Mizzi v Zeiler (Residential Tenancies)
[2010] ACAT 20
•31 March 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MIZZI v ZEILER (Residential Tenancies) [2010] ACAT 20
RT 22 of 2010
Catchwords: RESIDENTIAL TENANCIES – Failure to repair - landlords doing their own repairs - repairs causing breach of quiet enjoyment
Legislation:Residential Tenancies Act 1997 (ACT) Sch 1 (prescribed terms 52, 54, 55, 57 & 59)
ACT Civil and Administrative Tribunal Act 2008 (ACT)
Tribunal: Mr A. Anforth Senior Member
Date of Orders: 31 March 2010
Date of Reasons for Decision: 31 March 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 10/22
BETWEEN:
PAULINE MIZZI
Applicant/Tenant
AND:
GARY ZEILER
Respondent/Landlord
TRIBUNAL: Mr A. Anforth Senior Member
DATE: 31 March 2010
ORDER
That the Respondent is to pay the Applicant $3750 by way of compensation for breach of the duty to repair and breach of quiet enjoyment.
That the money is to be paid by way of rent credit.
………………………………..
Ms L Crebbin
General President (ACAT)
For: Mr A Anforth (Senior Member)
REASONS FOR DECISION
OVERVIEW
This case concerns a dispute between and tenant and a landlord over the landlord’s failure to carry out repairs. The landlord in turn complained that the tenant was unco-operative in the times she was prepared to make the premises available to the landlord for the repairs to be done.
The complicating factor in the arrangement was the fact that the landlord insisted on doing a range of the repairs himself notwithstanding that he was not a relevantly qualified tradesmen and that he had limited times available.
This case illustrates the generally undesirability of landlords doing repairs themselves as opposed to retaining qualified independent tradesmen.
HISTORY
The residential tenancy agreement between the landlord and the tenant commenced on 8 August 2008 for a period of 6 months in respect of premises in Kaleen, ACT. The rent was $790.00 per fortnight; the bond was $1580; and the residential tenancy agreement was otherwise in prescribed form. The house is a four bedroom house in which the tenant lived with her four children aged 11, 13, 16 and 17.
On 13 January 2010 the tenant lodged an appeal with the Tribunal. The applicant was hand written in a short hand form and read:
Please identify the Issues in Dispute, for example, payment of rental arrears of that the lessor/grantor fix a broken heater.
· Owner & tradespersons attending without notice/required notice.
· Heaters to be repaired, haven’t worked since moved in.
· Kitchen renovations be completed (AAMI assessor attend 2008 regarding this.
· Bathroom be completed so we can use the bathroom.
· That the trees in the rear yard be cut back as they are up in the power lines/telephone lines.
· Fence to be fixed – (neighbours have written numerous letters for a few years & fence still falling apart.
Please state the nature of relief you seek ( what sort of order you want the Tribunal to make), for example, an order that the tenant/occupant pay rental arrears or the lessor/grantor fix the broken heater.
· Compensation for rent as full rent paid all this time and things still not fixed. Aug 08 reported no lock & all inspection reports show no lock to glass sliding door – Finally fixed 2/11/09.
· Kitchen be complete (painting silicone/waterproof at edge/base of the tiles.
· Bathroom be completed so my family & I can use the bathroom.
· Heaters be fixed/replaced so able to use them.
· Fence be fixed.
Please give a brief history of the dispute, (why you are making the application) If you are claiming money please show calculations and total amount claimed.
Making the application because I have repeatedly reported since moving into the premises Aug 08 that there was no lock/security to the glass sliding door – This is on all inspection reports – see attached.
And because I have been reporting from Aug 08 the leaky tap which was leaking behind the wall, & it took until October before the leak was fixed which then left a large hole in the kitchen wall until 20/02/09 when the new kitchen started to be installed. – Note: the AAMI insurance company rang me & visited the house Oct 08 – kitchen still not finished.And because I have reported since Aug 08 regarding tiles falling off bathroom wall into bath & on floor. The owner & his mate Rob attended and removed some more base tiles, this was over 12 months ago now (approx 30 tiles removed by them), tiles continued to fall off with the heat and I made numerous phone calls to the Real Estate regarding these tiles still coming off as it was unsafe for my children, however it was not until 26/09/09 and 27/09/09 that the owner and his mate Rob attended & ripped the bathroom apart – the bathroom that is still incomplete. Only thing able to use in the bathroom is basin nothing else.
