Mazaydeh v Commissioner for Social Housing (Residential Tenancies)
[2021] ACAT 115
•26 November 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT RT2021/155 v COMMISSIONER FOR SOCIAL HOUSING (Residential Tenancies) [2021] ACAT 115
RT 155/2021
Catchwords: RESIDENTIAL TENANCIES – application seeking enforcement of repairs under the Residential Tenancies Act 1997 – compensation sought by tenant for breaches under the Act and standard tenancy terms – allegations that the Commissioner for Social Housing failed to provide premises at standard required – applicant’s claims exceed Tribunal’s jurisdiction - prescribed maintenance of the premises during tenancy – prescribed timeframes for certain kinds of repairs – operation of Limitation Act 2001 - onus of proof in claims for compensation – insufficient material evidence – lack of certainty – application of COVID emergency response declarations - tenant awarded compensation for failure to repair within prescribed timeframes
Legislation cited: Legislation Act 2001 s 146
Limitation Act 1985 ss 11, 30, 32
Residential Tenancies Act 1997 ss 71, 76, 78, 83, standard terms 51, 52, 53, 54, 55, 57, 59, 60, 63, 64
Subordinate
Legislation cited: Residential Tenancies (COVID Emergency Response) Declaration 2020
Residential Tenancies (COVID Emergency Response) Declaration 2021
Cases cited:Commissioner for Social Housing v Jones [2016] ACAT 75
Cope & McEachern v Walker & Walker [2018] ACAT 65
Faulder v Tran [2018] ACAT 80
Hicks v Pradolin [2015] VCAT 20
Peters v ACT Housing [2006] ACTRTT 6
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Samad v District Court of New South Wales [2002] HCA 24
T v Director of Housing [2013] VCAT 2195Worrell v Commissioner for Housing for the ACT [2002] FCAFC 127
Tribunal:Senior Member M Hyman
Date of Orders: 26 November 2021
Date of Reasons for Decision: 26 November 2021
Date of Republication: 28 May 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 155/2021
BETWEEN:
APPLICANT RT2021/155
Applicant
AND:
COMMISSIONER FOR SOCIAL HOUSING
Respondent
TRIBUNAL:Senior Member M Hyman
DATE:26 November 2021
ORDER
The Tribunal orders that:
The respondent is to reduce the applicant’s rent by a total of $269.81, the reduction to be applied so as to be complete within a period not exceeding three months from the date of this decision.
The amount in order 1 above is to be recalculated by the respondent in accordance with these reasons if the applicant’s rent has increased since 4 October 2020.
……………Signed…………..
Senior Member M Hyman
REASONS FOR DECISION
The applicant, known as Applicant RT2021/155, occupies a house under a residential tenancy agreement with the respondent, the Commissioner for Social Housing (the Commissioner). On 26 February 2021 the applicant made an application under the Residential Tenancies Act 1997 (the RT Act) seeking urgent action to remedy what she said were continuing failures to maintain their rented premises at the standard required, also seeking compensation for breach of the residential tenancy agreement and loss of quiet enjoyment of the premises over the period in which the identified deficiencies were alleged to have been present and unattended to. The application identified a list of defects in the premises which were said to need attention.
The applicant’s name has been anonymised. In these reasons the applicant is referred to as “Applicant RT2021/155”, “the applicant”, or, on occasion, “the tenant”.
I heard the matter on 27 July 2021. Both parties advanced evidence in support of their case, and this material goes to both compensation and the application for remedial works. The applicant’s evidence included their own witness statement and witness statements from a sister and a brother; an open letter to Housing ACT signed by Ms Trudy Vollebergh, a Child and Family Worker at Tuggeranong Child and Family Centre; an open letter from Dr Kathleen Calder, apparently a general practitioner; worksheets obtained under subpoena recording the applicant’s requests to Housing ACT for repairs and remedial work of various kinds to be undertaken, with additional sheets relating to a period before the tenancy began, along with a record of the work done in response to each request; and photographs of parts of the property documenting some of the alleged problems.
The Commissioner provided the residential tenancy agreement; a documentary record of requests for repairs by the applicant (overlapping substantially with the worksheets provided by the applicant) with some additional detail; the incoming property condition report from 2012, with the applicant’s comments at that time; a report with the results of testing for fungal spores at the property; and emails from people associated with the maintenance of the property, including the Commissioner’s contractor (Delcorp) providing comment about fungal spores.
After hearing from the parties I concluded that some of the issues raised had already been remedied by the lessor; others were not of the kind that a tenant could seek to have remedied by this Tribunal under a residential tenancy agreement; about others I was unconvinced that they warranted remedial action; but in two areas, namely rat infestation in the ceiling and continuing problems with damp and mould, the Commissioner should be obliged to take remedial action beyond that previously undertaken. I made orders accordingly. I also directed that the Commissioner investigate potential problems arising from the entry of water into the garage of the premises.
The applicant pressed the application for compensation, and I heard submissions from the parties, reserving my decision on the issue. These reasons give and explain my decision on the question of compensation.
The issues
The only issues to be decided are:
(a)whether the Commissioner should pay compensation to the applicant; and
(b)if so, how much.
Legislative framework
The Schedule to the RT Act consists of the standard terms in a residential tenancy agreement (the procedure for replacing or adding terms to the standard terms is not presently relevant). These terms are then the terms of the contract between lessor and tenant. The RT Act provides a framework for that contract, in particular providing for the resolution of disputes between the parties. Generally speaking, where there is a breach of a residential tenancy agreement, it is to the specific provisions of the RT Act that the parties turn rather than to contract law more generally. This Tribunal is, again generally speaking, the body charged with decision-making and dispute resolution.
