SEEARS v HAVELOCK HOUSING ASSOCIATION INC (Residential Tenancies)

[2018] ACAT 55

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SEEARS v HAVELOCK HOUSING ASSOCIATION INC (Residential Tenancies) [2018] ACAT 55

RT 519/2017

Catchwords:              RESIDENTIAL TENANCIES – rent reduction – mould – whether the premises were habitable

Tribunal:                   Member T Warwick

Date of Orders:  11 October 2017

Date of Reasons for Decision:         16 May 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 519/2017

BETWEEN:

GRANT SEEARS

Applicant

AND:

HAVELOCK HOUSING ASSOCIATION INC

Respondent

TRIBUNAL:Member T Warwick

DATE:11 October 2017

ORDER

The Tribunal orders:

1.A 25 percent reduction in rental rate will apply from 5 August 2013 to 4 August 2014.

2.Havelock Housing Association will calculate the difference between the rent paid and rent payable under Order 1.

3.Havelock Housing Association will pay to the tenant the amount calculated in Order 2.

…………Signed……..

Member T Warwick

REASONS FOR DECISION

1.The applicant is Mr Grant Seears. At all relevant times, the applicant was a tenant of Havelock Housing Association. The applicant sought orders for rent reduction or compensation, equivalent to 100% of the rent paid, for the period 15 June 2013 to 30 July 2015.

2.The respondent is the Havelock Housing Association (HHA). The respondent provides community housing at various sites across the Australian Capital Territory (ACT). HHA is a not for profit organisation, funded by ACT Housing, and ultimately by the ACT Government. The respondent sought orders that the application be dismissed.

3.HHA operates the Gungahlin Singles Accommodation (GSA), which comprises two buildings, each with nine units and common areas. The GSA was constructed in about 2005.

4.Mr Grant Seears entered into a tenancy agreement with HHA in 2005. He moved to the GSA in about 2008.

5.This matter was heard on 4 October 2017 and an oral decision was made on 11 October 2017. Solicitors for the applicant requested written reasons for that decision. These are those reasons.

The evidence and evidentiary materials

6.The applicant was represented by Mr Emerson-Elliott of Canberra Community Law. The applicant’s case, as presented, included the following evidence and materials.

(a)Oral evidence of the applicant, and statutory declaration made on 7 April 2017.

(b)Oral evidence of Mr James Seears (the father of the applicant), and statutory declaration made on 21 July 2017.

(c)Statutory declaration by Ms Nina Benedictos (the mother of the Ms Simonette Benedictos) made on 24 July 2017.

(d)Tenancy agreements dated 19 December 2005 and 20 November 2008, and various attachments.

(e)Letter by Ms Simonette Benedictos (the partner of the applicant) dated 5 April 2017.

(f)Canberra Times article, originally published on 7 July 2014, reprinted from the internet.

7.Mr Emerson-Elliott provided a very helpful timeline of events and written submissions.

8.The respondent was represented by Mr Johnson of Minter Ellison. The respondent’s case, as presented, included the following evidence and materials.

(a)Oral evidence of the Nicholas Lefkaditis, and affidavit affirmed 29 August 2017.

(b)Oral evidence of Jason Luu, and affidavit affirmed 29 August 2017.

(c)Bundle of documents reproduced from the HHA file regarding Mr Seears’ tenancy (123 pages).

9.Mr Johnson provided a very helpful timeline of events and written submissions.

10.Mr Lefkaditis was employed at HHA at all relevant times, and continuing to the date of hearing. Similarly, Mr Luu was employed at HHA at all relevant times, and continuing as at the date of hearing.

11.I was impressed by the evidence of all witnesses. I accept that the witnesses were all doing their best to provide a truthful and accurate account of the relevant events.

Review of the respondent’s bundle

12.The following dates and events are taken from documents contained in the respondent’s bundle. These documents are business records, and were not in dispute.

19 Dec 2005	Grant Seears signs tenancy agreement, and moves into HHA premises
4 Apr 2009	inspection, notes “very clean” page 36
12 Feb 2010	inspection, notes “dining room ceiling – leaks when rain” page 39
27 Oct 2010	inspection, notes ceiling clean page 44
18 May 2011	inspection, notes water damage in lounge and entrance page 47
15 Nov 2011	inspection, notes water damage in kitchen and entrance page 48
18 Sept 2012	inspection, notes water damage in lounge and “very bad marks on ceiling” in kitchen page 50
18 Mar 2013	GSA meeting, previous works to flashings were inadequate, new works to repair roof sheeting will be carried out, schedule of work will depend on weather and access pages 50-54
1 May 2013	inspection, all tidy and clean page 60
15 May 2013	GSA meeting page 61
25 Jun 2013	GSA meeting, escalating issue re leaks page 62
27 Aug 2013	GSA meeting, still some leaks page 63
23 Jun 2014	notice re visit page 66
2 July 2014	complaint re heater
3 Jul 14	temporary heaters provided page 67
4 Jul 14	HHA requests access for contractors page 68
7 Jul 14	Canberra Times article
8 Jul 14	seek access for contractors page 69
Jul 14	new air-conditioning unit installed page 71-72
27 Aug 14	GSA meeting page 72
5 Feb15	inspection, dirty, holes on ceiling from leaks, failed page 60
17 Mar 15	inspection, clean, passed, water leaks entrance and kitchen page 75
23 Jun 15	action still outstanding page 77
18 Jun 15	first complaint re mould, to Worksafe page 79
c. Jun 15	HHA has received no specific complaints, but mould observed in some units page 78
c. Jun 2015	works scheduled, delay by rain page 80
10 Sept 15	inspection, clean, no note of water damage page 83-87
11 May 16	inspection, clean, noted some water damage to walls and ceiling in kitchen page 93
26 Oct 16	inspection, clean, noted smell of smoke page 97-106
16 May 17	inspection, clean page 108
7 Jun 17	smoke alarm observed to have been “tampered” page 120

(Note, the above page numbers are taken from the respondent’s timeline of events . I have used these page numbers below.)

13.I note that the relevant events occurred in the years 2010 to 2015. The witnesses were generally uncertain as to the specific dates of the relevant events. For this reason, I have accepted the dates of relevant events as shown in the documents in the respondent’s bundle.

14.The applicant was confident that he moved to live with his partner Simonette Benedictos at Charnwood on 15 June 2013. And he was confident that he moved back to his unit at the GSA on 30 July 2015. I have accepted these dates.

The leaking roof

15.The GSA roof leaked. The roof was shallow, and water entered depending on the volume of water and direction of the wind. Further, the roof cavity was unusually low. This meant that tradespersons could not enter the roof cavity to inspect, for instance, to follow the water damage to its source.

16.HHA was responsible for day-to-day operation of the residential tenancies. In addition, HHA provided support and welfare assistance to residents, as needed and as appropriate. Routine maintenance was subcontracted to Spotless.

17.The ACT Government was the owner of the GSA buildings. The ACT Government Department of Housing and Community Services was responsible for major repairs, again by way of contract to Spotless. From time to time, HHA communicated with ACT Housing, seeking to progress works on the roof and guttering.[1]

[1] Respondent’s timeline of events page 72

18.The responsible bodies took a conservative approach to the expenditure of GSA and public funds. Over time, many leaks were identified. Over time, many tradespeople were engaged to rectify the leaks. These minor works failed to remedy the problem.

19.By about 2013, the ACT Government had identified the need to address the roof repairs as a major project. These major works failed to remedy the problem.[2]

[2] Respondent’s timeline of events pages 54, 61, 62, 63

20.Over time, a broad range of work was carried out, including: increasing the size of roof gutters and down pipes, installing extra stormwater pipes, installing safety ladders, installing new roofing sheets over the areas leaking, installing and replacing flashings, placing new liners around skylights, placing stronger and thicker boards over inspection holes to avoid mould.

21.In mid-2014, inspections and works regarding the roof leaks were continuing. By mid-2015, funding and tender processes were resolved, for work to remove and replace the roof. In late 2015, the entire roof was removed and replaced.

Water damage and mould and inspection holes

22.This conservative approach to repairs at the GSA was entirely proper, in circumstances where the repairs were funded by the public purse. But, this approach involved very long delays, and exposed the tenants to water leaks, from time to time, over many years.

23.Sometime before February 2013, a number of “inspection holes” were cut into ceiling of certain units. The inspection holes were placed at points where water damage was visible. The purpose of the inspection holes was to allow access to roof cavity, to allow tradespersons to access the roof at areas of water damage, to inspect, and to follow the water back to the source of the leaks.

