Fiege & Ors v Wilkinson; Wilkinson v Holbrook & Ors (Residential Tenancies)
[2023] ACAT 11
•27 February 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FIEGE & ORS v WILKINSON; WILKINSON v HOLBROOK & ORS (Residential Tenancies) [2023] ACAT 11
RT 586/2022
RT 621/2022
Catchwords: RESIDENTIAL TENANCIES – uninhabitable premises – termination of lease – whether notice to remedy served on the lessor – obligation to notify and obligation to repair – scope of lessor obligation to keep premises in a reasonable state of repair – consideration of what is reasonable state of repair.
Legislation cited: Residential Tenancies Act 1997 s 34F, Schedule 1
Cases cited:Bannister v Cheung [2014] NSWCATCD 105
Cope & McEachern v Walker & Walker [2018] ACAT 65
Finn v Finato [2004] NSWCTTT 179
Mathew & Anor v Barranco [2016] ACAT 102
Moore v Tidy (1992) 166 L.S.R.S. 402
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Weeks v Bond [1997] QCA 349
Tribunal:Senior Member K Katavic
Date of Orders: 27 February 2023
Date of Reasons for Decision: 27 February 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 586/2022
BETWEEN:
JACOB SAMUEL FIEGE
First Applicant
AND:
ABBIE LOUISE HOLBROOK
Second Applicant
AND:
DOMINICA GARRAWAY LINDSAY
Third Applicant
AND:
PHOEBE IRIS TULK
Fourth Applicant
AND:
THOMAS WILLIAM WILKINSON
Respondent
RT 621/2022
BETWEEN:
THOMAS WILLIAM WILKINSON
Applicant
AND:
ABBIE HOLBROOK
First Respondent
AND:
BRIDGET FITZPATRICK
Second Respondent
AND:
DOMINICA LINDSAY
Third Respondent
AND:
ACT RENTAL BONDS
Party Joined
TRIBUNAL:Senior Member K Katavic
DATE:27 February 2023
ORDER
In RT586/2022, the Tribunal orders that:
The respondent must pay to the applicants the sum of $3,462.80.
The respondent’s counter claim is dismissed.
In RT621/2022, the Tribunal orders that:
Abbie Holbrook, Dominica Lindsay, Phoebe Tulk and Jacob Fiege are entitled to the whole of the bond numbered 1038269.
ACT Rental Bonds on behalf of the Territory is directed to pay the whole of rental bond as follows:
(a)$560 to Abbie Holbrook.
(b)$560 to Dominica Lindsay.
(c)$560 to Phoebe Tulk.
(d)$560 to Jacob Fiege.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
This dispute involves the occurrence of mould in a house in Lyneham in the ACT which was the subject of a residential tenancy agreement (the Premises). It is fair to say the house is well-loved and far from new.
The composition of tenants and the occupation of the Premises has evolved over time with various tenants coming and going and multiple tenancy agreements being signed. The residential tenancy agreement dated 22 November 2021 covers this dispute, however the mould issue pre-dated that tenancy agreement and not all the tenants that are parties to this dispute were living in the Premises at the time the mould issue first arose.
The parties regarded the Premises as being uninhabitable from 16 May 2022. Competing notices to vacate were issued by the parties on this ground. Ultimately, the tenancy agreement ended on 1 June 2022 when the tenants vacated the property.
The tenants seek compensation from the lessor in relation to the mould on the basis he breached his obligation to maintain the property in a reasonable state of repair. Against that, the lessor claims compensation from the tenants on the basis they failed to notify him of the need for repairs as required and the presence of mould being attributable to their negligence for which he incurred remediation costs. The lessor also claims compensation for non-mould related damage.
Both sides seek the respective refund of the bond. That part of the dispute is complicated given the manner in which the various tenancy agreements were entered into over time and who has a registered interest in the bond that is held by ACT Rental Bonds.
The applicants’ claim
The applicants seek the following orders:
(a)a declaration that the lessor breached his obligation to maintain the Premises in a reasonable state of repair under clause 55(1) of the standard residential tenancy terms (the Standard Terms) in schedule 1 to the Residential Tenancies Act 1997 (the RTA);
(b)an order that the lessor pay the applicants $3,462.80 by way of compensation for various items;[1]
(c)an order directing the release of the whole of the bond to the applicants; and
(d)an order that the lessor pay to the applicants $165 being the tribunal filing fee.
[1] See Paragraph 1c of Annexure A to the Application for Resolution of a Dispute under the Residential Tenancies Act 1997 dated 8 August 2022.