The heaters I have reported since I moved in that they don’t work. It’s clearly in BOLD CAPITAL LETTERS on my inventory report that the real estate prepared at commencement of my lease 08/08/08.
Request rent stay as is for 12 months ($395) to compensate the inconvenience to my family of excess water bills we have incurred due to no bathroom.
Attached to the application was a considerable volume of emails and other documents including the following:
(a) notes from the tenant’s diary
(b) three Routine Inspection Reports, one of which is undated and the other two bear the dates 17 February 2009 and 19 August 2009. In each case the landlord’s agent has notated that the tenant has maintained the premises in good order;
(c) a statutory declaration from Anthony Michael Orlandi dated 7 January 2010;
(d) an email from the tenant to the landlord’s agent of 17 July 2009 acknowledging inspection of the premises and interest in renting the premises. The email noted that various repairs are needed including agreement that the current kitchen stove will be replaced;
(e) an email from the landlord’s agent of 21 July 2009 to the tenant advising that the landlord had determined to self manage the premises;
(f) an email of 16 Febraury 2009 from the tenant to the landlord’s agent complaining about delays in the new stove and kitchen renovations and the repairs to the bathroom;
(g) emails of 30 September 2009 in which the tenant complained to the landlord’s agent about the heater not working and the agent asking for the brand of the heater and details of the problem;
(h) an email of 5 October 2009 from the tenant to the landlords agent complaining of the length of time to carry out repairs and that they have had no functioning bathroom for 10 days due non-completed renovations;
(i) an email from the landlord’s agent of 16 October 2009 seeking permission for the tradesmen to complete the bathroom repairs on the following Saturday and an email from the tenant declining that consent;
(j) an email from the tenant to the landlords agent of 21 October 2009 acknowledging that the agent had visited the house and viewed the unfinished repairs to the kitchen, bathroom and dinning room sliding door. The email contains dates and times suitable for the tradesmen to complete the repairs;
(k) an email from the tenant to the landlords agent dated 23 October 2009 concerning access to the premises by locksmiths to repair the dinning room sliding door;
(l) an email from the tenant to the landlords agent of 24 October 2009 complaining of the failure of the locksmith to attend in business hours and about the suggestion that the tenant would have to bear the cost of any after hours attendance by the locksmith. The tenant express denied the landlords agent consent to enter the premises in her absence;
(m) a email of 27 October 2007 from the landlord’s agent to the tenant acknowledging a schedule of repairs but saying that the access dates provided by the tenant did not suit the landlord as he was proposing to do the work himself;
(n) an email from the tenant to the landlord’s agent dated 27 October 2009 about the timing of the repairs which bears quoting in full:
Confirmation of email received on 27th October 2009 at 1715 hrs.
Carmel I have read the email you have sent, which is below, and I once again advise those times below in my previous email unfortunately I can not alter these available hours or be more flexible as I am doing shift work (including dayshifts/afternoon shift and night shifts which is rotational 7 days per week) this is why I provided my times I will be home and also will be awake (not sleeping for afternoon or night shifts) – I advise these dates as available as this suits my rostered shifts, and unfortunately I can NOT change my roster or take time off from my new position.
Times convenient for the bathroom vanity, mirror, door to be rehung, power point & light switch to be fitted, wall to be patched/puttied up where old mirror cabinet was previously, neat heat light installed, painting to be finished are as follows due to my 24/7 rotational shift work roster:-
Friday31st October 09 from 1300 hrs till 1700 hrs unable to accommodate unable to accommodate 31st October 09 sorry for inconvenience.
Monday 2nd November 09 from 0830hrs till 100hrs, Wednesday 4th November 09 from 0830hrs till 100hrs, & Thursday 5th November 09 from 0830hrs till 1100hrs- these hrs are NOT flexible due to my rostered work start times.Please be advised I work rotational shifts seven days per week and this is why its not convenient to alter times I have already supplied that I’m available, as some of those times are even before an afternoon shift, however it is unrealistic to expect myself to allow work to be conducted whilst I sleep after/between and before my nightshifts.
