Sempiol & WILLIAMS & Ors (Residential Tenancies)

The ACT Civil and Administrative Tribunal (the Tribunal) heard a case brought by tenant Sempiol against lessor Williams and others, concerning the failure to repair a faulty air conditioning unit in a residential tenancy. The tenancy agreement was for a one-bedroom apartment in Canberra, with a weekly rent of $440.00 for a 12-month term commencing on 4 January 2010. The tenant found upon occupation that the air conditioning was not working properly, but was unable to determine whether it was a fault or a user error. Despite the tenant’s attempts to resolve the issue, the air conditioning remained unrepaired at the time of the hearing. The Tribunal concluded that the lessor had breached the obligation to repair the premises and that the tenant had suffered a significant diminution of the quiet use and enjoyment of the premises due to the lack of air conditioning.

The legal issues before the Tribunal were whether the lessor had breached the obligation to repair the premises and, if so, whether the tenant had suffered a significant diminution of the quiet use and enjoyment of the premises as a result. The Tribunal noted that the residential tenancy agreement imposed upon the lessor an obligation to keep the premises in a reasonable state of repair, and that the lessor had failed to make the necessary repairs within the time provided by the tenancy agreement. The Tribunal also found that the tenant had notified the lessor of the need for repairs and that the lessor had not appreciated the full extent of the problem. The Tribunal determined that the tenant had suffered a loss of the use and enjoyment of the premises and that the reduction of rent by $35 per week reflected the rent that would be payable for similar premises without cooling or heating.

The Tribunal ordered that the rent shall reduce by $35.00 per week from 11 March 2010 until such time as the air conditioner is repaired and operational. The Tribunal also ordered that the lessor pay an amount of $1,755.00 to the tenant within 7 days of the date of the order. The tenant was to pay the rent in accordance with the agreement at the reduced amount from 9 December 2010 until repairs in Order 3 were complete. The lessor was to pay a filing fee of $59.00 to the tenant. The Tribunal emphasised that while it had sympathy with lessors who were unable to assert their own rights due to the lack of customer service from manufacturers, suppliers and installers, the tenants of such lessors had rights under the tenancy agreement. The Tribunal determined that the lessor’s failure to effect necessary repairs within the time provided by the tenancy agreement constituted a breach of the tenancy agreement or contract.