrote to the landlord and declined the offer of early termination without fees as they required time to find alternative accommodation.
The landlord emailed the tenants again on 5 February 2024 to offer the tenants a 21-day grace period (as requested by the tenants) to allow the tenants time to find alternative accommodation as well as to end the tenancy without imposing early termination fees.
On 6 February 2024, the tenant replied stating that they require time to “deliberate” their decision. They said that they did not agree with the pet related steam clean requested by the landlord.
The application for a Termination and Possession Order was heard by ACAT on 21 February 2024, in terminating the tenancy, the Tribunal made the following orders:
(a) vacate the premises before 5.00pm on 26 February 2024;
(b) pay the lessor rental arrears and rent payable to the date of termination; and
(c) arrange for steam cleaning on vacation of the property and provide evidence of this to the lessor’s agents within 2 business days of vacation.
This application
This application for compensation arises out of the same tenancy agreement. In their application the tenants have provided extensive detail in written form and orally at hearing, articulating the alleged breaches of the RT Act by the lessor, the impact of the breaches upon the tenants, and they have quantified the compensation they believe is payable for the loss they have suffered over the five‑month tenancy.
This application was filed on 15 February 2024. In their first application, the tenants sought the following orders:
(a)A declaration that the lessor breached their obligation to maintain the premises in a reasonable state of repair under clause 55(1) of Standard Terms in the RTA Act.
(b)An order that the lessor pay $8892.09 by way of monetary compensation for various items inclusive of:
(i) ACAT filing fees and associated printing costs – ACAT filing fees for their Termination and Possession Order (TPO) application and this application.
(ii) Rent reduction due to loss of amenity.
(iii) Personal hardship.
(iv) Loss of income.
(v) Medical intervention and associated medications.
(vi) Moving/relocation costs.
(vii) An order directing the release of the whole of the bond to the tenants.
The following is an itemised list of the tenants’ claims based on the material they have filed with the tribunal with the total of $8,362.09:
(a)$1,725 as 50% rent for 6 weeks which Ms Archer’s use and enjoyment of the property is said to have been impacted by mould.
(b)$76.70 for medical expenses ($41.10 medical appointment and $35.60 prescription medication because of the mould).
(c)$198 for surveillance equipment because of the landlord’s attendance at the property without prior notice.
(d)$2,012.50 for mould in Bedroom 3 which the tenants say was uninhabitable from 18 November 2023 until the end of their tenancy.
(e)$1,610 for mould in Bedroom 1, 2 and 3 which the tenants say were uninhabitable for a specified period starting on 18 November 2023.
(f)$262.89 for printing costs and bringing the application to ACAT.
(g)$176 application fees for RT 76/2024 application and $176 for the current application.
(h)$1,620 moving expenses for moving from the property to new accommodation following the TPO obtained by tenants in matter RT 76/2024.
(i)$505 for mould inspection & report.
The tenants lodged an amended application with ACAT on 8 April 2024 amending their claim for moving costs and seeking the following orders in addition to the orders sought in their original application:
(a)an order stating that they are not obligated to sign the exit report,
(b)that the rent arrears overpaid is repaid back to the tenants; and
(c)that LJ Hooker Kaleen remove and destroy Nicole Archer’s medical records in an appropriate and confidential manner from all databases, paper files and other means of information collection and storage.
On 2 January 2024, the tenants sent the landlord a Notice to Remedy citing 7 breaches of the Standard Terms of the RT Act. These alleged breaches are relevant to these proceedings as they form the basis for the tenants’ application here for compensation.
Breach of standard term 52
Standard term 52 provides:
The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
The tenants say that on 24 November 2023, the lessor attended the property without giving proper notice and entered without permission.
On 8 December 2023, the landlord attempted personally to remove mould from one of the bedroom ceilings, the tenants allege that the room was unusable because of the smell of the chemicals.
Breach of standard term 54
Standard term 54 provides that the lessor must ensure that at the start of the tenancy, the property is fit for habitation, is reasonably clean, is in a reasonable state of repair and is reasonably secure.
The tenants claim that the following maintenance issues existed at the start of the tenancy:
(a)Locks malfunctioning on the front door.
(b)Security door was off its hinges and did not close properly.
(c)The shower curtain was faulty, it fell down and was not replaced.
(d)Leaking window in living room.
(e)Balcony door lock not locking.
(f)Cabinet doors in bathroom needed replacement.
(g)Alleged damage to the ceiling leading to mould growth which is said to have spread to other rooms.
Breach of standard term 55-57 – Lessor to make repairs
The tenants allege that the maintenance issues identified above under standard term 54 were not attended to in accordance with the timeframes stipulated in standard term 57 (other than urgent repairs within 4 weeks of being notified of the need for repairs).
Breach of standard term 59
Standard term 59 provides:
The tenant must notify the lessor (or the lessor’s nominee) of the need for urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.
The tenants allege that:
(a)The toilet was not attended to until it became a serious concern with sewage spilling onto the street. It was reported on 5 October 2023 and not fully rectified until 7 December 2023.
(b)The broken security door was not repaired at the date of the NTR on 2 January 2024.
(c)The locks on the front door and balcony were not repaired at the date of the NTR on 2 January 2024.
Breach of standard term 75
Standard term 75 provides:
(1) The lessor must not require access to the premises during the tenancy except as provided by the law, this tenancy agreement, the Residential Tenancies Act, or an order of the tribunal.
(2) The tenant may permit access to the premises by the lessor at any time.
…
The tenants say that the lessor breached standard term 75(1) by attending the property without prior notice or consent, to action an urgent repair, on 24 November 2023.
Breach of standard term 79
Though the applicants have cited standard term 77, their complaint is more appropriately dealt with under standard term 79.
Standard term 79 provides:
(1) The lessor must give the tenant 1 week written notice of an inspection.
(2) The inspection must take place at a time agreed between the parties with reasonable regard to the work and other commitments both of the tenant and of the lessor (or their agents).
(3) If the parties are unable to agree on an appropriate time, the lessor or the tenant may apply to the tribunal for an order permitting access at a specified time.
The tenants say that notice of an inspection which occurred on 5 September 2023 was provided on 2 September 2023.
Breach of standard term 82
Standard term 82 provides:
(1) On giving the tenant 1 week’s notice (or such other agreed period), the lessor may enter the premises at a reasonable time, taking into account the interests of the tenant and the lessor, for the purpose of—
(a) making or inspecting repairs; or
(b) inspecting the premises to ensure the premises comply with the minimum housing standards; or
(c) undertaking work, or inspecting work undertaken, to ensure the premises comply with the minimum housing standards.
(1A) However, the lessor must only enter premises for the purpose of an inspection, making repairs or undertaking work (the activity) if, taking into account the nature of the activity, it is reasonable and necessary to do so.
(2) For urgent repairs, the lessor must give reasonable notice and enter the premises at a reasonable time having regard to the interests of the tenant and the lessor.
The tenants raise the complaints in relation to failure to give adequate notice raised above and say that the conduct is also a breach of Standard Term 82.
The hearing
The hearing was conducted on 22 April 2024. The tenants appeared in person and were self-represented. One of the lessors Mr Lawrence De Costa appeared in person, and he was represented by Ms Melissa Hines and Mr Will Auva who are real estate agents from LJ Hooker Kaleen.
The tenants gave oral evidence and elaborated on the evidence they had submitted. The lessor’s agents responded to the tenants’ allegations and the lessor stated that he felt remorse for attending the premises on 24 November 2023 without prior notice, causing distress to Ms Archer.
The Tribunal reserved its decision.
The tenants’ claims
The tenants have submitted extensive material outlining many alleged breaches of the RT Act by the lessor as outlined above. They allege that the lessors breached their obligation at the commencement of the tenancy by failing to provide the property in a reasonable state of repair, security, and cleanliness.[1] The tenants raise several maintenance issues which they say existed at the commencement of the tenancy, most of which were not remedied by the lessor. They claim that they have suffered a loss due to these breaches and should be financially compensated for this.
[1] RT Act standard term 54
The tenants say that the lessor breached the RT Act standard terms 52, 75, 79 and 82 on three separate occasions by:
(a)attending the property without prior notice;
(b)attempting to do repairs to the property himself; and
(c)by failing to provide a 7-day notice of a routine inspection.
The tenants also allege that parts of the property became uninhabitable because of mould. The issues with mould commenced on 18 November 2023 and had not been remedied, according to the tenants, at the date of vacate.
The tenants have submitted an expert report by the Mould Group by way of evidence of the presence of mould in the property. The tenants say that the mould has had an impact on Ms Archer’s capacity to move into the property, impacting her income earning capacity, her move to Canberra, the tenants’ relationship as well as Ms Archer’s health. They have submitted medical evidence which they say supports their submission that there is mould at the property which has impacted Ms Archer’s health. The Mould Group were not called as witnesses to provide evidence at the hearing and to be cross examined about their report. The medical professionals who prepared the evidence in relation to Ms Archer’s health were not called as witnesses either.
In addition to the maintenance issues which the tenants say existed at the commencement of the tenancy, the tenants say that the toilet at the property did not flush properly and sewage from the toilet overflowed onto the driveway. The tenants say that they reported this issue to the lessor’s agents on 5 October 2023 and the issue was finally remedied on 7 December 2023.
The lessor’s response
The lessors submit that they attended to all maintenance issues reported by the tenants in a timely manner and eventually resolved them all. The lessors, through their agents, say that the doors and locking mechanisms worked correctly once they were attended to; that any defect in operation of the front door mechanisms related to the way the tenants were using the door; that the tenants had not moved the holding mechanism on the security door so it could not be closed properly. The lessors’ agent submitted at hearing that when he attended the property after the tenants had vacated, he closed the security door completely once the holding mechanism was positioned correctly.
The lessor admits that the toilet was not functioning properly until it was finally fixed. The tenants say that the toilet was usable, but not flushing properly and on at least one occasion sewage from the toilet came out of the sewage system and spilled out onto the driveway. The toilet was reported on 10 October 2023 and repaired on 7 December 2023.
The lessor disagrees with the tenants’ claim that the property was so affected by mould as to render parts of it uninhabitable. The lessor says that the mould at the property was surface mould that could be cleaned, and it was the tenants’ responsibility to attend to the cleaning. Moreover, they claim that the condition of Bedroom 3, the room with the most significant mould issue, was exacerbated or caused by the conduct of the tenants in preventing the room from being ventilated by keeping the room closed throughout the course of their tenancy.
In the ingoing inspection report the lessor’s agents have noted that the gutters require cleaning.
The lessors disagree with the tenants’ characterisation of the attendance at the property by the lessor on 24 November 2023. They say that the lessor Lawrence De Costa, “knocked politely on the door, introduced himself and the tenant consented to Lawrence entering to inspect the toilet.”
Legislative framework
The RT Act sets out the legislative framework for all residential tenancies in the ACT. The RT Act gives the ACAT power to resolve residential tenancy and occupancy disputes. Schedule 1 of the Act provides standard terms that are included or should be included in all residential tenancy agreements. Breach of the standard terms is treated as a breach of contract. Section 83 of the RT Act gives the Tribunal the power to order compensation for such a breach if a party can show that they have suffered a loss because of the breach.
83 Orders by ACAT
(1) Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:
…
(d)an order requiring the payment of compensation for loss of rent, occupancy fees or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement.
The issues
The issues the Tribunal must consider in this application are:
(a)Whether the lessor was in breach of standard term 52 causing interference with the reasonable peace, comfort, or privacy in the use of the property by attending the property without notice on 24 November 2023 and on 8 December 2023 attempting to personally remove the mould from one of the bedroom ceilings and using chemicals that were strong smelling.
(b)Whether the lessor breached standard term 54 of the tenancy agreement by failing to provide the premises in a reasonably clean condition, in reasonable repair and in a reasonably secure condition at the start of the tenancy.
(c)Whether the lessor breached standard terms 55 and 57 failed to maintain the premises in a reasonable state of repair or failed in his obligations under standard term 57 to make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs.
(d)Whether the damage complained of by the tenants in relation to the mould in bedroom 3 falls under standard term 56, caused by the negligence or willful act of the tenant.
(e)Whether the lessor breached standard term 59 in relation to the flushing mechanism and plumbing associated with the lavatory by failing to carry out the repair as necessary.
(f)Whether the lessor breached standard term 75(1) by requiring access to the premises except as required by law.
(g)Whether the lessor breached standard term 79 by failing to give the tenants one-week written notice of an inspection.
(h)Whether the lessor breached standard term 82 by failing to give one weeks’ notice to inspect or make repairs.
(i)Whether any of the breaches caused the tenants to experience a loss and would thereby require the Tribunal to order the payment of compensation to the tenants under section 83(d).
(j)The disposition of the bond.
Was the lessor in breach of standard terms 52, 75(1), 79 and 82?
The tenants say that the lessor was in breach of standard term 52, 75(1), 79, and 82 by:
(a)attending the property without notice on 24 November 2023;
(b)on 8 December 2023, attempting to personally remove the mould from one of the bedroom ceilings and using chemicals that were strong smelling; and
(c)conducting a routine inspection without providing the requisite 7-day notice period.
Attending without prior notice
Did the landlord breach these terms by attending the property in person and seeking to carry out an urgent repair to a toilet on a Friday 24 November 2023, and did this alleged breach cause the tenant to experience a loss justifying payment of compensation.
The tenant says that the lessor barged into the property and did not wait for permission to enter. Clearly the landlord did not give the tenant 1 week notice of his attendance as required by law and is in breach of the RT Act unless:
(a)The lessor provided reasonable notice given the urgency of the repair.[2]
(b)Or the tenant permitted access to the premises as she can do at any time.[3]
[2] RT Act standard term 82(2)
[3] RT Act standard term 75(2)
The lessor did not give any notice before attending the premises, therefore the Tribunal is not satisfied that he has satisfied standard term 82(2). He turned up unannounced entered the premises to inspect the toilet and the mould, but particularly the toilet given it was a Friday and he hoped to remedy the issue before the weekend. So, the question for the Tribunal then is whether the tenant “permitted access”, which she can do at any time.[4] The tenant says that she did not permit access. The nuances of the situation need to be explored to understand the tenant’s position.