Furthermore: I have been reporting the dangerous bathroom situation of falling tiles in the bathroom since August 2008, if which the owner and his mate came several months ago infact they removed several loose tiles several months ago from the bathroom walls, and then other tiles continued to fall off the walls whilst we tried to utilise the bath which then resulted in myself reporting again to the real estate, this was even prior to Annette leaving in June.
And I believe there that that unrealistic time my family and I have had to wait for repairs is ridiculous, and now that I no longer work a Monday to Friday job like most office workers its not my fault that the repairs are not complete as yet to date (27th October 2009), and its not my fault if the owner of the persons who will conduct repairs can not attend when it fits in my shift working roster.
The real estate and the owner have known about the numerous things that need repair to these premises since 2008. Then the bathroom was pulled apart by the owner and his mate on 26th & 27th September 2009.
Just as the kitchen is still incomplete, allow me to again give dates of the kitchen – first reported in first few weeks of being a tenant to the property that there was a dripping sound from behind the sink, and when my son went under the house he noticed the large amount of water on the beams and ground under the kitchen area of the house, this took until October 2008 to have the leak fixed, which in turn left a gapping hole in the kitchen above the tap area from October 2008 til 20th February 2009 the day the kitchen was installed was the day the hole was fixed, and the plumber attended, then the tiler came the 27th January 2009 completed his tiling, then a few days
(o) an email from the landlord’s agent to the tenant dated 28 October 2009 saying the she would see what she could do about the times and dates for repairs;
(p) an email from the landlords agent to the tenant dated 28 October 2009 saying that the electrician had been booked for 2 November at 8.30am but no arrangements had yet been made with the other tradesmen; and suggesting that the tenant arrange their own plumber for the vanity;
(q) an email of 30 October 2009 from the tenant to the landlords agent complaining about the lack of progress in repairs which read:
Carmel
There seems to be some lack of understanding in regards the rights and responsibilities of both the tenant and real estate/owner. As I read my tenancy agreement it clearly reads the importance of secure premises-to date the 30 October 2009 the glass sliding door is not secure and has no lock. This is an urgent repair so what are the real estate doing about it being repaired? How many times do I have to ask to have it fixed, how come the real estate doesn’t pass on my available times to the locksmiths-after all I had sent my available dates on the evening on the 21 October 2009 for the period from Friday 30th October …until times available on the 5th November 2009.
By advising the dates I was available and as I advised you when you attended 24 Mortlock Cct Kaleen on the 21 October 2009 that I am required to be given a weeks notice for repairs to be conducted unless of urgent nature, with your response it was ‘for me to ensure the dates I provided would allow a weeks notice’. Well I have given my dates that would have provided me with a weeks notice, if the times were supplied to the owner before the 27th October 2009 and to the plumber before the 29th October 2009….
(r) an email from the landlords agent to the tenant suggesting that she make application to the Tribunal;
(s) a series of emails between the tenant and landlords agent of 30 October 2009 concerning timing of the attendance of the locksmiths to fix the sliding door lock;
(t) an email from the tenant to the landlord’s agent of 1 November 2009 complaining that the electrician turned up early in the morning and cut the power supply such that the tenants family could not prepare for work;
(u) an email from the landlord’s agent to the tenant of 2 November 2009 asking whether 11 November 2009 was suitable for the remainder of the repairs:
(v) an email from the tenant to the landlords agent setting out her dates and times that would be suitable which she asserted had been supplied in the past and did not include 11 November;
(w) an email of 16 November 2009 from the tenant to the landlords agent complaining that the landlord himself turned up uninvited at the time the tenant and her children were leaving for work and school and coerced the tenant’s children into giving him access to the premises which he then did;
(x) an email of 20 November 2009 from the landlord’s agent to the tenant seeking times for access:
(y) an email of 20 November 2009 from the tenant to the landlords agent complaining of the landlord’s declared intention to carry out the wiring of the Tastic light himself and pointing out that a licensed electrician should do the job and again setting out a list of repairs needed and available dates for access;
(z) a letter from the landlord’s agent to the tenant dated 15 December 2009 asking that no further landscaping be done by the tenants without the landlord’s consent;
(aa) an email from the tenant to the landlords agent of 6 January 2010 reluctantly agreeing to access on the coming Saturday and again setting out the scope of the repairs needed;
