GERIA v FENG & ORS (Residential Tenancies)
[2020] ACAT 78
•6 October 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GERIA v FENG & ORS (Residential Tenancies) [2020] ACAT 78
RT 59/2020
RT 176/2020
Catchwords: RESIDENTIAL TENANCIES – claim for compensation for damage to property – claim for rent reductions due to defective range hood – fair wear and tear
Legislation cited: ACT Civil and Administrative Tribunal Act 2008
Residential Tenancies Act 1997, standard terms 54, 55, 56,57
Cases cited: Faulder v Tran [2018] ACAT 80
Hadley v Baxendale (1854) 9 Ex 341
List of
Texts/Papers cited: Allan Anforth, Peter Christensen and Christopher Atkins, Residential Tenancies Law and Practice NSW (Federation Press, 7th ed, 2017)
Tribunal: Senior Member A Anforth
Date of Orders: 6 October 2020
Date of Reasons for Decision: 6 October 2020AUSTRALIAN CAPITAL TERRITORY RT 59/2020
CIVIL & ADMINISTRATIVE TRIBUNAL RT 176/2020
BETWEEN:
HARRY GERIA
Applicant/Lessor
AND:
TIAN FENG
JIE ZHANG
XIUYIN JI
MIN NG
Respondents/Tenants
TRIBUNAL: Senior Member A Anforth
DATE: 6 October 2020
ORDER
The Tribunal orders:
1. The tenants jointly and severally pay the lessor the sum of $2,071 in full satisfaction of all claims between the parties arising out the tenancy less the balance held by ACT Rental Bonds.
2. ACT Rental Bonds on behalf of the Territory is directed to release the disputed sum to the lessor.
3. The tenants pay the remaining balance of $210 by 29 October 2020.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Introduction
1. This matter concerns:
(a) a claim (RT 59/20) by Mr Geria, the lessor, against Mr Tian and Ng and Ms Zhang and Ji, tenants; and damage to the premises; and
(b) a counter claim (RT 176/20) by the tenants against the lessor for a partial rent reduction due to a defective rangehood.
2. The residential tenancy commenced on 20 December 2018 and was in the standard terms. The rent was $580 per week and the bond $2,320 which was deposited with the Office of Rental Bonds (ORB). The tenancy finished and vacant possession was given on 2 December 2019.
3. The sum of $458 from the bond has been paid by the ORB to the lessor for rent arrears and the balance of $1,861 remains with the ORB.
4. At the commencement of the tenancy the parties prepared an ingoing condition report. There were reports prepared based on periodic inspections during the tenancy and there was an outgoing condition report prepared. The tenancy agreement and these reports were before the Tribunal.
5. Shortly after the commencement of the tenancy the tenants informed the lessor that the rangehood was not working. The rangehood is the exhaust extraction device on the stop of the stove. The stove, hot plates and microwave all worked but the defective rangehood resulted in smoke and fumes not being extracted.
6. The tenants raised the matter with the lessor’s agent on seven occasions before the rangehood was finally fixed on 14 February 2019. The lessor admitted the defect and informed the Tribunal that the problem was one of communication between the lessor and his agent as well as the intervention of the Christmas holiday period.
7. The tenants claimed that due to the smoke and fumes issue, they were unable to cook in the kitchen at all and had to buy take away or cook at a friend’s house until the rangehood was fixed.
8. The tenants admitted that they engaged in a ‘rent strike’ in response to the lessor’s failure to repair the rangehood. In May 2019 the lessors issued a six month ‘no grounds’ notice to vacate leading to the tenants vacating on 2 December 2019.
9. After the tenants vacated, the lessor made a claim with the ORB against their bond for rent, damage to the premises, and cleaning. The rent arrears were paid from the bond, but the rest of the claim was resisted by the tenants. The ORB referred the dispute to the Tribunal.
10. On 20 February 2020 the lessor lodged a claim in the Tribunal (RT 59/20) for $2,615.50 for:
(a) damage to the kitchen wall - $400;
(b) replacing the torn sheer blinds - $120;
(c) cleaning the yard of rubbish - $20;
(d) floor damage to the polished wooden floors - $2,000;
(e) tribunal filing fee - $75.50.