The RT Act requires this Tribunal to order a reduction in rent under a residential tenancy agreement where the Tribunal considers that, relevantly, the tenant has had significantly diminished use or enjoyment of the premises because the lessor has failed to maintain the premises in a reasonable state of repair; or the lessor has interfered with the tenant’s quiet enjoyment or ability to use the premises in reasonable peace, comfort and privacy.[1] A rent reduction takes effect from the date on which the tenant lost some part of the use or enjoyment of the premises and remains in force for a period of up to a year, as specified by the Tribunal.[2] The Tribunal may order a lessor to pay to the tenant the difference between the amount of rent paid and the amount that should have been paid under the reduced rent.[3]
[1] RT Act section 71(1)
[2] RT Act section 71(3)
[3] RT Act section 71(4)
The RT Act also confers on this Tribunal broad and general powers to make orders in regard to a residential dispute. Among these powers, the Tribunal may order the payment of compensation for any loss caused by the breach of a residential tenancy agreement.[4]
[4] RT Act section 83(1)(d)
The RT Act limits the jurisdiction of this Tribunal to make orders for payment of amounts up to $25,000,[5] although the parties can reach agreement that that amount can be increased.[6]
[5] RT Act section 76(2)
[6] RT Act section 78
The standard terms for residential tenancy agreements provide that the lessor may not cause or permit interference with the “reasonable peace, comfort or privacy” of the tenant in the use of the premises,[7] and grant exclusive use of the premises to the tenant “unless otherwise agreed in writing”.[8] The lessor is obliged to ensure that the premises are in a suitable state for habitation at the start of the tenancy (including that they are fit for habitation, reasonably clean, in a reasonable state of repair, and reasonably secure),[9] and to maintain them in a reasonable state of repair during the tenancy, taking into account the state of the premises at the outset.[10] Non-urgent repairs must be attended to within four weeks of notification of a problem needing attention.[11] Urgent repairs are to be notified “as soon as practicable” and undertaken “as soon as necessary, having regard to the nature of the problem”.[12] What might constitute urgent repairs is set out in a list; it includes “a serious roof leak” and “flooding or serious flood damage”.[13]
The applicant’s case
[7] RT Act, standard terms, clause 52
[8] RT Act, standard terms, clause 53
[9] RT Act, standard terms, clause 54
[10] RT Act, standard terms, clause 55
[11] RT Act, standard terms, clause 57
[12] RT Act, standard terms, clause 59
[13] RT Act, standard terms, clause 60
The applicant sought compensation of several kinds. The separate heads of compensation are sometimes difficult to distinguish but appear to comprise the following:
(a)rent reduction to zero for the more than eight years she has spent in the premises, totalling $57,697 by their calculation, based on the current weekly rent of $129.35;
(b)rent reduction to zero from the date of the hearing until relocated to different premises; and
(c)$20,000 in compensation for anxiety and depression from having to live in inadequately maintained premises.
In their final written submission (received by the Tribunal on 15 July 2021) the applicant appears to claim a further $25,000 “for the breach of the tenancy agreement”. If I understand the claim correctly, the intention is that $57,697 is for the failure to maintain the premises at the appropriate level; $25,000 is for the consequential impacts on the applicant’s health, that of their children, and on their property (such as the goods damaged when water entered the premises in early 2016); and the further $20,000 is for the psychological impacts associated with the loss of amenity because of the state of the premises. The total sought is thus $92,697.
The applicant put forward a list of issues alleged to have affected their ability to have that quiet enjoyment that must be provided under a rental tenancy agreement. This list included not only persistent problems with mould and damp, and infestations with rats, but also:
(a)problems with the smell of cigarettes coming from one of the neighbours, and their behaviour towards the applicant’s family;
(b)the small size of the unit as a whole and the son’s bedroom in particular, as well as the laundry and kitchen;
(c)the unit having only one bathroom and toilet;
(d)access to the backyard being so limited that the lawnmower must be taken through the house when the back garden needs to be mowed as there is no other route of access from the garage where the mower is stored;
(e)the size of the single garage and its propensity to flood after rain;
(f)the bench top in the kitchen, which is now too old and no longer adequate;
(g)the front garden being so heavily shaded that nothing will grow and a large area is mud after rain, or bare earth when it is dry;
(h)the paling fence, which should be replaced with Colorbond to provide privacy;
(i)the vanity in the bathroom, which is chipping away at the sides and should be replaced;
(j)the tiling in the bathroom, which has chips and cracks; and
(k)a gap in the ceiling in the lounge room that may permit the rats access into the house.
The orders that I made at the time of the hearing went to the rat and mould problems, which I held needed the Commissioner’s attention at that time. I also directed that the access of water to the garage be investigated and remedial work be undertaken if needed. The applicant’s compensation claim extends to these matters but is not limited to them; they may seek compensation for any issue where the RT Act creates a basis to make a claim, including issues where the Commissioner’s repairs have by this stage remedied the problem.
The respondent’s case
The Commissioner advanced a number of arguments. First, some of the issues raised by the applicant are outside the Tribunal’s jurisdiction because they relate to the design of the premises, which cannot found a residential tenancy dispute under the RT Act. The size of the premises and of various rooms and the garage, the limitation to a single bathroom and toilet, and the problems accessing the backyard are all issues that derive from the house’s design. Similarly, the problems coming from the neighbours’ behaviour are not able to be addressed by an application under the RT Act.
The Commissioner asserted that some of the other identified problems had already been attended to (e.g. the gap in the lounge room ceiling and cracked tiles in the bathroom had been fixed) and others (such as the vanity in the bathroom and the kitchen bench top) were matters of aesthetics and did not affect the house’s amenity in terms of its function as a residence.
In respect of the remaining issues, Ms Sydney pointed to clauses 54 and 55 of the standard terms. Clause 54 requires that at the start of the tenancy, the lessor must ensure that the premises are fit for habitation, reasonably clean, in a reasonable state of repair and reasonably secure. Clause 55 then requires the lessor to maintain the premises in a reasonable state of repair, having regard to their condition at the start of the tenancy agreement. Ms Sydney took me to case law relating to the interpretation of these clauses and similar clauses in the RT Act equivalents in Victoria: Faulder v Tran[14] (Faulder); Cope & McEachern v Walker & Walker;[15] T v Director of Housing;[16] and Hicks v Pradolin.[17] In Ms Sydney’s contention, these cases establish that the obligation laid upon a lessor by these clauses is not to provide premises to tenants in perfect or pristine condition, or to the standard demanded by any particular tenant, but rather to meet the expectations of a reasonably minded tenant; to provide premises that are in a state fit for use and enjoyment. A lessor is not required by the clauses to meet some higher standard. On this basis the Commissioner, as lessor of the rented property, was compliant, in particular, with clause 55, and had not breached the tenancy agreement.
The evidence
[14] [2018] ACAT 80
[15] [2018] ACAT 65
[16] [2013] VCAT 2195
[17] [2015] VCAT 20
The facts as outlined below are mostly not controversial and are taken from the documentation provided, and from evidence given at the hearing. The applicant entered into a residential tenancy agreement with the Commissioner on 28 September 2012, and has lived in the premises since that date, with a daughter and son, now aged 15 and 13 respectively.
When the applicant took up the tenancy in 2012 they made comments on the incoming condition report. The tenor of these comments was that: the carpets in the living room and all three bedrooms were in poor condition and needed replacing; the bathroom was in poor condition and the vanity needed to be replaced because it had suffered water damage and had broken drawers; the toilet was leaking; the drawers in the kitchen were broken and the wood water-damaged; there was no walkway across the front yard to the front door, the yard was muddy, and the pavers that were there were broken. They provided photographs as evidentiary support, although these date from 2016; there are also photographs supplied by the Commissioner from the most recent inspection.
The work sheets provided by the parties show that after moving into the premises the applicant sought repairs for a variety of reasons. The issues raised in the present application were the subject of requests for repairs on numerous occasions as set out below, organised by each issue raised as a complaint in the present matter.