24.The inspection holes were temporarily covered with boards. Unfortunately, the cover boards that were originally installed were not suited to the task. The boards were thin, became water damaged, and mould developed.

25.I accept that, when HHA became aware of the growth of mould on the ceiling or the cover boards in various unit, HHA engaged cleaners to remove the mould. If the cleaning occurred early, the mould was easily removed.

26.I accept that Mr Grant Seears, or Ms June Goode, may have made an informal or verbal complaint to HHA regarding mould growing on the inspection hole cover boards in his unit. However, HHA does not have any record of any written complaint regarding mould in his unit. The mould was not cleaned, and gradually grew on the cover boards. By mid-2014, there was extensive areas of mould on the cover boards.

27.On 7 July 2014, the Canberra Times published an article regarding the state of Mr Seears’ unit. The Canberra Times article included several photos. The photos show four inspection holes, which appear to be about 1m x 1.5m or larger. The photos show large areas of mould on two of the cover boards. At this time, the reverse cycle air conditioning was not working.

28.After the Canberra Times article, repairs were carried out to Mr Seears’ unit. The thin cover boards were removed, and replaced with thick cover boards. And a new reverse cycle air conditioning unit was installed. This work was completed by 4 August 2014.

29.I find that the unit was habitable on and after 4 August 2014. There is no evidence that any further work was carried out after 4 August 2014, and before late 2015, when the entire roof was replaced.

Mr Seears returned to live at the GSA on 30 June 2015

The tenancy agreement

30.The tenancy agreement relevantly provided:

clause 59 The tenant shall notify (HHA) of the need for urgent repairs as soon as practicable.

clause 60the following are urgent repairs …

(c) a serious roof leak,
(g) serious storm or fire damage, …
(m) a fault or damage that causes the residential premises to be unsafe or insecure …

clause 72The tenant shall not leave the premises vacant for more than 21 days without notifying the lessor.

Communications

31.Mr Seears is profoundly deaf.

32.From time to time, Mr Seears notified HHA of complaints and concerns, including:

30 Apr 07	letter, asking for flashing/strobe fire alarm and doorbell (at page 22, appears to be a follow up from previous requests)
27 Aug 07	phone call by girlfriend, advising they are locked in premises because the door has broken (page 23)
31 Oct 07	complaint to Human Rights Commission (page 24, it appears that the HRC closed the complaint because flashing/strobe fire alarm and doorbell had been fitted, although Mr Seears was not happy with 12 second delay in activation)
6 Feb 08	letter, reporting a number of incidents, including theft of motorcycle, and interference with car, and noise disturbances (page 30)
21 May 08	handwritten note, requesting a worker to sign a Centrelink rent certificate (page 31)
23 Aug 08	email, reporting crazy lady shouting, with attachment being crazy lady video (page 32)
21 Sept 09	complaint on HHA complaint form, reporting conduct of woman in unit 8 (page 33)
9 Mar 11	meeting with HHA staff, report rent review letter not received, HHA waived rent arrears (page 46)

Inspections

33.HHA staff carried out periodic inspections at the GSA. HHA staff inspected Mr Seears’ unit on the following relevant dates:

1 May 13	Six weeks before Mr Seears moved to Charnwood
5 February 14	Mr Seears is living at Charnwood
7 Mar 13	Mr Seears is living at Charnwood
10 Sept 15	Mr Seears is living at GSA

34.I note that the inspections of Mr Seears’ unit were generally positive, and the unit was described as clean and tidy. One important exception was the inspection on February 2015. I will discuss this inspection later.

35.Importantly, most inspections noted water damage on the ceiling of Mr Seears’ unit.

The period from 15 June 2013 to 4 August 2014

36.On 1 May 2013, the unit was inspected. The inspection report describes the unit as “very tidy and clean”, and “cold due to holes”. I understand this is a reference to the inspection holes in the ceiling.

37.I find that, on 1 May 2013, the unit was fit for habitation.

38.On 15 June 2013, six weeks after the above inspection, Mr Seears moved to live with his partner Simonette Benedictos at Charnwood. I find that the unit was still fit for habitation on 15 June 2013.

