Sempiol & WILLIAMS & Ors (Residential Tenancies)

[2011] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SEMPIOL & WILLIAMS AND ORS (Residential Tenancies) [2011] ACAT 8

RT 867 of 2010

Catchwords:             RESIDENTIAL TENANCIES – lessor’s failure to repair the premises – unacceptable delay in repairing the air conditioning system – lessor’s breach of the residential tenancy agreement – lessor’s obligation to keep the premises in a state of good repair – could lack of customer service from manufacturers, suppliers and installers relieve a lessor of the obligation to effect repairs? – diminution of the tenant’s right to the quiet use and enjoyment of the premises

Tribunal:                  Ms J. Lennard, Senior Member

Date of Orders:  7 December 2010
Date of Reasons for Decision:         31 January 2011

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 867 of 2010

BETWEEN:

Richard SEMPIOL

Applicant/Tenant

AND:

Grahame Sidney WILLIAMS &

Mary Monica WILLIAMS

Respondent/Lessor

TRIBUNAL:            Ms J. Lennard, Senior Member

DATE:  7 December 2010

ORDER

1. The ACT Civil & Administrative & Tribunal finds Lessor has breached obligation to repair.
2. ACAT finds Tenant has suffered significant diminution of use and enjoyment at premises as a result of Lessor’s failure to repair air conditioner in accordance with terms of Residential Tenancies Agreement.
3. The rent shall reduce by $35.00 per week from 11^th March, 2010 until date that air conditioner is repaired and operational.
4. Lessor to pay an amount of $1,755.00 to Tenant within 7 days of date of this Order.
5. Tenant to pay rent in accordance with agreement at reduced amount from 9^th December, 2010 until repairs in Order 3 are complete.
6. Lessor to pay filing fee of $59.00 to Tenant.

Ms J. Lennard, Senior Member

REASONS FOR DECISION

REASONS FOR DECISION

1. This matter was heard by the ACT Civil & Administrative Tribunal (the Tribunal) on 7 December 2010. Upon finding that the lessor had breached the obligation to repair the premises, and that the tenant had suffered significant diminution of the quiet use and enjoyment of the premises as a result of being without air conditioning for the entire 12 months of the tenancy to date, the Tribunal reduced the rent from $440.00 per week to $405.00 per week from the 11^th of March 2010 until such time as the air conditioner is repaired and operational.

2. The applicant has requested reasons for the decision.

FACTS

1. The applicant tenant and respondent lessor entered into a residential tenancy agreement for a one bedroom apartment at 4 Glebe, 15 Coranderrk St, Canberra City. The term of the tenancy was for 12 months from 4 January 2010, at a weekly rent of $440.00 The premises are new. The lessor failed to provide to the tenant any manual or operating instructions for the LG Air conditioning system. The lessors’ premises were managed at all times by Independent Property.

2. Upon occupying the premises the tenant found that the air conditioning system was not working properly, but he could not ascertain whether the system was faulty or he was not using the controls correctly.

3. The Tribunal was not able to ascertain the precise date on which the tenant informed the agents that the air conditioning was not operating and needed repair. However, it was common ground between the parties that there were problems with the air conditioning system: the tenant had tried to obtain copies of the user manuals or operating instructions and when none were supplied by the lessor had spoken to the building manager as well as LG. The air conditioning had not been repaired by the date of the hearing.

4. On the evidence before it the Tribunal concluded that a number of factors had contributed to the unacceptable delay by the lessor in fulfilling their obligation to repair the premises:

   oThe lessors’ agent had not appreciated the full extent of the problem, although it is noted on a routine inspection report dated 18 June 2010. Even after this date the lessor failed to comply with their obligation to ensure that repairs were completed in accordance with clauses 55 (1)  and 57 of the Tenancy Agreement.

   oThe building manager had not been able to assist with the information needed to ensure warranty work was completed.

   oLG had been extremely difficult to deal with: they had not attempted to solve the problem and were dilatory and contemptuous of the requirements of both the consumer law and their contractual obligations.

   oThe lessor had sought to rely on their rights under the warranty with LG but had not turned their mind to the obligations arising under the tenancy agreement.

The relevant law

1. The residential tenancy agreement imposes upon the lessor an obligation to keep the premises in a state of good repair.

   Lessor to make repairs

   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)     ...

   56        ...

   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).

2. While the Tribunal has sympathy with lessors who are unable to assert their own rights under contracts because of the lack of customer service from manufacturers, suppliers and installers, and understands that dealing with building managers and body corporate managers can result in unacceptable delays, the tenants of such lessor have rights under the tenancy agreement.  No delay or difficulty experienced by the lessor removes the obligation of the lessor to attend to necessary or urgent repairs, nor does it relieve the lessor of the obligation to effect such repairs within one month of being informed of the need for repairs.

3. The Tribunal on the evidence before it finds that the lessors, through the agent, had notice from the tenant by mid February 2010. The lessor failed to repair the air conditioning unit within the time provided by the tenancy agreement and are in breach of the tenancy agreement or contract. As a result of the breach the tenant has suffered a loss of the use and enjoyment of the premises, and has not got what he bargained for: air conditioned premises. He has been paying rent of $440 per week, and asks for compensation or damages by way of a reduction of rent for the period during which the lessor is in breach of contract. The Tribunal determined that a reduction of $35 per week reflected the rent that would be payable for similar premises without cooling or heating.

………………………………..

Ms L.K Crebbin, General President

For Ms J. Lennard

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      RT 867 of 2008

APPLICANT:                Richard Sempiol,
RESPONDENTS:          Grahame Sidney Williams, Mary Monica Williams

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  

APPLICANT:          Richard Sempiol

RESPONDENT:      Grahame Williams, Mary Williams

TRIBUNAL MEMBER/S:        Ms J. Lennard, Senior Member

DATE/S OF HEARING:          7 December 2010       PLACE: CANBERRA

DATE/S OF DECISION:          7 December 2010       PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: