Rostas v Shores Realty
[2014] QCAT 174
| CITATION: | Rostas v Shores Realty [2014] QCAT 174 |
PARTIES: | Anthony Rostas (Applicant) |
| v | |
| Shores Realty (Respondent) |
| APPLICATION NUMBER: | MCD300/14; MCD112/14 |
| MATTER TYPE: | Other minor civil dispute matters Residential tenancy matters |
| HEARING DATE: | 14 March 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 28 April 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. Claims 300/14 and 112/14 are dismissed. |
| CATCHWORDS : | Minor civil debt – Residential tenancy dispute – rent reduction – alleged loss of amenity and facilities – alleged unsafe premises – compensation for premises allegedly partly unfit to live – orders for compliance with Fire Safety laws Queensland Civil and Administrative Tribunal Act 2009 Trimble v Babet [2013] QCATA 81 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr Anthony Rostas |
| RESPONDENT: | Mrs Karen Elliott (Property manager) on behalf of Shores Realty. |
REASONS FOR DECISION
Mr Rostas and his family rented a Penthouse at Southport, known as Unit 3302 at 1 Como Crescent. The lease commenced on 13 November 2012 and was for a fixed term period and was due to end on 19 November 2014. At the time of the hearing Mr Rostas had been evicted from the premises under a Termination Order and warrant of possession. Mr Rostas filed two claims, the first in January 2014 and the second in February 2014, which were both heard together on 14 March 2014. Substantially both claims seek the same orders for compensation by way of a retrospective rent reduction for what he alleges is due to the fact that “the property was not safe, and was unfit to live in”[1]. Further, that there was a “loss of amenity” and he could not use some of the properties facilities in that the pool and spa were not operational.
[1]Residential Tenancies and Rooming Accommodation Act 2008 s 94.
Mrs Elliott is the property manager from Shores Realty who acts on behalf of the owner. She seeks orders from the tribunal that the claims should be dismissed.
Mr Rostas claims in his application a rent reduction for loss of facilities for the entire time he lived at the property and compensation of “60% rent multiplied by 24 weeks and or alternatively orders for the Lessor to comply with Fire Safety laws and to make the entire premises fit to live in and costs of lodging the claim” He seeks “a sum or quantum to be determined at the discretion of the tribunal”. At the hearing Mr Rostas quantified his claim seeking a “rent reduction of 80% of the weekly rent which was $1500.00 per week”, therefore calculated at a reimbursement of $1200.00 for each week he lived at the property. He lived at the property from November 2012 until March 2014, some 16 months or 64 weeks. The total amount claimed would be approximately $76,800.00.
Mr Rostas evidence
Mr Rostas claimed that on or about 2 April 2013 a Fire Safety Compliance Officer inspected and assessed the premises for the fire safety compliance of the property. He believed it was inspected on behalf of the Body Corporate. He alleges that the compliance officer told him that level 2 was unfit to live in and should not be used because it did not have any fire safety alarms and equipment and did not comply with Fire and Safety Laws.
Mr Rostas claims that the “fire risk is greater due to the fact the there is a huge Beefeater BBQ installed indoors inside the kitchen living areas and places a greater risk that there would be otherwise”.
Mr Rostas claimed that the entire level 2, including its facilities and amenities, are not safe for use by him and his family and guests due to the non compliance with fire safety laws. He said that he lost the facilities and amenities of level 2 and as a result “his children could not stay at the property and had to stay elsewhere”.
Mr Rostas said he would not have entered the lease if he knew that the entire level 2 and its facilities were not available to be used or would become unavailable during the tenancy.
Mr Rostas said he rang the Agent immediately to tell them about the smoke alarm problem and no action was taken by the lessor to fix the problem. He said he issued a Form 11 Notice to remedy Breach on 5 April 2013 and followed up with a number of phone calls but no action was taken.
Mr Rostas said he issued a Form 16 on 15 September 2013 for conciliation with the RTA about the matter. He said the RTA conducted conciliation on 19 November 2013 but that the real estate agents refused to participate and a Notice of Unresolved Dispute was issued with the number M283050. A copy of the Notice was attached to his claim dated 20 September 2013. He said that still no action was taken by the lessor.
Mr Rostas did not produce any evidence of a Form 11 Notice to Remedy Breach regarding the smoke alarms or a copy of the Form 16 request for conciliation that proved he specifically requested conciliation regarding the smoke alarm issues.
Mr Rostas attached a plan of the Penthouse apartment to his claim showing the layout style of the premises.[2]
[2]Annexure ‘B’.
Mr Rostas claims for rent reduction also due to the inability to use the pool and spa. He said that he and his family could not use the pool and spa from between 14 January 2014 and 3 March 2014 and the Lessors did not repair the pool pump.