The Tribunal had before it the following documents relied upon by the applicants:
(a)Application for Resolution of a Dispute under the Residential Tenancies Act 1997 dated 8 August 2022 including annexures A-X;[2]
(b)Inspection Report by The Mould Group dated 4 June 2021;[3]
(c)Witness Statement of Abbie Holbrook dated 26 September 2022;[4]
(d)Witness Statement of Dominica Lindsay dated 26 September 2022;[5]
(e)Witness Statement of Phoebe Tulk dated 26 September 2022.[6]
[2] Exhibit A1 (note some annexures were all annexed to witness statements)
[3] Exhibit A2
[4] Exhibit A4
[5] Exhibit A3
[6] Exhibit A5
The Tribunal had before it a Response and counter claim dated 7 October 2022 including annexures A‑V[7] which was relied upon by the lessor.
The tenancy history
[7] Exhibit R1
The second applicant, Abbie Holbrook moved into the Premises on or about 7 November 2019 pursuant to a residential tenancy agreement dated 7 November 2019 (the First Tenancy). She did so with two other tenants, Cara Dohnalek and Verdi Barberis. Ms Holbrook has lived in the Premises the longest.
On 7 November 2020, a new residential tenancy agreement was entered into (the Second Tenancy). The parties to this agreement with the lessor were Ms Holbrook, Ms Dohnalek and the third applicant, Dominica Lindsay. Ms Barberis from the First Tenancy had left the Premises and was no longer a tenant.
On or about 31 July 2021, Bridget Fitzpatrick came to reside in the Premises upon the departure of Ms Dohnalek. A new tenancy agreement was not signed.
On 22 November 2021, a new residential tenancy agreement was entered into (the Third Tenancy). The parties to this agreement with the lessor were Ms Holbrook, Ms Lindsay, Ms Fitzpatrick and the first applicant, Jacob Fiege. Ms Holbrook and Jacob occupied the first bedroom, Ms Lindsay occupied the second bedroom and Ms Fitzpatrick the third.
On or about 1 March 2022, the fourth applicant, Phoebe Tulk came to reside in the Premises upon the departure of Ms Fitzpatrick. A new tenancy agreement was not signed.
Each of the tenancy agreements were for a fixed one year term. There is no dispute that each of the people mentioned above were tenants at the relevant times for those respective periods.
Ms Holbrook, Ms Lindsay, Mr Fiege, and Ms Tulk were the only tenants at the time the tenancy came to an end. Their claim is made against the terms of the Third Tenancy.
The mould
The Premises has a history of reported mould issues. There is no incoming condition report for the Third Tenancy. The only available incoming condition report relates to the First Tenancy.
The Tribunal had before it an Inspection Report dated 4 June 2021 prepared by The Mould Group (the First Mould Report).[8] This inspection and report pre‑dated the Third Tenancy. It was commissioned by the lessor following reports of mould in the Premises by the then tenants under the Second Tenancy. It contained the following summary:
Main bedroom window sash requires replacement so window can be opened. This is important for ventilation of the property. Mould was noted in most rooms on the external walls. Windows in all bedrooms and bathroom have heavy condensation. The has cause mould to colonise on and around the window area. Inspection of the external area showed water is sitting in gutters, which has cause moisture to enter the roof space. This has cause extensive mould under the soffit. This will also increase internal moisture and will be adding to the moisture in the bedrooms. Regular clearing of gutters and down pipes is required to ensure water is able to get away and prevent build-up of moisture and deterioration of gutters and facia. Hydronic heating is installed throughout the property. It appears to not be operational. I recommend this to be looked at to see it can be rectified. Even heating throughout the property in the cooler months will reduce the issues currently present within the property.
Recommended dehumidifiers be installed within the property (bedrooms) to reduce the effects of excessive moisture. These can be purchased from outlets such as the Good Guys.
Bathroom has mould due to the age of the paint. The has deteriorated the area just outside the shower area. Remediation of the room is required and recommend repainting of the room in the near future to seal the surfaces. Painting should be completed in warmer months between tenants. Kitchen exhaust fans is old and not efficient. This is increasing the fats within the kitchen area. Replacement of fan is required.
Recommended work:
Remediation of soffit around the property to minimize the ingress of moulds from this area into the internal of the property.
Remediation of visual mould from the bathroom and bedroom walls and ceilings, including all windows and frames.
Air and surface treatment of internal environment to eliminate airborne spores, bacteria and
Air particle testing and reporting post all treatment to ensure the property has safe internal air quality. Report is compiled by IAQ Analytics.
