Fakhruzzaman & Anor v Islam (Residential Tenancies)
[2020] ACAT 88
•3 November 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FAKHRUZZAMAN & ANOR v ISLAM (Residential Tenancies) [2020] ACAT 88
RT 133/2020
Catchwords: RESIDENTIAL TENANCIES – rainwater leaking from roof through the walls of the building – building required extensive remedial works – whether the tenants are entitled to compensation for the inconvenience and lack of amenity caused by the leaks – whether the lessor took all steps necessary to require the owners corporation to make the repairs as quickly as possible – compensation awarded
Legislation cited: Residential Tenancies Act 1997 standard terms 55, 56, 57, 58, 59, 60
Tribunal: Senior Member D Mulligan
Date of Orders: 3 November 2020
Date of Reasons for Decision: 3 November 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 133/2020
BETWEEN:
ABDUL BASHAR MOHAMMED FAKHRUZZAMAN
First Applicant
TANJIA RAHMAN
Second Applicant
AND:
TOUFIQUE ISLAM
Respondent
TRIBUNAL: Senior Member D Mulligan
DATE:3 November 2020
ORDER
The Tribunal orders that:
1.The Tribunal orders that the respondent is to pay the applicants the sum of $4,796.50 within one calendar month of the date of this decision.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
1.The applicants in this matter, Mr Abdul Fakhruzzaman and his wife Mrs Tanji Rahman, are originally from Bangladesh.
2.They moved to the ACT in early 2019, so that Mr Fakhruzzaman could undertake PhD studies at the Australian National University. Mr Fakhruzzaman started his studies in the first week of March 2020 and it was anticipated he would complete them three years later.
3.The respondent, Mr Toufique Islam, owns a property located at 80/1 Windjana Street, Harrison ACT, 2914 (the property).
4.The property is a two-storey unit within a small development of properties. There are two stories of units above the property and one storey below the property.
5.The properties that made up 1 Windjana Street, Harrison, were all members of a unit complex under the Unit Titles Act 2001.
6.On 19 March 2019, the parties signed an ACT Law Society standard form tenancy agreement under which the applicants agreed to lease the property from the respondent from 20 March 2019.
7.The agreement allowed for a 12-month fixed term tenancy which was to be followed thereafter by a month-to-month tenancy.
8.The fixed term contract expired on 17 March 2020.
9.The applicants agreed to pay rent on the property at the rate of $450 per week. They also paid a bond of $1,800 which was deposited with the rental bond authority.
10.The applicants knew they were to be in Australia for a relatively short finite period of three years and had hoped to remain in the property throughout the course of Mr Fakhruzzaman’s PhD studies.
11.The applicants moved into the property in late March 2019, with their six-year-old daughter.
12.The applicants had no problems with the property until 11 August 2019, when an area in the living and dining rooms of the apartment started to flood with water.
13.The layout of the property is as set out in this diagram.[1] The master bedroom and ensuite bathroom were on the upper floor and the remaining rooms, including the living room and the bathroom were on the lower floor. The leak was in the corner of the living room opposite the right-hand sofa, where the two small dots are depicted:
[1] Exhibit R3 – Ref# 38
14.The leak was not coming in from the balcony window, but from the partition wall directly behind the two small dots in the diagram.
15.It transpires that the leak was coming from the roof of the block of units and rainwater was running from the location of the leak, through the walls, down to the property.
16.According to the respondent, the leak that caused the flooding affected another four apartments in the block, in addition to the property.[2]
[2] Exhibit R3, Page 2
17.The leak flooded the open plan living and dining room areas, both of which were covered by a common carpet.
18.Clearly these two rooms are very important components of any residence and an inability to use them for a protracted period in a secure dry condition would be a significant detriment and hardship.
19.Photographs taken by the applicants show that at times the carpets were sodden with water and that it would not have been practical to use the area for their intended purposes.
20.According to the applicants, after 11 August 2019, the living room and dining area continued to flood when it rained. According to them it took up to two weeks for the carpet in those rooms to dry after each flooding event.