39.On 7 July 2014, the Canberra Times published an article and photos. I accept that, at the time that the photos were taken, the condition of the unit was very poor. I accept that the water damage and the mould shown in the photos would have significantly interfered with the tenant’s enjoyment of the premises. HHA concede that the heater needed replacing.

40.I find that HHA was not formally notified of the heating or the mould issues before the Canberra Times article.

The period from 4 August 2014 to 30 July 2015

41.The HHA inspected Mr Seears’ unit on 5 February 2015. The inspection notes include that the unit is dirty, holes in ceiling from leaks, covered temporarily.[3]

[3] Respondent’s timeline of events page 71

42.This inspection is in contrast with all other inspections, when the unit is described as clean and tidy.

43.The minutes of the GSA meeting, held on 26 February 2015, noted that a number of units were unacceptable and unclean. The HHA “understand the issues surrounding this but your unit is your responsibility, and keeping it clean and odour free is a requirement of the tenancy act.”[4]

[4] Respondent’s timeline of events page 72

44.On further inspection on 17 March 2015, the unit is clean and very tidy. And water leaks are noted.[5]

[5] Respondent’s timeline of events page 75

45.At the GSA resident meeting on 29 April 2015, residents are advised that a company has been awarded for the tender for the roof works. The plan now is to replace the roof.[6]

[6] Respondent’s timeline of events pages 76, 77, 81, 82

46.At the meeting on 29 April 2015, Mr James Seears, spoke to HHA staff. Mr James Seears has extensive experience in building industry. He raised the issue of water damage, and the temporary covers over the inspection portals in the ceiling.[7]

[7] Respondent’s timeline of events page 77

47.On 22 June 2015, a meeting was held at Mr Grant Seears’ unit. I heard evidence from four persons who were present at this meeting, that is, Mr Grant Seears, Mr James Seears, and Mr Luu and Mr Lefkaditis from HHA. It appears that other persons were present, representing Spotless and Housing ACT.

48.The evidence was not consistent regarding the state of the ceiling of Mr Seears’ unit as at 22 June 2015.

(a)Both Grant Seears and James Seears recalled water damage being visible on the ceiling at the time of this meeting.

(b)Both Mr Luu and Mr Lefkaditis did not recall water damage being visible on the ceiling.

(c)The respondent’s bundle discloses that, in June 15, a tenant reported mould to Worksafe. It appears that HHA had not received any complaints about mould at that time, and had not raised any work order.[8]

[8] Respondent’s timeline of events pages 79-80

49.On 22 June 2105, a number of action items were agreed to be undertaken by Spotless, recorded as follows:

(a)Have the light fitting checked by an electrician and repaired if necessary.

(b)Have the ceiling checked for any water damage and have any mould addressed.

50.These action items suggests that the HHA and Spotless staff did not observe any water damage or mould, requiring any work, as at 22 June 2015. Nevertheless, it was agreed that the ceiling cavity would be inspected for water damage or mould.

51.Importantly, only six weeks later, on 30 July 15, Mr Grant Seears moved back to his unit at the GSA.

52.There is no evidence that HHA had carried out any work in the unit, in relation to water damage and mould, after 4 August 2014 and before 30 July 2015.

No formal notification that tenant has vacated the premises

53.I find that Mr Seears did not formally notify HHA, in writing, and that the unit was not habitable because of water leaks and mould damage. I find that Mr Seears did not formally notify HHA, in writing, that he had moved to Charnwood on 15 June 2013.

54.I find that Mr Seears left furniture, clothing and other belongings at the unit. Mr Grant Seears continued to pay rent for the unit, and to collect his mail. HHA staff, when inspecting the unit, formed the view that Mr Seears was still living at the unit.

55.I accept the evidence that HHA staff had a duty of care for residents, which included a duty to provide a habitable unit, and to provide various support and services for residents.

56.I find that, if Mr Seears had formally advised he had moved to Charnwood because the unit was not habitable, HHA staff would have acted to make the unit habitable.

57.Mr Grant Sears said that he asked his grandmother Ms June Goode to advise HHA that he had moved to Charnwood, because his unit at GSA was not habitable, because of water leaks and mould. Mr James Seears also said that he had asked Ms Goode to advise HHA.

58.The applicant did not file a statement by Ms Goode. The legal representative for the applicant said that Ms Goode was elderly, and anxious about participating in the Tribunal hearing, and for this reason she did not provide a statement in the Tribunal proceedings.

