MARGARET KRAUSS & ROBERT LAW and CHRISTINE LAW (Residential Tenancies)

[2010] ACAT 88

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MARGARET KRAUSS & ROBERT LAW AND CHRISTINE LAW (Residential Tenancies) [2010] ACAT 88

RT 10/651

Catchwords:             RESIDENTIAL TENANCIES – landlord and tenant – landlord’s failure to attend to repairs – do breaches of lease justify termination of tenancy? – patent defects and latent defects – urgent repairs and non-urgent repairs – when was the notice of defects given? – compensation for breach of lease

List of Legislation:    Residential Tenancies Act 1997 (ACT)

List of Cases:            Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Tribunal:                  Mr A. Anforth, Senior Member

Date of Orders:  18 November 2010
Date of Reasons for Decision:         13 December 2010

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 10/651

BETWEEN:

MARGARET KRAUSS

Applicant

AND:

ROBERT LAW & CHRISTINE LAW

Respondent

TRIBUNAL:            Mr A. Anforth, Senior Member

DATE:  18 November 2010

ORDER

The Tribunal orders in respect of premises at 5 Burnage Place GOWRIE ACT 2904

1. That the landlord is to pay the tenants the sum of $450.00 for the failure to repair the heating.

1. The abovementioned amount is to be paid on or before 18^th November 2010.

2. The balance of any bond monies held is to be released to the tenants.

………………………………..

Mr A. Anforth
Senior Member

REASONS FOR DECISION

Overview

1. This case concerns a dispute between a landlord and tenants about a landlord’s failure to attend to repairs of the heating in the premises during the term of the lease and whether the failure to repair justified an early termination of the lease.

History

1. The residential tenancy agreement between the landlord and tenants commenced on 28 May 2010 for a fixed period of twelve months. The rent was $550.00 per week. The tenancy terminated on 22 July 2010 when the tenants vacated the premises following their notice to the landlord of 4 July 2010.

1. On 9 June 2010 the tenants emailed the landlord’s agent requesting manuals for the central heating unit for the property. The tenants advised that the control panel was displaying an error message and the heater was switching itself off.

2. The landlord’s agent responded on 10 June 2010 asking for details of make and serial number for the heater to help locate the manuals for them.

3. The tenants replied by email on 10 June 2010 informing the agents that it was a Brivis Multiplex Series Me 30e heating unit. A few hours later the landlord’s agent replied by email that listed some links to websites where an online manual could be found.  The tenants replied that same day advising that the links given in the previous email were just brochures on the unit and that no operating instructions were provided.

4. On 13 June 2010 the tenants emailed to the landlord’s agent advising that the heater was still cutting out and displaying an error message. The tenants also advised that in their opinion the heater needed a service as soon as possible.

5. The landlord’s agent replied on 15 June 2010 advising the tenants that they have contacted the landlord about the matter. The email informed the tenants that the heater did not come with any manuals when the landlord bought the property and suggested some tips for operating the heater.

6. On 21 June 2010 the tenants called the landlord’s agent to complain about a gas leak coming from the kitchen, and at the same time requested a serviceman to come and look at the heater. The landlord’s agent responded to this request and a serviceman was sent to the property who fixed the gas leak coming from the stove and replaced a part of the heating unit.

7. The tenants notified the landlord’s agent by email on 24 June 2010 that the heater had stopped working again as it was displaying the same error message as before. The tenants requested that the same company be sent around again to fix the heater.

8. Later on 24 June 2010, the tenants emailed the landlord’s agent informing them that the Natural Gas & Water serviceman had just been to the property to replace the same part of the heater that was replaced three days ago on 21 June 2010. The tenants further informed the landlord’s agent that they had been advised by the service man that the dial on the heater was not working satisfactorily, and that if the heating unit broke down again a fan would need to be replaced at a cost of $500.00 to $600.00.

9. The tenants advised the landlord’s agent on 26 June 2010 in an email that the heater was still displaying the same error message. The tenants asked the landlord’s agent to contact the Natural Gas & Water Company to have this sorted out.

10. On Monday 28 June 2010 the landlord’s agent advised the tenants that they had spoken to Natural Gas & Water Company to discuss the scope of the necessary repairs, and that they were seeking approval for the parts required to fix the heating unit.

11. On 28 June 2010 the tenants replied thanking the landlord’s agent for their response to the problem with the heater. The email then went on to make complaints about electrical fuses blowing around the house, as well as the TV aerial outlets not working on the upper levels of the house.