Rodents
Date of complaint Date attended to Days elapsed Days until next complaint 2 January 2013 7 January 2013 5 696 4 December 2014 11 December 2014 7 89 10 March 2015 - N/A 326 1 February 2016 10 March 2016 39 53 2 May 2016 10 May 2016 8 314 20 March 2017 - N/A 312 26 January 2018 - N/A 497 16 June 2020 25 June 2020 9 273 30 March 2021 30 April 2021 30 N/A
On each of the occasions listed in the above table (except those where no response was made), it appears that baits were laid in the ceiling. Certain other measures were also undertaken to address the rat problem over the period. On 10 June 2016 the applicant asked that the roof of the premises be checked for access points for rodents, and that appears to have occurred by 16 June 2016, although there is no apparent record of work being undertaken or an outcome of the inspection. In May 2017 some work was done on the skylight in the laundry, on the suspicion that rodents were gaining access at that point. In December 2017 and again in February 2018 various improvements were made to flashing on the roof and the skylight, but it is not clear that the intent was related to denying access to rodents.
At the hearing there was reference to the property being in a strata title arrangement with those adjoining, with three to five properties in the body corporate. The pest control contractors also refer to the premises sharing a roof space with two other properties; there is a comment that there were holes in the firewalls between adjacent properties that were too small for a person to fit through but large enough for a rodent. The documents provided by the Commissioner record that in 2021 Housing ACT took the matter up with the body corporate, but the body corporate committee declined to act; a request for other residents to report rodent activity had so far yielded no results.
Water leakage, moisture and mould
At the start of the tenancy, indeed at the time of the initial condition assessment, and again very shortly afterward, the applicant noted the muddy condition of the front garden. They asked for a concrete path on 9 October 2012, and one was laid by 8 February 2013. A work order for removal of broken pavers from the front yard was raised on 19 September 2013 and completed on 24 September 2013. On 19 February 2014 the applicant reported that their downpipes were blocked and the gutters were overflowing. Work was done to remedy this problem on 21 February 2014. In an inspection on 3 November 2015 the applicant complained of mould in the shower, and a smell of mould more generally. A few months later, on 1 February 2016, mould was found on the carpet backing and on the floor following what is described as a “flooding event”. The carpets – or the part affected by mould, at least – were replaced with vinyl tiles by 7 March 2016.
On 18 April 2020 a work order was raised to “fix the pavers in the front yard”. On 24 April 2020 the applicant reported a leak in one of the bedrooms after rain, and a further problem with mould affecting carpet. The leak in the bedroom was fixed by 14 June, the work order for the pavers was completed on 15 June 2020 and a work order for dealing with carpets and mould is listed as having been completed on 25 June 2020.
In their submissions and at the hearing the applicant laid great emphasis on the mould issues in the premises, which she attributed to a number of causes, including overhanging vegetation, the muddy front yard and limited sun exposure, and leaks from plumbing or through the roof from rain. She noted the amount of time and effort that she put in herself to keep mould at bay and stated that the exposure to mould had compromised their health and that in particular of the son, who suffers from asthma. The smell of mould was a constant presence in the premises, and in the flood in the unit in 2016 some of their property (furniture and white goods) was irreparably damaged. A number of photographs provided by the applicant are said to show mould in the premises.
An assessment of fungal spores at and outside the premises by a subcontractor named Mycolab, dated 22 June 2021, identified various strains of fungi both inside and outside the premises. The number of spores in outside air was rated “extremely high” and the number inside was rated “high” in the living area and bedrooms 2 and 3. A main contractor to Housing ACT, Delcorp, suggested in an email dated 29 June 2021 that the kinds of spores identified were not associated with health impacts except in the case of allergy and noted that an inspection had not identified moisture entering the property (on that or some previous occasions). Delcorp suggested that the best way to reduce moisture levels in the premises would be to pave or seal the area of the front garden closest to the house.
A witness statement from the brother of Applicant RT2021/155 says that he had painted the unit three times in the past eight years, with particular attention needed because of mould. A witness statement from the applicant’s sister attests to the presence of mould in the premises since 2013, and to the damage to her sibling’s property when the unit was flooded in 2016 (the reference is to 2015 but other evidence suggests that that date is an error, and the reference should be to the flooding event in early 2016).
Bathroom equipment
The applicant commented on the vanity when completing the condition report on entry. No work seems to have been done on it at that time, however, and the next reference is dated 17 November 2015, when the work sheets show that a report from the applicant that the vanity had been water-damaged and that there was a leak in the shower. The work sheets show that the vanity was attended to by 18 November 2015 and the leaking shower (apparently leaking from or under the shower screen) by 17 December 2015. On 20 October 2016 the applicant reported an odour from the shower drain; this was attended to on 21 October 2016, with tree roots removed from the sewer line. The applicant repeated the complaint on 22 November 2016, saying that the odour remained; the sewer lines were inspected by camera but no further issue was identified. On 12 October 2018 the applicant reported a leak from the cistern of her toilet; this was attended to on 22 October 2018. The applicant reported on 1 April 2019 that several taps that were leaking; these were all fixed by 31 May 2019. Applicant made a similar complaint on 18 April 2020, adding a renewed complaint about water damage to the vanity. The worksheets record that work was completed on 15 June 2020.
Some other work has been done in the bathroom during the tenancy. The worksheets record the testing of water pressure in the shower and some regrouting of the shower wall in May-June 2016; and application of silicone sealant in the bathroom in December 2017 – February 2018.
Kitchen
Two problems have recurred regarding the kitchen: The applicant has consistently complained about the kitchen bench, and the kitchen taps have leaked on several occasions. The applicant complained about the bench top on entry, but it was not until April 2013 that it was replaced (and apparently that was at the initiative of Housing ACT rather than in response to a complaint). There was immediately a problem with water leaking under the bench (reported 24 May 2013, fixed by 11 June 2013). The applicant complained about leaking or damaged taps on 24 March 2015 (fixed 18 April 2015); 21 August 2015 (fixed 25 August 2015); 2 August 2017 (fixed 4 August 2017); 26 January 2018 (fixed 30 January 2018); 1 April 2019 (fixed by 31 May 2019); and 18 April 2020 (fixed by 15 June 2020). Other work undertaken in the kitchen include repairs to a kitchen cupboard in August 2015 and most recently work initiated in March 2021 to ensure that the kitchen benchtop is fixed to the bench, with an expected completion date given as August 2021.
Lounge room ceiling
Various work orders have sought to allay problems arising from leaks in the roof and damage to the lounge room ceiling that apparently resulted. The starting point is in January 2016, when water entered the premises, damaging the carpet and also causing other problems. There was an order to repair the roof itself on 27 January 2016 and an order to repair the damaged ceiling on 1 February 2016, with the first reported as complete on 30 January and the second on 9 March 2016. A work order was raised later, on 12 May 2016, to fix the “sagging” lounge room ceiling and repaint the damaged area and the work is reported as complete on 27 June 2016. A work order to replace the lounge room ceiling and cornice and paint them is dated 28 October 2016, but it appears that the work proceeded in February the following year, as there is no completion date recorded. A work order to “rectify” the “sagging” ceiling is dated 1 February 2017, with the work complete on 7 April 2017. Three years later a further work order to replace the lounge room ceiling was issued on 12 May 2020, with the work completed on 27 June. The Commissioner accepted at the hearing, however, that there was still an issue, with gaps large enough to cause concern that they could allow rodents to enter the premises. The orders I made at the hearing included a direction to fill any gaps so as to prevent entry of rodents.
