Lior Manheim v Helen Caredes
[2015] NSWCATCD 55
•28 April 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Lior Manheim v Helen Caredes [2015] NSWCATCD 55 Hearing dates: 16 April 2015 Decision date: 28 April 2015 Jurisdiction: Consumer and Commercial Division Before: S Corley, General Member Decision: 1. Pursuant to s 187 of the Residential Tenancies Act 2010, I order the Respondent to pay the Applicant $357.72 on or before 11 May 2015.
2. Pursuant to s 187 of the Residential Tenancies Act 2010, I order the Respondent to pay the Applicant $50.00 compensation for electrician’s fees on or before 11 May 2015.
3. The applicant’s claim is otherwise dismissed.Catchwords: Repairs, mould, water usage Legislation Cited: Residential Tenancies Act 2010
Civil and Administrative Tribunal Act 2013Cases Cited: Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254. Category: Principal judgment Parties: Lior Manhem (applicant-tenant)
Helen Caredes (respondent-landlord)Representation: Applicant in person
Sonia Leal of Niche Portfolio (Respondent)
File Number(s): RT 15/10474 Publication restriction: Unrestricted
REASONS FOR DECISION
THE APPLICATION
-
Application RT 15/10474 was lodged on 1 March 2015 by Mr Manheim (“the tenant”) who occupied the rental property under a residential tenancy agreement with Ms Caredes (“the landlord”). The tenant claims compensation for losses and damages suffered as a result of mould in the rental premises.
-
The tenant claims that he should receive five months of subsidised rent (30%) this being the period in which they did not have an exhaust fan or light in the bathroom. He also claims compensation for the loss of personal property which he says was mould damaged.
-
In addition, the tenant says he should not have been paying for water usage and he seeks reimbursement of $357.72 paid.
-
The tenant also seeks compensation for payment of an electrician’s fees to change light bulbs and investigate the exhaust fan.
THE TRIBUNAL’S JURISDICTION TO HEAR THIS APPLICATION
-
The matters in dispute arise in relation to a residential tenancy as defined by the Residential Tenancies Act 2010 (RTA). The Tenant seeks relief in terms of the RTA. This matter comes within NCAT’s jurisdiction.
BACKGROUND AND EVIDENCE
-
This tenancy commenced in March 2014. The tenant vacated the rental property on 28 March 2015 following the landlord giving the tenant notice to terminate at the end of the 12 months fixed term.
-
The tenant and landlord presented bundles of documents in accordance with directions made by the Tribunal. The tenant and Ms Leal gave affirmed oral evidence.
Mould
-
In relation to the mould claims I note very little photographic evidence has been presented showing mould growing on the surfaces of the rental premises. Photographs of the bathroom (27 and 28 of the tenant’s documents) do not show mould growth. Similarly photographs of the wardrobes (20 and 21 of the tenant’s documents) do not show mould growth.
-
The ingoing condition report does not mention the presence of mould. The landlord’s photographs taken at the commencement of the tenancy do not show the presence of mould.
-
The agent carried out a routine inspection on 11 July 2014. The report notes the general condition of the property is good. There is no mention of mould. Photographs of the bathroom taken at this time do not show mould growth.
-
The agent carried out an inspection of the property on 2 March 2015. They saw no mould in the premises. Photographs taken at the time show the bathroom to be in good condition. One very small mould spot is noted on the silicon seal between the basin and tiles. Again mould is not seen in photographs taken of the wardrobes.
-
The tenant’s evidence of mould is centred on a box of shoes which have very serious mould growth. Photographs are also presented of mould spots on a leather jacket, and a belt. However, these photographs are not taken of the items in situ in the house.
-
The tenant has not provided any expert evidence regarding the existence of mould in the premises.
-
The tenant complained that the lack of an effective and functional exhaust fan in the bathroom caused the growth of mould. However, if this were the case I would expect to see evidence of significant mould growth in the bathroom. This is not seen.
-
The tenant claims that mould was not readily apparent towards the end of the tenancy because he cleaned the property.
Water usage
-
The landlord’s agent prepared the residential tenancy agreement for the tenant to sign. The first version ticked the box noting that water usage was payable by the tenant. Very soon after this the agent advised the tenant that a mistake had been made in preparation of the agreement. They offered a new agreement to the tenant for signature. This document had the box ticked which provided that water usage was not payable by the tenant. It appears that the agent was uncertain whether the property was separately metered. The tenant did in fact pay water usage of $357.72 but now seeks repayment of this in accordance with the terms of the written lease.