21.The respondent very helpfully provided Bureau of Meteorology data from 1 August 2019 through 29 February 2020, for the Canberra area.[3]
[3] Exhibit R3 – Ref# 36
22.Whilst the data captured by the Bureau of Meteorology may not exactly correlate with the location of the property, I am satisfied that generally speaking it provides a good indication of the number of occasions it rained during the relevant period and the approximate amount of rain that fell at the property during that period.
23.Rainfall occurred on 36 days during the period 8 August 2019 – 19 February 2020:
Month
Day of the month
Amount of rain in mm
millimetres millimetres
No# of rain days
August
8
3.2
1
9
6.6
2
10
3
3
11
1.6
4
15
0.2
5
19
2.4
6
27
0.8
7
September
2
0.2
8
7
3.8
9
17
32
10
22
3.8
11
24
0.2
12
October
5
4
13
9
11.2
14
17
4.8
15
26
7.6
16
November
4
12.4
17
5
0.2
18
December
2
0.6
19
3
0.6
20
January
1
0.2
21
7
0.4
22
11
0.2
23
16
1
24
17
4
25
20
4.4
26
21
2.6
27
24
3.2
28
February
7
0.8
29
8
1.8
30
9
3.4
31
10
60.4
32
12
0.2
33
14
2.6
34
16
6.8
35
19
4
36
24.According to the applicants’ timeline, they complained to the respondent about new leaks on 11 August 2019, 17 September 2019 (carpets still wet), 9 October 2019, 10 February 2020 (damage to furniture) and 19 February 2020. These dates correspond with periods of significant rain.
25.Whilst the timeline only suggests complaints were made by the applicants to the respondent on these dates, I suspect leaks occurred on other days as well, which were not recorded in the applicants’ timeline. In this context I note the applicants and their child were in Bangladesh between 3 November 2019 and 24 January 2020 and were unable to monitor the leaks during that period.
26.The respondent became aware of the initial leak on Sunday, 11 August 2019, when he was advised of that fact by Mr Fakhruzzaman.
27.Between 12 August 2019 to 16 August 2019, the respondent contacted a number of tradesmen to try and get assistance solving the leak problem. He could not find anyone who was available before 22 August 2019.
28.On 21 August 2019, the respondent spoke to a friend who is an engineer and discussed the problem. The friend suggested that the issue may be a structural one which the “strata” may be responsible for fixing.[4]
[4] Exhibit R3 – Timeline page 1
29.The respondent made efforts to contact the strata management company and have them isolate and fix the problem causing the leak.
30.According to the respondent, he and his wife communicated with the strata management company about investigating and repairing the cause of the leak on 26 August 2019, 11 September 2019, 23 September 2019, 25 September 2019, 26 September 2019, 30 September 2019, 4 October 2019, 9 October 2019, 10 October 2019, 14 October 2019, 15 October 2019, 18 October 2019, 24 October 2019, 29 October 2019, 4 November 2019, 5 November 2019, 10 February 2020, 11 February 2020, 14 February 2020, 15 February 2020 and 18 February 2020.
31.The respondent understood the significance of the problem to the applicants and it appears he tried hard to get movement from the strata management company on the issue. An illustration of this point can be found in the respondent’s email to the strata management company of 14 October 2019[5], which stated:
Hi Nick,
Can you please tell me when someone can start the work. My tenant is very upset with me due to the slow progress with this matter. I can not blame him either as he is living with this wet carpet problem for 2 months now.
Your urgent attention is highly appreciated.
[5] Exhibit A2 – A27
32.According to the respondent, he went to the property to inspect the leak and wet carpet on 6 September 2019, 16 January 2020 and 24 January 2020.
33.According to the respondent the strata management company sent tradespeople to the property to try and isolate the cause of the leak and repair it on 20 September 2019, 21 October 2019, 11 November 2019, 13 November 2019, 19 November 2019, 16 January 2020, 11 February 2020.
34.It should be noted that following of the attempted repair on 11 February 2020, no more leaks or flooding were noticed, although the applicants reported that it took about two weeks for the living room/dining room carpet to dry out after each flooding episode.