(bb) an email of 6 January 2010 from the tenant to the landlords agent recording a telephone conversation in which the tenant had agreed to a request from the landlords agent to provide access to the painter on the following Saturday, followed by later advice from the landlords agent that the painter could no longer keep that Saturday appointment and asked for the Monday. The tenant advised that the Monday was not suitable and gave a further list of dates and times;
(cc) an email of 11 January 2010 from the landlords agent to the tenant asking for access on the following Saturday for the painter;
(dd) an email of 11 January 2010 from the tenant to the landlords agent saying that the following Saturday was not suitable;
(ee) an email from the tenant to the landlord’s agent of 12 January 2010 attaching photos of the bathroom and referring to the need to finish the repairs;
(ff) an email from the tenant to the landlord’s agent of 12 January 2010 setting out the repairs need to the bathroom and kitchen with dates and time that it would be convenient for the tradesmen to attend;
(gg) an email from the landlord’s agent to the tenant of 12 January 2010 saying that the tradesmen could only come on a Saturday and asking for dates;
The first undated Routine Inspection Reports relevantly records:
(a) lifting tiles in the bathroom and shower
(b) carpet lifting in the hallway
The Routine Inspection Report of 17 February 2009 recorded:
(a) water marks on the living room ceiling:
(b) patches in the wall of the dinning room and the sliding door not working
(c) hole in the wall of the kitchen and holes off
(d) a note by the landlords agent that the laundry entry carpet needs strips.
The Routine Inspection Report of 19 August 2009 relevantly recorded:
(a) small water stain on the living room ceiling
(b) lots of puttied holes in the dinning room wall
(c) the kitchen walls need painting
(d) bathroom needs retiling
(e) the tap in the shower was leaking.
10. The statutory declaration from Anthony Michael Orlandi read:
I have known Ms Pauline Mizzi and her family for quite sometime, I have regular contact with the family and visit on a regular basis.
When I first attended the house that Pauline currently rents at 24 Mortlock Crt, Kaleen ACT I noticed the carpet being thread bare, and lifting/curling at some of the joins, and being quite thin near the back glass sliding door this door that had no locking system at all as it didn't work because the latch was there without anything for the latch to connect to that would secure the premises, Pauline was using a piece of dowel to keep the door from opening, this door never got a locking lock until Monday 2nd November 2009.
Late August when entering the bathroom I saw that tiles were missing from the wall, when I asked Pauline about the tiles she has told me how they have been falling off randomly and that she had reported it numerous times to the real estate since not long after moving in early August 2008 and that the real estate lady had been and seen the walls, and the owner had attended one weekend with his mate to remove the loose tiles at that time. On the weekend of the 26&27th September 2009 the owner and a male person came and dismantled the bathroom leaving Pauline and her family without a vanity, mirror, bath etc, Pauline is lucky to have a separate shower room in the house as the bathroom still is not complete, the bathroom received its vanity cupboard/sink on the 4th November 2009 which now has the bathroom with a new bath and new vanity/sink however the bathroom still has no door which is a privacy issue so unable to utilise the bath at all, still has no mirror, still has no towel railings BUT they had started to place towel railings almost two months ago and stopped because they placed a large hole in the wall when trying to affix the railing above the bath, there is also holes in the wall that need filling in from where the heater was removed and the mirrored cupboard. I also know that Pauline has tried numerous times to have the work finished but to no avail even though she has supplied dates and times suitable to her on many occasion's.
In the kitchen was a large hole behind the taps from when a leaking pipe was repaired in October 2008, this hole was there in the kitchen until the 20th February 2009 when the kitchen finally got repaired, and the tiling was done on the 27th February 2009. In fact it was myself who recommended the tiler and I helped Pauline collect the tiles after recommending Rivoland Tiles to her - Pauline spoke with the owner about the tiles and Pauline collected the tiles on her way home from work one afternoon in which I assisted her. Pauline still does not have the kitchen completed to this date it still requires the silicone seal around the base of the tiles/edge of bench, and requires painting.
I also know of Pauline supplying emails to the real estate of her available times and dates for the work to be completed, some of these emails not replied to others were advising she was unavailable due to the short notice given to her and then tradespersons still arrive (the electrician arrived after Pauline had sent the real estate an email advising the time was not suitable but the real estate never notified the electrician so this occasion resulting in Pauline having to cancel an appointment she had).
