Broso v Tarlinton
[2013] ACAT 81
•10 October 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BROSO & ANOR v TARLINTON & ANOR
(Residential Tenancies) [2013] ACAT 81
RT 13/664
Catchwords: RESIDENTIAL TENANCIES – compensation for breaches of residential tenancy agreement – failure to repair air-conditioning unit – failure to improve security of premises – failure to provide access to Foxtel.
Tribunal: Ms J. Lennard – Senior Member
Date of Orders: 10 October 2013
Date of Reasons for Decision: 5 December 2013
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL RT 13/664
BETWEEN:
EMILIO BROSO & HYEYOUNG SHIN
Applicant/Tenants
AND:
RODNEY TARLINTON
CANDICE TARLINTON
Respondent/Lessors
TRIBUNAL: Ms J. Lennard – Senior Member
DATE:10 October 2013
ORDER
The Tribunal Orders that:
The respondent landlords are to pay the applicant tenants the amount of $3,788.00 within 21 days of the date of this order.
………… ……………………..
Ms J. Lennard
Senior Member
REASONS FOR DECISION
HEARING AND REPRESENTATION
The application was lodged by the tenant on 15 July 2012 seeking an order that the tenants be allowed to terminate the residential tenancy agreement and an order that the tenants be awarded compensation.
The matter was heard on 10 October 2013 the applicants were represented by
Mr Prail, a legal practitioner. The respondent landlords were not present but were represented by Ms Yash McCann of Ray White Canberra real estate. Ms McCann held a General Power of Attorney for Representation of an Individual. This statement of reasons explains why the tribunal made an order at the conclusion of the hearing requiring the respondents to pay compensation to the applicants.
ORDERS SOUGHT
The applicants and the respondents were parties to a residential tenancy agreement entered into on or about 21 September 2012, for a 12 month fixed term expiring on 20 September 2013. A copy of this agreement was in evidence before the Tribunal. The tenants gave evidence that they had vacated the premises at the end of the fixed term and so, now sought compensation only.
Compensation was sought on the basis of breaches of the residential tenancy agreement by the landlords in relation to the following matters:
(a)a failure to repair the air-conditioning unit in the premises;
(b)a failure to improve the security of the tenancy; and
(c)a failure to provide access to Foxtel. It was alleged that the agent had represented to the tenants that Foxtel connection was available to the premises.
THE EVIDENCE BEFORE THE TRIBUNAL
The tenants gave evidence as follows:
(a)The air-conditioning had never worked satisfactorily and on 10 December 2012 they emailed Ray White Canberra in the following terms “we have a problem with air-conditioning which turned off by itself after every 20 mins”. The air-conditioning was inspected, the wrong part was ordered and the air conditioning was not satisfactorily repaired until March 2013. The tenants handed up evidence relating to the Canberra weather during this period. The Tribunal noted that during December 2012 and January 2013 more than one half of the days had temperatures above 30°C. The tenants gave evidence that it was too hot to eat inside the apartment, that they were not able to sleep because of the heat and that, in addition, because they were unable to regulate the temperature of the unit, the fish owned by the tenant could not survive in the warm water.
(b)In relation to security, the tenants alleged that the premises were not properly secure in relation to both the front door and the front gate which gave access to the common property. Ms McCann gave evidence that the landlords fitted an additional lock to the front door but could not reasonably be expected to take further steps to ensure that other residents kept the front gate locked.
(c)In relation to Foxtel, the tenants gave evidence that when they inspected the premises prior to making an application for tenancy, the agent identified an outlet in the unit as being a Foxtel connection and indicated that Foxtel would be immediately available for connection. The tenants gave further evidence that the ability to connect to Foxtel was material to their decision to enter into the tenancy agreement. The tenants had a contract with Foxtel and understood that they could transfer the contract between premises. However, they were required by that contract to continue to pay for the Foxtel service even if it was not available. The tenants gave undisputed evidence that Foxtel was never available in the premises. Email correspondence between the tenants and the agent was in evidence before the Tribunal. It appears from this correspondence that Foxtel was not available to the building, that a request was made to the body corporate in relation to the installation of Foxtel and, when it became evident that the body corporate would not agree to the installation of Foxtel, the agent recommended alternate arrangements to the tenants.
