COOK v REZO & ANOR (Residential Tenancies)
[2020] ACAT 5
•20 January 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COOK v REZO & ANOR (Residential Tenancies) [2020] ACAT 5
RT 321/2019
RT 118/2019
Catchwords: RESIDENTIAL TENANCIES – lessor’s duty to repair – seven sewerage overflows into the house – not enough for the lessor to take some action, must fix the problem – compensation awarded to the tenant for inconvenience, smell and cleaning up after overflows
Legislation cited: Residential Tenancies Act 1997 standard terms 52, 54, 55, 57, 59, 60
Cases cited: Faulder v Tran [2018] ACAT 80
List of
texts/papers cited: Allan Anforth, Peter Christensen and Christopher Adkins Residential Law and Practice in NSW (Federation Press, 7th ed, 2017)
Tribunal: Senior Member A Anforth
Date of Orders: 20 January 2020
Date of Reasons for Decision: 20 January 2020AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 118/2019
RT 321/2019
BETWEEN:
IAN COOK
Applicant
AND:
JURE REZO
First Respondent
MIRA REZO
Second Respondent
TRIBUNAL: Senior Member A Anforth
DATE: 20 January 2020
ORDER
The Tribunal orders that:
1. The respondents are to pay the applicant the sum of $6,000 on or before 28 February 2020, in full and final settlement of all claims by both parties.
2. ACT Rental Bonds is directed to release the whole of the bond to the applicant.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
1. The applicant was the tenant of a premises owned by the respondents. The parties entered a residential tenancy agreement on 14 August 2015 for a fixed term of 12 months at a rent of $380 per week and a bond of $1,520. The applicant vacated the premises on 27 October 2018.
2. The respondent lodged a claim on the applicant’s bond for rent arrears and water (RT 118/2019). The applicant lodged an application seeking compensation and a return of the bond. The particulars of the claim nominated the damages at $8,000 (RT 321/2019). Both matters were heard together.
3. The applicant annexed a statement. The applicant said that there were “regular occurrences” of the sewerage overflowing into the house via the bathroom floor waste, laundry floor waste, and toilet. It seeped into the carpets in the hall and on two occasions covered the vinyl floor in the family room. The applicant cleaned up the mess on each occasion and had to throw away bathmats and towels used for that purpose. The house permanently stunk. The applicant was forced to have access visits from his eight year old son at his grandmother’s house.
4. The parties attended an unsuccessful conciliation on 28 August 2019 and procedural orders were made for the filing of an amended application, a response, and evidence relied upon.
5. On 17 October 2019 Independent Property Management (IPM) filed a response. In that response, the respondents:
(a) said “we do not dispute the fact that plumbers had attended the property approximately every 6 months to clear the pipes out….”;
(b) alleged that the application was in retaliation for action taken by the lessor in respect of the bond;
(c) said details of the applicant’s alleged losses and out of pocket costs had not been provided; and
(d) denied there had been any requests from the applicant to clean the premises following any overflow.
6. The response annexed:
(a) an undated statement from Ms Mira Rezo which said she attended the property on an unspecified date in response to a complaint of a blocked toilet. She knocked and no one answered, then he accessed the house with a key. The toilet had overflowed because it had a nappy in it. Ms Rezo removed the nappy;
(b) an undated statement from Mr Tony Rezo which was not relevant to the sewer issue;
(c) invoices from PSI Plumbing for attendances at the house on 13 October 2017; 1 October 2018; 7 November 2018. The invoices reported the problem as being tree roots and a leaking toilet; and
(d) in the report of 13 October 2017, the plumber recommended “investigate further with CCTV Camera and locator.”
7. The matter was listed for hearing on 18 October 2019. Mr Cook appeared in person and Mr Protas, real estate agent, appeared for the respondent. Mr Cook’s ex-partner, Belinda and her mother, Helen, were present.
8. The respondents tendered invoices and reports from Duncan’s Plumbing for work on the sewer on 14 January 2016, 14 June 2016, 8 November 2016 and 15 June 2017. Each invoice reported that an unknown cause of the blockage was cleared. In the invoice of 8 November 2016, the plumber further wrote:
Dear Aamy, we highly recommend returning to the site to conduct a CCTV inspection of the sewer drainage, as this is our third visit in 12 months for a sewer blockage…
9. The parties agreed that the respondents’ claim for rent arrears and outstanding water at $1,974.00.
10. The applicant raised three new claims; one for the lessor to enter the yard to water the garden without permission; one for the lessor having entered and pruned a tree in the back yard without permission; and one for the damage the lessor caused to the clothesline. After some discussion the applicant withdrew these claims.
11. Mr Protas said he had not personally visited the premises. He was relying on the files in his office. The agents who had carriage of the tenancy were no longer employed by IPM.
12. The applicant estimated that the overflows had occurred seven times. The invoices provided by Mr Protas showed eight visits from plumbers in response to call outs. The applicant said that the overflow in the house occurred on each of these occasions and he was required to clean up the mess. It seems that most of the cleaning was done by Helen. The applicant said that he had problems contacting the agent and so on most occasions he rang the plumbers directly.
