Joshua SPARGO -v- Leon WANG & Sophie BIAN

[2007] ACTRTT 3

Joshua SPARGO -v- Leon WANG & Sophie BIAN  ACTRTT3 [2007]

CATCHWORDS

ISSUES

LEGISLATION
Residential Tenancies Act 1997 (ACT)

CASES CITED

CASE REFERENCE NUMBER:     RT 2132 of 2006

RE: Premises at 10 Krichauff Street PAGE ACT 2614

DECISION

ORDERS

FINDINGS:

1. The premises of brick garage/granny flat at 10 Krichauff Street Page ACT has not been shown to be approved for occupancy as a residence.
2. The premises are not fit for habitation, rent abates from commencement of tenancy.

ORDERS IN CHAMBERS:

1.That the respondents are to pay the applicant the rent paid to them by him or on his behalf during the tenancy, therefore the respondent is to pay an amount of $7224.20 within 7 days of the date of this Order.

2.That the respondents are to refrain from renting the premises until such time a relevant Government authority approves them for occupancy as a residential dwelling.

Members:        Jann Lennard
Date:               23 November 2006

REASONS FOR DECISION

BACKGROUND

1. THE Respondents are the owners of premises situated at 10 Krichauff Street Page, ACT. The Respondents were not the original owners of the premises, but purchased them sometime prior to 2003. The premises consist of a house and a granny flat. The granny flat is contained in a converted brick garage. The respondents rent both the house and the granny flat, under separate arrangements to tenants. The premises have been the subject of 4 separate applications by different tenants to the Residential Tenancies Tribunal.
2. The primary issue in the current application is whether or not the flat is fit for habitation. These reasons refer to earlier applications only in so far as they are relevant to that issue.

The first application  - RT 851 of 2003

1.   This application was made by the tenant on other issues and the RTT gave a written decision Morley v Wang [2003] ACTRTT 31 (28 April 2003). The final paragraph of that decision is relevant to the history of the current matter and is set out in full:

‘The Residential Tenancies Tribunal notes that the parties were in a great deal of discord. The lessors had served a Notice to Vacate on 21 January 2003, the grounds for which were: non payment of rent, non payment of "expenses" and that there was a subletting agreement. This Notice to Vacate was the subject of an application to the Residential Tenancies Tribunal and the tenant asked for it to be "removed". The Residential Tenancies Tribunal heard evidence that the lessor objected to the tenant's boyfriend visiting the premises and further, the lessor asserted that the premises were not "approved" or "fit for habitation". No evidence was brought in this regard. The Residential Tenancies Tribunal advised the lessor to make an application for termination and possession based on any alleged breach of the Prescribed Terms and to supply the relevant evidence. ‘

2.The lessor did not make any application to terminate based upon the ground of the premises being unfit or habitation. Indeed the assertion was made at the end of the hearing, as a desperate measure to get his way, when it was apparent that the RTT was going to find in favour of the tenant and order the lessor to reconnect the electricity, he had wrongfully caused to be disconnected. At that time the RTT explained to the lessor that electricity and other services would be a lessors cost, unless the house and the flat were separately metered.

The second application – RT 1659 of 2005

1. The tenant brought this application for an order that the lessor had breached the Residential Tenancy Agreement and compensation for that breach. The matter was heard on 18 November 2005.
2. The tenant alleged that the lessor had breached the Residential Tenancy agreement by failing to provide premises which were fit for habitation.
3. The Residential Tenancies Tribunal  received the following evidence at that hearing:
1. the granny flat was a converted brick garage. The brick garage had been approved as an addition to the existing home and constructed at the end of 1975. This brick garage was approved for and did contain one internal toilet. There was no evidence as to when this garage had been converted to a granny flat. This conversion involved the addition of a shower and kitchen area.
2. The tenant’s primary complaint concerned an unabating smell of sewerage throughout the flat.
3. Two plumbing firms had been engaged by the tenant to identify the source of this smell. Both The Plumbing Doctor and Duncan’s Plumbing informed the tenant that the granny flat contained unapproved plumbing work: that the kitchen sink, shower recess and hand basin were connected directly to the sewerage system of the toilet and thus would vent into the sewer system.
4. In late June 2005 ACT Planning and Land Authority inspected the premises and informed the tenant that the premises had not been issued with a Certificate of Occupancy and Use and that they should not be used as residential premises.

The current application

1.   The parties entered into a residential tenancy agreement in relation to the granny flat at 10 Krichauff Street Page, ACT on 5 August 2005 for a fixed term from 30 July 2005 to 17 February 2006. The weekly rental was $175 and a Bond of $700 was paid to the lessor by the tenant. The lessor provided a receipt for the bond on 30 July 2005. The lessor lodged the Bond by credit card payment on 02 November 2005.

2. The RTT notes that the lessor has failed to comply with the Residential Tenancies Act 1997 which provides at s23 that the lessor is to deposit the Bond within 2 weeks of receiving it. The RTT further notes that in relation to other tenancies and premises the lessor has often failed to lodge the bond in accordance with the legal requirements.

