Rosa v The Bolivarian Republic of Venezuela (Residential Tenancies)
[2020] ACAT 16
•4 March 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ROSA v THE BOLIVARIAN REPUBLIC OF VENEZUELA (Residential Tenancies) [2020] ACAT 16
RT 11/2018
Catchwords: RESIDENTIAL TENANCIES – unpaid rent – whether there was a valid notice to vacate – claim for set-off against unpaid rent for breach of standard terms by lessor – unauthorised access by the lessor to property – breach of quiet enjoyment
Legislation cited: Residential Tenancies Act 1997 ss 71, 83, standard terms 52, 75-79, 91, 96
Cases cited:Burdett v Jongeneel [2008] NSWCTTT 917
Colquhon v Wilson [2005] NSWCTTT 100
D’Ambrosio v Tyler [2009] ACAT 33
Greene v Newcastle Investments Pty Ltd [2004] NSWCTTT 135
Lee v Guo [2017] ACAT 60
Roff v Barber [2007] NSWCTTT 287
Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9
List of
Texts/Papers cited: Allan Anforth, Peter Christensen and Christopher Adkins Residential Law and Practice in NSW (Federation Press, 7th ed, 2017)
Tribunal: Senior Member H Robinson
Date of Orders: 4 March 2020
Date of Reasons for Decision: 4 March 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 11/2018
BETWEEN:
ADRIAN ROSA
AND:
THE BOLIVARIAN REPUBLIC OF VENEZUELA
Respondent
TRIBUNAL: Senior Member H Robinson
DATE:4 March 2020
ORDER
The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $23,038 comprised of:
(a)$22,500 outstanding rent; and
(b)the application fee of $538.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
Parties
1.The applicant lessor, Mr Adrian Rosa, owns a property in Mialli Street in the suburb of O’Malley (the Mialli property). The property was rented to the respondent tenant for eighteen years pursuant to a series of residential tenancy agreements made under the Residential Tenancies Act 1997 (RT Act).
2.The relationship between the parties broke down in 2018 after the tenant began to fall behind in the rent by way of their application. By way of the application the lessor claims compensation for unpaid rent and outstanding water bills. The tenant does not dispute that rent is outstanding but argues that the Tribunal should set-off any rent owed against an amount compensation payable for breach of the residential tenancy agreement by the lessor or his representatives.
Hearing
3.Mr Adrian Rosa was represented by his parents, Mr Jose Rosa and Mrs Isilda Rosa. Mrs Rosa gave evidence and Mr Jose Rosa gave oral evidence and was cross examined.
4.The respondent was represented at the hearing by Mr Macken of counsel. The respondent relied on the witness statements of of Ms Amaranta Leon Salazar and Ms Usua Arene Pante Rubio. Both were called to give evidence and cross examined.
5.This matter was run consecutively with matter RT 10/2018 (Jose Rosa & Anor v Bolivarian Republic of Venezuela [2019] ACAT 123) which concerned a property in Culgoa Street owned by the applicant’s parties (the Culgoa property). I determined to issue separate decisions and orders as a jurisdictional issue arose in the other matter that did not arise in this one.
Facts
6.My findings of fact, contested or otherwise, are as follows.
7.The tenant rented the Mialli property for close to two decades, during which it was the practice of the parties to enter a new fixed term lease at the expiration of each previous one. The parties entered the current lease, the subject of these proceedings, on 1 January 2016 (the lease). The fixed term period of the lease expired on 1 January 2017, and the lease continued as a period tenancy after that date.
8.The tenant leased the Mialli property as a diplomatic residence. Diplomatic staff lived on the premises.
9.Mr Jose Rosa and Mrs Rosa regularly acted as the lessor’s representative in relation to the management of lease.
10.From early 2017 the tenant started to fall behind in rent, and by March 2017 the relationship between the parties had begun to deteriorate. Around that time there was an argument or altercation between Mr Jose Rosa and a third party with some informal association with the respondent. The AFP became involved and criminal proceedings were later brought in the ACT Magistrates Court against the third party.
11.Following this, on 28 March 2017, Mr Jose Rosa sent a letter to a representative of the respondent (the notice to vacate). The letter stated, relevantly and in summary:
(a)that it was a notice issued under clause 96(1)(6) of the standard terms;
(b)the lessors would not “renew” the leases for either property;
(c)Mr Jose Rosa would take possession of the Culgoa property and the applicant would take possession of the Mialli property;
(d)the terminations “...are purely based on your attitude and it goes to provide that you should not be in your position even temporarily”; and
(e)rent and other expenses were owed, and these were set out in the documents.