The respondents filed a written response and Ms McCann made an oral response, both of which are summarised below:
(a)Not every day had been hot, cross ventilation could have been achieved by opening windows and the tenants could have used a fan. The air-conditioning was being repaired under warranty and the agent had acted promptly to inform the landlords of the need for repair of the air-conditioning. The respondents submitted that the tenants should have initiated action to rectify the problem of the fish dying and ought to have controlled the temperature of the water in the tank once they noted the fish were dying.
(b)The respondents’ written submission states that ‘the agent in question (Lyndsay Sheldrick ) was an experienced property manager would not have confirmed the Foxtel was connected, it should be noted that the tenants English is poor and the tenants may have asked about an aerial, which is connected’. The Tribunal notes that this experienced agent was not called to give evidence in relation to the conversation between the tenants and the agent prior to the tenancy commencing. The Tribunal further notes that despite these submissions, in email correspondence the agent asserted that Foxtel was already connected to the building. There is no evidence to establish that this was the case and the email correspondence presented appears to have been edited.
(c)The landlords had taken appropriate steps to improve the security of the premises.
The relevant law
The standard residential terms as set out in Schedule 1 to the Residential Tenancies Act 1997 (RTA) provides at clause 55 that the lessor must maintain the premises in a reasonable state of repair having regard to its condition at the commencement of the tenancy agreement. The lessor must make repairs, other than urgent repairs, within four weeks of being notified of the need for the repairs. The evidence before the Tribunal was that in November 2012 the tenants telephoned the agent to complain that the air-conditioning was not working and that this complaint was followed up by email of 10 December 2012. The landlords failed to repair the air-conditioning until March 2013. The Tribunal notes the extreme heat that was experienced in Canberra in December 2012 to January 2013, and the evidence of the tenants as to the lack of comfort and modified use of the premises caused by the non-operation of the air-conditioning.
The Tribunal is satisfied, on the balance of probabilities that the agent of the lessors made a representation to the tenants that access to Foxtel was available via the outlet seen in the premises. The Tribunal is satisfied that this representation was relied upon by the tenants in deciding to enter into the tenancy. The evidence before the Tribunal establishes that Foxtel was not available as represented.
ACAT has exclusive jurisdiction to deal with disputes relating to residential tenancies. Section 83 (d) of the RTA grants to ACAT the power to make an order requiring the payment of compensation for loss caused by the breach of a residential tenancy agreement.
As a direct result of the misrepresentation with regard to the availability of Foxtel the applicants have had to pay seven monthly fees at the rate of $122. ACAT accepts the submissions of the respondents that upon it becoming obvious that Foxtel would not be available, the tenants were in a position to make arrangements to acquire access to Foxtel by a different method. This would accord with the duty to mitigate imposed by the RTA. ACAT notes that the lessors’ agent asserted in its communication with the tenants that Foxtel either was available or would be made available soon. ACAT has determined that an appropriate amount of compensation is $610, being the equivalent of five month subscription to Foxtel.
The Tribunal is not satisfied on the balance of probabilities that the heat in the apartment directly contributed to the death of the fish. However, ACAT is satisfied that the failure by the landlords to repair the air-conditioning system is a breach of the landlords’ obligation pursuant to clause 55 and 57 of the residential tenancy agreement. ACAT has determined that an appropriate amount of compensation is an amount of $3048, being a refund of 65% of the rent paid during the hottest months of December 2012 and January and February 2013.
The Tribunal is not satisfied on the evidence before it that the landlords failed to provide the premises in a reasonably secure state; the conduct of other residents is not within the control of the landlords.
Pursuant to section 48 (2) (a) of the ACT Civil and Administrative Tribunal
Act 2008, the Tribunal orders the respondents to pay the applicants the filing fee of $130.The Tribunal, therefore, orders the respondents to pay a total sum of $3788 to the applicants. The payment must be made within 21 days of the date of the order.
………………………………..
Ms J. Lennard
Senior Member
PUBLICATION DETAILS
FILE NUMBER: | RT 13/664 |
PARTIES, APPLICANT: | Emily Broso |
PARTIES, RESPONDENT: | Rodney and Candice Tarlington |
TRIBUNAL MEMBERS: | Ms J. Lennard |
DATES OF HEARING: | 10 October 2013 |
PLACE OF HEARING: | ACAT, Canberra |
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