13. Belinda and Helen gave evidence of being personally present during these overflows. Helen put it at seven occasions. Belinda was concerned about her son living in what she saw as unhygienic conditions. Helen recounted one occasion in which the water was over her foot in the family room. She rang the agent and asked them to attend. The agent declined and said a plumber would be sent.
14. The evidence of the applicant, Belinda and Helen was consistent. The overflows occurred in the bathroom, toilet, and laundry but spread further. The carpets in the hall were affected and stank. The overflow soaked through the walls into the kitchen and family room, but it seems the wall absorbed the faecal matter so that water in the kitchen and family room was relatively clear albeit smelly. The stench in the house was permanently present, even after the tenant’s cleaning. At no time did the plumbers or the agent arrange to carry out any cleaning or carpet replacement.
15. The Tribunal was shown photos taken on one occasion of the overflow.
16. The property has been re-tenanted and there has been one incident of sewerage blockage since.
17. The Tribunal noted that the applicant had not filed witness statements from Belinda or Helen and that his evidence went beyond his statement. Mr Protas was offered an adjournment if he felt was there was relevant evidence he wished to present in rebuttal of the evidence from the applicant and his witnesses. Mr Protas declined the adjournment.
18. Mr Protas said that the respondent was available on the phone. He was asked what the evidence would be from Mr Rezo other than that in his statement and whether it was relevant to the issue of the fact of the overflows and contradictory to the evidence given by the applicant and his witnesses. Mr Protas said it was not. The Tribunal determined that there was little point in taking this evidence.
19. The Tribunal informed the parties that if no adjournment was sought, then on the evidence it had no reason to reject the firsthand evidence of the applicant, Belinda, and Helen which was consistent with the respondent’s own plumbing records.
20. The Tribunal explained the relevant law, namely:
(a) The lessor must ensure that the premises are in a reasonable state of repair at the start of the tenancy (standard term 54) and must maintain the premises in a reasonable state of repair during the tenancy (standard term 55).
(b) Once a need for repair arises the tenant must notify the lessor who must make the repairs within four weeks for non-urgent repairs (standard term 57), and as soon as practicable for urgent repairs (standard term 59). Blocked, broken and overflowing sewers are defined to be an urgent repair (standard term 60).
(c) Once the lessor is on notice, the lessor’s duty is to carry out the repairs, which is a duty that goes beyond merely taking some form of action. The lessor has a duty to fix the problem so that it does not recur and this is not a duty the lessor can delegate to retained tradesmen.
(d) If the lessor fails to take adequate remedial action on the first occasion and the problems recurs, then the lessor is in breach of its duty under standard term 55.
(e) The failure to properly repair may give rise to secondary breaches on the lessor’s part, including a loss of facilities or a breach of the tenant’s quiet enjoyment (standard term 52). In extreme cases it might render the premises uninhabitable.
21. These principles were discussed in Faulder v Tran [2018] ACAT 80. See also Anforth, Allan, Peter Christensen and Christopher Adkins Residential Law and Practice in NSW (Federation Press, 7th ed, 2017).
22. The Tribunal noted that each of the times a plumber attended they reported tree roots as the problem. There was no refence to other causes of blockages. On two occasions the plumbers recommended CCTV exploration which did not occur. It seems the respondent was content with a reactive mode of response to the problem.
23. The Tribunal put to the respondent that blockage by tree roots is a common problem and there are known solutions. It was difficult to understand why the respondent would not have move to a permanent solution after the first overflow. Mr Protas conceded only that the respondent should have had plumbers attend more often in anticipation of further blockages.
24. The Tribunal informed the parties of its finding that the respondent was in breach of its duty to repair in respect of each incident after the first one. The nature of comparative verdicts was explained, and the Tribunal read a list of comparative verdicts for similar breaches with similar effects for the tenants, from Anforth, Allan, Peter Christensen and Christopher Adkins Residential Law and Practice in NSW (Federation Press, 7th ed, 2017) at [2.187.7]. The Tribunal noted the immediate unpleasant experience of sewerage in the house on so many occasions, the permanent stench and odious task of cleaning by the tenant on each occasion. The Tribunal settled on a figure of $8,000.
25. The applicant sought further compensation for the inconvenience to his son, the disturbance of the access periods with his son and time he took off work. The Tribunal declined to increase the compensation for these factors on remoteness grounds.
26. The parties were told that this sum of $8,000 was rounded and from this had to be offset against the rent and water arrears in the rounded sum of $2,000. This left a net amount owing of $6,000 from the respondent to the applicant. Because the respondent’s claim had been addressed and compensated in the award of $2,000 there was no outstanding claim on the bond such that the bond was to be returned to the applicant.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
RT 118/2019
RT 321/2019
PARTIES, APPLICANT:
Ian Cook
PARTIES, RESPONDENTS:
Mira Rezo
Jure Rezo
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
18 October 2019
0