35.Whilst the applicants and the respondent were individually trying to deal with the ramifications of the water leak, the executive committee of the owners corporation were trying to resolve the problem, not only for the property, but also for the four other homes in the block affected by the leak.
36.By 9 October 2019, the respondent was advised that the problem was known to the executive committee and that they had instructed Saville to scope the extent of the problem. On 10 October 2019, the executive committee of the owners corporation agreed to appoint the John Lyngs Group to carry out the repair works.
37.On 11 February 2020, the strata manager explained to the respondent’s wife the full nature of the issues with the block in which the property was located. Though only four years old it required over a million dollars’ worth of remedial works, of which $200,000 was to be spent to repair the roof so as to stop the leaks which caused the flooding of the five affected properties in the block.
38.At about 9:17am on 21 February 2020, Mr Fakhruzzaman called the respondent and amongst other things gave verbal notice that he and his family wouldn’t be staying in the property beyond the expiration of the fixed term period of the lease, that is 17 March 2020.
39.Later that day, at about 12:04pm, the respondent sent an email to Mr Fakhruzzaman[6] in which he said “As per clause 83 of our tenancy agreement, this is a formal 1 (one) month notice to vacate the property.” The reason given for the termination was “The property needs to go through urgent major repairs which is beyond the control of mine (the owner) and is in the strata’s hand. There is no fixed time frame, how long it will take to repair this issue as this is going on for last few months.”
[6] Exhibit A2 – A37
40.Later again on 21 February 2020, Mr Fakhruzzaman sent the respondent an email[7] in which he said:
In the meantime, I have started looking for a new rental propert, as the agreement between you and us will expire on 20 March 2020. I have given you enough time according to your request that you would fix all the problems. However, you couldn’t solve the problems that started in August 2019. That means I have paid you for 7 months (August 2019 – February 2020) AUD 1929/month which comes AUD 13,503 without getting your promised services. (emphasis in original)
[7] Exhibit A2 – A41
41.I take from this exchange that, firstly, the applicants gave notice that they would not stay in the property beyond the expiration of the fixed term of the rental agreement, which according to the lease agreement was scheduled to expire on 17 March 2020 (not 20 March 2020 as stated by Mr Fakhruzzaman) and the respondent then gave all the applicants one month’s notice to vacate the property, that is by 20 March 2020 (which coincided with date Mr Fakhruzzaman specified he wanted to vacate the property in his email of 21 February 2020).
42.In summary, according to the communications exchanged by the applicants and the respondent on 21 February 2020, both the applicants and the respondent wanted the tenancy to terminate on 20 March 2020.
43.In any event, after further negotiation and discussion, the applicants moved out of the property on 7 April 2020.
44.Both parties were involved in a problem that was not of their own making and for which the solution was not in their hands.
45.It appears to me that the evidence establishes that the applicants had to live with a severe issue, for a prolonged period, that affected their ability to enjoy the property they were renting.
46.From the applicants’ view point the problem was straightforward. The property they were renting was flooding on a regular basis. It caused the carpet in the living/dining room to be wet for prolonged periods, it smelt and was unpleasant. From the perspective of the applicants, the leak needed to be fixed immediately, so they could enjoy the property they were paying for.
47.From the respondent’s position he accepts that the leaks needed to be fixed. He had tried repeatedly to follow-up with those who could order the repairs to be carried out, but he was in the hands of the executive committee as to how and when the repairs would be undertaken.
48.It transpired after a thorough investigation that the building had significant issues of which the flooding to the five units was but one. The remedial work would be expensive and relatively complex.
49.I found the applicants and the respondent to be decent, reasonable, well-intentioned people who were being tested by the circumstances created by the leaks. The flooding had been going on for months and there was no clear timeline as to when the issues would be resolved.
The applicants’ claim
50.The applicants commenced proceedings in ACAT on 29 February 2020 and sought the following orders against the respondent:
1. To kindly declare the lessor’s notice of vacating the property illegal and undue until I find a suitable property.
2. To kindly direct and to pay compensation for the health hazards and damaged furniture amounting to $14,305.
3. According to the 79 (3) of the Rental Agreement: to kindly pass order as per my convenient time for lessor to inspect the property in presence of the third party directed by the learned court.