Mrs Elliott’s evidence
Mrs Elliott stated that Mr Rostas did not have any evidence what so ever to back up his claims. She said that his claim for compensation appeared to be coincidental to the fact that he left the property owing rental arrears of more than $21,500.00. A tenant ledger was provided dated 3 March 2014[3] indicating that the last time rental monies had been paid was on 10 December 2013. She suggested that these claims were an attempt by him to be relieved from payment of those arrears.
[3]Exhibit 4.
Mrs Elliott provided to the tribunal, evidence in various documents, that she said disproved Mr Rostas’ claim and prove his allegations as untruthful.
Mrs Elliott said that the issue of the fire and smoke alarms being defective or non compliant was not true. She produced a quotation from DayShelf Fire Systems dated 10 March 2014[4]. She said the works had been done at the quoted cost of $1438.80. She said the fire alarms were installed in compliance with the relevant legislation and that the alarms were serviced and batteries changed on an annual basis. She said that the alarms had been checked and were all working pursuant to the relevant laws.
[4]Exhibit 2.
Mrs Elliott produced a Compliance Statement from Budget Smoke Alarms dated 14 November 2012[5] indicating that the 6 smoke alarms in the property were present and on that date “met the requirements of Australian Standard 3786-1993, and the property satisfies the requirements of the Fire and rescue Service Amendment Act 2006 and the relevant sections of the Building Code of Australia” A further tax invoice dated 11 April 2013[6] for payment for an annual smoke alarm service that occurred in April 2013 together with a Compliance Report from Smoke Alarm Solutions dated 11/4/2013[7] indicating that the property was compliant with the relevant Australian Standards and relevant legislation.
[5]Part of a bundle of documents marked Exhibit 4.
[6]Part of a bundle of documents marked Exhibit 4.
[7]Part of a bundle of documents marked Exhibit 4.
Mrs Elliott provided evidence relating to the pool and spa issue. A work and maintenance order dated 13 January 2014 directed to Pacific Pools and Spa[8] provided that a contractor was directed to the property to investigate as the tenant advised that “there is water gushing from the pool pump that flooded level 3”. An email from the tenants’ representative, Ms Laval Palmer[9], had been sent on the same day advising that a leak was located and that flooding had occurred. A Form 11 Notice to remedy Breach the next day, 14 January 2014 was provided as evidence. Mrs Elliot said that the issue was dealt with swiftly and that on the 17 January 2014 Swimart had attended the property and advised her that a part for the pump needed replacing but was difficult to source as the company that made the pool pump had gone into receivership. She said that they requested a quote and that the pool contractor had advised that the flooding was limited to “a bit of water on the tiles”. Mrs Elliott then said she contacted the owner and advised her that the pool parts were required to be replaced and identified the pool filter and costing approximately $650.00. Email communication between the owner and Mrs Elliott dated 17 January 2014[10] were tended as evidence of these facts. In an email on 17 January 2014 Mrs Elliott stated that she advised the pool repair man by email[11] that the replacement of the pool filter had been approved by the owner and that the job should be completed. The email also states that the contractor should “do a service on the pool to ensure it is back in balance and everything is as it should be”. A tax invoice dated 22 January 2014 for $660.00 from Swimart Bundall[12] was provide to prove the works were done and paid for.
[8]Part of a bundle of documents marked Exhibit 5.
[9]Part of a bundle of documents marked Exhibit 5.
[10]Part of a bundle of documents marked Exhibit 5.
[11]Part of a bundle of documents marked Exhibit 5.
[12]Part of a bundle of documents marked Exhibit 5.
Mrs Elliot said that on 23 and 24 January 2014 she emailed the tenant Mr Rostas to arrange an inspection to see what rectification was required as a result of the flooding. A Form 9 Entry Notice was issued to the tenants dated 24 January 2014 for entry and inspection on 28 January 2014. Mrs Elliott said that the inspection did not reveal any damage as reported by the tenants. She emailed the owner and said to her that “we could not see any damage to the carpet, nor could we smell any odour which would have resulted from wet musty carpet. The carpet is dirty and there are obvious marks on the carpet that need cleaning, however, we do not believe these were caused by any water. … the pool technician and the plumber could not see any issue either.” The email says “we have attached some photos for you, please advise how you would like us to proceed.” The photos taken by Mrs Elliott were attached to the email.[13] A further inspection was carried out by the plumber on 28 January 2014 by way of Form 9 Entry Notice[14] for the plumber to do the annual testing of the backflow devise.
[13]Part of a bundle of documents marked Exhibit 5.
[14]Part of a bundle of documents marked Exhibit 5.