[8] Exhibit A2
A Final Report dated 6 July 2021 was prepared by The Mould Group (the Second Mould Report)[9]. It contained the following summary:
Bathroom had extensive visual mould and this has been eliminated from the environment. Repainting of the room in the warmer months is needed to seal the surfaces and minimise the chance of moisture on the windows. Windows and affected wall areas have been remediated and excessive moisture removed from the environment. Windows need to be wiped daily in cooler months to minimise the water and this is reduce the moisture within the environment. Dehumidifiers will reduce atmospheric moisture and these will minimising the risk of visual mould.
Air and surface treatment was completed wit eliminated airborne spores, bacteria and viruses from the atmosphere.
[9] Exhibit R1 annexure A
The tenants say that because of the Mould Reports, the lessor was on notice that mould was a problem and further that he failed to carry out any steps to mitigate the further spread of mould.
Under the Third Tenancy, the tenants say they noticed mould developing by early December 2021. They say it was present on all windows, in all bedrooms, and on furniture and curtain fittings.
Both Ms Holbrook and Ms Lindsay told the Tribunal they began to see mould recurring on a more frequent basis around the time they entered into the Third Tenancy.[10] They said the mould was present in the bathroom and windowsills. Ms Lindsay observed the furniture in the living room was damp to touch. They both said they understood they were to contact the lessor when the mould recurred to such a significant extent they could not combat it without professional assistance. On 25 November 2021, Ms Holbrook, Mr Fiege, and Ms Lindsay purchased equipment at a cost of $302.08 and $195 respectively to counteract the mould.[11]
[10] Exhibit A4 at [17] and Exhibit A3 at [22]
[11] Exhibit A4 at [18] and Exhibit A3 at [23]
On 7 December 2021, Ms Holbrook notified the lessor that the mould had returned to the extent that it was beyond the capacity of the tenants to clean.[12]
[12] Exhibit A4 at [19] and Annexure I
On 22 December 2021, Mr Graeme Singleton from the Mould Group attended the Premises. Mr Singleton had attended the Premises previously and prepared the Mould Reports. Ms Holbrook and Ms Lindsay both gave evidence that Mr Singleton had previously advised them in June 2021 of reasonable steps to mitigate the spread of mould.[13] They say they followed all of Mr Singleton’s recommendations which were to open all the windows between 10:00am and 2:00pm, wipe down any condensation on all windows, purchase dehumidifiers for all bedrooms and leave the bathroom fan on for ten minutes after each shower.[14]
[13] Exhibit A4 at [10] and Exhibit A3 at [13]
[14] Exhibit A4 at [12] and Exhibit A3 at [15]
Around this time, Ms Holbrook says she purchased DampRid, a moisture absorber, for her wardrobe to prevent mould growing on her clothes.[15]
[15] Exhibit A4 at [21]
On 10 January 2022, Ms Lindsay considered her doona was damp to touch and smelled profusely of mould. She purchased a new one at a cost of $83.99.[16]
[16] Exhibit A3 at [26]
On 4 February 2022, a routine inspection was carried out. No mould issue was identified or reported.[17]
[17] Exhibit R1 Annexure H
On 15 May 2022, the tenants discovered widespread mould. Ms Lindsay says she found mould behind her bed and in her wardrobe.[18] Ms Holbrook says she saw mould on one of Mr Fiege’s wool coats and significant mould in the first bedroom.[19] Ms Tulk says she woke up and discovered the walls of the third bedroom completely covered in mould and caused her to sleep on a couch in the loungeroom.[20] She also discovered mould on the bottom of her mattress and wooden bed base.[21]
[18] Exhibit A3 at [28]
[19] Exhibit A4 at [23] and [24]
[20] Exhibit A5 at [16] and [17]
[21] Exhibit A5 at [19]
Ms Tulk did not sleep in her bedroom on 15 May 2022 and from 16 May 2022 made arrangements to stay in a hotel and then with friends from 27 May 2022 until she found a new place to live.[22] She did not reside in the Premises from 16 May 2022.
[22] Exhibit A5 at [22] – [23]
Ms Holbrook gave evidence that the level of mould by 15 May 2022 was about nine on a scale of one to ten and that it built up over half a week to a week at most. She said even after work was done in December 2021 the mould never reset back to zero. She said the mould went from a three to a nine rating quite quickly.
Ms Lindsay gave evidence that between December 2021 and 15 May 2022, the mould was present but manageable and on 15 May 2022 it had returned which she described as significant. She said the mould gradually built up over about a week and that even at the manageable level it was about an eight or nine on a scale of one to ten.