When the kitchen was stared on 20th February 2009 Pauline was recovering from her second ankle operation and this caused some inconvenience as she was on crutches, Pauline had to have a third operation on her ankle on 22nd September 2009 and was not allowed to walk on her foot at all she had to utilise crutches for two-three weeks as she was told non-weight baring due to reconstruction of her ankle, the work/renovations the owner and his mate have done on the 26/27th September 2009 caused major problems for Pauline as she was unable to move up and down the hallway on her crutches due to the work being done in the bathroom and all the tools and other items the owner brought to tear the bathroom apart, and it also meant that Pauline had no choice but to stand in the shower rather than relax in the bath with her foot on the edge - this was a major inconvenience as it meant that for Pauline to shower she had to have her daughter nearby in case she fell, and the shower room is not that big.
Today the 31st December 2009 Pauline still has an incomplete kitchen but at least she can utilise it. And she has an incomplete bathroom as the only thing usable is the vanity/sink. This has caused Pauline and her family a lot of undue stress, inconvenience and also incurred additional cost as Pauline used to recycle the bath water to the back lawn and while the bath is not able to be used the water bills keep rising.
I am also aware of Pauline asking to have trees lopped back in the front yard that were growing under the eaves this request had been since she moved into the premises in August 2008, to which Pauline had her son cut them back as there were numerous mud wasp nests on the windows and bricks to the main bedroom and her son's room. Pauline received an email late September/October advising her that they the real estate were trying to obtain quotes to trim the trees in the backyard, to this date still not done and the trees are through the power lines and the line that runs to the house. Pauline has also requested to have the home sprayed for spiders/pest but there has been no response to her email from the real estate.
At all times when I have visited Pauline and her family I have found the home and yard neat and tidy.
11. The Tribunal notified the landlord of the application and that the landlord had until 8 February 2010 to file a response. The matter was listed before the Tribunal on 15 February 2010.
12. The landlord filed the following response:
Statement Contesting/Defending Application RT22 of 2010
I contest the application on the following grounds: Issues in dispute:
Owner attending without notice / required notice
In undertaking improvements to the property, I contacted either the tenant directly or via Capital First National to arrange access to the premises. As I have been a landlord of this property since 1992,1 am aware of the tenants need for privacy and also providing sufficient notice regarding access. During this long period of ownership of the property, I have always acted reasonably as a landlord and have not previously had a tenancy dispute.Kitchen Renovation
The kitchen has always been fully functional. In February 2009, the old kitchen was completely renovated with a new kitchen. I planned this project myself organising the cabinet maker, plumber, plasterer and tiler to complete this work in a timely manner.The only work actually remaining in the kitchen is painting the bulkhead/cornice above the kitchen cupboards, which has not limited the functionality/useability of the new kitchen in any way.
Bathroom Renovation
I planned the project to renovate the bathroom quickly to minimise disruption to the tenant. The tiling took place within a few days of the removal of the old bathroom and the electrical work soon after. There was a delay in installing the vanity since supplier in Fyshwick supplied the incorrect top to the vanity which did not fit. This was beyond my control, but I contacted the company and arranged the new vanity top which delivered promptly by the supplier.The reason for the delay in completing the bathroom is due to the tenant restricting access to the property. The bathroom renovation would have been completed within one week, if access was available to the property. I arranged trades people to complete the renovation which included a tiler, plumber to install the vanity and an electrician.
All that actually remains is the finishing touches including inserting a new mirror, towel rails, plastering and painting the bathroom walls. I have requested access to the property on numerous occasions via Capital First National in order for trades people to complete the renovation, however, it has been difficult to arrange to access the property due to the tenants occupation/shift work.
Please note: the new bathroom contains a bath and vanity which are both fully functional. There are separate rooms containing a shower and toilet which were not renovated and have always been useable minimising any disruption to the tenant.
Heaters
There are electric wall heaters in the property, which to my knowledge always worked. I have not been informed of any problems with the existing heating.New Colour bond Fence
I have agreed with the Neighbour in Pokana Circ to replace the rear pailing fence at the rear of the property with a new colour bond fence. This work is complete.
I have also recently been contacted by the other neighbours in Mortlock Circ about the condition of the old fence and have agreed to a new colour bond fence to the side of the property.Withdraw Rental Increase
Despite significant investment in installing a new kitchen and bathroom, I recognise that there has also been inconvenience to the tenant due to the abovementioned circumstances. I agree to maintain the current lease arrangements including current rental of $395 per week and periodic tenancy.Further, I also withdraw the previous offer of an increase in rent and fixed term tenancy and have instructed Capital First National Real Estate to proceed with the existing lease arrangements including maintaining the current rent and periodic tenancy.