Electrician’s fees
-
With the assistance of the agent, the tenant arranged for the landlord’s electrician (G. Fletcher Electrical) to come to his property to change the light bulb in the bathroom ceiling (as this was too high for him to reach), the light in the range hood and also to check the exhaust fan. The tenant says he should not have to pay this bill as it included checking the exhaust fan which was not his responsibility.
-
G. Fletcher Electrical did give advice to the landlord regarding the exhaust fan. The electrician, concluded that the extractor fan “looked like it was working” but that they felt it wasn’t adequate to deal with condensation from the dryer installed by the tenant.
-
Dennis Mayson’s Electrical Service reports on 18 March 2015 that the exhaust fan was working “very slow”. The electrician advised the landlord to install a second exhaust fan, which they did. The electrician notes that they did not find any mould in the bathroom or hallway ceilings.
DECISION
Compensation for breach of residential tenancy agreement - Mould
-
The tenant claims to have suffered loss as a result of the landlord’s failure to keep the premises in a reasonable state of repair.
-
Section 63(1) RTA states that a landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. This provision is an implied term of every residential tenancy agreement (s 63(4) RTA).
-
The landlord’s obligation to repair arises after the landlord has been put on notice of the need to repair. Once notice is received by the landlord, a breach of section 63 will only occur if the landlord fails to carry out any necessary repairs within a reasonable time Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254.
-
In my view the evidence does support the tenant’s allegation that the bathroom exhaust fan was not working adequately to remove bathroom condensation. It is noted that the bathroom does not have an external window. It is also noted that the bathroom is equipped with plumbing necessary to connect a washing machine. This room is thus designed to function both as a bathroom and laundry.
-
The tenant complained that the lack of an effective and functional exhaust fan in the bathroom has caused the growth of mould. However, if this were the case I would expect to see evidence of significant mould growth in the bathroom. This is not seen.
-
I accept the tenant’s evidence that the exhaust fan in the bathroom was not functioning adequately, particularly given use of the tenant’s dryer. However, I am not convinced by the evidence that this resulted in growth of mould in the premises.
-
Even if the tenant had established such a connection it would be difficult to quantify his damage. The photograph of the box of shoes reveals these to be women’s shoes. The tenant says they belonged to a family friend who stayed at the premises when she was in Sydney. This person is not a party to the residential tenancy agreement, she was simply a visitor at the premises. Furthermore there is no evidence as to the age of the shoes or the depreciated value of the items.
-
The items of clothing belonging to the tenant appear to be a leather jacket, a belt and running shoes. He has not provided any evidence regarding purchase or value of these items.
-
Overall, the tenant has not established that the landlord’s delay in rectifying the bathroom extraction fan, caused mould growth in the house which then resulted in damage for which he should be compensated.
-
It appears that the tenant continued to use the bathroom and laundry throughout the tenancy. This is not a case where these amenities were denied him as a result of the need for repairs.
-
The tenant has not substantiated his claim for compensation amounting to 30% of the rental for loss of amenity of the premises.
Water usage
-
I do accept that the landlord’s agent led the tenant to believe that water usage was not payable. The agent did send the tenant an agreement which ticked the box indicating that water usage was not payable. This was an error. The tenant has not explained why he then paid water usage after being requested to do so. Nevertheless, I accept the tenant’s argument that he should be entitled to rely on the written agreement which was signed by both parties and accordingly he should be refunded the amount of $357.72 he paid for water usage.
Electrician’s fees
-
On the evidence I find that the tenant arranged for the agent’s electrician to come to his property in order to change the light bulb in the bathroom ceiling as this was too high for him to reach and also the light in the range hood and also to check the exhaust fan. It appears that the electrician did give advice to the landlord regarding the exhaust fan. This was a matter that the tenant had complained of and was a proper matter for the landlord to investigate. I find that the landlord should pay for this part of the service.
-
I find that the tenant should only pay a proportion of the bill from G. Fletcher Electrical. The tenant should be refunded one half of the bill, namely $50.00.
S Corley
General Member
Civil and Administrative Tribunal of New South Wales
28 April 2015
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 07 July 2015
0