3.   The Tenant vacated the premises on 10 June 2006 following receipt of a letter from the lessor which stated: according to clauses 86 and 87 of ACT residential tenancy agreement, I hereby notify you that the premises are not fit for habitation and give you one week’s notice to vacate the property… this letter was produced at the hearing and the lessor did not deny its content or that he sent it to the tenant.

4.   The tenant brought an application for:

1.   return of the Bond of $700;

2.   reimbursement of electricity, gas and water bills paid by the tenant;

3.   an order for abatement of rent from the date the premises became not fit for habitation.

5.   The lessor made a cross claim for arrears of rent.

6.   The RTT heard from both the tenant and the lessor and reached the following determinations:

1.   as there was no assertion made by the lessor that the tenant had breached the Residential Tenancy Agreement or caused damage to the premises, the Bond should be released to the tenant.

2.   that the landlord should bear the cost of the provision and consumption of electricity gas and water in accordance with clause 42 of the Prescribed Terms which provides

Lessor's costs

42         The lessor is responsible for the cost of the following:

      (a)     rates and taxes relating to the premises;

      (b)     services for which the lessor agrees to be responsible;

      (c)     services for which there is not a separate metering device so that amounts consumed during the period of the tenancy cannot be accurately decided;

      (d)     all services up to the time of measurement or reading at the beginning of the tenancy;

      (e)     all services after reading or measurement at the end of the tenancy providing the tenant has not made any use of the service after the reading.

43     (1)     The lessor must pay for any physical installation of services (eg water, electricity, gas, telephone line).

[emphasis added]

the lessor did not dispute that the services provided to the house and the flat were on one meter. The RTT notes that this matter was raised in the first application referred to above and that at that time the RTT explained the division of costs under the prescribed terms. In that hearing the lessor asserted that he had arranged to have separate meters installed.

Rental arrears/ abatement of rent.

The tenant gave evidence that there had been a smell of sewerage in the flat and that after complaint from the tenant the lessor had covered the drain on the floor of the bathroom with duct tape and had provided room deodorisers to reduce the smell. The tenant gave further evidence of the failure of the lessor to repair the toilet or the leaking shower.

This issue turned on the question of fact as to whether the granny flat had either been approved as a residential dwelling or the lessor had cause to have the direct link of the plumbing to the sewer corrected prior to the beginning of the tenancy. The lessor asserted that the covering of the drain with duct take had cured the problem, but admitted that he had not taken any steps to ascertain whether the premises were approved or suitable for habitation.

The RTT adjourned the matter for a written decision, and ordered the lessor to provide evidence relating to the planning file or planning approval for the granny flat by 26 September 2006. The lessor failed to satisfy the RTT that the granny flat was approved and/or suitable  for use as a residence.

The obvious health risk from exposure to the sewerage system, and the unpleasant nature of the smell present in the premises renders the premises unfit for habitation. Premises are not fit for habitation if in ordinary use the house may not be occupied without risk to the health of the occupants.  Further the RTT notes that the lessor was aware of the situation for at least three years and had taken no steps to correct the situation. The premises have not been fit for habitation, nor approved for use as a residence from the commencement of the tenancy. Pursuant to clause 87, the rent is abated for the entire term of the tenancy.

Termination where premises are not fit for habitation

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 or 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.

The RTT is of the view that this lessor continues to rent premises in wilful disregard of the provisions of the legislation, with no regard for the rights of the tenants and that his dealing with the tenants who have made application to the RTT have been characterised by bullying and deceit on the lessors’ part.  In the opinion of the Tribunal both Mr Wang and Ms Bian are witnesses of little credit and their appearance before the Tribunal has been characterised by offensive and insulting behaviour directed at both tenants and Tribunal members.

Member:       Jann Lennard

Thursday the 21st day of September, 2006
ORDERS:

1.That the Office of Rental Bonds is directed to release the bond of $700.00 to the tenant, Joshua Spargo.

2.That the lessor shall provide to the Residential Tenancies Tribunal evidence relating to the building file and/or planning approval relating to the granny flat by close of business on the 26^th day of September, 2006. Matter relating to abatement of rent is adjourned for a written decision.

3.That the Residential Tenancies Tribunal notes that the lessor has given an undertaking not to rent the granny flat premises until it is fit for habitation and approved for occupancy by relevant

Member:       Jann Lennard
Thursday the 23rd day of November, 2006
FINDINGS:

1.The premises of brick garage/granny flat at 10 Krichauff Street Page ACT has not been shown to be approved for occupancy as a residence.

2.The premises are not fit for habitation, rent abates from commencement of tenancy.

ORDERS IN CHAMBERS:

1.That the respondents are to pay the applicant the rent paid to them by him or on his behalf during the tenancy, therefore the respondent is to pay an amount of $7224.20 within 7 days of the date of this Order.

2.That the respondents are to refrain from renting the premises until such time a relevant Government authority approves them for occupancy as a residential dwelling.

Jann Lennard
Member
Date 19 February 2007