12. The landlord’s agent emailed the landlord on 28 June 2010 asking for approval to replace the fan motor and wheel in the heating unit for a cost of $861.00.

13. The landlord responded to the agents that evening by giving permission for the work to be done, and also asked the agent to buy the tenants a bottle of wine as a gesture of goodwill for the inconvenience they had suffered.

14. The landlord’s agent emailed the tenants on 1 July 2010 asking whether they had spoken with the electricians about the fuses blowing, and if the tenants had professionals come to the property to assess the situation regarding the TV reception.

15. On 1 July 2010 the tenants replied and asserted that none of the TV channels worked with the exception of one, and that they had not had anyone come out to assess the problem as they were still waiting for advice from the agent’s office. The tenants told the landlord’s agent that they had spoken with Maritex (electricians) about the power supply problem and were advised that they were trying to run too many appliances from the same circuit board. The tenants commented that this advice was not particularly helpful as the whole house was on the same circuit board with the exception of one room. At the end of the email, the tenants informed the landlord’s agent that their daughter was becoming sick and the matter of fixing the heater was becoming quite urgent.

16. On 2 July 2010 the landlord’s agent sent the following email to the tenants in attempt to address the issues that were raised in the email of 1 July 2010:

    ...TV reception is quite an issue in Canberra, especially on the south side.
    The aerial [sic] connections may not be working due to no aerial [sic] on the roof? if [sic] this is not the case please let me know as the solution may be a simple one.

    If no aerial [sic] is present the Landlords are not obliged to provide one.

    Len is from Maritex. I am glad you have spoken to him regarding your concerns. If there was anything alarming Len would have asked permission to assess the property. You can be assured by the fact that he hasn’t needed to attend that everything is safe.

    
    
    

    In regards to the heating; a Work/Order has been sent for the new parts required & Heidi re-sent the Work/Order in my absence. I contacted Natural Gas & Water this morning who have confirmed that only one of the two parts are [sic] in stock. They will be in contact with you as soon as the second part arrives. Unfortunately we have no control on parts or if they are required to be ordered in ect [sic]

    I can understand your concerns regarding keeping warm – we are facing some cold nights ahead. After two attempts to fix the heater it is safe to say that these parts are needed & there are no temporary fix options available.

17. The tenants emailed in response later that day. The email began by stating that the tenants did not think that if the TV aerial outlets are provided and aerials are on the roof, then it is reasonable to expect the landlord to maintain them. The second part of the email addressed the issue of the heating in the following words:

    ...With regard to the heating, as we have had to run electric heaters (of course whilst they will run – as we have power supply issues as well) for the past five weeks and probably for another two weeks. This is costing us more money, this is exacerbated by the fact of there being no window treatments on the back windows of the house, making it extremely difficult to maintain whatever heat we may produce within the house. It is for these reasons, it is not unreasonable to now expect a reduction in rent or to be released from the lease without any consequences or fees being charged...

18. On the afternoon of 2 July 2010 the landlord’s agent responded by saying that they would obtain instructions from the landlord about the aerial and the rent reduction or lease break and then get back to the tenants.

1. The landlord’s agent forwarded the tenants’ previous email about the aerial and rent reduction to the landlord on 2 July 2010. The landlord responded that evening by stating that it would be reasonable to compensate the respondents for the extra electricity that they consumed in the period the heater was broken, but that it would not be reasonable to allow them to break their lease at no cost.

2. On 4 July 2010 the tenants wrote to the landlord’s agent advising of their intention to break the lease and vacate the property on 22 July 2010. The letter listed three reasons for breaking the lease: lack of adequate heating and the prolonged process of repairs; the lack of window treatments in the living area; and their daughters continuing ill health.

3. On 6 July 2010 the tenants wrote to the landlord’s agent informing them that they were intending to seek compensation in regards to breaches of the lease. The relevant sections of the letter stated:

   ...The purpose of this letter is also to give notice that we will be seeking compensation for breeches [sic] of the lease and for failing to maintain the property properly. We refer to issues which were outlined in our letter 4 July such as major gas leak, the absence of flyscreens and window treatments, the ineffective TV aerials and the questionable power supply. In addition there are other issues such as kitchen cabinet door handles falling off, the knob on the oven falling off, the oven door is broken and hits the door when you open it, two out of three toilet bowls are badly stained and the drains in the laundry were blocked and needed attention.

   On the basis of Nixon v Debot Pty Ltd, we are claiming compensation for the inconvenience and discomfort we have experienced from the day we moved in and continuing to date, due to the malfunctioning of the ducted gas heating, we claim $2,500.00. We also claim the additional costs associated with relocating....