[4] RT Act standard term 72(2)
Permit in the context of the RT Act means to give permission. The Collins English dictionary defines ‘permit’ as “if someone permits something, they allow it to happen. If they permit you to do something, they allow you to do it.” (emphasis added)[5]
[5]Colins English Dictionary (online at 24 July 2024) ‘permit’ (def 1)
Ms Archer submitted that she was alone at home at 4:40pm on Friday 24 November 2023 when she says:
He came to the house knocking on the door and screaming out if anyone was inside. I was alone and didn’t realise who it was until I went around the back to see what was going on. He stated he was here to look at the toilet, armed with a small pink plunger, sticks and a bucket. He was a bit forceful in his overall approach as he came down the stairs and just asked oh is it back here? I was very overwhelmed and confused by this whole situation at this point as I knew real estate had mentioned in a meeting earlier in the day they would call someone out to attend the toilet (which never happened). While I knew that would be wrong as no notice was given of anybody attending the property, I was too overwhelmed to even think that far. Once he went to walk into the backyard ahead of me, he introduced himself as the landlord. He continued on to claim real estate had not been communicating with them about the issues effectively and without even asking he continued to walk around the back of the house and into the house despite the fact that he was heavily in breach of the contract. No less, he walked in, not taking his shoes off, onto the carpet. Since it had been raining as well, it felt as though there was a total lack of respect for our maintenance of the state of the floors and carpet that he walked on with his wet shoes. Not until he entered the home via the open back door that I went outside through and was standing in front of the toilet inside the house did he ask if I was ok with him going inside the toilet. At this point I didn’t feel like I had a choice....
I was so uncomfortable after that happened, that it took me several hours to feel comfortable using our bathroom again, only after my partner came home. I didn’t even want to be alone in the house. It made me feel unsafe here, as I have no idea if he will let himself back into the property again, especially when I am alone. He demonstrated no respect or regard for our space or privacy.
Ms Archer says she did not give the lessor permission to enter the premises. She says that from her perspective, he just barged in without giving her an opportunity to refuse or to consent. The tenant was credible and clearly upset by what had occurred. She was so upset that she said she did not feel safe in her home following this interaction and subsequently installed a security camera to help her with feeling safe at home.
But the lessor was equally credible in his sincere regret at the impact his attendance had had on the tenant. He said he attended the property in good faith to see what could be done about the toilet before the weekend. The tenant’s statement suggests that there was at least a discussion had that day with the real estate agents about calling someone out to repair the toilet. The lessor obviously thought that this arrangement was in place. But the tenant was apparently caught by surprise.
This was an isolated incident, the lessor never turned up unannounced again. The Tribunal accepts the lessor’s evidence that he thought that the tenant had given permission for him to enter the premises and would not have done so if he thought that he did not have permission. Certainly, the lessor believed that the repair the tenants complained of was of sufficient urgency to act as he did. The tenant clearly thinks that, regardless of the urgency, the lessor should not have attended as he did.
It is a matter for the tenant to permit access to the premises outside of the legislative notice periods and she says that she didn’t. There has been a clear miscommunication here between the tenant and the lessor.
In a tenancy relationship, there may be a power imbalance between a tenant and a lessor. The lessor, as the owner of the property can be seen by the tenant as more powerful in the tenancy relationship. The RT Act is drafted in such terms as to ensure that the tenant has a measure of control over her home and is clearly informed in advance of any attendance by the lessor or the lessor’s agents. This measure of control is specifically drafted to manage the conduct of the lessor and the access that he has to the property while it is tenanted. Although the property belongs to the lessor it is the tenant’s home. The RT Act seeks to ensure that the ownership of the lessor does not interfere with the tenant’s right to peace, comfort and privacy in her home.
By turning up unannounced and asking to enter the property, the lessor is placing the tenant in a difficult situation where she may feel that she must give consent because of the power dynamic- namely because the lessor is the owner of the property. Lessors should be mindful of the diverse experience and background of their tenants, particularly women, and consider the impact that an unannounced attendance may have on them. It is understandable that a woman who is at home alone would feel upset and unsettled to find a man whom she does not know at her doorstep, particularly if that man then proceeds to let himself into her home after announcing that he is the lessor.
The law provides a framework that enables parties to manage their expectations. Ignoring that framework can cause distress to tenants and can be perilous for lessors. I accept the tenant’s evidence that she did not give permission to the lessor to enter the premises. He did not have permission as required by standard term 75(2). Therefore, the lessor was in breach of standard term 75 and 82 by entering the property without notice or permission.
Was the lessor in breach of standard term 52 which describes the obligation as follows:
The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
To determine whether the lessor breached this obligation, the Tribunal must be satisfied that he interfered with the tenant’s “reasonable peace, comfort and privacy ... in the use of the premises”. The word ‘must’ in the clause makes the obligation of the lessor mandatory, a failure in this context is a breach of the tenancy agreement.[6]
[6]Shklor and Anor v Thomson [2015] ACAT 21 at [19]
The lessor attended the premises unannounced only once. Although on this occasion the tenant felt upset and overwhelmed, it does not necessarily follow that after one such incident the tenant’s reasonable peace, comfort and privacy had been interfered with by the lessor to such an extent as to amount to a breach of the tenancy agreement between the parties.
It is not unusual to have people, such as postal workers, delivery workers or salespeople or even neighbours turn up unannounced. However, the visitor in this instance was the lessor, someone who owned the tenant’s home, so had a measure of power in the relationship that a postal worker or neighbour does not. His attendance at the property and his subsequent actions in walking around the back of the property and entering the tenant’s home were understandably overwhelming to the tenant. The tenant says that this was an interference with her peace, comfort, and privacy.
In Lee v Guo [2017] ACAT 60, Presidential Member Robinson found that the tenant’s peace, comfort and privacy had been interfered with after several incidents involving the lessor. She found in that case, that each isolated incident on its own did not necessarily give rise to a breach of standard term 52, but cumulatively several incidents did. In that case, the lessor had in various ways disturbed or intruded on the tenant, but he had not walked into the tenant’s home without permission.
The legislation is clear on how parties to a residential tenancy agreement are required to conduct themselves; the lessor cannot enter the tenant’s home without following specific procedures or by obtaining the tenant’s permission to enter. The lessor did not follow the set procedures or obtain permission to enter. Even though this was an isolated incident and clearly a miscommunication between the parties for which the lessor is remorseful, I find that the lessor did interfere with the tenant’s reasonable peace, comfort and privacy by entering her home without her permission. It was a violation of her privacy, and she was left upset and shaken following the incident.
Having decided that the lessor was in breach of standard terms 52, 75, and 82, the Tribunal must now decide what if any loss has been suffered because of this breach.