I am also very conscious of and eager to complete both the kitchen and bathroom renovations, and would be grateful if the Tribunal could request firm dates and times from the tenant to access the property with this order, to enable completion of this work.
The relevant law:
Heaters
There are electric wall heaters in the property, which to my knowledge always worked. I have not been informed of any problems with the existing heating.New Colour bond Fence
I have agreed with the Neighbour in Pokana Circ to replace the rear pailing fence at the rear of the property with a new colour bond fence. This work is complete.I have also recently been contacted by the other neighbours in Mortlock Circ about the condition of the old fence and have agreed to a new colour bond fence to the side of the property.
THE RELEVANT LAW
13. Prescribed terms 54 and 55 of Schedule 1 of the Residential Tenancy Act 1997 form part of the residential tenancy agreement:
54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—
(a) fit for habitation; and
(b) reasonably clean; and
(c) in a reasonable state of repair; and
(d) reasonably secure.
55(1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
59. The tenant must notify the lessor (or the lessor’s nominee) of the need for urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.
14. Prescribed term 54 defines the extent of the landlord’s duty to ensure that the premises are in a reasonable state of repair at the commencement of the tenancy and prescribed term 55 defines the landlord’s duty to carry out repairs that arise during the tenancy once on notice of the need for the repair.
15. Prescribed term 54(1)(d) requires that the premises be reasonably secure at the commencement of the tenancy which at least requires that it is lockable (Anforth and Christensen Residential Tenancies Law and Practice In NSW.4th ed Fed Press at [2.29.0]).
16. The landlord’s duty in respect of defects that existed at the commencement of the tenancy extend to those defects of which the landlord had actual or constructive notice. Constructive notice will arise where the defect was apparent to any visual inspection prior to the commencement of the tenancy by landlord or his agent.
17. The landlord’s duty in respect of defects that arise during the tenancy extend to those defects notified by the tenant and to other defects apparent on visual inspection by the landlord or his agent (Anforth and Christensen Residential Tenancies Law and Practice In NSW.4th ed Fed Press at [2.25.0]-[2.25.4]).
18. Prescribed term 57 provides that the time for non-urgent repairs is 4 weeks.
19. The tenant’s right to quiet enjoyment is contained in prescribed term 52:
The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
20. The breach of quiet enjoyment can occur either because the landlord or his agent enters the premises unlawfully or because of disturbance caused by the landlord carrying out repairs that he was required to carry out. The fact the landlord has a contractual duty to carry out certain repairs will not relieve the landlord of liability for a breach of quiet enjoyment if the need for the repairs itself arose out of a breach by the landlord (Anforth and Christensen Residential Tenancies Law and Practice In NSW.4th ed Fed Press at [2.22.0]-2.22.4]).
21. Prescribed term 81(a) deals with the landlord’s right to enter premises to carry ut repairs:
81(1) On giving the tenant 1 week notice (or such other agreed period), the lessor may enter the premises at a reasonable time, having regard to the interests of the tenant and the lessor, for the purpose of making or inspecting repairs.
THE HEARING
22. On 15 February 2010 the tenant appeared in person and the landlord was represented by Ms Hargraves, real estate agent.
23. At the hearing Ms Hargraves was embarrassed in that her agency had only recently taken the matter over and she had no direct knowledge of some of the events. The landlord himself had not appeared. The Tribunal went through each alleged breach in turn and sought Ms Hargraves’ response. She admitted some of the breaches but was unable to admit or deny other breaches. Ms Hargraves made the point that part of the problem stemmed from the restrictive access granted by the tenant and because the landlord insisted on doing his own repairs.
