Winter v Delacy (Residential Tenancies)
[2023] ACAT 31
•23 May 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WINTER & ANOR v DELACY (Residential Tenancies) [2023] ACAT 31
RT 71/2023
Catchwords: RESIDENTIAL TENANCIES –– payment of compensation for loss caused by the breach of a residential tenancy agreement reference to the standard residential tenancy terms – reasonable state of repair at commencement of the tenancy – whether repairs were urgent – loss of quiet enjoyment – costs of preparation for hearing - whether the notice to vacate did not constitute a valid termination of the tenancy agreement – whether lessor still in breach at time notice to terminate was issued – lessor to compensate the tenants for multiple issues in the property – bond released to the tenants
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Residential Tenancies Act 1997 ss 38, 62, 83, 84, Schedule 1 Standard residential tenancy terms 52, 54, 55, 59, 57, 60, 64, 73, 90, 91
Cases cited:CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96
Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Cope & McEachern v Walker & Walker [2018] ACAT 65
Faulder v Tran [2018] ACAT 2
Faulder v Tran [2018] ACAT 80
Fawzi El-Saidy v NSW Land and Housing Corporation [2011] NSWSC 820
Fiege v Wilkinson; Wilkinson v Holbrook (Residential Tenancies) [2023] ACAT 11
In the matter of ruling tribunal section 31 of the unit titles (management) Act 2011 [2017] ACAT 56
Kolodziej v Ali [2021] ACAT 123
Maroney v Bullard [2016] ACAT 33
Marsters v Graham [2016] NSWCATCD 73
Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361
Murphy v Pitt [2017] NSWCATCD 44
Raats v Zein [2016] NSWCATCD 62
Reddy, Robert Arjun v Budai, Alben, and Hatfield, Debbie [1998] NSWRT 170
Reiss v Helson [2001] NSWSC 486
Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127
Westpac General Insurance Ltd v Cooper [2006] ACTSC 91
Zhang v Barden [2018] ACAT 44
List of
Texts/Papers cited: Anforth et al, Residential Tenancies: Law and practice in NSW (Federation Press, 8th edition, 2022)
Tribunal:Senior Member D Stewart
Date of Orders: 23 May 2023
Date of Reasons for Decision: 23 May 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 71/2023BETWEEN:
ANDREA WINTER
Applicant/TenantVERA WHITE
Applicant/TenantAND:
JACQUELINE DELACY
Respondent/LessorTRIBUNAL:Senior Member D Stewart
DATE:23 May 2023
ORDER
The Tribunal orders that:
1.ACT Rental Bonds on behalf of the Territory is directed to release the balance of any bond monies held to the tenants.
2.The respondent is to pay the applicant the sum of $3,882 within 28 days, calculated as follows:
(a) $550 for the loss of use of the range hood;
(b) $2,332 for the second water leak equal to 50% of the rent for 51 days; and
(c) $1,000 for interference with the peace, comfort, and privacy of the tenants.
………………………………..
Senior Member D StewartREASONS FOR DECISION
Introduction
1.Ms Winter and Ms White (applicants or tenants) are tenants of a unit in Braddon, ACT under a residential tenancy agreement with the owner, Ms Delacy (respondent or lessor). They have applied for compensation under the Residential Tenancies Act 1997 (RT Act) for what they claim were various breaches of the residential tenancy agreement.
2.In response, the lessor contends that any breaches were relatively minor in nature and did not entitle the tenants to the compensation claimed. The lessor also claimed that she was entitled to compensation for damage to the unit and for the rent lost after the unit was vacated.
3.As the lessor's claims are largely dependent on whether the tenants were entitled to vacate the premises due to breach of the tenancy agreement, I will deal with the tenants claims first before detailing the lessor's claims.
The tenants’ claims
Factual background
4.The tenants presented a large number of documents to show the various faults they rely on in their claim for compensation. The following represents my findings of the main facts as they are relevant to the tenant's claims, noting that at the hearing into this matter, the substantive facts underlying those claims were generally not in dispute.
5.The tenants entered their lease on Thursday, 23 June 2022. The agreement was for an initial fixed term of 12 months with rent of $640 a week. On the following Monday, the tenants informed LJ Hooker, the agents of the lessor, that there was noise coming from the range hood over the stove. The tenants were informed to seek a warranty claim with the supplier of the unit. In the process of having the range hood repaired, a fault with the insulation surrounding the hood was identified as presenting a potential fire hazard, preventing installation of the repaired range hood until that hazard had been rectified. All up, the tenants claim that they were without a range hood from the day they moved into the premises until 9 September 2022, a total of 77 days.
6.On 5 August 2022, after heavy rain overnight, the unit suffered the first of what turned out to be three significant water leaks during the tenancy, affecting the carpets in the first bedroom. A representative from JWLand, the builder responsible for repairing defects to the building, attended and could not identify the source of the leak. JWLand removed a power outlet from the wall to assist with investigating the leak, which was not restored until 9 September 2022.
7.Ms Winter sought permission from the lessor's agents to contact Morgan's Carpets, who attended the premises on 8 August 2022. Furniture from the bedroom was moved into the loungeroom of the unit, the carpet and underlay were pulled back, and fans were put in place to dry out the floor. This was continued for four days. The tenants were advised to ventilate the room for four further days. The tenants moved back into the bedroom on 18 August 2022. They claim they were without the full use of the bedroom for 13 days.
8.On 1 November 2022, again after a heavy rain, water leaked onto the carpet of the first bedroom. JWLand attended the premises, moved out the furniture, and put a dryer in place.
9.The dryer was removed the next day. Ms Winter states that she was told by a representative of JWLand that the fan was needed for another unit which had also suffered from water damage. An email provided to Ms Winter from JWLand on 29 November 2022 suggests that the fan was removed as the carpet and underlay were dry, and the fan was no longer needed. There is also some dispute over whether furniture was not returned to the bedroom due to ongoing concerns over the water leak, JWLand's unwillingness to be responsible for moving back the furniture, or due to the tenant's insistence. In any event, the carpet and underlay were not placed back in position and the bedroom furniture remained in the loungeroom.
10.In documents provided to the tribunal, JWLand states that between the 23 August 2022 and 8 November 2022, they carried out repairs to external cladding on another unit of the complex which they identified as potentially contributing to the water leaks. This was tested by trying to replicate heavy rain by spraying water on the affected area. On 8 November 2022, JW Builders confirmed with the tenants that the testing had not resulted in any further leaking into their unit.