Mrs Elliott stated that the pool pump was rectified within 7 days from the date the tenant first advised of the problem to the date the part was replaced and the pool was fully functional.
Mrs Elliott said that at no time had the tenant requested permission to leave the property because of any maintenance or repair issues and that she had not been served with any Form 11 maintenance issues until January 2014 after she raised with the tenant the issue of rent arrears.
Mrs Elliott referred to the claim and stated the tenant had a history of raising false allegations to try and gain a rent reduction. She said he had tried this tactic before. She provided some emails from the tenant to her dated 11 September 2013[15] regarding allegations of issues with the air conditioner not working and seeking compensation. The email stated that the “RTA had advised them that the lack of an air conditioner would result in a 30-40% reduction in rent.” The email calculates a rent reduction sought then of $4950.00. This was rejected by Mrs Elliott and the email response states “should you wish to pursue compensation please go through the appropriate channels.”
[15]Part of a bundle of documents marked Exhibit 3.
On 11 September 2013[16] a further email from the tenant to Mrs Elliot sought compensation by a rent reduction for the “Entertainment Audio Speaker system not being fixed”. This email sought a rent reduction of $6000.00.
[16]Part of a bundle of documents marked Exhibit 3.
On 11 September 2013[17] in another email sent to Mrs Elliott, the tenant seeks rent reduction for the “pool heater not being fixed” and payment of $1200.00.
[17]Part of a bundle of documents marked Exhibit 3.
Mrs Elliott stated that she believed that the tenants claim did not have merit and that the claim should be dismissed.
The Law
Rent decreases apply if premises are destroyed or made completely or partly unfit to live in.[18] The rent amount can also be decreased if the services or facilities of a property that are provided to a tenant under a lease agreement are no longer available or are withdrawn[19] or the standard of the property decreases substantially for a reason other than malicious damage caused by a tenant.[20]
[18]Residential Tenancies and Rooming Accommodation Act 2008 s 94(1)(a).
[19]Ibid s 94(2)(a).
[20]Ibid s 94(2)(b).
A lessor has obligations generally under a tenancy agreement and must ensure that the premises are clean and fit for the tenant to live in; the premises must be in good repair and not breach Health and safety regulations.[21]
[21]Ibid s 185(2).
A lessor must also ensure that maintenance and repairs are done during the tenancy if needed and at all times the property must be in a fit and proper condition for the tenants to live there.[22]
[22]Ibid s 185(3).
Any application regarding a breach of a tenancy agreement can be made by either a lessor or tenant.[23] An application about an alleged breach of a term of a tenancy agreement must be made within 6 months after the tenant becomes aware of the breach.[24]
[23]Ibid s 419(1).
[24]Ibid s 419(3).
A tenant can file an application for any breach of a tenancy agreement either during or after the agreement has ended and despite a termination order being made terminating the tenancy.[25]
[25]Ibid s 419(4).
The tribunal can make particular orders about breaches of a tenancy agreement including but not limited to an order for the payment of money[26] or an order for compensation[27].
[26]Ibid s 420(1)(b).
[27]Ibid s 420(1)(e).
Section 94 creates a cause of action that is separate and distinct from the remedy provided in section 419. The Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”) provides for two ways in which a tenant can obtain relief if the premises fall into disrepair and the lessor does not take steps to remedy the situation. First, the tenant may apply for a decrease in the rent to be paid pursuant to s 94. Secondly, the tenant may make a claim for compensation for breach of the residential tenancy agreement under s 419. Both are separate and distinct causes of action open to the tenant. [28]
[28]Trimble v Babet [2013] QCATA 81 at [17] per Wilson J, citing with approval Campbell v Donker [2013] QCATA 6 at [18].
If a tenant relies on section 94, the time limit in section 419 is irrelevant. The Act does not state that a section 94 claim must be brought within a particular time, or while the tenancy is current. A long delay in bringing a claim may be a different matter; the remedy, after all, is discretionary. [29]
[29]Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 at [28].
Section 94 of the Act, which provides for a rent reduction where, inter alia, “the amenity or standard of the premises decreases substantially other than because of malicious damage by the tenant” is a relevant consideration in this case.
Findings
In this case I find that Mr Rostas had not provided any relevant evidence to support his claims that the lessor has breached their obligations to the maintenance and repairs of the property during the entirety of his tenancy. In fact the evidence proves to the contrary and that Mr Rostas has enjoyed living in the penthouse with his family since 13 November 2012 and at no time has he chosen to leave the property due to maintenance issues. He has not issued any maintenance request forms to the Agent and he has not proven he issued any earlier Form 11 Notices to Remedy Breaches regarding maintenance or repair issues until January 2014. I find that Mr Rostas only issued Form 11 Notice to Remedy Breach for maintenance matters after he was significantly in breach of his lease agreement and had incurred large rental arrears.
I find that Mr Rostas did send emails to the Agent advising her of some minor maintenance or repair issues and that they were all responded to quickly. An example was an email to the Agent dated 13 January 2014 advising that there was a water leak from the pool pump in the property. A maintenance work order was raised the same day for the pool pump to be inspected and a report provided o the owner on 17 January 2014 and approval for repairs were given on the same day. The repairs were proved to be completed by way of a tax invoice dated 22 January 2014.[30] I find that from initial complaint to the replacement, a total of 9 days, to be prompt and efficient management of the property on behalf of the owner and Agent. In this case I cannot make a finding that the tenant did not have full use of the pool and spa during the tenancy. I find that any claim for compensation and rent reduction for the spa and pool issues completely without merit and must fail.
[30]Evidence contained in bundle of documents marked Exhibit 5.
Mr Rostas alleges that when he discovered on or around 2 April 2013 that the smoke alarms in the property were not compliant he had to move his children out of the property to live elsewhere because the property was not safe. I reject Mr Rostas’ evidence in its entirety regarding this point. Mr Rostas did not produce any evidence to the tribunal that would support his claim that his family had to live elsewhere. I do not accept that evidence as the truth.
Mr Rostas claimed that the property was not fit to live in and that he should then be able to claim a rent reduction. The anomaly in this matter was that despite Mr Rostas claiming he and his family could not live in the penthouse, that it was not safe; he in fact had resisted all efforts to leave the property. Mr Rostas stopped paying rent and despite the Agent agreeing for him to leave early he refused to do so. It was not until a warrant of possession was executed was Mr Rostas removed from the property.
Mr Rostas further relies upon a Form 11 Notice to Remedy Breach regarding maintenance issues that was dated January 2014 yet claims a rent reduction for the entire time he lived in the property. I find his claim to be made outrageously overestimated and for an extended time period without any evidence what so ever to support his claim. He claimed a rent reduction due to non compliant smoke alarms yet chose to continue to live at the property and refused to leave.
I find that Mr Rostas’ claim for rent reduction for the smoke alarm matter fails on three grounds. Firstly, I find that the smoke alarms in the property were compliant as assessed in the Safety Compliance certificates covering the period of the tenancy and that the penthouse met all the necessary legislative and Health and Safety requirements. On making that finding I conclude that an application for rent reduction pursuant to section 94 must fail as there is no evidence that the amenity or standard of the premises decreased substantially during the tenancy.
Secondly, even if the alarms did not comply, the tenant chose to continue to live in the property for more than 12 months after becoming aware of the problem. I could make a finding therefore that the smoke alarm matter was not important or significant enough for him to leave the property. He did not bring an application to the tribunal seeking an earlier resolution of the alleged problems, he could have sought orders to have the alleged faulty smoke alarms fixed, he could have sought order for early termination of the lease if he was unhappy living there, he did not pursue any of these options. I find in the circumstances that the smoke alarm issue was not a real concern for Mr Rostas and that in fact the alarm issue did not render the popery unfit to live in nor affect the amenity of the property and the ability for Mr Rostas to enjoy living in the property. Mr Rostas only now seeks to make the alarms an issue with the property and seeks compensation when the alarms clearly were not an issue at the time he lived in the property.
Thirdly, the claim for compensation for the smoke alarms issue, even if I find they were non compliant and even if I found that the penthouse was affected by the non compliance, a claim for compensation would fail based on time limitations. Any application for breach of an agreement must be made within 6 months after the tenant becomes aware of the breach.[31] That being the case I find that as Mr Rostas did not file his claim on or around 5 October 2013 (6 months after he discovered the non compliant smoke alarms) his claim has been filed out of time.
[31]Ibid s 419(3).
I find that Mr Rostas has not provided any evidence whatsoever that would persuade me that the penthouse at 1 Como Crescent, Southport was either completely or partly unfit to live in. I reject the evidence of Mr Rostas that he lost the use of families and amenities on Level 2 and I find that despite the alleged smoke alarm issues, in fact I find to the contrary, that Mr Rostas and his family and friends lived in the property and enjoyed all the luxuries and benefits that the property had to offer up until the time he was forcibly removed.
I find that Mr Rostas has not been entirely truthful in his evidence and that he has depicted the property to be in an unfit state to further his own claim when the property clearly was one that warranted the full rent to be paid. I find that the property was professionally and properly managed for the owner by Shores Realty and that they attended to all maintenance issues in a timely and professional manner.
For the reasons outlined above I have determined that the appropriate order I make is as follows:
1. THAT claims 300/14 and 112/14 are dismissed.
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