59.However, during the hearing, Mr Emerson-Elliott requested leave to adduce evidence from Ms Goode by telephone.

60.The legal representative for the HHA opposed this application, on grounds that they had no notice of this evidence, and no opportunity to lead evidence in rebuttal.

61.I refused leave to lead evidence from Ms Goode. I had already received in evidence the contents of the HHA paper file regarding the tenancy. I had also heard evidence that verbal communications were logged in a communication diary by various HHA workers. However, that diary was not in evidence. If I granted leave for the applicant to lead evidence from Ms Goode, I would be obliged to grant leave to HHA to lead evidence from relevant staff regarding the communications diary, and relevant contents from that communications diary.

62.I accept that Ms Goode may have verbally notified HHA staff that Mr Seears had vacated the unit. However, I do not accept that informal verbal notification was appropriate or sufficient in all the circumstances.

63.I accept that water leaks were ongoing at the GSA over many years. I assume that tenants complained repeatedly, but that the water leaks continued. On the other hand, I accept that, when tenants complained about mould, HHA promptly engaged subcontractors to remove the mould. Mr Seears’ failure to formally notify HHA about the mould problem allowed the mould problem to grow over time.

Consideration

64.I find that the unit was habitable on 1 May 2013, being the date of an inspection.

65.I accept that Mr Seears moved to Charnwood on 15 June 2013. However, I find that the tenant failed to formal notify the HHA that he had moved to Charnwood, or that the unit was not habitable.

66.I accept that Ms Goode may have made some informal verbal notification or notifications. But, I find that informal verbal notification was not appropriate or sufficient in all the circumstances.

67.I find that the condition of the ceiling in the kitchen, entrance and living areas at as 7 July 14 was very poor, as shown in the Canberra Times article published on that date.

68.I find that the condition deteriorated over many months, and eventually deteriorated to the state shown in the Canberra Times article on 7 July 2014. I find that there was a loss of enjoyment of the premises, increasing over the 12 months to 7 July 2014.

69.I take the following factors into account in considering the appropriate rent reduction for the period 15 June 2013 to 4 August 2014.

(a)HHA had a responsibility to provide habitable premises.

(b)The tenancy agreement required the tenant to notify HHA of the need for urgent repairs, and of vacating the premises for more than 21 days.

(c)Mr Seears did not advise HHA, formally and in writing, that the unit was not habitable.

(d)When HHA received a complaint from other tenants, HHA took action to remove mould in those units.

(e)The unit was inspected on 1 May 2013, and was fit for habitation on that date.

(f)The condition of the unit deteriorated over the period 1 May 2013 to 4 August 2014, and was not fit for habitation on 7 July 2014.

(g)Work was commenced shortly after 7 July 2014, and the unit was fit for habitation by 4 August 2014.

70.I order that the rent be reduced by 25% for the 12 months from 5 August 2013 to 4 August 2014.

71.I find that the unit was habitable on 4 August 2014. I find that the unit was continued to be habitable from 4 August 2014 to 30 July 2015.

72.I accept that Mr Grant Seears’ unit, like other units at HHA, was affected by water leaks after 4 August 2014. However, there was no evidence of any repairs, cleaning or any other works carried out after 4 August 2014 and before 30 July 2015, being the date Mr Seears moved back to the unit.

73.In oral evidence, Mr Grant Seears said that the mould was “not so much” after 4 August 2014. And, as far as he was aware, there was no work carried out on the roof after 4 August 2014 and before he moved back to the unit on 30 July 2015.

74.I find that Mr Seears’ unit was habitable, and his continued residence with Ms Simonette Benedictos was personal preference, from 4 August 2014 to 30 July 2015. I do not order any compensation for this period.

75.Mr Seears moved back to the GSA on 30 July 2015. The whole roof was removed and replaced in late 2015.

………………………………..

Member T Warwick

HEARING DETAILS

FILE NUMBER:	RT 519/2017
PARTIES, APPLICANT:	Grant Seears
PARTIES, RESPONDENT:	Havelock Housing Association
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Canberra Community Law
SOLICITORS FOR RESPONDENT	Minter Ellison
TRIBUNAL MEMBERS:	Member T Warwick
DATES OF HEARING:	4 October 2017