An award of compensation seeks to put a party in the position they would have been but for the breach. The RT Act empowers the Tribunal to award compensation where there has been such a breach, and a loss has been suffered. The tenants say that they have suffered a loss in the distress caused to Ms Archer and her need to have a security camera installed in order to feel safe.
The tenants have sought the full cost of the security camera they purchased to make Ms Archer feel safe in her home. I agree the lessor should pay compensation for the loss the tenants suffered due to his breach of their agreement. The tenants say that the compensation they seek is $198 being the cost of the security camera. I agree that this is reasonable. The tenants are successful in this claim.
Lessor attending to repairs
The tenants have also alleged that the lessor was in breach of standard term 52 by personally attempting to remove mould from one of the bedroom ceilings during a pre-arranged visit on 8 December 2023, the tenants allege that the room was unusable because of the smell of the chemicals.
The tenants have made claims in relation to the mould and the removal of it, which I will deal with later in this decision. In so far as the lessor’s actions go in attempting to remove the mould from the bedroom ceiling himself, I don’t see how this could possibly be a breach of standard term 52 nor what loss the tenants have suffered as a result of his actions. The lessor can attend to repairs, particularly minor repairs which only require cleaning. That he did not do a satisfactory job of carrying out the repair or failing to choose different chemicals to carry out this work does not amount to a breach of the term. This claim is unsuccessful.
Failure to give requisite notice of inspection
Was the lessor in breach of these terms when an inspection was conducted at the premises on 5 October 2023. The tenants say that they did not have the requisite 7-day notice of this inspection, however their timeline of events shows that a text message was sent on 2 September 2023 to remind the tenants of scheduled routine inspection on 5 October 2023. The inspection occurred on 5 October 2023. According to the tenants’ evidence there appears to have been over one month’s notice of the inspection.
However, if the timeline contains a typographical error and it is intended to state that a text was sent on 2 October 2023 and an inspection occurred on 5 October 2023, then 7 days’ notice was not provided. The tenants may permit access to the lessor at any time, even if the lessor has not given 7 days’ notice.[7] Apparently, the tenants did permit access on this occasion and the routine inspection was carried out. I am not satisfied that a breach has occurred here. This claim is unsuccessful.
Is the lessor in breach of standard term 54
[7] RT Act standard term 75(2)
Clause 54 of the Standard Terms mandates that the lessor provide the premises in a reasonable state of repair at the commencement of the tenancy. Standard term 54 provides in part that:
(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—
(a)fit for habitation; and
(b)reasonably clean; and
(c)in a reasonable state of repair; and
(d)reasonably secure.
The tenants say that the following issues existed at the commencement of the tenancy and were not repaired for the duration of the tenancy:
i. Locks malfunctioning on the front door,
ii. Security door was off its hinges and did not close properly,
iii. The shower curtain fell and was not replaced ,
iv. Leaking window in living room,
v. Balcony door lock not locking,
vi. Cabinet doors in bathroom needed replacement,
vii. Alleged damage to the ceiling leading to mould growth which is said to have spread to other rooms.
The lessors say that the issues may have existed at the commencement of the tenancy but were mostly addressed. The tenants say that the issues were not addressed, the lessors were in breach of their obligations under the RT Act and the tenants have suffered loss because of this breach.
The tenants submitted a detailed timeline and explanation of each maintenance issue, and some issues were accompanied with photographs.
The lessors say that the door and lock issues were addressed, that the tenants did not use the mechanisms correctly leading to a misapprehension that they were faulty. I don’t accept this explanation. If a door is so difficult to close and lock and unlock, that tenants residing at the premises for 5 months cannot operate them, the mechanisms must be faulty even if they do close or lock with some effort.
I accept the tenant’s evidence that all items they have listed as requiring remediation were not properly addressed by the lessor. No finding is being made here in relation to the mould, the issue will be separately dealt with later in these reasons as the mould was identified later in the tenancy as was the issue with the shower curtain and the toilet.
The tenants say that the maintenance issues impacted their enjoyment of the property. The security screen, the front door lock, and the balcony door lock all impact the safety and accessibility of the premises and are classified as issues requiring urgent repair under the standard terms. According to the tenants, these issues existed at the start of the tenancy. I accept the tenants’ evidence in relation to these issues and their submission that the issues were not adequately fixed by the lessor by 2 February 2024, the date that they were offered to end the lease by the lessor without incurring a penalty.
In Faulder v Tran [2018] ACAT 80 (Faulder), the Tribunal, with then President Neate presiding, set out principles which provide clear guidance on this issue:
(a)Standard term 54 addresses the lessor’s duty in handing over the premises at the start of the tenancy and does not extend beyond that.
(b)Standard term 54 is in mandatory language, that is, the lessor is obliged to ensure that the term is complied with. It is not a defence for a lessor to plead that reasonable steps were taken to rectify defects.
(c)The duty does not just apply to the premises as a whole in a global sense, but to each component or element within the premises. The definition of ‘premises’ in the Dictionary to the RTA defines premise to include any habitable structure, any part of the premises, and any buildings or structures belonging to the premises. Standard term 54 expressly applies to all furniture, fittings and appliances provided with the premises.
(d)The provision of premises that are reasonably clean, reasonably secure and in a reasonable state of repair are three separate requirements, each of which must be met.
(e)The obligation under standard term 54 operates from the start of the tenancy and does not depend on the tenant giving notice of the need for repairs or other remedial work to be done.
As the tenants’ claims in relation to maintenance issues that existed at the commencement of the tenancy are accepted as falling within the ambit of standard term 54, it is not necessary for me to consider each of these maintenance issues under the other clauses cited by the tenants. That the lessor had a duty to have these issues remedied before the tenancy commenced is clear on the language of the provision and confirmed by the appellate division of this Tribunal in Faulder. The tenants should be compensated for the loss they have experienced because of the lessor’s failure to comply with clause 54.
The tenants have claimed compensation for their loss in the form of a rent reduction as provided by section 71 of the RT Act.
71 Reduction of existing rent
(1) On application by a tenant, the ACAT must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant’s use or enjoyment of the premises has diminished significantly as a result of any of the following:
(a)the loss or diminished utility of an appliance, furniture, a facility or a service supplied by the lessor with the premises as a result of—
(i)the withdrawal of the appliance, furniture, facility or service by the lessor; or
(ii)the failure by the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair, having regard to their condition at the commencement of the residential tenancy agreement; or
(iii)the failure by the lessor to provide and maintain the locks or other security devices necessary to ensure that the premises are reasonably secure;
(b)the loss of the use of all or part of the premises;
(c)interference with the tenant’s quiet enjoyment of the premises or the tenant’s ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.
(2) To remove any doubt and for subsection (1), a tenant’s quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant’s rights.
(3) A reduction in the rental rate ordered under subsection (1)—
(a)takes effect from the day the tenant’s use or enjoyment of the premises diminished, or the later date that the ACAT specifies; and
(b)remains in force for the period, not longer than 12 months, specified by the ACAT.
