Lazarevska v Ozturk

The case of Lazarevska v Ozturk was heard in a tribunal under the Residential Tenancies Act 2010, with Kymberly Lazarevska, the tenant, contesting issues with her rental property against Cetin Ozturk, the landlord. The tenant argued that the premises were not fit for habitation due to serious issues including an odour from the drains, multiple water leaks, defective roofing, and a serious mould infestation. Additionally, the tenant claimed that the secondary dwelling was constructed without the necessary permits, entitling her to a refund of all rent paid. The landlord, on the other hand, argued that the tenant was not entitled to a refund as the breaches did not amount to a total failure of consideration and that the tenant had still received the benefit of occupation.

The tribunal addressed several key legal issues, including whether the breaches constituted a fundamental breach of the tenancy agreement, whether the tenant was entitled to compensation for loss of enjoyment and comfort, and whether the premises were provided in a state fit for habitation. The tribunal found that while there were significant issues with the property, these did not amount to a total failure of consideration, and therefore the tenant was not entitled to a refund of all rent paid. The tribunal also determined that the tenant was entitled to compensation for the loss of enjoyment, comfort, amenity, inconvenience, and distress caused by the property’s unsanitary conditions and other defects.

The tribunal concluded that the landlord was not entitled to the full amount of rent for the period in question, but rather, damages should be assessed on the ordinary basis. The tenant was awarded $1,280.00 in compensation for the issues with the property, while the landlord was ordered to pay this amount by a specified date. The tribunal dismissed the tenant’s claim for a total refund of rent and other ancillary reliefs, finding that the tenant had not demonstrated a total failure of consideration or other grounds for such relief.

The final orders of the tribunal required the landlord to pay the tenant $1,280.00 by a certain date, and dismissed the tenant’s application for a total refund of rent and other claims. The tribunal's decision highlighted the importance of assessing habitability and the adequacy of compensation on a case-by-case basis, taking into account the specific circumstances and the extent of the breaches.