Other issues
The applicant made other requests from time to time to Housing ACT, as evidenced by the worksheets, for example in relation to the front door (a broken lock, the door being swollen or jammed) and garage door. These other issues have not been pressed in submissions or at the hearing, and I do not propose to consider them further.
Consideration
Some preliminary issues - compensation and rent reduction
The power to make an order for compensation in section 83(1)(d) and the power to order a reduction in rent under section 71 of the RT Act are framed differently. The power under section 83(1)(d) is general and discretionary, the Tribunal “may make” an order for compensation for any loss “caused by the breach of a residential tenancy agreement”. A discretion conferred on the Tribunal requires potentially three discrete decision-making steps: first, a decision whether or not the criteria for enlivening the discretion have been met – here, whether or not a breach has occurred; and second, if the discretion is enlivened, whether it should be exercised; and finally, if it is to be exercised, how it is to be exercised. Here, if a breach has indeed taken place, the Tribunal must then decide whether the discretion to award compensation should be exercised. And, naturally, if the discretion is to be exercised, there is a third decision to be made regarding the amount of compensation to be ordered. The RT Act does not set any particular criteria to govern the exercise of the discretion, but it is settled law that in the absence of any specific criteria the exercise of discretion is governed by the subject matter and purpose of the legislation conferring it. In this instance, matters such as the severity and duration of any breach are likely to be important. And a decision not to exercise the discretion to award compensation even when the power is enlivened by a breach is always available.[18]
[18] Legislation Act 2001 section 146(1); see also Samad v District Court of New South Wales [2002] HCA 24
Section 71 of the RT Act, on the other hand, is expressed in mandatory terms. If a tenant applies to the Tribunal under the section, and the Tribunal is persuaded that the tenant’s “use or enjoyment” of the premises has been “significantly diminished” as a result of any of the specified events, then the Tribunal “must order” a reduction in rent. The events that are specified include “loss or diminished utility of an appliance, furniture, facility or service” (section 71(1)(a)); loss of the use of all or part of the premises (section71(1)(b)); and interference with the tenant’s quiet enjoyment of the premises or the use of the premises in “reasonable peace, comfort and privacy” (section71(1)(c)).
The scope of the applicant’s claim
The applicant is not legally trained, and the application and submissions are not written in a way that always makes clear which provisions in the RT Act and the standard terms provide the foundation for the application. Nevertheless, the claim has come forward with a degree of force and sufficient clarity and elaboration that it is possible to identify the following basis for the application:
(a)The premises are inadequate for the family, especially as the children have grown and as various health issues have become apparent.
(b)The location of the house presents particular difficulties because of the behaviour of some of the neighbours.
(c)The premises were not in a reasonable state of repair at the start of the tenancy in 2012.
(d)The premises were not maintained in a reasonable state as the tenancy proceeded, with repairs either not done, or not done to an adequate standard, or not done so as to resolve the problem complained of.
(e)The problems at the premises were sufficiently great that at times some bedrooms could not be used.
(f)There was significant injury to the use and enjoyment of the premises by the family, including injury to their health, peace of mind and property.
It is plain that the applicant’s application, as outlined above, exceeds the Tribunal’s jurisdiction in two ways. First, it is beyond dispute that an application to the Tribunal under the RT Act does not confer jurisdiction to address the claims that the rented unit is too small for the family, or that their amenity in the unit is adversely affected by the behaviour of their neighbours. The size of the unit is no doubt centrally important to the family; but the application under the RT Act creates a dispute between the Commissioner and the applicant under their contract for the premises, that is, the residential tenancy agreement. The applicant entered into that contract, and has no entitlement under it to alternative premises. The suitability of the unit is outside the scope of the dispute. I do not have the jurisdiction to resolve the area of disagreement, and it does not fall within the framework of the RT Act. Similarly, the behaviour of the neighbours (cigarette smell, noise, sometimes abuse) is no doubt disturbing, but it is not an issue between the Commissioner and the tenant, but rather between the tenant and their neighbours. It is certainly outside the scope of the present application.
The second jurisdictional issue concerns the amount the applicant is seeking. The total greatly exceeds the maximum for which this tribunal can make an order, which is limited to $25,000.[19] That amount can be increased if there is agreement between the parties that the Tribunal should exercise extended jurisdiction,[20] but the Commissioner has declined to agree to the extension of the Tribunal’s jurisdiction in this instance. It may be that the applicant believes that the Tribunal’s powers to make an award of compensation are distinct from the power to order a rent reduction under section 71 of the RT Act, and that the $25,000 limit applies to the size of each order the Tribunal might make. Such a belief would be a misconception. The limit of $25,000 is the limit of the financial benefit the Tribunal can award in any action under the RT Act; and an ‘order’, as limited by section 76, includes an order for rent reduction. The amount to be paid under any such reduction would be included in the ceiling of $25,000. In a submission dated 15 July 2021 the applicant notes the limits to the Tribunal’s jurisdiction, but wonders about making perhaps three applications, each seeking some part of the total claim – one for compensation, one for rent reduction and one for the losses to personal property from the 2016 flood. I do not think section 76 of the RT Act lends itself to that proposed solution. All the matters raised form a single dispute under the RT Act, in respect of a single residential tenancy agreement. The $25,000 limit applies to any orders I might make for the Commissioner to pay the applicant as a result of this dispute. And more generally, I do not think it can have been the intention of the legislature that the limit imposed by section 76 of the RT Act could be so readily escaped.
[19] RT Act section 76(2)
[20] RT Act section 78
The applicant is also seeking a prospective rent reduction until the Commissioner relocates her. The inclusion of this claim (for a total reduction of rent until relocated) presents another jurisdictional challenge: section 71 of the RT Act provides for rent reduction for a range of circumstances, but as noted earlier nothing in the standard terms or in the RT Act gives a tenant entitlement to an alternative property.
On the basis of submissions and evidence, it appears that the applicant is claiming a breach by the Commissioner of both clauses 54 and 55. In a submission received by the Tribunal on 15 July 2021 the applicant says that they complained of the mould smell “since 2012” and that the carpets were mouldy from the start of the tenancy; that the problem with the muddy yard has been there since moving in, without proper attention from Housing ACT; and that the kitchen bench top was “peeling and broken” until it was replaced. In their witness statement the applicant states that there were problems with “rats/mice, mould, leaks, …” from the time of moving in. These complaints, taken together, suggest that a breach of clause 54 is being asserted.
There are some difficulties in the way of the claim for a breach of clause 54. The Limitation Act 1985 (the Limitation Act) requires that actions are brought within a nominated period from when the basis of the action first accrues to the person bringing it (or to a person through whom the claim is made). Section 11(1) sets a general limitation period of six years; section 11(2) states that that limit does not apply if the Act sets a different limitation period. The Act then proceeds to set different limitation periods for particular kinds of actions, some of them for more than six years, and some for less; none of these special provisions is relevant to the present matter. Limitations can be extended in certain circumstances (for example where a person bringing an action has a disability[21]). Where the person against whom the cause of action lies confirms the cause of action (for example by acknowledging the right of the person having the cause of action), the limitation period runs from the date of confirmation,[22] but I do not see any acknowledgement or confirmation by the Commissioner that would extend the limitation period in the present matter. The Limitation Act allows for parties to seek the extension of a limitation period in certain circumstances and for certain kinds of actions, such as personal injury, but again, not in areas relevant to the present compensation application.
[21] Limitation Act 1985 section 30
[22] Limitation Act 1985 section 32
My conclusion is that as the tenancy in the present matter began in September 2012 and the compensation application was lodged on 26 February 2021, the applicant’s cause of action against the Commissioner on the basis that the premises were not in a reasonable state of repair at the start of the tenancy is statute-barred by the Limitation Act. Further, the action that the Commissioner failed to maintain the premises in a reasonable condition during the tenancy is limited to complaints made after 26 February 2015, or made earlier under clause 55 but not resolved by the Commissioner before that date.
The applicant’s submissions refer to concepts such as quiet enjoyment of the premises. That concept and others related to it, such as a tenant’s use of premises in reasonable peace, comfort and privacy, are usually seen as an aspect of the tenant’s exclusive possession of premises and freedom from interference. A tenancy is a possessory right, an estate in land, and a lessor, or the agent of a lessor, is constrained from interfering with the tenant’s possession of the premises, except in specified circumstances. This is reflected in clauses 51, 52 and 53 of the standard terms, and a tenant can seek compensation if a lessor breaches those clauses, or alternatively seek rent reduction under section 71(1)(c). But although she uses these phrases, I do not think the applicant is complaining that Housing ACT has interfered with their rights as a tenant in that sense; rather she appears to be suggesting that the Commissioner, by failing to maintain the premises to a proper standard, significantly impaired the family’s amenity in the premises. It is certainly the case that omissions by a lessor (such as actions that were required to maintain premises but were not undertaken) can breach the covenant of quiet enjoyment.[23] It is also clear that compensation for breach of a residential tenancy agreement can extend in suitable cases to compensation for distress, inconvenience and anxiety as well as for material damage, illness or injury.[24]
[23] See Worrell v Commissioner for Housing for the ACT [2002] FCAFC 127 at [74] (Miles, Ryan and Higgins JJ)
[24] Peters v ACT Housing [2006] ACTRTT 6; Salem & Gizgeez and Abeygunasekara &Geevanthan [2011] ACAT 9
It is my understanding that, putting aside those aspects of the action that are excluded for jurisdictional reasons or statute-barred, the applicant is asserting that the Commissioner has breached standard terms 55 and 57 (maintaining the premises in a reasonable state and effecting timely repairs); and standard term 52 (reasonable peace, comfort and privacy). There is no specific assertion that the Commissioner has at times exceeded the four-week period for repair set in clause 57, but the assertion is implicit in the general case that the property has not been maintained in accordance with the residential tenancy agreement. The possibility of a breach of clause 59 – urgent repairs – may also be implicit in the claim.
As noted above, if there has been a breach of the residential tenancy agreement, compensation may be ordered under section 83(1)(d) or rent reduction under section 71. It has been the practice of this Tribunal to make an order under section 83(1)(d) where a tenancy has already ended, but where a tenancy continues, to make an order for rent reduction (no doubt reflecting the mandatory requirement to order rent reduction where the Tribunal is satisfied of the relevant matters); but the Tribunal has departed from that practice where the needs of the particular case so demand.[25]
[25] See for example Peters v ACT Housing [2006] ACTRTT 6
I deal with the present claim for compensation on the above basis. It is of course necessary to distinguish the precise nature of each of the claims made to ensure that there is no risk of compensation being provided twice for the same detriment.
Clauses 55 and 57 of the standard terms
As pointed out by this Tribunal in Faulder, clauses 54 and 55 of the standard terms serve two separate and distinct purposes: clause 54 requires that the lessor ensure that the premises meet a reasonable standard at the start of a tenancy; clause 55 then requires the lessor to maintain that standard as the tenancy proceeds. Clause 57 requires that a lessor make repairs (of the kind that need a lessor’s involvement) within four weeks of being notified of the need for them by the tenant. Ms Sydney has pointed to the case law establishing that the standard to which a lessor is held by these clauses is not one of perfection, and that observation is accurate. The phrasing in clause 54 ‘fit for habitation’; ‘reasonably clean’; ‘in a reasonable state of repair’ (emphasis added), suggests indeed that no standard of perfection is required, and the case law supports that conclusion. But the standard at the start of a tenancy is that to which the lessor is then held as the tenancy proceeds,[26] and to which the tenant is held during and at the end of the tenancy, fair wear and tear excepted.[27] The cases that Ms Sydney has referred to further establish that whether premises are in a reasonable state is a question of fact, to be decided objectively; and that the reasonable state of repair is not assessed on the premises as a whole, but rather against each of the elements provided by the lessor that make up the premises – including furniture, fittings, appliances and the like.
[26] RT Act, standard terms, clause 55
[27] RT Act, standard terms, clauses 63(c), 64
As Ms Sydney acknowledges, Faulder is authority for an additional point, which is that clause 55 holds the lessor not to best intentions or efforts, but rather to the achievement of the required standard: the lessor “must maintain” the premises in “a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement”. The requirement to repair is triggered by a tenant reporting the need for repair, and the lessor then has 28 days to effect the repair. It is my understanding that it is part of the present claim that the Commissioner has failed to meet this requirement – that repairs have not been made, or have not been made to an adequate standard.
When Ms Sydney asserts that the Commissioner has been ‘compliant’, I understand her to be saying that the Commissioner, as lessor, has attended to and resolved all of the matters needing attention at the premises, and has done so within the timeframe imposed by the standard terms. If the Commissioner has met clauses 55, 57 and 59, the applicant will not be able to claim a breach of those parts of the tenancy agreement. The tests set by section 71 of the RT Act are worded slightly differently, but it appears clear that the intention is that section 71(1)(a) corresponds to clause 55, and no substantive difference is intended between the compensation available under section 83(1)(d) and the rent reduction under section 71 of the RT Act (a similar conclusion was reached in Faulder). Thus if the Commissioner has met clauses 55, 57 and 59, it is difficult to see how either compensation for breach of the tenancy agreement, or a reduction in rent under section 71, could be ordered.
A question requiring resolution concerns the meaning of the word ‘repair’ in clauses 55, 57 and 59. There are two quite separate contexts: clause 55(1) uses the phrase ‘reasonable state of repair’, which has a standard meaning as a settled phrase, namely that premises or the elements in premises are in a reasonable condition, and, where the elements have some operational purpose, that they are working. The dictionary recognises this meaning as “in good condition, relative condition for working or using”.[28] Clauses 55, 57 and 59 also use the word in a different context, referring to the need for ‘repairs’; in this context the word means fixing or restoring something: “restoring to sound condition; the act of doing this”.[29] Thus to repair something means to bring it back into proper working order.
[28] Australian Concise Oxford Dictionary (6th edition, 2017)
[29] Australian Concise Oxford Dictionary (6th edition, 2017) ‘repair’
It is perhaps worth noting as I proceed to assess the evidence how limited and unsatisfactory that evidence is. The most reliable comes from the worksheets recording the applicant’s complaints and the Commissioner’s responses, but even they are of limited use in many instances, as there is little detail on matters such as exactly what remedial work was done, and nothing reliable on the state of the premises once that work was completed. Most of the other evidence is recent, including the Commissioner’s photographs from the most recent inspection; the applicant’s photographs from 2016 are of use, but they along with all the photographs, share the same limitations: a photograph showing scattered black material on a pale ground might be of mould or rat droppings but might equally be something else – soil particles perhaps, or food fragments. The assessment of the evidence that follows is necessarily constrained by those factors. In some other areas no reliable corroborative evidence was advanced – the loss of use of two bedrooms and the damage to the applicant’s personal property by water are assertions about which no documentary evidence has come forward.
What was the state of the premises at the start of the tenancy?
The applicant is statute-barred from making a claim against clause 54, as outlined above, but an assessment of the state the premises under clause 55 requires that the state of the premises at the start of the tenancy be taken into account. The effect of the formulation of clause 55 is that the premises are not expected to be significantly improved on their original state, but nor are they expected to be allowed to significantly deteriorate; and they must remain at a level of reasonable repair throughout. The evidence on the state of the present premises at the start of the tenancy contains some contradictions. The ingoing inspection report records that Housing ACT found the property to be ready for occupation, with no faults at a level that required remedial work. The applicant, however, found fault with several aspects, especially the carpets in all three bedrooms and the lounge; the kitchen fitments (broken drawers); the bathroom vanity; and the front garden area, especially with regard to access.
Even if I were to accept the applicant’s comments at face value – the evidence is contemporaneous, and made many years before a dispute arose – the standard of cleanliness and repair for rental premises recognises that they do not need to be without blemish, as noted earlier. The standard is not very precise, and reasonable minds are likely to differ in marginal cases on whether it has been met. In this case the evidence is inconclusive.
Did the Commissioner maintain the premises in a reasonable condition?
Whether Housing ACT met the standard set by clause 55 requires an assessment of the response to each of the applicant’s complaints. These are dealt with below, separated by theme in accordance with the outline of the evidence given earlier in this decision. That evidence extends back in time to the start of the tenancy in order to establish whether any pattern of care or failure to care for the premises is established.
Rodents
The applicant made nine complaints about rodents, as evidenced by the table provided above. On three occasions Housing ACT appeared to have made no response and on two occasions the response was outside the 28 days allowed by clause 57, once by two days and once by 11 days. The timeline provided by the Commissioner states that on the three occasions when no response was recorded, once the work order was cancelled because access to the premises could not be organised with the tenant, and twice because the work was not required. This aligns with coding on the work sheets and with the Commissioner’s further records, but no more detailed explanation or corroboration is available to me. I note, however, that the applicant does not seem to have made a further complaint about rodents on any of the three occasions.
It also seems from the table of complaints and responses that the rodent infestation in the roof cavity is a recurrent problem rather than a continuing one. There are long stretches between complaints, with most complaints occurring in the summer and early autumn, when one might expect rodent numbers to be higher. The repeated complaints, in my view, probably result from the shared roof space referred to earlier. The absence of continuing complaints after an initial report also suggests that when the Commissioner’s agents conducted their baiting projects and other suppressing activity, the rodent problem abated for a period. It appears, therefore, that the Commissioner met the requirements of clauses 55 and 57 by solving the immediate problem, but that, owing to the structure of the premises, it reappeared at a later date.
Water, moisture and mould
It is plain from the evidence that there has been an ongoing problem with excessive dampness with regard to the premises, especially in the front garden area, but also in the interior. The applicant complained of mould over an extensive period, and the witness statements by brother and sister both refer to mould. There are photographs, all apparently taken in 2016, showing black marks which may well be mould. I am persuaded that the black material on the carpets, taken up and replaced after a flood in early 2016, is indeed mould, and it seems more likely than not to me that the other photographs – despite the limitations of such material, referred to above – also record mould at that time. The only independent assessment is that by Mycolab in June 2021, which comes with very little guidance about what conclusions ought to be drawn from the assessed levels. A footnote states that “high” levels are a “potential health risk to sensitized individuals”; that “symptoms should be monitored and assessed by a medical doctor where required”;[30] and that the species present should be identified. Delcorp suggests that there is no excess moisture in the premises and little risk.
[30] Respondent’s final submission dated 27 July 2021, page 91
The applicant stated that their health and that of the children have been significantly affected, but I have no reports by doctors or other experts, beyond a report by a general practitioner recording that the applicant said that exposure to mould is exacerbating their anxiety. The evidence of the applicant’s siblings attests to the presence of mould, but there are obvious problems with relying on the evidence of the applicant’s family members, neither of whom were called as witnesses and underwent cross-examination, and no corresponding evidence came forward from an independent third party. The mould on the carpet and other mould photographed in 2016 is easily attributed to the flood of the premises at the time; the applicant said at the hearing that “Salvo” (apparently Mr Salvo DeLorenzo of Delcorp) said that the mould on the carpets at that time was “old mould” from some time in the past; but Mr DeLorenzo was not called as a witness and I have no way of knowing whether he is technically expert on mould matters, let alone the age of accumulated mould. I accept that mould has occurred in parts of the premises, but the evidence available to me suggests that it was associated with the flooding events of early 2016. It would not be a surprise or even a matter for comment if some effort was needed to keep mould at bay in some parts of any premises, for example in a bathroom, but that would not lead automatically to a conclusion that the premises were not properly maintained. So far as the documentary evidence discloses, the Commissioner responded when advised of leaks and other problems of ingress of water; the applicant says that the problem was a continuing one, but I do not think the evidence allows me to reach that conclusion. That said, the Commissioner’s response was at times outside the 28 days allowed by clause 57, and each occasion constituted a breach of the tenancy agreement.
