Lynne Minion -v- Ann Somers

[2006] ACTRTT 24

Lynne Minion -v- Ann Somers  ACTRTT24  [2006]

CATCHWORDS
Breach of lease – “Reasonably secure” 

LEGISLATION
Residential Tenancies Act 1997 (ACT)

Sections 104 

Clauses54, 59 and 60 Standard Residential Terms

CASE LAW

Case Reference Number:     RT 2304 of 2006

Re: Premises at 12 Lister Crescent AINSLIE ACT 2602

DECISION

ORDERS

1.    That the application is dismissed.

Member:  J. A. David
Date:    20 November 2006

IN THE RESIDENTIAL     )  RT 2281 of 2006

TENANCIES TRIBUNAL  )
OF THE AUSTRALIAN     )
CAPITAL TERRITORY    )

APPLICANT:  Lynne Minion

(Tenant)

RESPONDENTS:  Ann Somers

(Lessor)  

STATEMENT OF REASONS

BACKGROUND

1    On 13 January 2006 the parties entered into a residential tenancies agreement in relation to premises at 12 Lister Crescent, Ainslie, in the Australian Capital Territory.  The tenancy was for a fixed term of 12 months. 

2    The tenant sought two remedies from the Tribunal: a rental reduction for loss of use of part of the rear of the property and, secondly, compensation and a rental reduction for breach by the lessor of her duty under Clause 54 of the Standard Residential Tenancy Terms (the Standard Terms) under the Residential Tenancies Act 1997 (the Act) to ensure the premises were reasonably secure at the commencement of the tenancy and/or to carry out urgent repairs to ensure the premises were safe or secure under Clause 59 of the Standard Terms.

3    At the initial hearing on 27 September 2006 the lessor was ordered to pay the tenant a rental reduction of $10 per week in respect of loss of use of part of the property from 20 January 2006 to 27 September 2006.  The balance of the tenant’s claim was adjourned for the tenant to make a detailed list of the items she claims were stolen in the second break-in and robbery of the premises on 28 August 2006 and to obtain evidence of their value.  

4    The balance of the tenant’s claim was heard on 20 November 2006. Tribunal dismissed the claim and undertook to provide the following Statement of Reasons.

Applicants’ Evidence

5    The Applicant submitted the following documentary evidence:

·      Copy of her Statement to the Australian Federal Police on 2 March 2006

·      Copy of letter from blue property marketing to the tenant dated 1 September 2006. 

·      4 photographs

·      Statement of Particulars

·      “Statutory Declaration" of Catherine Boomer

·      Booklet entitled “Important Household Safety Information” prepared by ACT Neighbourhood Watch in conjunction with the Australian Federal Police.

Respondents’ Evidence

6    The Respondent submitted the following documentary evidence.

·     Statement Contesting/Defending

·     Copy of letter from Blue Property Marketing to the tenant dated 1 September 2006

·     Copies of a number of emails between the tenant and the lessor’s property managers

·     Notice to Remedy dated 12 September 2006Tanant Ledger

·     Receipt from Steve’s Electrical & Security dated 7 March 2006

·     Endorsement of terms Allowing Pets dated 10 April 2006

·     Inventory and Condition Report

·     Statement of results of enquiries to insurance companies on 17 November 2006

·     Receipt from CJR Carpentry & Joinery dated 21 February 2006

FINDINGS AND REASONING

Applicable Law

7    In essence Clause 54 of the Standard Terms provides that a lessor must ensure at the start of the tenancy that the premises are reasonably secure.  Clause 55 of the Standard Terms further provides that the lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy. 

8    The Tribunal considered the meaning of ‘reasonably secure” in Ave v Commissioner for Housing in the ACT [2001] ACTRTT 13 and held that lessors are obliged to take steps to provide and maintain premises which are suitably secure so that reasonably foreseeable risks or dangers to a tenant and/or a tenant’s possessions are avoided. The test is objective and will depend on the circumstances in case. The primary obligation is to provide premises in a reasonably secure state.   The Tribunal held that lessors are not insurers of tenant’s possessions and are not obliged to take extraordinary precautions to guard against the assiduous thief. 

