Tasha's Tucker Trucks v Ratnam & Ratnam
[2010] QCAT 173
•4 May 2010
DECISION
CITATION: | Tasha’s Tucker Trucks v Ratnam & Ratnam [2010] QCAT 173 |
PARTIES: | Tasha’s Tucker Trucks v Ratnam & Ratnam |
APPLICATION NUMBER: 623/10
MATTER TYPE: Residential tenancy matters
HEARING DATE: 22 March 2010
| HEARD AT: DECISION OF: DELIVERED ON: | Brisbane Tammy Williams, Sessional Member 4 May 2010 |
| DELIVERED AT: CATCHWORDS: ORDERS MADE: | Brisbane Tenancy agreement, necessary maintenance, whether rent should be decreased, sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009; s.185(3) of the Residential Tenancies Act 2009 |
The Tribunal makes the following orders:
The weekly rent payable by the tenants to the lessor to lease 15 Brennan Street, Bellbird Park, Queensland:
a.Is to be decreased by the amount of $150 per week in consideration for the reduced amenity or standard of the property; and is set at $450 per week;
b.The respondents are to reimburse forthwith, the applicant for any additional rent monies she may have paid over $450 per week since 2 November 2009.
The respondents are ordered to:
a.Take all necessary steps forthwith, to ensure the fence surrounding the pool is not in breach of any law dealing with issues about the health or safety of persons using or entering the premises;
b.Complete all necessary maintenance to the property and its inclusions within fourteen days (14) from the date of this order, to such an extent that the respondents have complied with their legislative obligations pursuant to section 185(3) of the Residential Tenancies Act 2009.
Upon the satisfactory completion of the maintenance and repairs to the property and it’s inclusions as stipulated in the Tribunal’s Order 2 (a) and (b); the respondents may give the legally required notice to the tenants of an increase to the weekly rent payable for the property.
REASONS FOR DECISION
Introduction
At the core of this dispute is whether the rent payable for the property should be decreased.
Ms Natasha Fraser, the Director of Tasha’s Tucker Trucker and co-tenant of the property filed an application on 19 February 2010 with the Queensland Civil and Administrative Tribunal (QCAT), naming Dr Kamala Ruban Ratnam and Dr Yvonne Vivien Ratnam as the respondents.
Hearing
The Tribunal held a hearing on 22 March 2010 at the Queensland Civil and Administrative Tribunal’s hearing rooms in Brisbane.
The applicant and her father, Mr Brendan Fraser, initially entered into a written tenancy agreement on 1 November 2008 for a period of twelve months and agreed to pay $500 per week for the property. When the lease was renewed, the lessors increased the rent to $600 per week.
The applicant argues this is excessive as the lessor respondents have repeatedly ignored “numerous maintenance requests.” Whether the rent should be decreased and remain at the original amount of $500 per week was disputed at hearing.
[6] The Tribunal received an application from Dr Kamala Ruban Ratnam to attend the hearing by way of telephone as he is “a medical practitioner and cannot defer important and pre-booked patients at this time.” This application was approved by the Tribunal, as was leave for Dr Kamala Ruban Ratnam to appear on behalf of this wife, Dr Yvonne Vivien Ratnam.
[7] Both Ms Fraser and Dr Ratnam gave evidence under Oath. Mr Brendan Fraser gave evidence for the applicant and Mr Shane Gordon was called as a witness for the respondents.
[8] At the end of the hearing, the Tribunal reserved its decision.
Relevant Legislation
[9] The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicant against the respondents for relief under the Residential Tenancies and Rooming Accommodation Act 2009 (the Act’) for a residential agreement over the property located at the address identified in the claim.
[10] In matters involving a minor civil dispute, the Tribunal must make orders it considers fair and equitable to the parties in order to resolve the dispute. But if it is considered appropriate, the Tribunal may make an order dismissing the application pursuant to section 13(1) of the QCAT Act. Because this is a tenancy matter, the Tribunal has the power pursuant to section 13(2)(b) to make a decision pursuant to the Residential Tenancies and Rooming Accommodation Act.
[11] Section 94 of this Act makes provisions for rental decreases, including if the premises:
· Are destroyed, or made completely or partly unfit to live in, in a way that does not result from a breach of the agreement (section 94(1)(a)); or
· The amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant (section 94(2)(b).
[12] Section 185(2) of the Residential Tenancies and Rooming Accommodation Act imposes certain obligations on the lessor at the start of a tenancy, namely:
(a) The premises and inclusions are clean;
(b) The premises are fit for the tenant to live in;
(c) The premises and inclusions are in good repair; and
(d) The lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.
[12] While the tenancy continues the lessor has ongoing obligations. Pursuant to section 185(3) the lessor:
(a) Must maintain the premises in a way that the premises remain fit for the tenant to live it;
(b) Must maintain the premises and inclusions in good repair;
(c) Must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with; and
(d) If the premises include a common area – must keep the area clean.
[13] However the tenant has an obligation pursuant to section 217(1) of the Act to notify the lessor about damage to the premise as soon as practicable.
Applicant’s Submissions
[14] When the initial residential tenancy agreement was due to expire on 30 October 2009, the applicant was orally advised by the real estate of the respondents’ intention to increase the rent by $100 per week. The applicant renewed the lease; however since 2 November 2009 when the rental increase was to take effect, the tenants refused to pay the increase and have continued to pay only $500 per week.
[15] The property is an older style, highset, four bedroom home located on a two and a half acre block in Bellbird Park, near Goodna. Beneath the house has been built in and contains living space, including an additional toilet. Also on the property are a pool, carport and large shed, which the tenants say is not secured. It is in this shed that the applicant stores the stock for her business.
[16] The applicant submitted the property was not clean and tidy when she and her father moved in, with car parts and general rubbish leftover from the previous tenant (who was a mechanic). The current tenants agreed to remove this rubbish as part of their tenancy agreement.
[17] It was also submitted by the applicant that throughout the course of the tenancy, she and her father had made various maintenance requests for the respondents to repair or replace particular items, including:
· Stove – not working;
· Hot water system – because it was not working the tenants were forced to have cold showers throughout winter;
· Power boards – are old and arguably pose a safety issue;
· Shed – is not secured;
· Downstairs toilet - is unusable because the unit has come off its footing and leaks;
· Glass sliding door – has come off its tracks and making the house unsecure; and
· The wooden pool fence - has loose palings and arguably is not compliant with the relevant pool fence regulations.
[18] It was the applicant’s evidence that her father had tried to fix some of these items (for example the hot water system); however most of these maintenance requests are still outstanding.
[19] The applicant produced photographs showing the general poor condition of the house, shed and pool fence.
The Respondents’ Submissions
[34] The respondents are seeking an order from the Tribunal dismissing the applications. Their final submissions and evidence can be summarised as follows.
[35] As a condition of the residential tenancy agreement, the tenants agreed to remove the rubbish from the property and to make it liveable. It was the respondents’ evidence the parties further agreed that rent would remain at $500 per week if the tenants maintained the property.
[36] Owing to the size of the property, its inclusions (for instance a large shed and pool) and now the maintenance required to the premises, Dr Ratnam submitted that rent of $600 per week was appropriate. Despite two notices advising the tenants of the rental increase, they have failed to pay the rental increase.
[37] Mr Shane Gordon, the real estate agent who manages the property gave evidence in support of the respondents. His evidence was that $500 per week was a reasonable amount of rent, to compensate the tenants for the loss of enjoyment to certain parts of the property.
[38] Mr Gordon corroborated Dr Ratnam’s evidence that the tenants agreed to “clean the block of junk” (left over from the previous tenant) and to “make it liveable” in exchange for the rent to remain at $500 per week. However he did concede that the previous tenant had also paid $500 per week for rent.
[39] Mr Gordon also gave evidence that the tenants had satisfied every property inspection throughout the 15 months of their tenancy.
The Tribunal’s View
[38] The Tribunal carefully considered the evidence and submissions of both parties in light of the legislative obligations imposed on both the lessor and tenant.
[39] The Tribunal is mindful of the legal obligations lessors have at the commencement of a tenancy agreement, as set out in section 185(2) of the Residential Tenancies and Rooming Accommodation Act. However from the evidence, the Tribunal is unclear as to whether any of the abovementioned maintenance issues were present at the start of the tenancy. Therefore the Tribunal is of the view that there is insufficient evidence to find that the respondents were in breach of their obligations pursuant to section 185(2) of the Act.
[40] In relation to the lessor’s ongoing obligations throughout the tenancy pursuant to section 185(3), the Tribunal is satisfied there is sufficient evidence to find that the respondents failed to maintain the premises fit for the tenant to live it and in good repair. The applicant’s evidence was presented in a direct and clear manner, and the respondents did not provide any substantial evidence to the Tribunal as to when the said maintenance requests were attended to. In relation to the pool fence, the applicant’s evidence about the loose fence palings was consistent with the photographs she tendered to the Tribunal. Again, the respondents failed to provide any evidence showing that they have in fact rectified this problem and ensured any law dealing with issues about the health or safety of persons using or entering the premises is complied with.
[41] The applicant’s evidence was that “numerous maintenance requests” made to the respondents have been repeatedly ignored. There was no evidence to the contrary, suggesting that such requests were never made by the tenants or that they were responsible for causing damage to the property.
[42] Therefore on the evidence before the Tribunal, it is satisfied the amenity or standard of the premises has decreased substantially and it wasn’t caused because of malicious damage by the tenants.
[43] To compensate the tenants for this reduced amenity or standard the Tribunal finds they are entitled to a decrease in rent.
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