(4) The ACAT may order a lessor to pay to the tenant the difference between the rent paid and the rent payable as a result of an order for a rental rate reduction.
(5) Any purported increase in the rental rate in relation to premises for which a reduction order is in force is void and any amount paid above and beyond the reduced rental rate in accordance with a purported increase is a debt owing by the lessor to the tenant.
The tenancy had been terminated by the time this matter was heard, so rent per se cannot be reduced as outlined in section 71. What the tenants want is to receive compensation for the loss they have suffered in the amenity of the property and their enjoyment of the property, by being paid a proportion of the rent they paid for the property in recognition of the impact of the said issues. Given that they are no longer tenants at the property, a lump sum compensation is more appropriate. President Crebbin observed in Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9 (Salem & Gizgeez) that:
This tribunal and the former Residential Tenancies Tribunal have taken the approach that compensation should be awarded by way of rent reduction under section 71 of the RTA while the tenancy is still in existence and that lump sum compensation payments under section 83 (d) (previously section 104(1)(d)) should be considered where the tenancy has terminated.
After having reviewed similar cases in Residential Tenancies Law and Practice NSW 8th edition,[8] in which compensation has been awarded for loss of amenity, I will award compensation from the start of the tenancy 7 September 2023 until the date on which the lessor offered the tenants to end the fixed term lease without a break lease fee on 2 February 2024. I am satisfied that a lump sum of $1,207.50 is appropriate compensation to be paid by the lessor to the tenants for their failure to ensure that the premises were in a reasonable state of repair and reasonably secure from the commencement of the tenancy until 2 February 2024.
Duty to mitigate
[8] Christopher Adkins, Peter Christensen, and Allan Anforth, Residential Tenancies Law and Practice (Federation Press, 8th ed, 2022)
I will not award compensation beyond this point because the lessors offered the tenants an opportunity to end the lease without penalty on 2 February 2024. The tenants did not accept this offer and pursued a Termination and Possession Order through ACAT. The lessors did not pursue a penalty despite the tenants’ application for a Termination and Possession order. The lessors have acted reasonably and agreed not to charge the tenants a break lease fee. In these circumstances, the tenants cannot seek compensation for a period that they chose to remain living at the property.
Section 38 of the RTA provides that:
A person who, apart from this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
The tenants could have avoided the loss they say they suffered from 2 February 2024 until 21 February 2024 by vacating the premises when the lessor offered them the opportunity to do so without imposing a break lease fee. They are duty bound to take reasonable action to avoid loss from the breach where it could have been reasonably avoided.[9]
[9] Nichols v AmersPty LimitedACN 112 055 366 (No. 2) [2020] ACAT 79 at [12]-[16]
The right to recover damages is always subject to the requirement that the party claiming damages (the innocent party) take reasonable steps to mitigate their loss, but the onus is on the other party to show the innocent party acted unreasonably.[10] When an innocent party is required to take steps to mitigate, the steps required will not be set too high.[11] Where there has been a failure to mitigate loss, the damages are reduced to what they would have been had the innocent party acted reasonably.[12] In these circumstances it is reasonable to expect the tenants to mitigate their loss by vacating the premises when they have been given the opportunity to do so without incurring a penalty. That they chose not to vacate and instead commence termination and possession proceedings at ACAT was unreasonable. They cannot obtain compensation for a loss they incurred because of their decision to remain living at the premises when they could have vacated earlier without penalty.
Non-urgent repairs
[10] TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57
[11] Banco de Portugal v Waterlow and Sons [1932] AC 452 at [506]
[12] Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62, Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 (Karacominakis) at [187]
The shower curtain which fell shortly after the tenants moved in is another issue raised here and it is a non-urgent repair. The lessor submitted that the shower curtain was held up by a suction component which could be replaced easily. There was an exchange between the landlord and tenant where the tenant offered to fix the shower curtain in exchange for the lessor allowing Ms Archer’s Guinea Pigs to stay at the property. The tenants then contacted the real estate agent to obtain formal approval, but they did not receive a reply. So, they used the shower without a curtain from that point forward. Given the simple repair and the tenant’s offer to carry this out, I am not satisfied that this issue caused the tenants loss that should be financially compensated here.
Urgent repairs
Standard terms 59 and 60 deal with urgent repairs.
Standard term 60 provides a list of urgent repairs including a blocked or broken lavatory system and a fault or damage likely to cause injury to person or property.
In their application, the tenants say that they reported two urgent repairs to the lessor, neither of which was remedied “as soon as necessary”. These issues pertain to the toilet and to the presence of mould.
The language of the standard terms is unambiguous in so far as it states in mandatory terms that the landlord “must” maintain the premises in a reasonable state of repair. Standard terms 55 and 57 articulate these obligations.
In Withers-Norris v Pastrello [2016] ACAT 95,[13] the tribunal considered decisions of earlier tribunals in relation to standard term 55:
90. … In Brogan at [68], the tribunal said:
In Irena Peters v Commissioner for Housing for the ACT [2006] the then Residential Tenancies Tribunal decided that a lessor's obligation to repair under standard residential tenancy terms 54 and 55 is framed in mandatory terms, i.e. the lessor “shall” maintain the premises in a reasonable state of repair. It is therefore not a defence to any landlord to plead that reasonable steps were taken to rectify either patent or latent defects. The test is whether these defects were in fact remedied such as to maintain the premises in a reasonable state of repair.
91. In Salem and Gizgeez at [44] the tribunal said:
The obligation to maintain premises in a reasonable state of repair, imposed by clause 55 of the standard terms on the lessor, is a mandatory obligation that is not diminished by the fact that the need for repairs is due to fault on the part of a third party, or by reliance on a third party to undertake repairs.
[13] Withers-Norris v Pastrello [2016] ACAT 95 at [90]-[91]
‘Shall’ has since been replaced with ‘must’, arguably strengthening the protections afforded to a tenant. In Halcombe v Hitchman [2018] ACAT 5, Presidential Member Symons whilst considering the language of the standard terms in their current iteration, agreed with this reasoning – that the landlord’s obligations to maintain the premises in a reasonable state of repair is mandatory – the test being whether the defects were actually remedied rather than attempts made to remedy the issues.
The lessors have a legal obligation to maintain the premises in a reasonable state of repair. This includes taking deliberate and active steps to carry out these repairs within the requisite timeframes as articulated by the standard terms. Attempts to have the issue repaired are not sufficient.
Toilet
The tenant says that, on 5 October 2023, they reported problems with the flushing mechanism on the toilet, but the toilet was not repaired until 7 December 2023. The agents’ records say that the toilet was reported as not working on 10 October 2023. The lessor has submitted records of the issue being reported and detailed notes on action taken. I prefer this evidence in terms of the date at which the issue with the toilet was first reported because it is a record of all maintenance issues logged by the tenants and appears on its face to be an accurate record of the reporting of the maintenance issues.
This was an urgent repair which was not remedied as soon as necessary. Though the landlord attempted to repair this issue several times, the repair was not actually achieved until 7 December 2023, some two months later.