9    The premises were initially burgled on 21 February 2006.  The burglar broke into the premises through the rear bedroom window.  The tenant lost a considerable amount of possessions including a laptop computer, jewellery, a colour printer, a DVD player and DVDs, CDs and a vacuum cleaner.  The tenant stated she was advised by a member of the Australian Federal Police at the time that that there was a pattern of burglaries in the area in which the same house is targeted for a repeat burglary 6 months after the initial burglary.  The lessor’s then property manager was present at that conversation.  The Australian Federal Police also advised that the old-style lock on the rear window was no deterrent and easily overcome. 

10    The tenant stated that the lessor’s property manager obtained a quote to fit keyed locks on all the windows.  However, the Property Manager stated the lessor had refused to install the locks.  The tenant said she also requested bars, an alarm, security flywire on the windows and/or shatter proof film be installed especially on the vulnerable rear windows.  None of these were installed by the lessor.  The tenant did the following at her own expense to improve the security of the premises:

-drilled holes and placed screws in the holes to close all windows

-bought two dogs

-fitted alarms on two windows

-installed sensor lights at the front of the premises.

11    The lessor gave evidence that at the start of the tenancy the property had deadlocks and standard locks on both the front and back doors together with a keyed lock on the kitchen door which opens onto a closed lobby.  There were standard latch locks on all windows.   Within 2 weeks after the initial burglary the lessor paid for two security lights to be installed at the rear of the premises.   She also agreed to the tenant having a dog (in fact two dogs) on the premises for added security.  The lessor stated she was not aware of the tenant’s requests for any other additional security devices and she had never refused to fit window locks.  Apparently, the former Property Manager had not passed the requests on to her.  The lessors had not objected when the tenant drilled holes and placed screws in all the windows and installed the twos sensor lights at the front of the premises contrary to the terms of the tenancy.

12    Unfortunately, a second burglary occurred on 28 August 2006. The burglar entered through a sheet of glass in a panel next to the rear door.  The tenant lost more possessions, some of them newly purchased to replace the possessions taken at the initial burglary.   The tenant had been unable to obtain insurance for the new possessions so suffered considerable loss which she estimated to be about $8,788.  She sought an order against the lessor for payment of that amount, together with a rental reduction for failure by the lessor to provide and maintain the premises in a reasonably secure condition together with compensation for relocation costs as the tenant had decided to move from the premises with the consent of the lessor. 

13    The tenant argued that the property was not reasonably secure as keyed locks were not fitted to all windows, either at the start of the tenancy or after the initial burglary.   She also argued that she could not get contents insurance after the initial burglary as these locks were not fitted.  The lessor’s new Property Manager gave evidence that she had phoned three insurance companies all of whom had stated they would insure contents in the premises even after they were informed of the burglary and the fact that keyed locks were not fitted on all windows. 

14    Finally the lessor argued that even if keyed locks had been fitted to all windows this would not have stopped the second entry which was made through a fixed panel of glass at the side of the rear door and no through a window.  The Tribunal notes that, by drilling holes in each window and inserting screws in the holes, the tenant had effected the same security as the fitting of window locks.

15    In all the circumstances of this case the Tribunal finds that the lessor did not breach her duty to ensure the premises were reasonably secure at the start of the tenancy (Clause 54).  Nor had the lessor breached the duty to carryout urgent repairs after the initial burglary.  The broken rear window was repaired quickly and the rear sensor lights installed within a reasonable time after notification by the tenant.   Agreeing to two dogs being on the premises also contributed to the security of the premises.

16    As held in Ave v Commissioner for Housing in the ACT above, the lessor is not an insurer for a tenant.  The lessor in the circumstances of this case did fulfil the duty placed upon her by the Act.

17    In the circumstances the Tribunal determined to dismiss the tenant’s application. 

ORDERS

1.    That the application is dismissed.

Jennifer David

Member

30 November 2006