24. The Tribunal had available to it the volume of correspondence set out above and after hearing the tenant was satisfied on the balance of probabilities of the following breaches:
(a) the absence of a lock on the back sliding door which was not fixed until 11 November 2009 which failed to provide reasonable security (prescribed term 54(1)(d)):
(b) the water leak behind the kitchen wall not fixed until October 2009:
(c) the hole in the kitchen wall not fixed until 20 February 2010;
(d) the failure to provide the new stove and kitchen until February 2009 and the failure to repair the tiling in the kitchen until 27 February 2009;
(e) the failure to complete the installation of the new kitchen in that their was no silicon joints, no cornice and no painting:
(f) the failure to repair the bathroom; the bathroom was entirely unusable from August 2008-November 2009 whereafter it had no door, no bathtub and no tiles and thus was only good for the use of the vanity. There was a second bathroom (ensuite) in the house.
25. The geneses of each of these breaches existed at the commencement of the tenancy and were of a nature that was apparent on any visual inspection. In any event the tenant put the landlord’s then agent on notice of the defects from the beginning of the tenancy and regularly pressed for a remedy. To the extent that the defects existed at the commencement of the tenancy, which they all did, the repairs eventually carried out by the landlord constitute a breach of the tenant’s quiet enjoyment to the extent that the tenant was disturbed in her enjoyment of the premises.
26. The landlord simply did not respond to the repeated requests for action until relations with the tenant had started to deteriorate. The landlord then had a range of reason why he could not effect the various repairs some of which related to his own convenience as he intended to personally carry out some of the repairs; and some related to the tenant’s provision of restrictive access to the premises. In any event the repairs were certainly not done in 4 weeks.
27. At the hearing the Tribunal the commented on the undesirability of a landlord personally carrying out repairs, and even more so when he is not qualified to do the repairs and can only do the work on weekends. The tenant is entitled to the confidence that any electrical wiring work is done by a licensed tradesmen so that neither she nor her children are put in danger.
28. The Tribunal then offered the parties the choice of an adjournment for the tenant to particularise the nature and extent of inconvenience caused to her from these breaches but both parties preferred to finalise the matter forthwith notwithstanding the imprecise nature of the evidence before the Tribunal on the issue.
29. After hearing the evidence the Tribunal ordered that the landlord pay the tenant $3750.00 by way of compensation for breach of the duty to repair and breach of quiet enjoyment. This sum was composed of:
(a) $100 for the breach at para 24(a) above:
(b) $250 for the combined breaches as para 24(b) and (c) above
(c) $300 for the combined breaches at para 24 (d) and (e) above
(d) $3100 for the breach at para 24(f) above.
30. Ms Hargraves informed the Tribunal that the landlord did intend to complete the repairs and sought access dates from the tenant.
31. The Tribunal did not overlook the landlord’s complaint that the tenant had contributed to the delays by being unnecessarily restrictive in the access she provided. Prescribed term 81 does define the landlord’s right of access for repairs and the evidence disclosed that the tenant did provide dates and times on a regular basis. It seemed however that the landlord was more inclined to do things at his own convenience which did not fit with the duty to give a weeks notice.
32. There were disputes over access on Saturdays. The tenant was not keen for this as it disrupted her family life. This is understandable and prescribed term 81(a) does explicitly require consideration of the interests of the tenant in fixing times.
33. The Tribunal is aware that often landlords have little bargaining power with tradesmen who are only prepared to attend to repairs on their own terms. In such cases tenants may have to be more accommodating if they want the repairs done expeditiously. However in this case part of the pressure for Saturdays appears to have arisen from the landlord’s determination to do part of the work himself and his limited availability to the weekends. To the extent that the landlord sought to disturb the tenant’s quiet enjoyment on weekends because it suited him personally, the Tribunal is unsympathetic and does not accept that any resultant delays are the tenant’s fault.
34. The Tribunal inadvertently overlooked the award of the filing fee to the tenant but it is now too late for this. Also the Tribunal overlooked the compensation for the breach of quiet enjoyment but again it is too late. These two omission are part of the price to be paid for speedy resolution of claims. Perhaps the Tribunal should have insisted on the adjournment for the particularisation of the compensation. They can however be raised by the tenant on any appeal.
………………………………..
Ms L Crebbin
General President (ACAT)
For: Mr A Anforth (Senior Member)
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 10/22
APPLICANT: PAULINE MIZZI
RESPONDENT: GARY ZEILER
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF
RESPONDENT: MS HARGRAVES
(REAL ESTATE AGENTY
TRIBUNAL MEMBER: MR A. ANFORTH SENIOR MEMBER
DATE/S OF HEARING: 15 February 2010 PLACE: CANBERRA
DATE/S OF DECISION: 31 March 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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