The tenants were without a properly working toilet for just over 8 weeks. Loss of functionality of a toilet seriously impacts the habitability of a home. The tenants say that although the toilet was usable, it required several flushes and at times there was spillage of raw sewage onto their driveway from the faulty plumbing extending from the toilet. The tenants used the toilets at a nearby shopping mall for a few days to avoid sewage spillage. This has caused the tenants significant inconvenience. After reviewing similar cases, the Tribunal is satisfied that a lump sum payment of $495 compensation should be paid by the lessor to the tenants for failure to action this urgent repair as required.
Mould
The tenants submit that mould was discovered at the property early in their tenancy rendering parts of the property uninhabitable to Ms Archer. They say that this issue had not been remedied at the date of their vacate. The tenants noted extensive mould in Bedroom 3 so they kept the door to this room shut and did not use this room throughout the tenancy. They say that the mould spread and impacted other rooms in the house. The mould is said to have had a serious impact on Ms Archer’s health, evidence of which she has submitted to the Tribunal.
Prior to vacating the property, the tenants commissioned an assessment and report from the Mould Group to show the extent of the mould at the property. The Mould Group attended the property on 14 February 2024 to inspect, and the tenants submitted a report of their findings to this Tribunal.
The mould report
The assessment and report by the Mould Group includes a site inspection, air particle testing of the entire property, humidity testing of the entire property, and tape lift sampling of bedroom 3.
The report summary only refers to the external area, the lounge area and bedroom 3. It makes observations and offers opinions summarised as follows.
(a)The external visual inspection of the property notes gaps and deterioration of window frames as well as issues with overgrown trees and damage to guttering in the “corner area which impacts the internal environment as it changes the alignment of guttering causing water to pool and overflow”. The recommendation is for a plumber to check guttering and roof tiles for damage. The inspection also showed some previous water leak issues relating to the toilet.
(b)The inspection of the lounge area notes deterioration of the window frame, moisture in the carpet and signs of water coming through. The summary notes that “Visual mould was noted on all window frames and signs on walls particularly below windows of condensation issues were noted.” It was recommended that a dehumidifier might be used to address excess moisture which may occur during the cooler months.
(c)The inspection of Bedroom 3 states that there is cracking and peeling of paint on the ceiling and the window frame. The tree noted in the visual assessment of the external area is opined will more than likely contribute to the “issue”. The summary states that:
Signs of mould issues (ceiling, window frame) will have increased internal moisture in the room, which will increase microbial growth in the space. Initial air particle testing showed this room to have significantly higher levels of particles which will be the reason the tenant cannot stay in this room. Please refer to the IAQ Analytics report. Tape lift sample within bedroom 3 shows the area to have high microbial growth of Aspergillus/Penicillium. The area will require remediation as per IICRCS520.
Indoor Air Quality (IAQ) meaning and results
The report goes on to provide an Indoor Air Quality (IAQ) result for each room in the house. IAQ parameters are described as measuring particle counts, temperature and humidity or surface cleanliness. The report states that:
IAQ levels reported here are defined under methodologies meant for far more stringently decontaminated areas, such as cleantech industry cleanrooms. However, reports produced by IAQ analytics may also be legitimately used for common areas such as households and offices. In other words, higher standards are being applied than are strictly needed, which correlates with the fact that high levels of tradesmanship are now being practiced in the IAQ industry as a whole.
There is a Guide to IAQ levels to help the reader understand the meaning of the level attributed to each room. The guide states that “Air quality as reported by IAQ analytics refers only to coarse and to some extent fine particles, not to other air quality parameters.” The IAQ levels are interpreted as outlined in the table to the levels reproduced here:
| IAQ Level | Meaning | Description | Interpretation |
| Level 11.5 | Fail 11.5 | Ultra High Range Fail | Levels 10.5 to 11.5 indicate an environment which requires much improvement, including air quality improvement. Further investigation into source contamination is required. |
| Level 11 | Fail 11 | Extremely High Range Fail | |
| Level 10.5 | Fail 10.5 | Very High Range Fail | |
| Level 10 | Fail 10 | High Range Fail | Levels 9.5 to 10. Air quality requires improvement. Further investigation into |
| Level 9.5 | Fail 9.5 | Fail | |
| Level 9 | Alert 9 | Alert. Conditional Status, Upper Range. | Level 9 counts indicate elevated levels of contaminant particles, which may include any of: dust, liquid microdroplets, pollens, possible indoor amplification of moulds, etc., though also may not be limited to these. Further investigation of potential contamination sources is required. The results reported may be affected by the degree of ventilation to outdoors, or by recent housekeeping, human activity, or work activity. Conditional means that contaminant levels can be interpreted based also on other indicators at the site, in addition to particle counts. |
| Level 8.5 | Normal 8.5 | Unusual for indoors, and normal for outdoors Conditional - Lower Range. | Level 8.5, these counts may indicate elevated levels of contaminant particles unless outdoor air has entered indoors. Particles generated indoors may include any of: dust, skin dust, liquid microdroplets, mould or other bioparticles, though the particle types may not be limited to these. Particles which have entered the indoors from the outdoors are as for the particles that may have been generated indoors. The results reported in level 8.5 may be affected by the degree of ventilation to outdoors, and by the level of particles outdoors, and/or by recent housekeeping, human activity, or work activity. Normal means that contaminant levels can be interpreted based also on other indicators at the site, in addition to particle counts. Further investigation of potential contamination sources may not be required, unless other lines of evidence indicate so. Level 8.5 may be encountered in enclosed spaces. |
| Level 8 | Pass 8 | Pass | Level 8, particle counts are within the acceptable range. |
| Level 7.5 | Still 7.5 | Low counts. | Level 7.5, particles counts are in the lower range. Mechanically generated or windblow particles are at low levels, as these settle out in relatively still environments. |
| Single Sample – particle counts per cubic meter and analysis | ||||
| Location | 0.5 µm | 5.0 µm | Time | IAQ Level |
| Bedroom 3 | 11215547 | 198233 | 1m, 0s | 9 |
| Main Bedroom | 4768904 | 32155 | 1m, 0s | 8.5 |
| Bedroom 2 | 5026148 | 34275 | 1m, 0s | 8.5 |
| Bathroom | 5453710 | 39575 | 1m, 0s | 8.5 |
| Lounge | 4655477 | 39929 | 1m, 0s | 8.5 |
| Outside | 40222614 | 28975 | 1m, 0s | 8 |
The IAQ levels attributed to each of the rooms tested is set out in the table reproduced here:
Every room in the house other than Bedroom 3 received an IAQ level of 8.5 – unusual for indoors, normal for outdoors – conditional – lower range. Bedroom 3 was given an IAQ level of 9 –Alert. Conditional status, Upper Range.
The outdoor area is given a rating of 8 – a pass that “particle counts are within the acceptable range”.
The report states that IAQ levels do not measure or are intended to report the presence of mould in each room, they are a measure of the levels of numerous contaminant particles such as dust, liquid microdroplets, pollen and mould etc. The results are affected by various factors including degree of ventilation to outdoors, recent housekeeping, human activity, or work activity.