51.In paragraph 6 of “summary of disputes” document which was annexed to the application, the applicants explained how they calculated the claim for compensation of $14,305. They sought:
(a)All of the rent they had paid the applicant between August 2019 and February 2020. This amounted to $13,503 (7× $1929/month)
(b)An additional $1,000 relating to damage caused by flooding to the applicants’ dining table and rugs. It should be noted that during the hearing the applicants abandoned this claim except insofar as it related to the dining room table continued to claim $530.[8]
(c)Whilst not clearly articulated in the application, it became apparent the applications also wanted compensation for circumstances relating to the health of their family, which they said was made worse by the ongoing flooding to the premises:
(i) They seek recognition for the asthma Mrs Rahman began to suffer on 11 February 2020.
(ii) They seek recognition for the fact that on 4 September 2019[9], they had to bring their sick six-year-old daughter home from hospital to a damp and smelling house.
The law
[8] Exhibit A2 – A75 (two items combined ($310 + 210))
[9] Exhibit A2 – A69
52.I do not intend to address the first and third orders sought by the applicants, in their application. It seems to me they gave notice to the applicant that they would be leaving the property at the end of the fixed term lease which they mistakenly believed was 20 March 2020. The respondent also sent a notice to the applicants that they were required to leave the property on 20 March 2020.
53.In any event, the parties adopted a pragmatic and reasonable approach which allowed the applicants to leave the property on 7 April 2020, by which time they had found alternative accommodation.
54.Likewise, the applicants have left the property and there is no utility in the tribunal now addressing how the end of lease property inspection was to be performed.
55.The fundamental issue for me to determine is whether or not the applicants are entitled to compensation for the inconvenience and lack of amenity caused by the leaks and flooding and if so, the quantum of the compensation.
56.The starting point for a consideration of the issue is the standard residential terms which apply to all ACT tenancies and which are found in the first schedule of the Residential Tenancies Act 1997 (the Act). Clauses 55 - 60 apply to the current situation and in part provide:
Lessor to make repairs
55 (1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
Repairs in unit title premises
58 If the premises are a unit under the Unit Titles Act 2001, and the tenant’s use and enjoyment of the premises reasonably requires repairs to the common property, the lessor must take all steps necessary to require the owners corporation to make the repairs as quickly as possible.
Urgent repairs
59 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.
60 The following are urgent repairs in relation to the premises, or services or fixtures supplied by the lessor:
…
(f) flooding or serious flood damage;
57.Clause 55 of the standard residential terms provides that the respondent must maintain the property in a reasonable state of repair having regard to its condition at the commencement of the tenancy agreement.
58.Clause 57 of the standard residential terms requires him to make repairs to the property within four weeks of being notified of the need for a repair, by the tenant, unless, pursuant to sections 59 and 60 of the Act, the repair is classified as an urgent repair, in which case the respondent must carry out the repairs as soon as necessary, having regard to the nature of the problem.
59.Clause 60 (c) of the standard residential terms makes a serious roof leak an urgent repair and clause 60(f) makes ‘flooding’ an urgent repair that the respondent was required to have fixed “as soon as necessary, having regard to the nature of the problem”.
60.It should be noted that pursuant to clause 56 of the standard residential terms, the respondent would not be obliged to repair any damage caused by the applicants if that damage arose by way of negligence or wilful act. There is no suggestion that the applicants were in any way responsible for the leaks and flooding that occurred in the property.
61.Finally, it should be noted that as the premises were a unit under the Unit Titles Act 2001, clause 58 of the standard residential terms required the respondent to take all steps necessary to require the owners corporation to make the repairs as quickly as possible.
62.From a reading of clauses 55, 56, 57, 58, 59 and 60 it seems clear that once the applicants informed the respondent of the fact of the roof leaks and flooding, it was incumbent on the respondent to either fix the issue as an urgent repair, if it was something he could fix, or to take all steps necessary, to have the owners corporation make the repairs as quickly as possible.