Clause 60 of the standard terms sets out events that warrant urgent repair, including a “serious flood event” and “flooding or serious flood damage”. Words like “serious” imply the exercise of judgement about the degree of disruption and inconvenience resulting from the issue, but by comparison with more precisely specified problems, such as failure of a refrigerator or a blocked lavatory system, I think the roof leak and resulting flood in the subject premises in early 2016, resulting in wet and mouldy carpets at the very least, meets the test. Problems requiring urgent repair are to be attended to “as soon as necessary, having regard to the nature of the problem”.[31] I return to this issue below.
Kitchen and bathroom
[31] Residential Tenancies Act 1997, Schedule 1, clause 59
The continuing problems with the bathroom vanity and the kitchen bench top illustrate the particular difficulty of deciding whether the standard set by clause 55 has been met. The Commissioner is sometimes described as the “lessor of last resort”,[32] as it is Housing ACT through whom accommodation is provided to people who would otherwise have difficulty participating in the rental market. This does not mean that the Commissioner is held to a different standard from other lessors; there is no recognition in the RT Act of the Commissioner’s role and status, and the Commissioner must meet the same standard as every other lessor. But when the Commissioner is faced with a decision whether or not to replace some element in premises – here a bathroom vanity or kitchen bench top – there may be a distinction to be made between a piece that is too shabby or defective to leave in place and one that is showing wear and tear but still functional. No doubt the Commissioner will want to preserve scarce financial resources to allocate to the housing of other people in need. The applicant feels that the kitchen and bathroom furniture needs to be replaced; Housing ACT does not agree. Photographs taken at the most recent inspection show items such as the bathroom vanity as having plainly visible imperfections, but I would not have judged the imperfections as making the items unserviceable or plainly in need of replacement. On the evidence available to me, I do not believe that the applicant has made out a case that the vanity and bench top are unusable; on the balance of probabilities, it seems to me that the defects in the bathroom and kitchen furniture are more aesthetic than functional, even if they fall below the standard that the applicant would like to be met. As the applicant has been complaining about both items since the start of the tenancy, it seems that the Commissioner is maintaining them at about the same level of repair that they were in from that time, in accordance with the requirements of clause 55.
Lounge room ceiling
[32] Commissioner for Social Housing v Jones [2016] ACAT 75 at [27]
A number of problems arose with respect to the lounge room ceiling – leaks from the roof and then remedial work on the water damage and later rectifying a sagging ceiling. The work sheets do not always make it plain how a matter came to be the subject of attention by the Commissioner, but the entry for 27 January 2016 records “carpet is wet – water leaking through loungeroom – attend to inspect/repair roof – tenant just got home from holidays” [upper case omitted]. This suggests that the applicant returned from holidays to find water had entered the premises and 27 January is the date at which the matter came to the attention of Housing ACT. An entry for 1 February 2016 records “Ceiling In The Loungeroom Has Been Heavily Water Damaged – Roof Has Been Repaired – Pls Repair”, and that work is recorded as complete on 9 March 2016. It involved sealing, refixing and painting the ceiling and frieze and ensuring the wiring was safe in the ceiling space. It appears that the Commissioner has responded to the applicant’s circumstances and addressed the problems, although once again there is a question about the timeliness of the response.
Work was also done on the ceiling later in 2016 and early in 2017, but it is by no means clear that this work was prompted by a request for repair. It seems at least equally likely that Housing ACT decided that the repairs to the ceiling, initially made after the flood event in early 2016, needed further attention, so that in May 2016 the ceiling was refixed to prevent sagging and then replaced in the first half of 2017. The applicant has not pressed these points, and the main concern appears to have been that the patching and painting job was visible and imperfect. That seems a matter of aesthetics rather than functionality. The ceiling replacement in 2020, however, does appear to have been undertaken in response to a request for repair, and it too took longer than the 28 days allowed under clause 57.
Conclusion – breach of clauses 55 and 57
The applicant has made the entirely reasonable point that even where Housing ACT arranges for repairs to the premises, that of itself does not guarantee that the repairs are done to any reasonable standard. She has pointed to the way in which problems persist despite the work that is done, using examples, including the front path, which is even now overtaken by mud after rain, becoming slippery and dangerous, and the carpets, which she says were never cleaned by Housing ACT and were replaced only after they had been mould-affected for years.
As discussed above, it is difficult to determine, years after the events described, whether the premises fell above or below the standard set by clause 55. The applicant is adamant that the carpets were affected by mould from before the time of moving in, for example; but I have evidence of mould from a third party only after the leak from the roof in January 2016, when a few days later a contractor recorded on the work sheet that the carpets smelt of mould (this was in the course of the carpets being replaced). If mould was such an evident and long-lasting problem in earlier years, would not other contractors have remarked on it in the same way? Clearly what constitutes a reasonable state of repair is likely to differ from one person to another. There are competing views about the state of the premises throughout the duration of the more than eight years of the tenancy, and the evidence does not allow me to conclude that the premises were not, in some general sense, appropriately maintained. The photographs taken at the most recent inspection certainly show some imperfections, in the vanity, for example, or cracks in the bathroom tiles; but I agree with the Commissioner that these look like aesthetic rather than functional imperfections. The house as it appears in these photographs does not look like a house in which people would be unable to live in reasonable comfort. The applicant claims a sustained failure by the Commissioner to maintain the premises; to succeed they need to convince the Tribunal that a reasonable person, taking an objective view, would find the premises to be other than in a reasonable state of repair over much if not all of the duration of the tenancy; in my view, that is a challenge the applicant has failed to meet.
It should be readily apparent, however, that Housing ACT did fail at times to meet the requirement to attend to repairs within 28 days of notification, as set out in the table below:
Location Issue Dates Exceedance Roof Rodents 1 February -10 March 2016 11 days Roof Rodents 30 March - 30 April 2021 2 days Property Replace carpet 1 February - 7 March 2016 7 days Property Water in bedroom 24 April - 14 June 2020 23 days Property Take up pavers 18 April - 15 June 2020 34 days Bathroom Leaks 17 November - 17 December 2015 2 days Bathroom Leaking taps 1 April - 31 May 2019 33 days Bathroom Leaking taps 18 April - 15 June 2020 30 days Lounge room Repair ceiling 1 February - 9 March 2016 9 days Lounge room Replace ceiling 12 May - 27 June 2020 18 days
Each of these exceedances is on its face a breach of clause 57 of the tenancy agreement. But those that occurred in 2020 and 2021 (bolded in the above table) are potentially affected by the emergency response declarations made over that period. Two declarations are relevant: the Residential Tenancies (COVID Emergency Response) Declaration 2020 (the 2020 Declaration, in effect from 22 April to 21 July 2020), and the Residential Tenancies (COVID Emergency Response) Declaration 2021 (the 2021 Declaration, in effect from 23 April to 30 June 2021). Section 13 of the 2020 Declaration allowed non-urgent repairs to be done within “a reasonable period”, as agreed between lessor and tenant, with a decision about what constitutes a reasonable period to take into account the nature of the repair, the access required and the hardship to the tenant if the repair were not done. The 2021 Declaration repealed its predecessor but does not include a provision relaxing the 28-day period for non-urgent repairs. Although no argument was put to me on the application of the 2020 Declaration, I do not think it unreasonable for the Commissioner to have taken additional time to make repairs during the April-June period of 2020, given the circumstances at the time and in light of the leeway afforded by the 2020 Declaration. But as no leeway for repairs was given in the 2021 Declaration, the exceedance in April of that year remains.