Mould and Fungal Loading
The Mould Group conducted a Surface Tape Lift and Analysis in Bedroom 3.
The surface tape lift analysis shows that the mould/fungal loading in Bedroom 3 is rated at level B which is defined as ‘Light’ – “Fungal material loading covers 5% to 25% of representative FOV.” FOV is defined as ‘Field of View’ – “Microscope field of view is the maximum area visible when looking through a microscope eyepiece or reticle.”
The interpretation guidelines from VIRIDIS Australasia Pty Ltd, explain that surface analysis fungal loading is scored on a scale of A (lowest) to E (highest) when observed:
(a)None Detected – No Fungal material observed.
(b)A-Trace – Fungal material loading covers less than 5% of a representative Field of View.
(c)B-Light – Fungal material loading covers 5% to 25% of a representative FOV.
(d)C-Moderate – Fungal material loading covers 25% to 75% of a representative FOV.
(e)D-Heavy – Fungal material loading covers 75% to 90% of a representative FOV.
(f)E-Very Heavy – Fungal material loading covers more than 90% of a representative FOV.
The Mould Group Report identifies the growth of Aspergillus/Penicillium mould in Bedroom 3. Aspergillus/Penicillium are classed as an allergen, mycotoxins in the report.
Aspergillus/Penicillium are among the most commonly found environmental mould species. They contain many species with a worldwide distribution and a huge range of ecological habitats. They can be found in the air, soil, vegetation, and indoor environments.[14]
[14] Chi-Ching Tsang et al, Taxonomy and evolution of Aspergillus, Penicillium and Talaromyces in the omics era - Past, present and future (Computational and Structural Biotechnology Journal, 2018)
The Surface Tape Lift Analysis reports that the IICRC Condition of Bedroom 3 is at level 3. IICRC condition 3 is defined as follows:
An indoor environment contaminated with the presence of actual mould growth, associated spores and fungal fragments. Actual growth includes growth that is active or dormant, visible or hidden. (emphasis added)
Humidity
The Mould Group also assessed the humidity levels at the premises. The report provides a table of relative humidity depending on season and temperatures and states as follows:
The USEPA recommends that humidity levels be kept between 30-60% to decrease fungal growth. IAQ analytics recommends optimal humidity to be 45-55%. High levels of humidity can contribute to fungal growth whilst low humidity can tend to contribute to dry skin conditions.
The Temperature and Humidity Raw report for the premises have temperatures ranging from 26-27 degrees Celsius throughout the house with outside temperature at 27 degrees celsius, while the humidity ranges between 45.00% in the main bedroom to 48.40% in Bedroom 3.
The report provides that all areas of the house are within the optimal humidity range set out by IAQ Analytics.
Summary and conclusion on evidence
The visual inspection of the property shows deteriorating window frames, some water ingresses through the window frames, mould growing on some window frames, and paint cracking and peeling on part of the ceiling in Bedroom 3. The visual inspection of the outside of the property reports tree growth on or around the guttering directly above Bedroom 3 and damage to guttering.
The surface tape lift analysis shows presence of actual mould growth though it may be active or dormant (IICRC condition 3) and a light loading of a common mould species Aspergillus/Penicillium in bedroom 3.
The humidity levels throughout the property are within the optimal range as set out by IAQ analytics and all areas of the house (except bedroom 3) are given an IAQ rating of 8.5 ‘Normal - Conditional lower range’ with 8 being a ‘pass’. Bedroom 3 has an IAQ reading of 9 ‘Alert - conditional status - upper range’.
The report summary statements that “tape lift sample within bedroom 3 shows the area to have high microbial growth of Aspergillus/Penicillium” appears to contradict the actual results of the tape lift analysis which shows that the Fungal Loading in the sample is a level B which is defined by the report as a Light loading of Aspergillus/Penicillium.
The report summary statement that “Signs of mould issues (ceiling, window frame) will have increased internal moisture in the room, which will increase microbial growth in the space” is also contradicted by the testing which reports that the humidity level in Bedroom 3 is 48.40% which according to the report is within the optimal humidity range, which states “IAQ Analytics recommends optimal humidity to be 45-55%.”
How to interpret the report
The report highlights variables that can impact the results and limitations around the use to which the results can be put, including:
Our lifestyles can also be contributing factors to poor indoor air quality. Whilst most of us now spend approximately 90% of our time indoors, we also spend less time with our windows and doors open to create natural cross ventilation to our homes.
And:
IAQ Analytics provides no conclusion as to the ultimate cause of the particular issue/s that either the IAQ Analytics client (the service person attending to a property) or their customer (the property owner or manager) is experiencing at a property, whether dampness, mould, excessive particles, or even a surface cleanliness issue. IAQ Analytics reports only on the numerical information supplied by the service person and interprets the levels appropriately.
The report states that IAQ Analytics provides no conclusion as to the ultimate cause of the issue that the IAQ client is experiencing, and the report only provides numerical information and interprets the levels appropriately. However, the summary of the report appears to be at odds with this position. The summary opines that “Initial air particle testing showed this room to have significantly higher levels of particles which will be the reason the tenant cannot stay in this room” (emphasis added). This statement is a conclusion on the ultimate cause of the issue the tenants say they are experiencing (an interpretation of the data which the report says it should not provide) and is at odds with the numerical data. The numerical data has bedroom 3 at a level 9 IAQ and the rest of the house at a level 8.5. A difference of 0.5 may be more accurately described as just, higher.
Given the manner in which the IAQ Analytics have said that their report ought to be prepared and used, the Tribunal prefers the evidence provided by the numerical data rather than the summary of the report.
The Mould Group Report identifies the growth of a commonly found environmental mould species in bedroom 3. The Surface Tape Lift Analysis reports found that there was a light fungal loading in the sample tested from bedroom 3. The Mould Group found that the humidity levels throughout the premises were optimal. The IAQ levels throughout the premises were slightly elevated and higher in bedroom 3 where the doors and windows had been shut not allowing any ventilation for the duration of the tenancy.
Although the IAQ levels throughout the premises were at a level 8.5 ‘Normal; range when a level 8 is the ‘Pass’ range, the report goes on to say that an elevated IAQ level should not be interpreted as being a confirmation of the presence of mould in the property. Moreover, IAQ levels reported are not designed to assess the health impact of environmental pollutants in homes the report states that the IAQ levels reported, “are defined under methodologies meant for far more stringently decontaminated areas, such as cleantech industry cleanrooms.”
These levels can be used to assess IAQ levels in homes, but the report does not suggest that they can be relied upon to determine the mould levels or the health implications of the IAQ levels.
Although the report summary seeks to draw a conclusion about the numerical results and the impact on the tenants, the report specifically states that such conclusions cannot be drawn by the analysts. Moreover, the summary of the report is in parts contradictory to the numerical evidence. I prefer the numerical evidence which suggests that although the IAQ levels throughout the property do not meet the ‘pass’ level, they are within the ‘normal’ range or slightly elevated. But the elevation is not necessarily attributable to the presence of mould. On the contrary, the humidity levels throughout the property are within the optimal range.