Ms Tulk described in her evidence that at the time she moved in the mould ranged from four to seven on a scale of one to ten. Four being its presentation a day after cleaning and seven if it had not been cleaned for a few days. She gave evidence that by 15 May 2022 the mould exceeded a ten rating. In the bedroom she occupied, Ms Tulk said that overnight on 15 May 2022 the mould grew everywhere.
On 16 May 2022, the tenants notified the lessor of the presence of mould and sought to terminate the tenancy on grounds the Premises were uninhabitable.[23]
[23] Applicant’s submissions in RT 586/2022 Annexure I
On 16 May 2022, the lessor responded rejecting the notice given by the tenants and instead serving a notice to vacate pursuant to clause 86(a) of the Standard Terms on grounds the Premises were not fit for habitation.[24]
[24] Exhibit R1 Annexure L
Also on 16 May 2022, the lessor’s agent sent an email to the tenants, amongst other things, asserting that contrary to their obligations under the Standard Terms they had failed to notify the lessor of damage to the Premises and the need for urgent repairs.[25]
Were the Premises unfit for habitation?
[25] Exhibit R1 Annexure K
Clauses 86 and 87(2) of the standard residential tenancy terms in schedule 1 to the RTA (the Standard Terms), state:
86 The lessor or the tenant may, by written notice, terminate the tenancy on a date specified in the notice on the following grounds:
(a) the premises are not fit for habitation;
(b)the premises are not available or will not be available because of Government action within a period of 4 weeks of the date that notice is given.
87(1) In either case the lessor must give not less than 1 week’s notice of termination of the tenancy, and the rent abates from the date that the premises are uninhabitable.
(2)The tenant may give 2 days notice of termination of the tenancy.
(3)If neither the lessor nor the tenant give notice of termination of the tenancy, the rent abates for the period that the premises are unable to be used for habitation, but the tenancy resumes when they are able to be used again.
In Cope & McEachern v Walker & Walker[26] the tribunal considered the issue of when a rented property is ‘not fit for habitation’. In that case, mould affected one room: the bathroom. The tribunal said the following:
[26] [2018] ACAT 65
14. In Finn v Finato[27] the NSW Consumer, Trader and Tenancy Tribunal (NSWCTTT) noted judicial statements regarding the words ‘fit for habitation’ as follows:
[27] Finn v Finato [2004] NSWCTTT 179 at [18]-[19], cited in Mathew & Anor v Barranco [2016] ACAT 102
18.The leading decision which guides the Tribunal in relation to this standard of habitability is Summers v Salford Corporation [1943] AC 283 in which Lord Atkin said:
“If the state of the repair of the house is such that by ordinary user damage may naturally be caused to the occupier either in respect of personal injury to life or limb or injury to health, then the house is not in all respects fit for habitation..... it is clear that premises may be unfit for human habitation even though it is physically possible for a tenant to reside in the premises.”
19.In McLeish v FT Eastment & Sons Pty. Ltd (1970) 91 WN (NSW) 268 CA the Court in reliance upon Proudfoot v Hart (1890) 25 QBD 42 considered the words “ fit for habitation” and “tenantable repair “ and whether there was a difference. This is relevant to a consideration of section 25(1) of the Act, which imports both concepts. The Court stated:
“must both import such a state as to repair that the premises might be used and dwelt in, not only for safety , but for reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were to be occupied.....(emphasis added)
The conclusion I draw... is that the landlord is obliged to hand the premise over to the tenant, at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and the prospective life of the premises, and the state of the repair must at least meet the minimum standard inherent in the contemporary understanding of the term “fit for habitation”. .... .(emphasis added)
15. In Bannister v Cheung[28] the NSW Civil and Administrative Tribunal (NCAT) added:
18.In Hampel v South Australian Housing Trust [2007] SADC 64, Milsteed J stated (at [63]):
“In my opinion, a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises. It may be so unfit for any reason. The risk to health or safety may arise because the premises are in a state of disrepair or dilapidation or because of a lack of facilities such as the provision of adequate water, light, ventilation, and so on.”