11. The lessor annexed the following documents to his application:
(a) A statement of his claim.
(b) The tenancy agreement.
(c) The conditions reports.
(d) Photographs of the items in question.
(e) Quotes for the repair of the floors.
(f) Invoices for the repairs to the wall, cleaning and replacement of the curtain.
12. The attachments filed by the lessor were extensive, detailed and informative.
13. On 6 March 2020 the tenants lodged their counter claim (RT 176/20) for a 30% rent reduction for the defective rangehood. They annexed a statement setting out the nature and extent of inconvenience suffered from the non-functioning rangehood and the costs incurred in take away food. The tenants raised the issue that members of the household were particularly sensitive to fumes and even went so far as to allege that medical attention was sought for that reason.
14. On 12 March 2020 there was an unsuccessful conciliation after which procedural orders were made for filing of further materials.
15. On 9 April 2020 and 15 April 2020 the lessor filed his further submissions, a timeline of events, invoices for repairs and his own statement. The lessor redefined his claim as follows:
(a) Repair of the scratched floors - $2,000.
(b) Repair and painting of the kitchen wall - $200.
(c) Repair of the wardrobe door - $250.
(d) Replacement of the sheer blind - $120.
(e) A scratch to a mirror - $53.
(f) Removal of rubbish from the yard - $20.
(g) Tribunal filing fee - $75.50.
Giving a total of $2,643.
16. The lessor’s submissions were to the effect that any inconvenience to the tenants was minor and there had been no need for them to incur any costs on take away food or otherwise.
17. On 20 April 2020 the tenants filed an amended claim revising the amount sought by way of rent reduction to $1,715 plus their filing fee of $75.50. The reduction was based on a recalculation of 69 days of rent at 30%. The amended claim annexed statements from Jason Sun, Kaleb Li, Samual Xian, Xiuyin Jin, Guangeie Fan and Julie McLean. It also annexed a quote for Lanny Flooring in the sum of $600 to repair the scratched wooden floors, which pertain to the lessor’s claim.
18. On 3 May 2020 the lessor filed a reply to the tenants’ response to his claim. The lessor pointed out that the people from Lanny Flooring had not visited the site and had prepared their quote from a photograph provided to them.
19. On 5 May 2020 the lessor filed his response to the tenants’ counter claim explaining the cause of the delay in fixing the rangehood due to communications problems with his agent and the Christmas holiday period.
20. Following a direction hearing on 6 May 2020 the parties agreed to the matter being determined on the papers without further hearing. On 8 May 2020 the lessor filed a consolidated bundle of documents filed in the matter.
The issues
21. In relation to the lessor’s claim the issues are:
(a) whether the damage to the floor, curtain, mirror and wall is fair wear and tear;
(b) whether there was rubbish left in the yard.
22. In relation to the tenants’ claim, whether a rent reduction is justified for the period of the non-functioning rangehood.
The lessor’s claim
23. The lessor’s claim was well particularised and evidenced by the condition reports, photographs and the report of D’NR Painting and Maintenance report of 10 December 2019. The photos showed that:
(a) the wooden floors were extensively scratched;
(b) the dint in the kitchen wall;
(c) small dints in the wall and wardrobe in the bedroom;
(d) various items of rubbish in the yard and on the verandah;
(e) the sheer curtain was torn;
(f) the photos did not show any scratch on a mirror.
24. The quotes from the lessor for the repairs to the floor and wall from were unchallenged in any meaningful manner and appeared within the normal range expected for this work.
25. The tenants claimed this was ‘fair wear and tear’. The items at paragraph 23 (a), (b) and (e) are not fair wear and tear. They are damage caused by impact traumas of some kind and are quite visual.
26. The items at paragraph 23(c) are perhaps more equivocal because of their small size but they are still impact damage. The rubbish left around is just laziness on the tenants’ part and someone had to remove it before the new occupants arrived.