11.At the hearing, Ms Winter also claimed that there had been some water leaking onto the carpet on 14 November 2022. There is some reference to this in an email sent to the lessor's representatives on 22 December 2022, but it was not reported to the lessor or JWLand at the time and was not separately identified in the claims made by the tenants before the hearing in these proceedings. In the absence of any further evidence, I am unwilling to accept that there was any significant water leak on 14 November 2022.
12.On 25 November 2022, Ms Winter emailed the lessor's agents informing them that Ms White was still sleeping in the loungeroom, and that she had not been informed whether the source of the water leaks had been rectified. On 29 November 2022, an email from JWLand was provided to Ms Winter stating that the water leak on 1 November 2022 had been followed up the next day, and the carpets and underlay were dry, and testing had resulted in no further leaks by 8 November 2022.
13.On 30 November 2022, Ms Winter emailed the lessor's agents with a notice to remedy breaches under the RT Act, listing the following repairs as being needed:
· prevention of leaking of fluid/water in the ceiling of Bedroom 1
· flooding of carpet, underlay & concrete in Bedroom 1
· inspection by a professional regarding carpet & underlay long term soaking & mould health risks and solutions including but not limited to replacement of underlay (for the 2nd time) and carpet
*removalists to place our furniture back in the correct locations, including bedroom 1[1]
[1] Applicant’s email to the lessor’s agent on 30 November 2022
14.The notice gave the lessor two weeks to carry out the repairs.
15.In response, the lessor's agent contacted JW Builders, who reopened the work order and carried out further investigation of the source of the leak. This included confirming with the tenants on 7 December 2022 that testing had not resulted in further leaks.
16.Morgan's Carpets attended the unit on 21 December 2022 to check the carpet. Ms Winter, in her evidence, claimed that the tradesperson from Morgan's Carpets wanted to replace the existing underlay but had not brought a large enough piece. In the respondent’s submissions, JWLand[2] states that the tenants initially objected to the carpet being re-laid. On either version, the tradesperson returned later that day and restored the carpet into position. The bedroom furniture was returned on 22 December 2022. From the second leak occurring on 1 November 2022, the tenants were without the use of the second bedroom for 51 days.
[2] Timeline prepared by JWLand starting 23 August 2022, submitted as an attachment to the respondent’s timeline lodged on 12 April 2023
17.In her submissions, Ms Winter stated that on 10 December 2022, the tenants noticed a crack in the stovetop and that the oven was not heating properly. They tried to contact the supplier of the oven and stovetop but were not successful. A service request was lodged with the supplier on 16 December 2022. Both appliances were repaired under warranty; the oven was repaired on 22 December 2022, but the stovetop was not replaced until 25 January 2023. Ms Winter stated that she had been told by the supplier that the crack may have been due to a fault in installation.
18.Without access to a stovetop or oven, the tenants stayed in a caravan park in Bateman's Bay from 12 December 2022 until 19 December 2022. Ms Winter gave evidence that they were unable to find suitable accommodation in Canberra for a reasonable rate at that time.
19.On 22 December 2022, the tenants emailed the lessor's representatives a letter of demand for compensation, informing them that the tenants intended to leave the premises on 26 December 2022 and that they would arrange to have their possessions removed from the unit by the 12 January 2023. As well as listing concerns over the range hood and multiple water leaks up until 14 November 2022, the email also states that the stovetop was cracked, and the oven had not been working properly and had just been repaired.
20.On 23 December 2022, the tenants emailed the lessor's representatives a notice of their intention to leave on the 26 December 2022 on the grounds that the premises are unfit for habitation. They sought to end the tenancy on 12 January 2023 to allow them time to organise removal of their possessions and cleaning of the unit. The grounds for the notice are listed as terms 54, 55, 59 and 60 of the standard residential tenancy terms[3] (the standard terms).
[3] Schedule 1 of Residential Tenancies Act 1997, Standard residential tenancy terms
21.The tenants spent the night of boxing day in a hotel.[4] Apart from being interstate, there was no evidence provided for where the tenants were living after that date.
[4] Applicant’s timeline lodged on 31 March 2023, page 222
22.On 5 January 2023, after more heavy rain, the lessor's agent contacted the tenants to ask if there had been further water leaking. Despite being interstate at the time, Ms Winter returned to inspect the unit and found that there had been another leak in the first bedroom with the carpets and underlay again being wet. JWLand, again, attended to move furniture, pulled back the carpet and underlay and placed a dryer in the room. On 6 January 2023, the lessor's agents attended the unit.
23.The tenants had removed their possessions out of the unit and had the unit cleaned by 11 January 2023. They had also paid rent up to 12 January 2023. JWLand then conducted further inspections of the unit to try to identify the source of the latest water leak, including cutting holes in walls and the ceiling of the first bedroom to inspect the wall cavity. No water or indication of a water leak was identified. New tenants moved into the unit on 17 February 2023 and have not reported any significant water leaks since.
Claims
24.In their application[5], the tenants made the following claims:
(a)29 weeks rent at $640 per week – $18,560;
(b)Electricity, fans, blowers, humidifiers, washing, air-conditioning, dryer – $200;
(c)Alternative accommodation of $1480, $129 and $273;
(d)Printing and photocopying – $200;
(e)Removalist – $4,987; and
(f)Non-economic loss of 29 weeks at $300 per week – $8,700.
[5] Applicants’ submissions dated 9 January 2023
25.The tenants agreed to limit any claim for compensation over $25,000 to bring the claim within the tribunal’s jurisdiction.
The legislative background
26.Section 83(1)(d) of the RT Act relevantly allows the tribunal to make an order for the payment of compensation for loss of rent or other loss caused by the breach of a residential tenancy agreement.
27.The standard terms which form part of that agreement include requirements for the lessor to:
(a)not interfere with the reasonable peace, comfort and privacy of the tenant in their use of the premises;[6]
(b)ensure that at the start of the tenancy the premises, including appliances, are in a reasonable state of repair;[7]and
(c)maintain the premises during the tenancy in a reasonable state of repair.[8]
[6] Standard term 52
[7] Standard term 54
[8] Standard term 55
28.Generally, repairs to premises that are the responsibility of the tenant must be made within four weeks of being notified by the tenant.[9]
[9] Standard terms 59 and 57
29.Standard term 59 provides that the lessor is obliged to carry out urgent repairs that arise during the tenancy as soon as necessary, having regard to the nature of the problem.The list of urgent repairs includes a serious roof leak, a dangerous electrical fault, flooding or serious flood damage, or a breakdown of any service essential for cooking.[10]
[10] Standard term 60
30.As the Tribunal has stated previously, it is generally appropriate to assess separately the amount of any compensation to be awarded for each item claimed, except perhaps in relation to non-economic loss for general inconvenience where a cumulative or global approach may be more appropriate, and it is relevant to consider the amount of rent paid as well as amounts awarded for compensation in comparable cases.[11]
[11] See Faulder v Tran [2018] ACAT 80
31.I, therefore, turn to the main basis for the tenants’ claims for compensation.