63.Notwithstanding the fact that the general state of the block in which the property was located was poor and required approximately $1 million worth of remediation, including approximately $200,000 worth of works to fix the leaks to the five affected properties within the block, I am not satisfied that either the timeline for completing the works was reasonable or that the respondent took all steps to have the owners corporation make the repairs as quickly as possible.
64.I note, for example, that the applicants complained to the respondent of the first leak on 11 August 2019. The respondent did not contact the strata manager until 26 August 2019, more than a fortnight after the leaks and six days after his friend suggested the leaks may be an issue for “strata”.
65.Similarly, whilst there is evidence of the respondent contacting the strata management company on a number of occasions between 26 August and 18 February 2020, there is no evidence the respondent ever directly raised the issue of the faulty roof and consequent flooding with the owners corporation.
66.The respondent only became aware on 9 October 2019, that the leaking/flooding problem was known to the executive committee. This was almost two months after the first incident of the flooding occurred and appears to have been advised of this fact by the strata management company.
67.The respondent seemed to take the view that complaining to the strata management company about the issue was sufficient. In my view it was not. He should have spoken to and written to the owners corporation and appealed to them directly to have the matter investigated and resolved as soon as possible.
68.For those reasons I am not satisfied the respondent met his obligations under clause 58 of the standard residential terms to “ take all steps necessary to require the owners corporation to make the repairs as quickly as possible”.
69.In my view the applicants are entitled to compensation for the inconvenience, loss of amenity, disruption to their lives and the loss of quiet enjoyment of the property they were renting.
70.In the application filed by the applicants they sought the refund of all rent paid between August 2019 and February 2020.
71.During the course of the hearing, they changed their position and sought a 50 percent reduction in rent for the months of August, September and October 2019, as well as a fifty percent reduction in rent for the month of February 2020. This new position reflected the fact that the applicants’ family was in Pakistan between November 2019 and January 2020.
72.In his submission, the respondent suggested that an appropriate reduction in rent for the period nominated by the applicants was 30 percent.
73.In my view compensation is due to the applicants for the entire period between in 11 August 2019 and the end of February 2020.
74.It appears to me that the applicants would have to contend with the fact of the flooding whilst they were in the property but that they would also be justifiably concerned that flooding could have occurred (and probably did), whilst they were away in Pakistan and that their possessions may have been at risk of damage.
75.This is a period (11 August 2019 – 29 February 2020) of 28 weeks and six days, which I round-up to 29 weeks, and which equates to $13,050 ($450 x 29).
76.In my opinion a 35 percent reduction in rent for this period would be reasonable. This equates to a rent reduction of $4,437. I would have all allowed a greater rent reduction had the applicants been resident in the property between November and January and had the respondent been less proactive in approaching the strata manager and trying to get repair works completed.
77.The applicants also seek compensation for damage caused by flooding to their sofa. They seek $530 in this regard for a replacement sofa. The sofa that was damaged was not new and was of an indeterminate age. In my view it would be appropriate to award them $200 for the damage done to it by the flooding.
78.The applicants are also entitled to the refund of their ACAT filing fee which was $159.50.
79.In summary I order the respondent to pay the applicants the sum of $4,796.50 which is made up of:
1.$4,437 by way of rent reduction for the period 11 August 2019 to 29 February 2020,
2.$200 in compensation for the damage done to the applicants’ sofa; and,
3.$159.50 by way of refunded ACAT application fee.
80.The respondent is to pay the sum of $4,796.50 the applicants within one calendar month of the date of this decision.
81.The respondent may care to consider approaching his insurer and the owners corporation with a view to defraying the sum awarded to the applicants.
………………………………..
Senior Member D Mulligan
HEARING DETAILS
FILE NUMBER:
RT 133/2020
PARTIES, APPLICANT:
Abul Bashar Mohammed Fakhruzzaman & Tanjia Rahman
PARTIES, RESPONDENT:
Toufique Islam
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member D Mulligan
DATES OF HEARING:
30 June 2020
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