…
20.The test of “fit for habitation” is objective, rather than subjective. Residential premises may be unfit for habitation, even if the landlord is unaware of the defect. However, in De Solei v Palmhide Pty Limited [2010] NSWCTTT 464, the Tribunal noted that the test of proving that premises were not fit for habitation was a difficult one for a tenant to satisfy and a finding that premises are not fit for habitation is not to be lightly made. …
21.There has been a number of decisions of the Tribunal which have found that premises have been so affected by mould that premises have not been fit for habitation (e.g.: Roberts v Bell [2001] NSWRT 6; Finn v Finarto [2004] NSWCTTT 179; Bartley and Zawiolkowski v Harris Park Holdings Pty Limited [2010] NSWCTTT 592). In such cases, there was evidence of significant mould in the premises and the mould problems had not been addressed by the landlord over a period of time
16. From these statements, it is clear that whether premises are fit for habitation is a question of fact, referenced to the nature and purpose of the property, the class of persons using it and contemporary standards.
17. I am not persuaded that the premises in this case were unfit for habitation. The applicants were concerned that mould in the bathroom was a health risk. In my view they reasonably elected not to use the main bathroom for that reason, but they were able to use the alternative ensuite bathroom and did so for many months. The cases referred to in Bannister v Cheung in which the NCAT found the premises to be uninhabitable because of mould involved many rooms in the rented house affected by mould.
[28] Bannister v Cheung [2014] NSWCATCD 105 at [18]-[22]
Having regard to the authorities cited above, and the evidence before me, I am satisfied the Premises were not fit for habitation from 16 May 2022 and that rent abates from that date.
The obligation to notify and the obligation to repair
Clauses 55-57 of the Standard Terms governs the parties’ obligations in relation to repairs and state:
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.
(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
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).
The tenants claim the lessor breached clause 55(1) and failed to maintain the Premises in a reasonable state of repair having regard to its condition at the commencement of the tenancy agreement. This requires consideration of three key elements. First, what was the condition of the Premises at the commencement of the tenancy; second what information does the lessor have regarding any defect that would reasonably alert the lessor as to whether any repairs are needed; and third, has the lessor failed to carry out any necessary repairs so as to maintain the Premises in a reasonable state of repair. In Northern Sandblasting Pty Ltd v Harris[29] the High Court said:
In general, there is no breach of an express covenant by a landlord to keep the demised premises in repair unless two criteria have haven met. First, the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition.[30]
What was the condition of the Premises at the commencement of the Third Tenancy?
[29] (1997) 188 CLR 313
[30] (1997) 188 CLR 313 at 370-371 per Gummow J
There is no ingoing condition report for the Third Tenancy. The only ingoing condition report available relates to the First Tenancy.[31] On 4 February 2022 a routine inspection was carried out. The inspection report does not mention mould.
[31] Exhibit A4 Annexure A
At the time she moved into the Premises in November 2019, Ms Holbrook described the Premises as follows:
… At the time I moved into the Property. I would describe the condition of the property to be poor and worn down. When I moved in, the Property had not been cleaned, the curtains were broke, torn or absent, the walls were dirty, there were cracks in the walls, parts of the linoleum floor were worn, and the garden was overgrown…
At the time she moved into the Premises in November 2020, Ms Lindsay described the condition of the Premises as follows:
I would describe the property as an “older” house, that appeared to have been worn down over the years. There were cracks in some of the walls throughout the Property, worn down flooring, and the Property did not contain heating or cooling. It was my perception that the property required repairs but was “liveable”.
From the evidence of both Ms Holbrook and Ms Lindsay and the ingoing condition report for the First Tenancy I am satisfied on the balance of probabilities that the condition of the Premises at the commencement of the Third Tenancy was likely similar to its condition at the commencement of the First Tenancy. The Premises was aged, well-worn, and exhibiting signs of fair wear and tear.
Ms Holbrook gave evidence as to the condition of the Premises at the commencement of the Third Tenancy in relation to the mould as follows:
At around the same, the mould present in the bathroom and the windowsills began to reoccur on an increasingly frequent basis. At the advice of Mr Singleton we continued to frequently clean the mould. We considered we were only to contact the Respondent when the mould reoccurred to such a significant extent that we could not combat it without professional assistance.[32]
[32] Exhibit A4 at [17]
Ms Lindsay described the condition of the Premises at the commencement of the Third Tenancy in relation to the mould as follows:
At around the same time, the mould present in the bathroom and the windowsills began to reoccur on an increasingly frequent basis. I observed the furniture in the living room to feel damp to touch. At the advice of Mr Singleton, we continued to frequently clean the mould. We considered we were only to contact the Respondent when the mould reoccurred to such a significant extent that we could not combat it without professional assistance.[33]
[33] Exhibit A3 at [22]
By 7 December 2021, the mould situation had changed. Ms Holbrook sent an email to the lessor on 7 December 2021 as follows:[34]
From: Abbie Holbrook [email address redacted]
Date: Tue, 7 Dec 2021 at 15:14
Subject: Mould and Repairs
To: [email address redacted]
Hi,
We have some issues with our house that need attending to.
