Miskin v Munjal & Anor (Residential Tenancies)
[2024] ACAT 1
•2 January 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MISKIN v MUNJAL & ANOR (Residential Tenancies) [2024] ACAT 1
RT 586/2023
Catchwords: RESIDENTIAL TENANCY – Claim for compensation under section 83(1)(d) of the Residential Tenancies Act 1997 ACT for non-economic loss for breaches of Clauses 52, 54, 55, 57 and 59 which concern the reasonable state of repair of the property and whether repairs were completed in the required time Pre-existing issues with mould and cracked or damaged tiles not rectified before the tenant moved in – these issues are the responsibility of the owner not the tenant – several repairs took 3-4 months to be fixed - compensation awarded
Legislation cited: Residential Tenancies Act 1997 ACT s 831(d) cl 52,54,55,57, 59
Cases cited:Enna Investments Pty Ltd v McNamara [2016] ACAT 63
Faulder v Tran [2018] ACAT 80
Tribunal: Member E Trickett
Date of Orders: 2 January 2024
Date of Reasons for Decision: 2 January 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 586/2023
BETWEEN:
BERKAN MISKIN
Applicant/Tenant
AND:
AMIT MUNJAL
First Respondent/Lessor
AND:
MONICA MUNJAL
Second Respondent/Lessor
TRIBUNAL: Member E Trickett
DATE: 2 January 2024
ORDER
The Tribunal orders that:
The respondents are to pay the applicant $5,714.
Payment is to be made within one month of the date of these orders.
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Member E Trickett
REASONS FOR DECISION
This is an application to the tribunal for compensation for non-economic loss under section 83(1)(a) of the Residential Tenancies Act 1997 (the Act). The claim is made relating to breaches of Clauses 52, 54, 55, 57 and 59 which concerns whether the property the applicant used to live was in a reasonable state of repair and whether repairs were completed within the required timeframe.
Mr Berkan Miskin (the applicant or tenant) claims that he was unable to enjoy the full amenity of a rental property in the suburb of Duffy, ACT (the property) due to mould which was mostly in the bathroom, but also affected other rooms, as there was an unpleasant smell, and the moisture and mould affected his health. The owners of the property are Mr Amit Munjal and Mrs Monica Munjal (the respondents or lessors) who are represented by Ms Helen Robinson (the property manager). The hearing was held on 6 September 2023.
Background
The applicant moved into the property on 3 November 2022 after viewing it virtually by video and after the property manager told him that it was an older house. The rent was $610 per week, the bond being $2,440. The previous tenants vacated the property in October 2022, a month before the applicant moved in. When the applicant moved in on 3 November 2022, there were two small areas of mould known to the property manager. The applicant was provided with an instruction sheet on cleaning and keeping mould away as the property was older and the ventilation was not as good as it is in a modern home. The instruction sheet was provided to assist the tenant in meeting his obligations under clause 63 of the Act to take reasonable care of the property.
On 9 November 2022, the applicant notified the property manager of several problems with the property including mould in the bathroom, cracked and damaged bathroom tiles, a loose vanity, and a lack of a drain in the bathroom floor. The property manager arranged for the property to be cleaned by Steamatic in January 2023, but no repairs were undertaken then.
At the routine inspection in April 2023, the house was relatively clean though there was some mould and the property manager recommended more frequent cleaning. The applicant stated that he did not clean the bathroom very often because he did not use it very often as he frequently showered at the gym. The respondents say the mould issue was exacerbated by the infrequent cleaning by the applicant. As a result, some minor repairs were undertaken and the tradesperson noted water pooled under the bathmat in the shower recess which the property manager stated would contribute to mould. After several requests for repairs to be undertaken, the applicant filed a claim with ACAT on 9 June 2023.
At the inspection in July 2023, the property manager did not note any obvious evidence of water collecting in the wall cavity.
Following an order by ACAT on 5 July 2023, the property manager undertook a thorough review of the bathroom, found mould in the shower recess and the timber step leading to the bathroom, and arranged for a specialist to investigate who found that the wet seal had failed, and that water was leaking to the underfloor area. The property manager arranged work orders to rectify the problem though the property manager says the applicant delayed the work by several weeks as he had friends staying. It is noted that the work required that the bathroom not be used while the work was in progress, so it was reasonable that after the mould had been an issue for many months that the repairs be somewhat convenient to the tenant.
The mould in the property is the main issue for the applicant. The carpet and the garden are lesser issues but still important. The carpet was an issue because it was stained and unattractive. The applicant offered to replace it in exchange for rent reduction which was agreed and replacement completed in April 2023. The applicant states that there was mould on the floor under the carpet which needed to be cleaned before the new carpet could be laid. The property manager stated that the replacement carpet did not fit well with the décor and was not installed well; and that the bathroom does not meet the lounge room, so it is difficult to say where the moisture came from for mould to grow.