At the hearing I made orders regarding the rat infestation and the paving of an area of the front garden. A possible argument – although not one put to me – is that it is implicit in the making of such orders that the Commissioner, in not having taken these actions in the absence of my order, must have breached the tenancy agreement; the power to make such an order arises under section 83(1)(b), which allows the Tribunal to order that a tenancy agreement be performed.
I do not think the above inference can be fairly drawn. The orders were made on the basis of evidence that came forward at the hearing and reflected conclusions that I was able to draw based on that evidence. The actions to address the rat issue were mostly volunteered by the Commissioner, and were directed not to individual infestation occurrences, but rather to the investigation and implementation of ways to stop future infestations. The order to pave part of the front garden was made on the basis of the very recent reports of Mycolab (20 June 2021) and Delcorp (29 June 2021), and in particular was based on the recommendation by Delcorp that paving part of the front garden was a way to reduce problems of damp in the premises. I saw it as a reasonable but not obligatory action to be taken. In neither case would it be reasonable, in my view, to infer that the actions were existing and necessary obligations under the tenancy agreement.
Did the applicant suffer the loss of part of the premises during the tenancy?
Section 71(1)(b) of the RT Act obliges the Tribunal to order a rent reduction where persuaded that a tenant has suffered the loss of the use of part or all of the premises. The applicant says that their children slept in the applicant’s bedroom for a period because of the smell of mould from the carpets in their rooms, and that could conceivably trigger that provision. It is not clear when this occurred or for how long. The applicant also states that their own bedroom smelt of mould and that they slept on a mattress on the floor, and had to replace the mattress twice because it became mouldy. To find in the applicant’s favour on this issue I would need to consider that, on the balance of probabilities, some of the bedrooms were effectively not able to be used for a defined period. I have been unable to reach a conclusion that there was a continuing, as opposed to temporary, mould problem in the premises; and the applicant has provided no detail on critical questions such as the dates on which loss of a part of the premises began and finished. I cannot see how I can be persuaded, with the certainty and precision I need, that the applicant lost the use of the children’s bedrooms.
Did the respondent cause interference with the tenant’s reasonable peace and comfort in use of the premises?
It is part of the applicant’s case, as I understand it, that the Commissioner, by failing to maintain the premises to a proper standard over an extended period, deprived the applicant and family of the reasonable peace and comfort to which they were entitled under clause 52 of the standard terms. Since I have found that the Commissioner did not fail to maintain the premises in a reasonable state of repair, with the exception of the exceedances of the repair periods set by clause 57 as detailed above, I do not think this contention can succeed. I have ordered compensation below in respect of the exceedances, and that compensation takes into account any loss of peace or comfort during the exceedance periods.
Compensation
I have found that the applicant is statute-barred from pursuing the claim against clause 54 of the standard terms; that they have failed to make out the claim against clause 52; that they have not adequately substantiated a claim against s 71(1)(b) of the RT Act on the basis of losing the use of part of the premises; but that have succeeded in demonstrating that from time to time the Commissioner has not met the requirements of clauses 55 and 57 of the standard terms. There is also a failure to meet clause 59 in responding to the roof leak and resulting flood in early 2016.
The applicant has made other claims: that the family have suffered medically from the inadequate maintenance of the premises; and that some personal property was damaged or destroyed when the 2016 flood occurred. Compensation has been sought for these as well. I have already noted the absence of reliable medical evidence, and that there is little persuasive evidence about the continued presence in the premises of significant levels of mould. I cannot therefore find that the applicant is entitled to compensation for the impact of mould on their health, physical or mental, or that of the family. Finally, the applicant’s personal property that was alleged to have been damaged when the unit suffered the flood in 2016 has not been detailed, beyond a mention of furniture, white goods and rugs: I have no evidence of which items of property were damaged, the extent of the damage, substantiation of the value, and documentation regarding their repair or replacement. I have no basis therefore for awarding compensation.
The outcome of the application, therefore, is that I have found that the Commissioner has from time to time failed to meet the requirement to repair within 28 days, and has on one occasion failed to meet clause 59. The discretion to award compensation is therefore enlivened. In my view the breaches of the tenancy agreement, taken as a whole, are sufficient to warrant payment of compensation. Compensation can be paid by rent reduction, which is appropriate in this case because the tenancy is ongoing.
Some of the failures to repair within the appointed period seem worse than others. I would see the failure to deal with the flood in 2016 as the most serious of the shortcomings. From the worksheets it appears that the leaking roof was repaired quickly – the reports suggest work was done on 30 January and 1 February 2016 after the problem was notified on 27 January. The carpet replacement, however, was not ordered until 17 February and was completed only on 7 March. The exceedance of the 28-day period is seven days, but in my view the wet and mouldy carpets called for a speedier and more urgent response under clause 59. I think it was necessary, in the circumstances, that the carpets be replaced by a fortnight after the problem was notified, that is, by 10 February. I order a rent reduction of 30% for the 26 days between 10 February and 7 March (2016 being a leap year).
The slow response to the rodent infestations and the leaks other than dripping taps I rate as slightly less serious and I order a reduction of 20% for the period in which these problems were not addressed within the appointed period, taking into account the application of the Residential Tenancies (COVID Emergency Response) Declaration 2020, as discussed above. Other issues (leaking taps, the pavers, replacement of the ceiling) warrant a rent reduction of 10%, again taking the 2020 Declaration into account. The rent reduction is therefore 26 days at 30%; 13 days at 20%; and 42 days at 10%. Some of these periods overlap, but in my view where there is more than one detriment the rent reduction should be cumulative in recognition of the cumulative loss of amenity.
The applicant quotes the weekly rental as $129.35 (as at 4 October 2020). That implies a daily rent of $18.48. The reduction for the flood repair is $144.14; that for the 20% reductions totals $48.05; and that for the 10% reductions totals $77.62. The total reduction in rent is therefore $269.81. The rent may have increased since October 2020, and if so, the Commissioner should recalculate these amounts using the updated rent. The rent reduction should be levied so as to be complete within three months from the date of this decision.
………………………………..
Senior Member M Hyman
| Date(s) of hearing | 27 July 2021 |
| Applicant: | In person |
| Solicitors for the Respondent: | Ms A Sydney, ACT Government Solicitor |
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Amendment
| 28 May 2024 | Anonymisation of identifiable details to “Applicant RT2021/155” |
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