Range hood
32.The obligation on the lessor in standard term 54 to ensure that premises (including appliances) are in a reasonable state of repair at the start of the tenancy, is not affected by when the tenant became aware of any defect or brought it to the attention of the lessor. It similarly does not depend on the reasonableness of efforts on behalf of the lessor to repair any defects.[12] Although a fault with the range hood was not identified until after the commencement of the lease, the brief period of use before a fault was detected suggests that it may have not been in a reasonable state of repair from the commencement of the tenancy. In any event, it led to the identification of what was accepted by the lessor to be a defect in the way the range hood had been installed. In my view, the defects associated with the range hood were a breach of the obligation on the lessor in term 54 for the period in which the range hood was not available.
[12][2018] ACAT 80 at [117]
33.The tenants claim that not having a range hood meant that they were substantially unable to use their stovetop for cooking. Without a range hood, they were unable to properly ventilate the kitchen given the limited gap available in the kitchen window. At the hearing, the tenants conceded that they had used their stovetop occasionally, particularly to boil water or other items that did not require much ventilation.
34.The lessor responds by conceding that the range hood did inconvenience the tenants while it was not operational. Any fire risk from the lack of range hood came from the potential for exposed ducting insulation to catch fire when the range hood was in use. There was no fire risk with using the stovetop without the range hood operating. It would have been possible to use the stovetop for cooking, subject only to having to open some windows to ventilate the kitchen if needed. Pictures taken of the kitchen while the range hood was not working showed that the stovetop was in use. Any inconvenience caused by not having a range hood should be considered minor.
35.I agree that any inconvenience associated with not having use of a range hood was relatively minor. However, it did prevent the tenants from making full use of their stovetop and affected what and how they prepared meals. In other residential tenancy cases, loss of an important appliance has resulted in compensation of 5%- 10% of the rent. In my view, compensation of $50 a week for the period of 11 weeks, in total of $550, is applicable.
Water damage
36.The uncertainty surrounding the source of the water leaks means that it is difficult to determine whether the leak was because the unit was not in a reasonable state of repair at the start of the tenancy, or the need for repair arose subsequently. The tenants provided the tribunal with records of rainfall in the Canberra region which indicated that the rain associated with the first leak may have been the first significant rain over the relevant period. This does not, however, establish whether the heavy rain revealed or created the need for repair which the leak represents. In the absence of other evidence, in my view, the need for repair associated with the water leak was apparent only after the first water leak and therefore arose during the tenancy.
37.The parties differed on the extent of the leaks and the damage associated them. Ms Winter described the damage as extending over several square meters. Photographs provided by the tenants and evidence of the lessor's representatives suggest that the damage from at least the second water leak was perhaps closer to one square meter, and that the day after the third leak the carpet was not noticeably wet. In any event, the lessor conceded that the water damage associated with each leak was serious, and I am satisfied that each leak constituted a need for urgent repairs. Under term 59, the lessor was therefore under an obligation to repair the leaks as soon as necessary, having regard to the nature of the problem.
38.In my view, the inclusion in the standard terms of both serious roof leaks and flooding or serious flood damage as examples of urgent repairs suggests that the need for repair extends both to the source and the consequences of any leak. Ms Delacy had an obligation not only to ensure that any damage from the water leak was rectified, including providing for the carpets to be dried out and where necessary underlay to be replaced, but also to identify the source of the leak and take steps to prevent the leak recurring in future.
39.The lessor did not resile from her responsibility for repairing the water leaks even though the water may have initially entered through another part of the building.[13] However, the parties differed in their views about the appropriateness of the actions taken to repair any damage caused by the water leaks. The first water leak was repaired by tradespersons from Morgans Carpets, whose approach to moving the furniture, lifting the carpet and drying out the underlay over several days perhaps set the expected standard for future leaks, so that Ms Winter described the approach of JWLand to the second and third leaks as not being sufficient to properly dry out the carpet.
[13] See Kolodziej v Ali [2021] ACAT 123 where the Tribunal rejected the proposition that where the source of a leak may have been the common property of a building, the lessor's obligation only extends to taking all steps necessary to require the owners corporation to make the repairs as quickly as possible under term 58 of the standard residential terms. See also Reiss v Helson [2001] NSWSC 486.
40.I accept the evidence of Ms Delacy and her agents that the damage caused by the second and third water leaks was repaired within a reasonable time. There was no evidence presented by Ms Winter that the carpets or underlay were still wet at the time they were laid back in place. Ms Winter presented a photo of a bed leg which she stated was taken on the 5 January 2023 and showed signs of mould. However, due to the timing of the photo being so soon after the third leak and the lack of any other evidence of mould developing after earlier leaks, I was not satisfied that any mould or other potentially hazardous effects had been caused by the leaks.
41.I also accept the lessor’s agents that reasonable efforts were made to try to identify the cause of the leak. JWLand state in letters to the lessor’s agents that they replaced various external sheets of an upstairs unit which were likely to have been the cause of the leaks. It is not clear on the evidence when that work was carried out. However, it is clear that the lessor and her agents did not have full confidence that the leak had indeed been fixed. The lessor delayed advertising the unit after receiving notice of the applicant's intention to vacate to inspect the wall spaces and otherwise ensure the unit was fit for habitation. Her agents also contacted the tenants after heavy rain on 5 January 2023 to ask if there had been further leaks. Even after the tenants had vacated the premises, further testing was unable to replicate the leaking. There have been no subsequent water leaks since new tenants have moved in. However, the cause of the water leak discovered on 5 January 2023 apparently remains unresolved.
42.The requirements to make urgent repairs does not depend on the reasonableness of the efforts made.[14] The reference in standard term 59 to the nature of the problem goes, in my view, to how quickly the repairs should be made rather than any particular measures that may be required. As standard term 55 requires, premises must be maintained in a reasonable state of repair having regard to their condition at the start of the tenancy. While a reasonable state of repair may not guarantee that water leaks can never occur, in my view, it extends, at least in a new property, to preventing significant leaks after heavy (but not unusual) rain.
[14] [2018] ACAT 80
43.Repairing a source of a water leak as soon as necessary as required for urgent repairs at least extends to repairing the leak before the next heavy rain. There is no evidence to suggest that a source of the leak had been identified prior to the leak of 1 November 2022. In my view, the source of the leak remaining unresolved means that the leak was not been repaired. The lessor was therefore in breach of their obligation to maintain the premises in a reasonable state of repair under standard term 55 and to carry out urgent repairs as quickly as possible under standard term 59. Even if identifying the source of the leak, as opposed to repairing the damage caused by the leak, is considered a non-urgent repair, more than four weeks had transpired after the first water leak in breach of the requirement to make repairs in standard term 57.
44.The tenants say that the leaks, directly or indirectly, led to Ms White not having use of the first bedroom for 96 days. The lessor accepts that Ms White had to spend time out of the unit due to the first and second water leaks, but that the time actually spent was not reasonable. The lessor claims that the first bedroom was not able to be used for seven days due to the first leak, and the second bedroom could have continued to be used after the carpet had been dried on the day following the leak and the furniture reconfigured.
45.Ms Winter, however, gave evidence that the tenants believed that the water damage due to the second leak needed further repair, or at least further efforts to dry underneath the carpet, and that moving back into the bedroom might risk health effects due to mould developing. While the source of the leak remained unidentified, there was also a risk of further flooding and the damage to furniture that might present, and tradespersons may also have continued to need access to the room to assist in identifying the source of the leak.
46.The lessor provided evidence from JWLand that they had resolved any issue with the wetness of the carpet and alleviated, as far as reasonable, the chance of further leaks, by the meeting of the 8 November 2022 between JWLand and the tenants. Ms Winter's gave evidence that, at that meeting, JWLand only asked whether there had been any further leaking and that tests were ongoing. The tenants’ email and notice to remedy on 25 November 2022 lead to further investigation and testing to find the source of the leak. The carpet was only restored, and furniture returned to the room on 22 December 2022.
47.In my view, the approach of the tenants to the use of the bedroom is consistent with Ms Winter's evidence that they had not received sufficient assurance that they could resume using the bedroom, and that they retained reasonable concerns over the use of the room until the furniture was restored. It is, therefore, appropriate that the tenants be compensated for the time in which they did not have use of the first bedroom. Not being able to use the third bedroom also meant that use of the unit overall was highly disrupted. The tenants did, however, continue to have access to the premises. In my view, compensation equal to half of the rent is appropriate for the period in which the bedroom was not being used by the tenants due to the second leak, i.e., 51 days.[15]
[15] See Pursell v Eversham Close Pty Ltd [2020] NSWDC 372 where loss of use of two guest bedrooms for 21-week period was compensated for with 40% of the rental price.
48.No compensation is payable for the third water leak discovered on 5 January 2023 as by that date, the tenants were no longer living in the unit, and there was insufficient evidence provided of damage to any of the tenants’ possessions as having been caused by that water leak.
49.The tenants presented evidence of their electricity bills showing, they claim, a spike in costs associated with the water leaks. In my view, this was not sufficient to be able to determine the additional costs, if any associated with any breaches by the lessor of the tenancy agreement. I, therefore, do not include any compensation for the electricity or other costs claimed in addition to the compensation for loss of the use of the first bedroom.
50.I order compensation for the second water leak equal to 50% of the rent for 51 days, in total of $2,332.
Other defects
51.Ms Winter gave evidence that she and Ms White noticed the crack in the stovetop on 10 December 2023. She lodged a service request with the supplier of the stovetop but did not notify the lessor's agents until 22 December 2022. Ms Winter's evidence was that she was informed not to use the stovetop as it was an electrical hazard, and that the stovetop was repaired under warranty due to the crack likely being a result of an installation fault.
52.In my view, even if the stovetop was not installed correctly, that does not mean that it was not in a reasonable state of repair at the commencement of the tenancy for the purpose of standard term 55. Even accepting that the stovetop is a service essential for cooking, and hence requires urgent repair under standard term 60, that repair needs to be completed only as soon as practicable. Although Ms Winter suggested that the installation of a replacement stovetop was delayed due to the lessor's agents, this would not have made any difference to the tenant's ability to use the stovetop. In my view, it would not have been practicable for the lessor's agents to have carried out repairs to the stovetop before the tenants moved out of the unit on 26 December 2022, and probably before they vacated the tenancy on 12 January 2023. I find that there has been no breach of the tenancy agreement relating to the crack in the stovetop and no compensation warranted.
53.At the time of lodging a service request in relation to the cracked stovetop, the tenants also requested repairs to their oven given its inability to maintain a high temperature. Ms Winter gave evidence that the oven had not functioned properly for the whole of the tenancy. However, given the tenants had not raised this issue with the lessor's agents and had not requested repair prior to December, I am not prepared to accept that the oven had not been working properly since the commencement of the tenancy.
54.The fault in the oven was first reported to the lessor's agents on 22 December 2022. Given the oven was repaired by that date, there has been no breach of the tenancy agreement in relation to the oven repairs.
Accommodation
55.The tenants claimed accommodation costs for two periods. The first period was from 12 December 2022 to 19 December 2022 when they moved to accommodation in Bateman's Bay. Ms Winter gave evidence that they moved to alternative accommodation over this period due to the frustrations of not having access to cooking facilities or use of the first bedroom. I accept that it was reasonable to seek alternative accommodation in those circumstances. However, the fault with the stovetop and oven were not, certainly prior to notice being given to the lessor's agents on 22 December 2022, a breach of the tenancy agreement. I have already provided compensation for the loss of the first bedroom during this period. The tenant's initial choice to move to alternative accommodation for a short period was not, in my view, a way to reasonably mitigate the losses associated with any breach of the tenancy agreement associated with the repair of the water leaks on 1 November 2022.
56.The second period of accommodation claimed is for a hotel on 26 December 2022. This corresponded with the statement in the email of 22 November 2022 and notice to vacate on 23 November 2022 that the tenants would be leaving the premises on that date. Ms Winter gave various reasons for why they had chosen to seek alternative accommodation on that date, including the difficulties of finding alternative accommodation over the Christmas period.
57.However, as I discuss below in relation to the lessor's claim for compensation, the restoration of the first bedroom on 22 December 2022 was, at the latest, the date at which any breach of the tenancy agreement associated with the leak on 1 November 2022 had been remedied. The lessor should not bear the costs associated with the tenant's choice to seek alternative accommodation for the remaining period of their tenancy.
58.Therefore, I find that no compensation is payable for accommodation costs.
Removalist's fees
59.A tenancy agreement is by its nature temporary. A tenant may have to incur the costs of having to move out at some point when the tenancy comes to an end. While the circumstances in which a tenancy may be ended may have reduced with recent amendments to the RT Act, it is still the case that a tenancy can be brought to an end in a variety of circumstances.
60.However, there may be scope for compensation for additional costs associated with having to relocate early due to breaches of the tenancy agreement by the lessor, including where possessions are moved into temporary storage while an alternative tenancy is sought. The time remaining on a fixed term tenancy agreement or before the tenants may have otherwise relocated in any event is a relevant factor in trying to evaluate those costs.[16]
[16] See Anforth et al, Residential Tenancies: Law and practice in NSW (Federation Press, 8th ed, 2022), page 449; Murphy v Pitt [2017] NSWCATCD 44
61.The circumstances of the breach may also be relevant, including whether the breaches endangered the health of the tenants,[17] rendered the premises uninhabitable, or otherwise so disrupted the quiet enjoyment of the residence as to make it reasonable for the tenants to vacate.[18]
[17] Raats v Zein [2016] NSWCATCD 62 cf Marsters v Graham [2016] NSWCATCD 73
[18] Reiss v Helson [2001] NSWSC 486
62.However, as discussed below, at the time the tenants issued the notice to vacate, the premises were habitable and did not reasonably present health concerns. The decision to leave the premises was made by the tenants when it appeared that repairs to the unit were at that point substantially resolved. In my view, removalist fees are not appropriate as compensation for a breach of the tenancy agreement in this case.
Loss of quiet enjoyment of the use of the premises and other non-economic loss
63.The tenants also claimed $300 per week for each week of the tenancy for the non-economic loss. Ms Winter suggested to the Tribunal that this claim related to the disruption of their use of the unit due to the time taken to request and following up on repairs, the noise and inconvenience of tradespersons working in or around their unit, and efforts to mitigate any harm arising from the faults that arose during the tenancy. Ms Winter did not claim, or at least did not evidence, any loss of income or other economic costs associated with the disruption, but claimed non-economic loss associated with the emotional distress, anxiety and loss of privacy. I took this claim to be both a claim for compensation for breach of the requirement on the lessor to not interfere with the reasonable peace, comfort and privacy of the tenant in their use of the premises under standard term 52, and non-economic loss for the distress and inconvenience associated with other breaches of the tenancy agreement.
64.It has been accepted in previous matters before the tribunal that compensation under s 83 can include compensation for non-economic loss arising from breach of term of the tenancy agreement. In Faulder v Tran [2018] ACAT 2, for example, the Tribunal cited the position taken in the NSW Supreme Court decision of Fawzi El-Saidy v NSW Land and Housing Corporation [2011] NSWSC 820 to award compensation for inconvenience, disappointment and distress arising out of a breach of the lessor's duty to maintain the premises in a reasonable state of repair. Such harm can be reasonably contemplated by the Lessor as being a consequence of breach of the tenancy agreement.[19]
[19] See also [2018] ACAT 80 at [240]-[241]
65.Similarly, acts of the lessor which subject the tenant to inconvenience, disappointment and distress may be a form of interference with the reasonable peace, comfort or privacy of the tenant under standard term 52. In Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127 (Worrall), the Full Federal Court discussed the relationship between the requirements of standard term 52 and the power of the tribunal to reduce the rent payable where there had been a loss of quiet enjoyment against the requirement of the lessor to carry out repairs under standard term 55. The Court stated:
It was open to the Tribunal to have concluded that the conduct of the respondent's contractors, though both lawful and in pursuance of its obligation to repair and necessary to prevent what otherwise would have been a breach of its obligations to maintain the appellant's quiet enjoyment of his premises, could amount to a breach of [the covenant in standard term 52].[20]
[20] Worrall at [76]
66.There could be an interference with the tenant's quiet enjoyment of the premises under standard term 52 even if the repairs carried out by the landlord were done, or attempted, in a way which was unreasonably disruptive given the nature of the repairs. However, as the Court in Worrall also emphasised, any interference with the tenant's quiet enjoyment would have to be substantial before it gave rise to a breach of standard term 52.[21]
[21] Worrall at [75]
67.The tenants did not provide medical evidence of any health effects associated with the tenancy, but I am willing to accept the evidence of Ms Winter that the stress associated with the tenancy took a considerable emotional toll on the tenants. Ms Winter provided the tribunal with copies of a large number of emails and text messages to the lessor's agent, workers from JWLand, and suppliers of appliances. Her evidence before the tribunal described the anxiety associated with possible health effects arising from the leaks and not knowing whether they been repaired. There was a considerable amount of time spent organising when tradespersons would be able to access the unit. Not having use of the bedroom meant that there was a loss of privacy, both between her and her mother and with providing access to tradesman. The tenants were unable to have other people over to the unit during that time. Ms Winter also gave evidence that there was substantial disruption due to repairs on other units in the building and to the lifts and stairways, but without sufficient detail to enable me to accept that as part of the claim.
68.Although the first water leak did cause some inconvenience to the tenants, in my view, the relatively short time taken to remedy the damage caused by the leak meant that any inconvenience was not substantial so as to warrant, in itself, a breach of the requirements of standard term 52. However, the distress and inconvenience associated with the second water leak did, in my view, amount to a substantial interference with the peace, comfort and privacy of the tenants. Some of that inconvenience has already been included in the compensation for the loss of the use of the first bedroom described above. However, the distress and anxiety associated with the uncertainty over use of the bedroom warrants some additional compensation.
69.Ms Winter also gave evidence describing the inconvenience associated with not having use of the range hood, stovetop and oven and organising their repair. That evidence included a substantial number of communications with the lessor associated with having a replacement stovetop installed after she left the premises. Ms Winter submitted that this demonstrated how the lessor's agent had failed to take responsibility for the repairs to the stovetop, although as I have described above, I don't regard the lessor as having breached their responsibility to repair the stovetop.
70.Tenants may reasonably be expected to organise for warranty repairs or replacements for damaged appliances such as the range hood, stovetop, and oven as an incident of living in tenanted premises. I have already discussed compensation for the loss of use of these appliances above, having found that some compensation is payable for the loss of use of the range hood but not for the stovetop and oven. The tenants sought repair of the stovetop and oven without informing the lessor's agents for 12 days after noticing the fault. The difficulties associated with replacement of the stovetop were contributed to by the tenants moving out of the premises when they did. I, therefore, do not regard the other concerns raised by Ms Winter in relation to these appliances as, in themselves, involving a substantial interference with the tenants’ peace, comfort or privacy as to breach standard term 52.
71.The approach of the tribunal in other cases has suggested that compensation for standard term 52 may involve taking a cumulative or general approach. In my view, the concerns that arose from the range hood and particularly the second water leak contributed to the frustration and anxiety felt by the tenants when faults with the stovetop and oven were noticed. However, even taking this into account, in my view, an award of compensation of $3,000 for loss of quiet enjoyment as claimed by the tenants, representing an amount of $100 for each week of the tenancy, is not proportionate.
72.I order compensation for $1,000 for the interference with the peace, comfort and privacy of the tenants.
Photocopying and printing
73.The tenants also claimed the costs associated with printing and photocopying a large number of documents relevant to these proceedings. Ms Winter conceded in evidence before the tribunal that those costs were expended for the purpose of documenting the tenants’ concerns for the purpose of anticipated tribunal proceedings rather than as an attempt to mitigate or redress the claimed breaches of the tenancy agreement. I note that there was no suggestion that the costs were initially incurred for the purpose of applying to the tribunal for an order to terminate the tenancy as a result of the breaches.
74.I, therefore, take this claim to be a claim for costs associated with the tenant's claim for compensation. The tribunal only has a limited power to award costs in the circumstances, and of the type, set out in section 48(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[22] None of the circumstances set out in that section are enlivened in this matter. The reference to costs in section 48 is to be given its ordinary and natural meaning,[23] which I take to include the printing and photocopy costs claimed by the tenants. I, therefore, do not award any compensation for this claim.
Conclusion on tenant's claim
[22] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96; (2013) 277 FLR 26
[23] In the matter of ruling tribunal section 31 of the unit titles (management) Act 2011 [2017] ACAT 56
75.I conclude that the tenants are entitled to the sum of $3,882 compensation, calculated as follows:
(a)$550 for the loss of use of the range hood;
(b)$2,332 for the second water leak equal to 50% of the rent for 51 days; and
(c)$1,000 for interference with the peace, comfort and privacy of the tenants
The lessor's claims
Factual background
76.As described above, the tenants emailed the lessor's representative a notice to remedy on 30 November 2022. They issued what they described as a notice to vacate on 23 December 2022 on the premise that the unit was not inhabitable, stating they would be leaving the premises on 26 December 2022 and arranging for their possessions to be removed and the unit cleaned by 12 January 2023. 12 January 2023 was also nominated as the date the tenancy agreement would end.
77.On 12 January 2023, the tenants had vacated the premises. The lessor's representative carried out an inspection report of the unit the following day. That report identified several scratches and a small depression in the hardwood floors in the living room, kitchen, and entry way of the unit. The inspection report also indicated some slight damage to the front door and walls.
78.As indicated above, JWLand also carried out a further inspection of the unit to further investigate any source of leaks. They were unable to identify any signs of water or damage associated with leaking. The unit was advertised on 31 January 2023 as available for rent from 10 February 2023. A new lease began on 17 February 2023 for $680 per week.
Legislative background
79.A lessor may apply for compensation under paragraph 83(1)(d) of the RT Act for breach of the residential tenancy agreement. This may include compensation for breach of the terms relating to care of the premises. A tenant is under an obligation to take reasonable care of the premises and their contents having regard to their condition at the start of the tenancy and normal incidents of living.[24]They must not intentionally or negligently damage the premises or permit such damage and must notify the lessor of any damage as soon as possible. The tenants must leave the premises in substantially the same state as they found it at the start of the tenancy, fair wear and tear excepted.[25]Compensation under paragraph 83(1)(d) is not, therefore, available for all damage they may cause to the premises. The tenant is also not responsible for acts of those on the premises at the request of the lessor or to assist the lessor perform duties under the agreement, such as carrying out repairs.[26]
[24] Standard term 63
[25] Standard term 64
[26] Standard term 74
80.The lessor is also able to claim compensation under section 62 where the tenant abandons the premises before the end of a fixed termed agreement, and under section 84 where the tenant has issued a notice to vacate the premises. Compensation under sections 62 and 84 is limited to the loss of rent that the lessor would have received before the end of a fixed term tenancy, and the reasonable costs, up to the equivalent of one-week rent, of advertising the premises. Given the obligation on all parties to mitigate any losses[27], compensation is generally therefore limited to any advertising costs plus the rent that would have been payable for the period in which a new tenant is found.
[27] Section 38 of the RT Act
81.There are various grounds under the standard terms, however, on which a tenancy, including a fixed term tenancy, may be terminated, and hence brought to an end prior to its fixed length. Ending the tenancy on these grounds may therefore avoid the tenant having to pay compensation for loss of rent or the cost of advertising to find a new tenant. A tenancy may be terminated on two days written notice where the premises is not fit for habitation.[28]Where the lessor breaches the tenancy agreement, the tenant may issue a notice to remedy the breach if the breach is capable of being remedied.[29] If the breach is not remedied within two weeks, or is not capable of being remedied, the tenant can give two weeks’ notice that they intend to vacate the premises. Even if the breach is remedied after the notice to vacate has been issued, the tenant may still terminate the tenancy on the date specified in the notice. Rent is then due up to the date specified provided the premises have been vacated.
Lessor's claims
[28] Standard terms 86 and 87
[29] Standard term 91
82.In her response to the tenant's application[30], the lessor claimed compensation of:
(a)Five weeks unpaid rent between the date up to which the tenants had paid rent, the 12 January 2023, and when the lessor was able to re-let her property on 17 February 2023. This was reduced at the hearing to 17 days rent from when the unit was advertised for rent on 31 January 2023;
(b)one week of rent being the re-letting fee charged by the lessor's agents;
(c)$7,184.94 to replace floorboards damaged by the tenant; and
(d)$600 to repair damage to the walls and doors.
[30] Respondent’s submissions lodged on 6 March 2023, “Owner’s Statement”
83.As the claim for unpaid rent and re-letting fee depends on whether the tenancy agreement was properly brought to an end prior to the expiry of the fixed term period, I will deal with that aspect of the claims first.
Whether the lease was properly brought to an end
84.There are two bases on which what was termed the notice to vacate issued on the 23 December 2022 might be effective in terminating the tenancy: that the unit was not fit for habitation at that time, or the breaches of the tenancy agreement notified in the notice to remedy over two weeks earlier had not been remedied. It is not enough that the tenants had formed the view that either or both of these grounds for ending the tenancy may have arisen at the time they issued the notice: they must satisfy the Tribunal that that is the case.
85.Recent Tribunal decisions considering whether premises are fit for habitation have suggested that it is an objective standard depending on the nature and purpose of the property, needs and susceptibilities of the tenants and contemporary standards.[31] A premises fit for habitation allows ordinary use of the premises without a significant risk of personal injury and with a reasonable level of comfort.[32]
[31] Fiege v Wilkinson; Wilkinson v Holbrook (Residential Tenancies) [2023] ACAT 11, referring to comments in Cope & McEachern v Walker & Walker [2018] ACAT 65
[32] See the summary of cases in Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361.
86.Even accepting that the unit in this matter was in new condition and promised a high level of amenity when the tenants moved in, I do not agree that the unit was not fit for habitation at the time the notice to vacate was issued. By that time, the furniture in the first bedroom had been restored and the carpets were dry. Although the tenants were concerned that the underlay may not have been dried properly after the leak on 1 November 2022, the carpets had been returned in place by Morgan's Carpets. The restoration of the carpet and furniture indicated that the chance of further leaks was considered minimal by JWLand, even if it was not enough to assure the tenants. Any further leaks would likely be minor and while uncomfortable, not in themselves likely to lead to a risk to health. The oven had been repaired and the stovetop was in the process of being replaced.
87.In my view, therefore, the notice to vacate did not constitute a valid termination of the tenancy agreement on the basis that the premises were not fit for habitation as required under standard terms 86 and 87.
88.The notice to vacate was also premised on a failure to remedy breaches of standard terms 54, 55, 59 and 60, which in turn could be referenced to the notice to remedy issued on 30 November 2022. I am therefore willing to accept that the notice to vacate was also an attempt under standard terms 90 and 91 to terminate the tenancy agreement for breach by the lessor.
89.The requirements for terminating a tenancy agreement under standard term 91 differ depending on whether the breach of the agreement is capable of being remedied. Where the breach is capable of being remedied, a lessor has two weeks to remedy the breach from the issue of a notice to remedy, after which the tenant must then give two weeks further notice of their intention to vacate the premises. Where the breach is not capable of being remedied, there is no need to give notice to remedy and the tenant may give two weeks’ notice.
90.Given the mystery of their source, it is possible that some or all of the water leaks are unconnected. The similarities of cause and effect, however, suggest that they likely stem from the same defect. It is not clear on the evidence available to the Tribunal that the source(s) of the water leaks is capable of being remedied. The source of the third leak discovered on 5 January 2023 has not been established, despite further investigation. There has not, so far, been a further water leak, but in the absence of any change to the conditions that contributed to the third leak, I do not accept that there is no further chance of water leaks occurring.
91.However, whether the breach of the tenancy agreement was not capable of being remedied at the time the notice to vacate was issued is a matter for the tenants to establish. The tenants have not attempted to make this argument. The notice to remedy and notice to vacate both indicate that the tenants believed that preventing further leaks was possible at the time the notices were issued, and there is no indication that the lessor or JWLand indicated that the source of the leaks may not be able to be repaired. The notice to vacate therefore relies on the issue of the notice to remedy and the inability to remedy the breaches identified in that notice.
92.One interpretation of standard term 91 suggests that it is enlivened once the breach was not remedied within the two weeks provided for in the notice to remedy. At any time after that two-week period, the tenant may give two weeks’ notice of their intention to vacate the premises, regardless of the state of the breach at the time the notice to vacate is issued.
93.However, in my view, a notice to terminate under standard term 91 can only be issued by the tenant if the breach remains unremedied at the time the notice is issued. This more closely aligns with the purpose of standard term 91 to allow for termination for breach of the lessor without the tenant having to apply to the tribunal. It requires an opportunity to be provided to the lessor to repair the breach before the tenant is able to bring the tenancy to an end. This interpretation is also more consistent with the option given to the tenant to withdraw the notice of continue with the termination of the tenancy where the breach is remedied after the notice to vacate is issued. Otherwise, where a breach is remedied after two weeks from the notice to remedy, but before the issue of a notice to vacate, that option would not be available to the tenant.
94.For the tenants to rely on a notice to vacate under standard term 91, it is not enough that they formed the view that the lessor remains in breach, however reasonably. Where tenants seek an order from the tribunal to terminate the tenancy under standard term 90, the tenants have the onus of satisfying the Tribunal that the lessor continues to be in breach of the tenancy agreement, and that the Tribunal should exercise their discretion to terminate the tenancy agreement. To rely on a notice to vacate, the tenants must be able to establish that the breach remains unremedied.[33]
[33] See Reddy, Robert Arjun v Budai, Alben, and Hatfield, Debbie [1998] NSWRT 170
95.The tenants did not present any evidence from expert or independent tradespersons about the nature of the leak. They instead point to the lack of any explanation having been provided for the leak prior to the issue of the notice to vacate and the re-occurrence of the leak on 5 January 2023. The lessor points to statements from JWLand that they had repaired external cladding to another unit and further testing had failed to replicate the leak. The difficulty with this evidence, from my perspective, is that testing had failed to replicate the first or second leak, and any repairs to external cladding failed to prevent the water leak discovered on 5 January 2023. The precautions evident in JWLand reopening the work order and carrying out further testing after the notice to remedy was issued, and unit not being placed on the market as early as possible due to the possibility of further work being done, also indicate that the lessor was possibly unsure of the state of repair of the premises.
96.A question arises whether the tenants are able to rely on the third leak as evidence that the breach by the lessor remained unremedied when they issued the notice to vacate. The procedure set out in standard term 91 are premised on the Lessor not remedying the relevant breach of the tenancy agreement. In this case, that breach relates to the lessor's obligation to maintain the premises in a reasonable state of repair, and in particular a failure to prevent further water leaks which affect the first bedroom. As described above, this is not a matter of the lessor taking reasonable steps, or repairs having been apparently completed. The defect is either repaired or it is not. It is therefore not a matter of whether there was an objective basis to identify the state of repair at the time the notice to vacate was issued. I accept the third leak as evidence that the breach by the lessor remained unremedied.
97.I am satisfied that the notice to vacate was effective in terminating the tenancy on the date indicated in that notice for when the tenants would vacate the premises, namely the 12 January 2023.
Compensation for unpaid rent
98.As the tenancy properly came to an end on the 12 January 2023, there is no basis for compensation for unpaid rent or the costs of re-letting that may otherwise arise under sections 62, 83(1)(d) or 84.
Damage done to the door and walls
99.The lessor's agents provided pictures taken from the end of lease inspection which indicated various minor damage to walls and the front door of the premises. The lessor's agents were quoted over $1200 to repair and repaint that damage. The lessor accepted that some of the damage was incurred after the first water leak and which had been reported by Ms Winter on 18 August 2022. The lessor therefore claimed roughly half of the total cost of repairing the damage to the walls for the breach by the tenants of their obligation under the tenancy agreement to leave the premises in substantially the same condition as they found it.
100.In Westpac General Insurance Ltd v Cooper [2006] ACTSC 91, the court held that the lessor bears the onus of establishing that the condition of the property is not substantially the same as at the start of the tenancy.[34] However, if that is established, the onus shifts to the tenants to establish the exception to this requirement, namely that any change in condition is the result of fair wear and tear.
[34] Affirmed on appeal in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20. See also Maroney v Bullard [2016] ACAT 33 at [29]-[47].
101.“Fair wear and tear” has been accepted by the tribunal as involving what may be regarded as a normal or reasonable amount of damage to the premises caused by ordinary use of the premises or natural causes.[35]
[35] Zhang v Barden (Residential Tenancies) [2018] ACAT 44
102.In my view, the amount of damage to the walls and doors presented by the lessor's agents, particularly when accounted for a portion of them not being the responsibility of the tenants, might be reasonably expected, even during the relatively short term of the lease. I take into account the tenants had to live for a substantial part of the time without one of the two bedrooms, having to move around furniture and possessions in a relatively confined space.
103.I therefore do not consider there to be a breach of the tenancy agreement in relation to this claim.
Scratches on the floor
104.The lessor's agents provided photos taken at the end-of-lease inspection which showed several scratches and a small depression in the hardwood floors in the living room, kitchen and entry way of the unit. At the hearing, the lessor's agents provided larger versions of these photos. Even at a larger size, it is difficult to establish from the photos the depth of the scratches and depression, but I accept that they are sufficiently deep to be readily visible within the premises. The lessor's agents also gave evidence that they had been told when seeking a quote to repair the floorboards that it would not be possible to improve the appearance of the scratches without undermining the integrity of the floorboards. It would also not be possible to replace a small section of the floorboards given the way the boards were assembled. The lessor's agents therefore obtained a quote to replace all the floorboards in the unit.
105.The lessor does not claim that the scratches in the floorboards were done intentionally or due to the negligence of the tenants, or the result of any failure by the tenants to take reasonable care of the premises. There is therefore no suggestion that the tenants have breached their obligations under standard term 63. Instead, the essor claims that the tenant has failed to leave the premises in substantially the same condition as the premises was at the start of the tenancy in breach of standard term 64.
106.I accept that the scratches on the floorboards are, taken together, sufficiently deep and evident so that the premises has not been left in substantially the same condition was when the tenancy commenced. I also accept that some scratching to floorboards might be expected in the ordinary use of a unit such as this. However, most of the scratches in evidence suggest that they are the result not of ordinary traffic or use but the movement of heavy objects. I am therefore not convinced that all of the scratching was the result of fair wear and tear.
107.The tenants suggest that the deeper scratches were most likely caused by the moving of furniture into and out of the first bedroom due to the water leaks and possibly the removal of their furniture from the premises when they vacated the premises. Ms Winter's evidence included a picture of the tenant's heavy lounge suite which Ms Winter, in her evidence, claimed to have been moved in some of the areas where the scratches were found. She also provided some photos showing the bedroom furniture in the lounge area where some of the scratches were found. She stated that she was unable to be more precise on the co-location of the furniture and scratches because she was not present during the final inspection when the scratches were identified.
108.I am prepared to accept that some of the scratches to the flooring were caused by the moving of furniture at the request of the lessor's agents or in fulfilling the lessor's obligations of repair. Damage due to the removal of furniture when the premises is being vacated, even where that removal was precipitated by the lessor's breach of the tenancy agreement, remains, in my view, the responsibility of the tenant.[36]I note that any scratches that were apparent after the furniture from the first bedroom was restored following the water leaks should have been reported to the lessor's agents[37] in the same way as the damage to the front door as described above. I accept, however, that some of the scratches may have been obscured or otherwise not noticed due to preparations to leave the premises.
[36] See standard term 73
[37] See standard term 63(b)
109.The lessor accepts that the unit has been re-leased at an increased rate since the departure of the tenants without any repairs to the floorboards being completed or promised. The obligation on the tenant is to maintain the condition of the premises, not to repair any alteration, and the role of the tribunal to compensate the lessor for any breach of the tenant's obligations under the tenancy agreement. While I agree that some of the scratches are the responsibility of the tenants, I do not accept that those scratches, taken alone, would constitute a substantial change to the condition of the premises. I also would not regard those scratches alone as being sufficient to warrant replacement of the floorboards as an alternative to leaving the scratches in place. I am therefore not prepared to order any compensation for this claim.
Bond payment - lack of claim?
110.As I understand it, the bond paid by the tenants has not been paid. The lessor stated at the hearing that they had provided a bond release application form to the tenants nor sought release of the bond to themselves due to the impending ACAT application. In any event, as I have found that there is no compensation payable to the lessor, I will order that any bond monies held in relation to this matter be paid to the tenants.
Conclusion
111.I have concluded that the tenants are entitled to some compensation but for lesser amounts than they have claimed.
112.The lessor is not entitled to compensation.
113.I, therefore, make the following orders:
(a)ACT Rental Bonds on behalf of the Territory is directed to release the balance of any bond monies to the tenants.
(b)The respondent is to pay the applicant the sum of $3,882 within 28 days, calculated as follows:
(i) $550 for the loss of use of the range hood;
(ii) $2,332 for the second water leak equal to 50% of the rent for 51 days; and
(iii) $1,000 for interference with the peace, comfort, and privacy of the tenants.
………………………………..
Senior Member D Stewart
Date(s) of hearing: 20 April 2023
Applicant: In person Respondent: Ms S Baker and G Bowman, authorised representatives
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