The IAQ level in bedroom 3 is higher than the rest of the property at a level 9. the lessors say that this is due to the tenant’s conduct in not allowing ventilation into this room. The tenants confirm that they kept this room shut after they saw mould growth on the ceiling. I accept the lessor’s submissions which are consistent with the Mould Group’s advice, that human behaviour including housekeeping or ventilation of rooms are notable contributors to IAQ levels.
Although the report does find the presence of mould growth in Bedroom 3, the loading sample is low and not indicative of a serious mould infestation which would render the room uninhabitable.
The numerical findings of the Mould Group report do not support the tenant’s submissions of the presence of mould of such severity at the property to render parts of the house uninhabitable to Ms Archer. The IAQ and humidity levels are not indicative of serious mould infestation nor is the tape lift sample of the area said to be most affected by mould.
The visual inspection shows mould growth around windows and the deteriorating window frames. The lessor has submitted that this is surface mould which could have been easily cleaned by the tenant. I accept the evidence of the inspectors that the window frames were old and peeling and have awarded compensation for the leaking emanating from the window frames. In relation to the mould, I accept the lessor’s submissions on this issue given the numerical findings of the mould group do not support the tenant’s assertions that the property had a mould infestation issue.
Moreover, I accept the lessors’ submissions in relation to Bedroom 3, that the mould was also surface mould that could be cleaned and that the tenant’s actions in closing the room off and not allowing ventilation exacerbated the problem with mould in that room. In this regard, the lessor is not responsible for the damage caused by the tenant’s actions.[15]
[15] RT Act standard term 56
For these reasons all of the tenants claims for compensation as they relate to mould are dismissed. These claims include impact on Ms Archer’s income, capacity to move into the property, impact on their relationship and loss of enjoyment as well as the need to move out of the property. As the mould report does not support the tenants’ claims in relation to the extent of mould and the conditions of the property, the cost of the mould report must be borne by the tenants.
Medical evidence
The medical evidence submitted by Ms Archer suggests that her asthma has worsened. I accept her evidence that she suffered health issues during the tenancy. However, the medical evidence she has submitted does not on its own support a link between the mould and her health.
For example, in her letter of 27 January 2024, Dr Priyank Jani Belconnen Mall Medical Centre states:
Nicole has recently relocated to the ACT and her current property has an extensive mould issue. This is worsening her asthma to the extent that she has needed to restart a regular preventer and reliever inhaler, something which she has not needed for the last 7-8 months.
There is no evidence that Dr Jani attended the premises to assess the presence of mould. She has relied on her patient’s instructions on this. This letter cannot be accepted as evidence of the presence of mould at the property or evidence that Ms Archer’s health was impacted by the mould at the property.
Similarly, the Emergency Department Discharge Summary dated 2 February 2024 provides self-reported information about the presence of mould and cannot be relied upon as evidence of the impact of the mould on Ms Archer’s health:
Diagnosis – shortness of breath.
Worsening SOB [shortness of breath] and irritated and sore chest dry cough very teary. Ongoing 1/52 weeks seen GP commenced on preventer. 2 x 4 puff ventolin tonight with nil relief. Speaking full sentences (blacked out....) Appears highly anxious, H x asthma mold in rental house.
Much of the Emergency Department Discharge summary is blacked out so it is difficult to determine what weight to give any of the information that is legible.
The medical evidence will be accepted as evidence that Ms Archer has suffered from asthma and shortness of breath since relocating to Canberra. But the evidence does not support the submission that the mould at the property is responsible for Ms Archer’s health issues. Therefore, the claim for medical expenses is dismissed.
Moving costs
While the Tribunal acknowledges the inconvenience and cost to the tenants in relocating, the decision to move out of the property was taken by the tenants and the lessor is not responsible for this decision. Moreover, the Tribunal has not found that the failures of the lessor rendered the property uninhabitable causing the tenants to move out.
Application fees and other expenses
The Tribunal has found that the lessor owes the tenant some compensation, as the application is partly successful the tenant is entitled to the cost of the application fee.[16]
[16] ACT Civil and Administrative Act 2008 s 48
The tenant has sought the cost of the application for RT 76/2024 relating to their application for a Termination and Possession order. The application fees for that matter are more appropriately addressed by the Tribunal who heard that application and it is not appropriate to make a finding in relation to those fees here. The application for the cost of the application fee for filing of RT 76/2024 is dismissed.
The tenants seek their printing costs for bringing this application. ACAT is a no costs jurisdiction and only under very specific circumstances as outlined in section 48 and rule 103, does the Tribunal award costs or expenses. These circumstances do not meet the requirements of section 48 or rule 103. The application for payment of printing costs is dismissed.
Disposition of the bond
There has been no claim made by the landlord against the tenants’ bond. The bond can thereby be released in full to the tenants by the office of rental bonds on behalf of the Territory.
Conclusion
The Tribunal Orders:
(a)The lessors are to pay to the tenants the sum of $2,076.50 by 12 August 2024, being comprised of:
(i) Compensation for loss of amenities – $1,207.50;
(ii) Compensation for faulty toilet – $495;
(iii) Compensation for purchase of surveillance camera – $198; and
(iv) ACAT Application fee – $176.
(b)ACT Rental Bonds on behalf of the Territory is directed to release the whole bond of $2,300 to the tenants.
(c)The tenant’s claim for $1,725 for 50% rent reduction for 6 weeks loss of use and enjoyment of the property is dismissed.
(d)The tenant’s claim for $76.70 for medical expenses is dismissed.
(e)The tenant’s claim for $2012.50 for the loss of amenities and loss of use of Bedroom 3 is partly successful for $1,207.50 as ordered at 1(a).
(f)The tenant’s claim for $1,610 for rent reduction for mould in Bedroom 1, 2 and 3 is dismissed.
(g)The tenant’s claim for $262.89 for printing costs is dismissed.
(h)The tenant’s claim for $176 for the application fee for RT 76/2024 is dismissed.
(i)The tenant’s claim for $1,620 for moving expenses is dismissed.
(j)The tenant’s claim for $505 for the Mould Group’s inspection and report is dismissed.
The Tribunal notes:
(a)The tenants requested that rental arrears overpaid to the lessors are repaid to them in full. At hearing on 22 April 2024, the lessors agreed to refund the overpayment to the tenant's nominated bank account.
(b)The tenants have sought in their amended application that "LJ Hooker Kaleen remove and destroy Nicole Archer’s medical records in an appropriate and confidential manner from all data bases, paper files and other means of information collection and storage”. At hearing on 22 April 2024, the lessors agreed to remove and destroy any medical records pertaining to Ms Archer which they hold on file.
………………………………..
Member P Hatami
| Date(s) of hearing: | 22 April 2024 |
| First Applicant: | In person |
| Second Applicant | In person |
| First Respondent: | In person |
| Second Respondent: | M Hines and W Auva’a, authorised representatives |
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