12.The notice to vacate appeared to set the vacate date at 30 April 2017.
13.Clause 96(1) of the standard terms, under which the notice to vacate purported to be issued, provides that:
96(1) If there is a periodic tenancy, the lessor may serve on the tenant a notice to vacate for the following periods on the following grounds:
(a) 4 weeks notice if the lessor genuinely intends to live in the premises
…
14.The ‘true’ reason for the issuing of the notice to vacate was subject to some dispute at hearing. The lessor did not move into the Mialli property, after he gained possession of it in September 2017. Mr Jose Rosa’s evidence was that the lessor had intended to move into the Mialli property at the time the notice to vacate was issued, but by the time he obtained possession of it in October his life circumstances had changed and he no longer wanted to.
15.Mr Jose Rosa gave his reason for sending the notice to vacate in relation to the Culgoa Property as being that he did not wish to rent a property to a man who had insulted him:
A letter was sent because I’ve never been able to live a normal life, having a man who insulted me. Didn’t even have the courage to say in English, said in Spanish …. it is exactly ‘Son of a bitch, I’m going to smash your face.’ No way in the world a diplomatic with the brave words like that. That destroyed me completely.[1] (errors in the original)
[1] Transcript of proceedings 5 August 2019 page 14, lines 29-33
16.Mrs Rosa further explained the reason for the notice to vacate as follows:
…what started to go wrong was that when – [Mr Rosa] was insulted and threatened. So this is when I must – then we decided that it was best that they vacate the premises.[2]
[2] Transcript of proceedings 5 August 2019 page 14, lines 20-22
17.And in relation to Mialli property, she further explained that:
…it would not be fair, because we also were at that same street and I don’t think it would be fair for us to be sort of living in the same street after what happened.[3]
[3] Transcript of proceedings 5 August 2019 page 15, lines 24-26
18.I found Mr Jose Rosa and Mrs Rosa to be honest witnesses, who made concessions even when they were adverse to themselves or the lessor. Based on their evidence, I am satisfied that the Mr Adrian Rosa intended to move into the Mialli property, but I cannot be satisfied that he had done so other than as a temporary means of evicting the respondent. I note that that he did not give evidence himself. I am not satisfied that the notice to vacate was given because the lessor genuinely intended to live in the premises.
19.The tenant made no attempt to comply with the notice to vacate. Mr Jose Rosa’s evidence was that he became frustrated at the tenant’s failure to make preparations to vacate either the Mialli or the Culgoa properties, and so on 18 April 2017, that is one week before the notice to vacate was due to expire, he used heavy machinery to block the entrances to the Culgoa property. He also turned off the water to the Mialli property. The water remained off until the AFP attended the property to re-establish water that afternoon.
20.Subsequently, the vacate date came and went and the tenants did not vacate. In this, the lessor is perhaps fortunate. Had the tenant vacated the property based on the notice to vacate, this would likely have amounted to an unlawful eviction, for which the tenant could have claimed compensation for wrongful eviction. Instead, it appears that the parties instead settled back into a tolerable relationship. The tenant paid some overdue rent and the residential tenancy remained on foot, albeit unhappily due to the fractured relationship and outstanding rent.
21.Some months later, on 17 July 2017, Mrs Rosa sent what purported to be a notice to remedy demanding payment of the outstanding rent for both properties, as well as payment for water consumption, and painting and gardening fees. The letter does not meet the formal requirements for a notice to remedy under clause 91 of the standard terms, but the tenant was clearly put on notice as to the continuing dispute. The applicant took no further formal action to effect eviction after sending this letter.
22.Instead, on 11 or 12 September Mr Rosa again engaged in a further act of “self-help”. He drove a large construction vehicle onto the Mialli property and blocked the door. On this occasion, a school aged child was present in the property. The evidence of Mr Rubio is that the child suffered anxiety and stress because of the event. There is no cogent medical evidence as to the nature of her illness, but I am prepared to accept that she was distressed.
23.Shortly after this incident, the tenant determined to vacate the property and find alternative accommodation. The tenant finally vacated the property on or about 23 September 2017.
The rent
24.There is no contest that the tenant owes rent, the only question is how much.
25.The tenant argues that it is only liable to pay rent on the Mialli property until 11 September 2017, the date from which, it argues, Mr Rosa effectively repudiated the contract. It argued that it derived no benefit from the property after this date.
26.I do not accept this argument. A tenant who remains resident in a property, even under unfavourable conditions, derives the benefit of that accommodation and is obliged to pay rent. If such a tenant believes the lessor is in breach but they nevertheless remain in the property, their remedy is not a rent strike, but an application to the tribunal for an order for a rent reduction or compensation.[4] No such application was made prior to these proceedings. They now seek compensation as a set-off, which I will consider next.
[4] See discussion in D’Ambrosio v Tyler [2009] ACAT 33
27.The tenant vacated on 23 September 2018. The rent owing at this date was $25,175.83. The applicants have waived the excess to come within the jurisdiction of the Tribunal, and therefore the Tribunal is satisfied that the rent owing is $25,000.
The set-off
28.The tenants seek a reduction in the rent owed by way of set off. They base this claim on alleged breaches of several clauses of the standard terms.
29.Clauses 75 through 79 of standard terms limit the right of the lessor to access the rented property. Relevantly, clause 75 provides:
Lessor cannot enter premises except as provided in tenancy agreement
75(1) The lessor must not require access to the premises during the tenancy except as provided by the law, this tenancy agreement, the Residential Tenancies Act, or an order of the tribunal.
(2) The tenant may permit access to the premises by the lessor at any time.
(3) If requested, the lessor or the lessor’s agent must provide identification to the tenant.
76 The lessor must not have access to the premises—
(a)on Sundays; or
(b)on public holidays; or
(c)before 8 am and after 6 pm;
other than—
(d)for the purpose of carrying out urgent repairs or for health or safety reasons in relation to the premises; or
(e)with the consent of the tenant.
30.There is no doubt that Mr Jose Rosa entered upon the property without the permission of the tenant on 18 April 2017 and on 11 and/or 12 September 2017. The lessor appears to have either authorised that access, either expressly or by failing to prevent it.
31.Clause 52 of the standard terms sets out a statutory version of what is known in common law as the tenant’s ‘right of quiet enjoyment’. It states:
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.
32.There is no doubt that Mr Jose Rosa’s actions in turning off the water on 18 April and the blockade of the residence on 11 and/or 12 September amounted to an interference with the tenant’s quiet enjoyment of the property. That interference was, at the very least, permitted or acquiesced to by the lessor. This amounts to a breach of the tenant’s right to quiet enjoyment.
33.Both clauses 52 and 75 of the RT Act have effect as contractual terms of the residential tenancy agreement between the parties. Where there is a breach of the term, section 83(d) of the RT Act provides that the ACAT may make:
...an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement;
34.It is usual to award compensation under this clause where, as here, the tenancy has come to an end. Where the tenancy is ongoing, a rent reduction may be ordered under section 71 of the RT Act instead.[5]
[5] see Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9
35.Mr Jose Rosa explained his actions, as being “…desperate…I couldn’t do anything else”[6] to recover the rent. This is simply not correct. There is a process in Part 6 of the RT Act for resolving such disputes. If termination is the desired outcome, the lessor must issue the prescribed notices to remedy and vacate and then file an application in this tribunal. An application may be made for resolving of any other dispute under the lease. The lessor did not do this. Instead, he permitted or acquiesced to his father’s inappropriate acts of self-help, both of which amounted to significant breaches of the lease and interferences with the tenant’s right to quiet enjoyment. The tenant is entitled to compensation.
[6]Transcript of proceedings 5 August 2019 page 21, lines 1-3
36.In mitigation, the blockade was not a full ‘lock out’. It did not actually prevent access to the Mialli property, although it did prevent access via the front doors. The tenants continued to reside in the property. The interference was transitory in nature, although on one occasion it required police involvement.
37.Additionally, the interference had a negative impact on the welfare of a child present on the property. I have no persuasive evidence that child suffered any longstanding psychological injury, but I have no doubt that she was distressed by the events, including the blockade of the front doors to her home.
38.It is never easy to calculate damages for these kinds of breaches. Awards vary significantly from matter to matter. In Lee v Guo I reviewed the authorities and said:
Compensation for a breach of contract is an award of money to place the aggrieved party in the position he or she would have occupied if the contract had been performed in accordance with its terms. Historically, damages for hurt feelings, distress or inconvenience were not available for breach of contract, but that legal position has now changed, and it is well established that compensation for mental distress is available where the prevention of that distress is the aim of the contract. So, for example, damages for mental distress may be awarded where a purpose of the contract was to prevent the distress caused by the breach or where the contract is to provide enjoyment, relaxation or freedom from molestation. A residential tenancy agreement that provides for the protection of reasonable comfort and privacy is clearly one such contract[7]
[7]Lee v Guo [2017] ACAT 60 at [59]
39.As with that case, I have reviewed the cases in Anforth et al Residential Tenancies Law and Practice: New South Wales (7th edition), particularly in relation to lockouts and the denial of services, such as water.