1. Earlier this year we had a pretty bad mould infestation in the bathrooms and each bedroom. The bathroom was resealed and painted, and the bedrooms were demoulded in an attempt to solve this issue. We as a house have been taking care of this issue, have nought dehumidifiers, cleaned windows and kept fans on the bathroom like the mould expert asked. However the mould has come back and is beginning to become an issue again. The mould is beginning to build-up on the ceiling of the bathroom, on the window sills in the bedroom (though I don’t think it ever went away) and now the sheer curtains in the bedrooms. We have been cleaning it to keep it at bay, however this is becoming out of our control. When the mould expert visited he suggested that the fan in the bathroom needed to be replaced, as it doesn’t seem to be drying the bathroom/providing as much ventilation as needed. While the bedrooms were demoulded it doesn’t seem that the windows improved, with flaked paint and mould build up that never went away. This is now moving onto the curtains and we are not sure what to do past this point as we can only clean the windows that never went away. Can something be done to the windows? Can the house be demoulded again? Can get a replacement fan?
[34] Exhibit A4 Annexure J
I am satisfied on the balance of probabilities that at or around the time the Third Tenancy commenced mould was present and by 7 December 2021 its presentation had escalated to significant levels.
Was the lessor on notice of the need for repairs?
Awareness of a defect or need for repair is critical to the lessor’s obligation in clause 55(1). A lessor might acquire such knowledge in a variety of ways and is not limited to the notification required to be given by tenants under clause 55(2). A lessor might acquire notice other than via a tenant and the obligation arises irrespective of whether a tenant requests a repair.[35]
[35] Weeks v Bond [1997] QCA 349
Against a background of mould issues being reported to the lessor during the Second Tenancy and Mr Singleton attending on two occasions prior to the commencement of the Third Tenancy, the lessor was sufficiently on notice of the Premises being predisposed to mould occurring and the ongoing measures required to prevent its escalation or significant recurrence. The lessor’s awareness of the mould problem is put beyond doubt by reason of the email dated 7 December 2021 sent by Ms Holbrook.[36] This email was sent about two weeks after the Third Tenancy commenced. It is clear from that email the tenants did not regard the mould problem as being remedied during the Second Tenancy and expected the lessor to carry out repairs.
[36] Exhibit A4 Annexure J
I am satisfied the lessor was on notice of what repairs were required in order to remediate the mould problem. Regardless of whether the mould waxed and waned or was seemingly eradicated from time to time, the lessor could not operate under the illusion mould was not an issue at these Premises. The lessor was on notice that mould was present in the Premises at varying levels at various times and had a tendency to appear quickly and severely. This is evident from the tenants reporting an escalation of the mould shortly after the commencement of the Third Tenancy.
Did the lessor breach clause 55(1)?
Clause 55(1) calls for the Premises to be maintained in a reasonable state of repair by the lessor, not the reasonableness of the lessor’s efforts or diligence in endeavouring to carry out repairs. It goes to the actual state of repair. In Moore v Tidy[37] the Court held:
It is not whether the arrangements made by the landlord for repairs are ‘reasonable’ which is of importance but the actual state of repairs to the premises … In my view the tenants were entitled to expect that the premises would be put in reasonable state if repair. It was not enough that the landlord had taken on his behalf what would normally be reasonable steps to achieve a state of repairs.[38]
[37] (1992) 166 L.S.R.S. 402
[38] Moore v Tidy (1992) 166 L.S.R.S. 402, page 406
The lessor claims that each time mould was reported, remediation steps were carried out consistent with the recommendations made by The Mould Group and achieved remediation of the mould problem such that the Premises had been and were maintained in a reasonable state of repair during the Third Tenancy.
The lessor attended to cleaning and repainting in June 2021 and July 2021, and again in December 2021. The bathroom and kitchen fans were replaced in January 2022. Over this period of time, but particularly in relation to the Third Tenancy and the mould occurrence in December 2021, the tenants say the mould was never eradicated and persisted at manageable levels until the significant outbreak by 15 May 2022.
Out of the recommendations made by The Mould Group in June and July 2021 the lessor:
(a)did not install or purchase dehumidifiers;
(b)did not carry out any remediation work to the soffit around the Premises;
(c)did not clear gutters and downpipes to ensure the water did not build up and enter the roof space;
(d)did not rectify the hydronic heating in the Premises which was installed but not operational; and
(e)did not replace the bathroom and kitchen fans until more than 6 months after the recommendation and a further mould even occurred.