The garden was an issue as a branch from a tree on the property fell into the neighbours’ yard while the applicant was away, and a house-sitter friend was staying. The property manager arranged for the trees to be trimmed and branches cleared away, but it was difficult to engage tree surgeons, so it took some time.
Many issues including the loose bathroom vanity and tree pruning took about 16 weeks to address and other defects, such as leaking kitchen taps, broken kitchen drawers, and cupboards, were not fixed.
Assessment of claims
At the hearing, the applicant stated that he wanted to move out of the property and was looking for a suitable house that could accommodate him and his dog. There was an amicable discussion about the possible last date of the tenancy and the exit review, that there would be no break lease fee and that the bond would be assessed in the usual way.
It is difficult and impractical to quantify non-economic loss for each breach and each maintenance issue. Therefore, the claims will be dealt with together in terms of the applicant’s loss of enjoyment of the premises due mostly to the mould in the bathroom and the surrounding areas.
The applicant sought documents under subpoena which showed that mould and leaking taps were pre-existing issues at the property since at least 2021 and that the cracked tiles were not rectified by the owners before the applicant moved in.
The expert reports obtained from Steamatic in January 2023 and July 2023 and The Mould Group in August 2023 confirm that the mould and water ingress through cracked tiles have been ongoing issues at the property over a prolonged period. Mr Graham Singleton, the owner of The Mould Group, gave evidence at the hearing for the applicant and stated that the mould problem had developed over a “long period of time” and that surrounding areas such as the bathroom door were badly damaged due to prolonged exposure to moisture. He noted too that there had been water penetrating below the tiles, as the wet seal had failed, and into the wall space and timber framing over a long time. He also stated that cleaning was not an effective way to remove mould of this nature and extent and that it needed major repair/renovation to eradicate it. The mould was not caused by the tenant’s conduct.
The expert reports state that the mould was most likely caused by a combination of inadequate waterproofing due to failure of the wet sealing, potential plumbing leaks and inadequate ventilation over a prolonged period. These issues are the responsibility of the property owner not the tenant.[1]
[1] Enna Investments Pty Ltd v McNamara [2016] ACAT 63
The respondent acknowledges that mould existed in this property in the bathroom and in one bedroom before the applicant became a tenant. The bathroom tiles were damaged when the applicant moved in – they had not been replaced before the applicant’s became the tenant. The respondents state that the mould in the bathroom was exacerbated by the applicant because he did not clean the bathroom often enough and that this was in breach of his obligations under clause 63 of the Act to keep the property in good order and similar to the way it was when he moved in. The applicant admits he did not clean the bathroom often but says he did not use it very often in part because of the mould which he didn’t like and because he showered at the gym.
The expert reports say that while cleaning may have helped superficially and aesthetically the mould was always there and appeared again shortly after having been cleaned. While the respondent acted in good faith and did address the tenants request for cleaning with the Steamatic clean in January 2023 and review again in July 2023, the fundamental cause of the mould problem which was known to both parties, was not addressed for many months. The mould was an issue with this property before the applicant moved in, and the obligation to remedy defects arises before the tenancy commences. It seems that the property was not in a reasonable state of repair at the commencement of the tenancy given the problems found shortly after the tenant moved in. [2]
[2] Faulder v Tran [2018] ACAT 80 at [35]
The applicant was unable to enjoy the full amenity of the property dealing with the mould and the attendant damp problems. He used dehumifiers to help the situation, but they were very noisy and used a lot of electricity and were therefore expensive to use. He stated that the property manager recommended he use one to assist with the moisture problem, but he said he already used one sometimes. The applicant also developed a breathing problem and attended his General Practitioner who recommended him not to stay in the house due to the mould which is known to cause respiratory problems in some people.
Conclusion
The Tribunal finds that the respondent is to pay the applicant compensation for the loss of amenity in the house due to the mould in the bathroom and surrounding areas and other maintenance issues. The compensation to be paid is a rent reduction[3] of 25 percent for nine months of the tenancy starting from 9 November 2022 when the defects were reported to the hearing date. The one month rent waiver for the carpet has been taken away, so it is nine months (and not ten months) of compensation.
[3] Clause 71 of the Act
The respondents are to pay the applicant $5,714 with the calculation as follows:
(a)$610 x 9 months = $5,490
(b)ACAT filing fee =$176
(c)Subpoena fee = $48
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Member E Trickett
| Date(s) of hearing: | 6 September 2023 |
| Applicant: | T Pham, Legal Aid |
| Respondents: | H Robinson, authorised representative |
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