40.On the higher end, in Burdett v Jongeneel [2008] NSWCTT 917 the NSW Consumer and Tenancy Tribunal awarded a tenant $2,500 compensation for an illegal lockout of 20 days which terminated the tenancy and required that she seek temporary accommodation. The Tribunal noted the presence of children in the property. The circumstances of the present case are not as serious. Allowing for inflation,[8] $2,500 would be $3,029 in 2017.
[8] Colquhon v Wilson[9] the tenants were awarded $1,380 for an effective lockout by the landlord, who cut off water and electricity and placed a boulder at the entrance to the property, blocking access. $1,380 in 2005 is equivalent to $1,850.00 in 2017.
[9] Colquhon v Wilson (Tenancy) [2005] NSWCTTT 100
42.In Roff v Barber[10] the NSW Residential Tenancies tribunal awarded a tenant $1,000, the equivalent of $1,254 in 2017, for an illegal lockout of three days in duration which caused the tenants stress and anxiety.
[10] Discussed in Roff v Barber (Tenancy) [2007] NSWCTTT 287
43.On the other hand, in Greene v Newcastle Investments Pty Ltd[11] a tenant was awarded $800, the equivalent of $1,012 in 2017, for an attempted lockout of one hour.
[11] Greene v Newcastle Investments Pty Ltd (Tenancy)[2004] NSWCTTT 639
44.Having taken account of the range of compensation usually provided in analogous cases, I am satisfied that $1,500 is an appropriate amount damage for the blockade of the front door of the Mialli property for two days and the stress and anxiety caused to the child.
45.Having regard to the tables in Anforth et al, I allow a further $500 the loss of water for a day. This reflects both the loss of the service, and the disruption caused by the need to have the AFP attend to facilitate re-establishment of the service.
46.I decline to award any compensation for the removal costs. The respondent was considerably behind in rent and had displayed little intention of bringing the rent up to date. The situation was untenable and the tenant would have had to bear the costs of a removalist within a relatively short period of time in any case.
Water
47.The lessors appeared to have claimed the water consumption charges against the bond, the issue was dealt with as part of the bond claim, and therefore I do not need to consider it further.
The bond
48.The release of the bond was dealt with in a previous Tribunal matter, RT 1084/2017.
49.I have reviewed the file. Both parties made a claim for the full bond of $4,615.00. There being a dispute over the bond, the matter was referred to the Tribunal and listed for conference on 30 January 2018. The listing notice required the lessors to provide a list of claims against the bond 7 days prior to the conference.
50.On 9 January 2018, the applicants had sent through a list of claims against the bond, as follows:
(a)Paint – $1,720
(b)Cleaning – $1,045
(c)Carpet Cleaning – $400
(d)Intune Pty Ltd – $440
(e)ActewAGL – $440
(f)Consumption fee for excess water – $1,788.59.
51.The tenant did not attend, and accordingly the Tribunal made an order releasing the bond to the lessors against these claims. No application was made by the respondent to set that decision aside. The present proceedings are for loss of tent, which was not claimed against the Bond. Accordingly, it is not appropriate to offset it against the claim for lost rent in this matter.
Summary
52.Having heard the evidence in this matter, I am left with little doubt that the lessors interfered with the tenants’ quiet enjoyment of the premises on two occasions. That these breaches occurred in the context of an ongoing dispute over the payment of rent is of minimal weight – the appropriate recourse in such circumstances are the procedures set out in the RT Act, not the kinds of ‘self help’ activities engaged in by the lessor or his agents in this case. The breaches, although fairly short lived, were egregious and some compensation should be ordered by way of an off-set against the rent owed.
53.Tribunal orders that the tenant pay the applicants to sum of $25,000 by way of unpaid rent. From this is to be deducted the $2,000 awarded as compensation for the interference with the respondent’s quiet enjoyment of the property by way of the blockade and the turning off the water. Accordingly, the respondent is to pay the applicant the sum of:
(a)$22,500 outstanding rent; and
(b)the application fee of $538.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
RT 11/2018
PARTIES, APPLICANT:
Adrian Rosa
PARTIES, RESPONDENT:
The Bolivarian Republic of Venezuela
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
J Macken
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
5 August 2019; 11 December 2019
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