The First Mould Report made it clear what measures were required to ensure the mould problem was kept at bay. The obligation to meet this challenge was imposed on the tenants such that, on the evidence of the tenants, they understood the lessor was to be notified when the mould became unmanageable by the tenants using the methods they had been advised to deploy.
In relation to the Third Tenancy, and the notification of 7 December 2021, the lessor arranged for Mr Singleton from The Mould Group to attend the Premises. Ms Holbrook and Ms Lindsay gave evidence that Mr Singleton attended on 22 December 2021 to conduct remedial works to remove the mould and gave them a high-performance alkaline cleaner designed for removing mould from surfaces such as tiles and grout.[39] Neither knew if Mr Singleton provided a report to the lessor in relation to this attendance.[40] The lessor did not produce one at the hearing.
[39] Exhibit A4 at [20] and Exhibit A3 at [25]
[40] Exhibit A4 at [20] and Exhibit A3 at [25]
Ms Holbrook’s further evidence was that at this visit:
Mr Singleton raised the idea of us moving out of the Property. He suggested we should move out before April 2022, as, if the mould were to reoccur, it would be in response to the increase in cold and rainy weather around that time.[41]
[41] Exhibit A4 at [20]
Apart from Ms Holbrook and Ms Lindsay’s evidence, there is nothing else before the Tribunal as to what Mr Singleton did on this visit. Mr Singleton was not called to give evidence at the hearing and Ms Holbrook was not challenged on what she says Mr Singleton told her about moving out. I am left to assume all Mr Singleton did was clean the mould and give the tenants a special cleaning solution. I also draw the conclusion in the absence of any evidence to the contrary, that Mr Singleton advised the tenants to move out because mould would continue to be a problem.
On or about 11 January 2022, the lessor replaced the kitchen and bathroom fans.[42]
[42] Exhibit R1 Annexure F
There is no evidence before the Tribunal that the mould identified on the bedroom windows was rectified.
The lessor relies upon the Routine Inspection dated 4 February 2022 as evidence the mould problem had been remedied. That is simply a snapshot at a single point in time. The obligation imposed on the lessor in clause 55(1) is an ongoing one not limited to a single point in time. The consideration of whether the lessor has breached clause 55(1) requires the Tribunal to look beyond a single point in time and consider the overall state of repair for the life of the Third Tenancy. This assesses whether the premises were maintained in a reasonable state of repair for the whole of the tenancy not just that they were in a reasonable state of repair at some point or at varying points in the tenancy. The obligation is a continuous and ongoing one which is distinguishable from the obligation in clause 57 to carry out non‑urgent repairs within four weeks of being notified. That measures whether a repair was carried out at a certain point in time. The obligation in clause 55(1) is an overarching one.
The lessor’s attempts to address the mould problem were temporary measures and did not provide an absolute solution to the prevention of mould recurring. These temporary measures may seem a reasonable response, but failed to maintain the Premises in a reasonable state of repair. The prevalence of mould and its tendency to appear was not addressed. In other words, the actual state of repair was a house in which mould was likely to recur because measures to prevent and eradicate its recurrence were not taken.
The lessor did not purchase the dehumidifiers, the tenants did. Further, and importantly, he did not rectify the hydronic heating. The lessor arranged for a technician to inspect the system and because the lessor was advised rectification would cost around $25,000-$30,000 he decided it was not commercially viable to do so. There was no other heating in the Premises. No work was carried out to the roof (other than to repair an unrelated leak). There is no evidence of regular gutter clearing. By the commencement of the Third Tenancy, these were all measures the lessor had been made aware of that would combat the mould recurrence.
The tenants were essentially on constant high alert because they were left in a situation where mould would and did reappear. It was an ongoing and real risk that mould would reappear and in multiple rooms. This actual state of repair was met with measures such as cleaning and dehumidifiers on the part of the tenants. The tenants did their best to counteract the continual risk of mould recurrence but lived with the constant need to combat it. This does not amount to maintaining the Premises in a reasonable state of repairs. Tenants should not be expected to adapt to the actual state of repair of premises as an answer to the lessor’s obligation to maintain them in a reasonable state of repair where defects and repairs have been notified. I am satisfied in this case the lessor did not. The tenants were left in a situation where the mould problem was expected to recur and was not remedied. That is not to say the measures taken by the lessor were not reasonable and would not otherwise be regarded as reasonable steps in other cases. They were simply inadequate and insufficient in the circumstances of this case and this house where the conditions in the house meant mould was a real and ongoing problem and the lessor did not do enough to maintain the Premises in a reasonable state of repair.
I am satisfied the lessor breached clause 55(1) of the Standard Terms.
Arguably the level of attention these tenants were expected to devote to addressing mould in the house might amount to an interference with their quiet enjoyment of the Premises, however that point was not argued before me.
Did the tenant’s fail to notify the lessor of the need for repairs?
The lessor claims the tenants breached their obligation under clause 55(2) to report the need for repairs to the lessor. It was argued by the lessor that the presentation of the mould on 15 May 2022 as described by the tenants existed in that state for some time such that they had ample time to report it to the lessor and mitigate any damage and that the mould could not have escalated as rapidly as the tenants described. I cannot accept either proposition. The tenants reported the significant state of the mould to the lessor on 16 May 2022. I accept the evidence of the tenants as to the rapid and significant outbreak of mould as at 15 May 2022 and the circumstances in which it escalated. There is no evidence to the contrary.
If as the evidence before me suggests, which I accept, the mould reached a significant level rapidly and was discovered by the tenants on 15 May 2022 at that significant level, I am satisfied they acted immediately by reporting it the next day. I am also satisfied that for the duration of the Third Tenancy (and even the Second Tenancy), the tenants were intensely and actively mitigating the onset of mould, and had it presented before 15 May 2022 as significantly as it did on that date, they would have noticed. Mould was never far from the minds of these tenants.
The tenants did not beach clause 55(2) of the Standard Terms.
The lessor further claimed the tenants breached clause 59 of the Standard Terms. Clause 59 requires inter alia that the tenants notify the lessor of the need for urgent repairs as soon as practicable. Even if the presentation of the mould on 15 May 2022 falls within the meaning of urgent repair as set out in clause 60 of the Standard Terms, which I am not persuaded it does, I am satisfied they acted swiftly and in accordance with the obligation under clause 59.
The lessor’s counter claim
The lessor lodged a counter claim against the tenants for the refund of the whole of the bond ($2,240) plus $5,900.
The items claimed by the lessor were as follows:
(a)End of lease cleaning cost totalling $815 comprised of:
(i)cleaning cost: $530;
(ii)cleaning cost for carpets: $315.
(b)Replacement of window treatments: $2,950.
(c)Gardening tidy up cost (not pursued by the respondent): $4,851.
(d)Cost of removal of applicant’s belonging left behind: $385.
(e)Mould remediation cost: $4,205.
(f)ACAT filing fee: $170.
Total cost claimed less the amount of bond was $8,140 less $2,240: $5,900.
Not all of these items were pursued by the lessor at the hearing. The lessor did not file and serve any invoices in support of the amounts claimed. In the case of the replacement window treatments, the lessor relied upon a quote for $4,890.
Having regard to my findings above regarding the condition of the Premises, and lack of evidence before me, I am not satisfied the lessor’s counter claim is made out and it should be dismissed.
Relief
I am satisfied the tenants’ application should succeed. The tenants are entitled to recover from the lessor the amount of $3,462.80. The lessor argued that he should not have to pay for the dehumidifiers as the tenants took these with them. I disagree. They should be compensated for having purchased them in the face of the lessor being recommended to install them and he did not.
The tenants did not distinguish in their claim which amounts each of them were specifically owed and so the amount awarded is payable by the lessor to the tenants jointly.
The bond
I am satisfied the tenants should have the bond returned to them. Unfortunately this matter is an example of poor management of co-tenancies. There is no bond held by ACT Rental Bonds office in relation to the Third Tenancy for which these applicants are the tenants. A bond is held against the Second Tenancy. Attempts were made to regularise the composition of tenants however the problem lies in a new tenancy being established rather than a changing of co-tenants on the first tenancy.
All previous tenants other than the applicants have renounced any entitlement to the bond. The refund of the bond under the Second Tenancy was referred to the tribunal as a dispute and it was heard together with the substantive application.
I therefore make an order, pursuant to section 34F of the RTA that the applicants in matter RT586/2022 are entitled to the bond and direct ACT Rental Bonds on behalf of the Territory to pay the whole of the bond as follows:
(a)$560 to Abbie Holbrook.
(b)$560 to Dominica Lindsay.
(c)$560 to Phoebe Tulk.
(d)$560 to Jacob Fiege.
The tenants will need to provide instructions to ACT Rental Bonds as to their bank details.
………………………………..
Senior Member K Katavic
| Date of hearing: | 4 November 2022 |
| Solicitors for the Applicants: | C Holloway, Aulich Civil Law |
| Respondent: | J De La Torre, authorised representative |
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