27. The lessor’s claim is allowed minus the claim for the mirror giving a total of $2,590 plus the filing fee.
The tenants’ claim
28. In his submissions of 5 May 2020 the lessor advanced the following proposition of law against the tenants’ claim:
At common law there is ‘no implicit covenant that the premises are in good repair or fit for purpose for which the tenant intends to use them…the tenant accepts the premises ‘as is’…It is up to the tenant to inspect the premises and make sure they are suitable.,[errors in original]
29. Whilst this proposition may be correct, in so far as it goes, it is not applicable to residential tenancies in the ACT (or other Australian jurisdictions). The Residential Tenancies Act 1997 codifies the law on residential tenancies. There is substantial legislative overriding of the common law, including on the issue of the state of repair of the premises at the commencement of the tenancy and during the tenancy. Standard terms 54-57 of Schedule 1 of the RTA provide:
Lessor to provide premises in a reasonable state at the start of the tenancy
54
(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.
(2) An exclusion must be in writing and may, but need not, be included in the tenancy agreement (if in writing).
(3) The lessor or the tenant may change locks (at his or her own cost unless otherwise agreed) with the agreement of the other party (which will not be unreasonably withheld).
(4) The lessor or the tenant may change locks (at his or her own cost) in an emergency without the agreement of the other party.
(5) If the tenant, or a person living at the premises, is a protected person in relation to an interim or final order made under the or the Personal Violence Act 2016, the tenant or person may change locks (at his or her own cost) without the agreement of the other party.
(6) If a lock is changed, a copy of the key to the changed lock must be provided to the other party as soon as possible unless doing so would affect the safety of a protected person.
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).
30. The tenant is entitled to have the rangehood operative and the lessor was expected to have had it operative at the commencement of the tenancy. Furthermore, the lessor should have attended to the repair when notified by the tenant and to have done so within the four weeks, in accordance with Standard Term 57. He did not, and is in breach of the tenancy agreement for that reason.
31. The lessor’s excuse relating to communications problems with his agent and the intervention of the Christmas holiday period are both irrelevant. Any difficulties in communications between the lessor and his agent are the lessor’s problem and do not provide any defence to the tenants’ claim.
32. The lessor’s alternative defence was that a 30% rent reduction was excessive having regard to:
(a) the availability of other cooking facilities;
(b) the option of the tenants opening a kitchen window for exhaust purposes;
(c) the resort to take away was a disproportional response to the rangehood problem as was travelling to a friend’s place to cook;
(d) the lack of evidence supporting the claim that the fumes caused a medical issue for one of the tenants.
33. The Tribunal accepts that the tenants did in fact react to the rangehood problem in the manner described in their statements, but also accepts the lessor’s submission that this represented a disproportional response to the problem. The non-functioning rangehood was a minor issue. Many kitchens do not have a rangehood at all. It is hard to see how cooking on hotplates, an oven, electric frypans, microwaves or other kitchen devices would necessarily cause fumes that amount to a health problem. People in the community do this every day of the week. Similarly, a window could have been open or even a small electric fan put in the kitchen to disperse such fumes.
34. The tenants are entitled to minor damages commensurate with their true inconvenience suffered. Their claim for 30% rent reduction has to be seen in the light of the fact that the premises were fully used by the tenants except for the rangehood. It is an excessive claim. The lessor proffered a maximum of 10% rent reduction which in the Tribunal’s view seems generous. The 10% reduction comes to $572 in round figures. The Tribunal allows this sum inclusive of the costs of buying take away meals.
35. The Tribunal allows the tenants claim in the sum of $572 plus the filing fee.
36. On the evidence the Tribunal does not accept that one of the tenants suffered medical problems from the fumes. Even if this were the case, the Tribunal does not accept that an injury or loss of this kind was a foreseeable one on the lessor’s part within the principle in Hadley v Baxendale. Put differently, such damages would not satisfy the remoteness test.
37. The filing fee is allowed in both cases and is the same amount. It is therefore a neutral factor. The balance to be paid is $2,071 by the tenants to the lessor less the balance of the bond held in the ORB.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
RT 59/2020
RT 176/2020
PARTIES, APPLICANT:
Harry Geria
PARTIES, RESPONDENT:
Tian Feng
Jie Zhang
Xiuyin Ji
Min Ng
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
JR Baker Law
SOLICITORS FOR RESPONDENT
Legal Aid ACT
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
11 May 2020
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