The Hearing

1. Despite the volumes of material on file the issues between the parties came down to whether the landlord was in breach of the lease by failing to repair the TV antenna; and whether the prolonged period without heating and the winter months justified the tenants in terminating the lease.

1. The Tribunal noted that a landlord is only required to repair a defect after notice of the defect. Patent defects are those of which the landlord has notice prior to the tenancy commencing and must be fixed prior to a new tenancy commencing (prescribed term 54). Latent defects are those which arise after the tenancy commences, and are required to be fixed once the landlord has notice of the defect (prescribed term 55). The Tribunal then commented on the nature of urgent repairs and the need to fix urgent repairs as soon as practicable (prescribed term 59). The Tribunal noted that the TV antenna was not an urgent repair and therefore under prescribed term 57 the landlord had 4 weeks from the date of notice to effect the repairs. However the heating was an urgent repair which needed to be fixed as soon as practicable.

2. The Tribunal explained that if TV antennas are attached to the roof and there are aerial outlets around the house there is an implied representation by the landlord that the antennas are functional and the landlord is required to provide and maintain them in a functional condition.

3. The parties were then asked to produce evidence of when notice to the landlord’s agent was given in relation to the TV reception, and it was accepted by both parties that the date for notice was 28 June 2010. The Tribunal concluded that as it was not an urgent repair the landlord had four week period in which to have it repaired. This four week period had not expired by the time the tenants vacated the premises.

4. The tenants claimed that the house was not habitable due to lack of heating and the failure to repair constituted a significant breach that permitted early termination of the lease. The landlord’s agent contended that the breaches were not serious enough to warrant the early termination of the lease.

The Respondent’s Evidence

1. The tenants gave evidence that they moved in the property on or about 5 or 6 June, and that the heater was not working properly from that time. The Tribunal inquired as to when the tenants gave notice to the landlord’s agent that the heater was not working. The tenants said they considered that they had given notice by email on 9 June 2010 when they asked for manuals as the heater was cutting out and displaying an error message.

1. In regards to their claim for compensation, the tenants brought the Tribunal’s attention to a medical certificate from a Dr M Hardy stating that the tenants’ daughter was of ill health that was exacerbated by the lack of heating.

The Applicant’s Evidence

1. The landlord’s agent did not agree with the tenants concerning the date on which notice of the heaters defect had been given. They claimed that the notification about the heater needing repair should date from 21 June 2010 when they were notified by the Natural Gas & Water serviceman that the heating unit was broken. Before that time the landlord’s agent claimed that the tenants were only asking for instruction manuals. This contention by the agent is clearly not consistent with the email evidence, recited above and is not accepted.

1. The landlord’s agent further claimed that under the lease they had four weeks from notification of the defective heater to have the problem fixed, and because the heater was repaired on 10 July 2010 the tenants were not justified in terminating the lease. The agent stated in their evidence that on 28 June they advised the tenants that the part required for the heater was on order and would be fixed soon.

   The Tribunal’s findings:

2. The Tribunal explained to the parties the nature of strict liability in contract law.

1. The Tribunal pointed out that as the heater was an urgent repair prescribed term 55 required it to be fixed as soon as practicable. The four week period of prescribed term 57 did not apply to the heater.

2. The Tribunal found that  notice of the defective heater had been given on 9 June and so there were 31 days until it was repaired on 10 July 2010.

1. The Tribunal concluded that given the absence of heating in the winter months, the presence of the child and the inability of the applicant to give the respondent a firm date for when the heater would be repaired, the tenants were justified in serving of the notice of termination of ?? July terminating the lease.

1. The Tribunal then turned to the issue of the respondent’s claim for compensation. The Tribunal explained to the tenants that it could not compensate them for their daughters stress or inconvenience as she was not a party to the lease. The authority for that proposition is Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.

2. In determining the amount of compensation for the distress and inconvenience to the tenants the Tribunal took into account the existence of alternative heating such as oil and blow heaters and at a comparative verdicts basis assessed the compensation at $450.00 for the time between when notice was given and when the heater was finally repaired.

3. The Tribunal then asked the parties for comment about the adequacy of the compensation about which neither party made a submission. The Tribunal then ordered that the applicant pay the respondent $450 on or before 18 November 2010, and that the bond be returned to the respondent in full.

………………………………..

Mr A. Anforth
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                
RESPONDENT:            

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        

DATE/S OF HEARING:  PLACE: CANBERRA

DATE/S OF DECISION:  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: