Couso v New South Wales Land and Housing Corporation

Summary of orders made

1. For the reasons that follow, I am satisfied that the neighbouring tenant's antisocial behaviour constitutes a substantial interference with Ms Couso's quiet enjoyment of her rented premises. NSWLH has not demonstrated that it has all taken reasonable steps to prevent the neighbouring tenant's breach of the tenant's quiet enjoyment. It is thus in breach of its obligation under s 50(3). I have awarded compensation, albeit not the amount sought.

Jurisdiction

1. There is no issue that the Tribunal has jurisdiction to hear and determine this application according to the provisions of the Act.
2. An application in relation to a breach of an agreement must be made within three months of the applicant becoming aware of the breach: s 190(1) of the Act and Regulation 39(9) of the Residential Tenancies Regulation 2019 (NSW). The alleged breach concerns a continuing obligation and continuing inaction or insufficient action by the respondent up to the date of the application. The application has therefore been made within time.

Relevant sections of the Act

1. Section 6 states the Act applies to tenancy agreements that were made prior to the 2010 Act coming into force (such as Ms Couso's agreement).
2. Section 50(3) states: A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
3. Section 50(3) is mirrored at clause 12.3 of the version of the RTA tendered by Ms Couso. By virtue of s 6, it also applies retrospectively to earlier versions of the RTA prior to 2010.
4. At s 3 of the Act, "tenant" is defined to mean - "(a) the person who has the right to occupy residential premises under a residential tenancy agreement, or …"
5. The definition of "residential premises" that is applicable to s 50 is found in s 3 of the Act. It is as follows: "residential premises" means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.
6. Section 51 sets out a tenant's obligation with respect to the use of premises. In relevantly provides: 51 Use of premises by tenant (1) A tenant must not do any of the following - (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (d) Intentionally or negligently cause or permit any damage to the residential premises, … (4) In this section - "residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.
7. Section 54 prescribes the liability of a tenant for the actions of others. It relevantly provides: 54 Liability of tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. … (2) This section is a term of every residential tenancy agreement.
8. The order making power of the Tribunal that are relevant to this application are found in s 187 of the Act, which relevantly provides: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders - … (b) an order that requires an action in performance of a residential tenancy agreement, … (d) an order as to compensation, (e) an order that a party… perform such work or take such other steps as the order specifies to remedy a breach of the agreement, … (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations …

Quiet enjoyment

1. An important factor in considering whether the tenant's right to quiet enjoyment has been breached, is the word "reasonable" in s 50(3).
2. Firstly, a mere interference with the comfort of a tenant from an annoyance such as noise, is insufficient to breach a tenant's right to quiet enjoyment. There must be a substantial interference with the enjoyment of the Premises through an act or omission that was either deliberate or negligent in the sense that the consequences were reasonably foreseeable: Advance Fitness v Bondi Diggers [1999] NSWSC 264.
3. Secondly, a landlord is also only required to act reasonably. It is not responsible for preventing the offending behaviour, particularly if the Police have been unable to do so, as appears to be the case here.

Tenant's submissions

1. The tenant relies on her documents filed and served on: 1. 25 March 2022 (227 pages) 2. 26 May 2022 3. 7 June 2022
2. Ms Couso contends that from March 2020 until recently, the neighbouring tenant and her son have engaged in seriously antisocial conduct that constitutes a breach of her quiet enjoyment of her rented premises.
3. Throughout 2020 and continuing to March 2022, the tenant has lodged repeated complaints with DCJ concerning the anti-social behaviour.
4. The conduct Ms Couso complains about is summarised as follows:
5. For the last two and a half years, there have been incidents of screaming, shouting and abusive language on a daily basis. She has heard from within the neighbouring unit, hitting sounds, sounds of things being thrown around, loud music and slamming doors, often after 10pm at night. The son buzzes all of the units to be let in at night. The neighbouring tenant and her son leave rubbish on common property, cause damage to property and threaten and abuse her and other neighbours in the Complex. The tenant has smelt marijuana coming from the neighbouring premises. Ms P's son argues with his girlfriend and his mother in the driveway. There have been repeated police attendances at the Complex due to the above and Ms P has been arrested twice.

Specific incidents

1. On 30 March 2020, the son was found sleeping in the car of a neighbour parked in the driveway of the Complex as his mother would not allow him in.
2. On 18 December 2020, Ms Couso reported to Police the son destroying a letterbox with a hammer and screwdriver. She was told by the Police not to interact with the son.
3. On 2 April 2021, Ms Couso reported to the Police a loud party in the garage with the son and his friends with loud music being played.
4. On 27 August 2021, the son threatened N Smith, the occupant of unit 18 that he would kill her.
5. On 9 December 2021, the son threatened the life of W Smith, an occupant of unit 4, screaming he would stab his head.
6. On 8 January 2022 the tenant reported to the Police human faeces left in front of Ms P's garage.
7. On 20 April 2022, the tenant witnessed the neighbouring tenant's son threatening another man with a machete in a nearby street. He was arrested by Police.
8. On 6 May 2022, the neighbouring tenant's son threw a pot plant from his balcony at her car windscreen as she pulled into the driveway. She said it sounded like "a bomb went off". This led to an altercation with the son and his mother, with the son swearing at the tenant. The son then spat at her car.
9. She is acting as an advocate on behalf of other tenants in the Complex.
10. DCJ at Surry Hills has failed to take any action and failed to return her phone calls promptly and has been negligent in addressing her concerns and those of all the tenants in the Complex.
11. In August 2021, she reported the incidents to her local state Minister of Parliament for Coogee, Dr Marjorie O'Neill. She has also raised the matter with the Ombudsman.
12. On 9 February 2022, Ms Viki-Lee Collins, Team Leader in the Surry Hills Tenancy Team, DCJ stated in an email to the Minister's Office that as the son is a minor the Police are reluctant to take action against him.
13. Ms Couso is not presently exposed to the conduct as much as she was previously since the neighbouring tenant is incarcerated, but she fears the conduct will resume if the neighbouring tenant returns to the Complex upon her release from custody.
14. Ms Couso and the surrounding tenants live in fear. Her quality of life has been affected. She relies on statements from neighbours in the Complex who each support her description of events and describe similar incidents they have personally endured, including Ms W (unit 5), Ms N Smith (unit 18), Mr W Smith (unit 4), Mr A Kandic (unit 2) and Ms L Patterson (neighbour across the road from the Complex), plus friends and relatives.
15. She relies on a psychologist report from Dr Joanna Atkins dated 15 March 2022 which attests to the "extremely detrimental" affect the anti-social behaviour is having on the tenant's mental and physical health. She suffers Agoraphobia, an anxiety/panic disorder. She relies on a letter from Dr Ugarte dated 17 July 2020 attesting to the worsening of her anxiety disorder, plus poor sleep since Ms P and her son moved in.
16. In relation to the rangehood repairs, she has been repeatedly requesting the light bulb fixture with exposed wires be repaired since 6 January 2019 and again on 21 May 2019, 25 October 2019 and 6 August 2021.

Respondent's evidence and submissions

1. The respondent relies on the oral submissions of Ms Julie Dowall and documents filed and served on 25 May 2022.
2. The respondent does not concede a breach of s 50(3). Ms Dowall submits the transfer process takes a long time as DCJ is required to follow its internal Anti-Social Behaviour (ASB) Management Plan. A second strike notice has been issued, a termination notice has been served and the transfer process is now underway.
3. Ms P is currently incarcerated. Ms Dowell is not sure where or for how long. Ms Powell confirmed that Ms P had not relinquished her tenancy as at the date of the hearing. She will potentially return to the premises, but upon her release, DCJ will facilitate her transfer to a different location. DCJ is working with Ms P to provide support for her when she is released and to find an appropriate housing solution for her son.
4. DCJ has been aware of anti-social issues since the start of Ms P's tenancy. Both Ms P and her son have significant issues with complex needs. They were refugees from Iran and the son was subjected to torture. Most of the anti-social behaviour has been by Ms P's son, who has recently turned 18. Ms Dowell says that he has moved out and that Ms P "has removed him from the tenancy", but he continues to return uninvited to the premises whilst his mother has been incarcerated.
5. Given the history of family trauma and the son being a minor, the Police were reluctant to take action and had advised DCJ in June 2020 that eviction was not appropriate. Ms Dowell says he turned 18 on 28 January 2022.
6. In response to the complaints raised since April 2020, DCJ has taken the following steps against Ms P:

First complaint - incident on 21 March 2020 1. Issued a letter dated 3 April 2020 to Ms P requesting an interview regarding ASB, specifically, loud disruptive noises from her property at night and early morning on 21 March 2020. 2. On 17 April 2020, carried out an interview with Ms P at which time the allegations were substantiated. 3. By letter dated 5 May 2020, advised the neighbouring tenant of the outcome of the interview, that she had breached 13.2 and 13.3 of her tenancy agreement by causing or permitting a nuisance and by interfering with the reasonable, peace, comfort or privacy of neighbours. 4. Issued an ASB warning notice on 11 September 2020 concerning the incident on 21 March 2020. The letter referred Ms P to a website for support services. 5. A DCJ internal email dated 4 December 2020 indicates the matter was resolved in August 2022 as a support worker was engaged by DJC and the son applied for housing by himself and moved out.

Second complaint - incident on 4 August 2021 1. Issued a letter dated 6 August 2021 to Ms P requesting an interview regarding a complaint of loud noises, slamming doors and screaming from inside and outside the neighbouring unit in the early morning (4.45am) of 4 August 2021. 2. Issued a First ASB Strike Notice on 27 October 2021. The Strike Notice states that if three Strikes are recorded against the tenancy within 12 months, a termination notice may be given. 3. Issued a Complaint Outcome on 28 October 2021.

Third complaint - incident on 20 October 2021 1. Issued a letter dated 27 October 2021 requesting an interview concerning an incident on 20 October 2021 where Ms P's son was screaming obscene language at Ms P at 3.45am. 2. Issued a letter in December 2021 that the complaint was not substantiated (no reasons given).

Fourth complaint - incident on 28 February 2022 1. Issued a letter dated 31 March 2022 requesting an interview concerning an incident on 28 February 2022 regarding loud disruptive music from the garage of the neighbouring premises from 8pm to 2am. 2. Issued a Second ASB Strike Notice on 12 April 2022.

MOU Requests 1. Requested information from NSW Police on 31 March 2020. In response, on 2 June 2020, Senior Constable Maria Flood emailed DCJ stating: "Are you in any way involved in providing assistance to this family?? While the family are engaging in some services, there needs to be a more intensive, collective approach. We are currently doing what we can - but it needs much more. In this case, having them kicked out is not the answer. [Ms P] is certainly very cooperative and open to any intervention that will assist her and her son." 1. Requested information from NSW Police on 6 August 2021. In response, on 15 September 2021, the NSW Police confirmed reports of 24 domestic violence incidents between Ms P and her son and severe issues of mental health involving both, which are the subject of privilege.

1. The respondent has issued a 14 day termination notice on 26 July 2022 that expired on 23 August 2022. A copy of the notice is not in evidence. Ms Dowell said the notice is brought under s 87 of the Act for various breaches. More than 14 days' notice was given to allow for Ms P being incarcerated.
2. When asked by the Tribunal about commencing termination proceedings for alleged drug use and using the premises for an illegal purpose, Ms Dowell said that drug use was hard to prove.
3. Ms Dowell submitted that the delay alleged by the applicant does not mean the respondent has not investigated the issue. DCJ has investigated similar complaints against the neighbouring tenant and her son lodged by other tenants in the Complex. DCJ can only initiate one action at a time, even though there might be three separate complaints regarding the same issue.
4. In relation to loss, the tenant's agoraphobia existed prior to the neighbouring tenant moving in.

Consideration

1. Quiet enjoyment is the tenant's "reasonable peace, comfort and privacy in using the residential premises".
2. First, the concept does not contemplate an absolute entitlement to peace, comfort, and privacy, but a relative one, ascertained by a reasonable standard. Mere inconvenience is not sufficient to constitute an interference, there must be a substantial interference.
3. The tenant lives in a community of tenanted properties. It is reasonable for there to be a degree of tolerance and give and take in relation to the behaviour of neighbours in such an environment.
4. The concept of "reasonableness" must also take into account the landlord's function as a social housing provider to provide accommodation for socially vulnerable tenants who may have high social need. I consider it relevant that the exercise of this function will sometimes include the protection of socially vulnerable tenants from homelessness and the provision of accommodation that provides a foundation for recovery, rehabilitation and social reintegration. I accept that this will sometimes require the balancing of the needs of tenants in a communal living environment. Ms Couso is at liberty to vacate if she wishes, although she says she does not wish to.
5. Secondly, the interference must relate to the tenant's use of the residential premises. It does not relate to conduct between neighbouring tenants that occurs in another location.
6. The residential premises is defined in s 3 to include not only the rented premises in relation to which the tenant has exclusive possession, but also any common property that is shared with other tenants. One of the tenant's complaints about the neighbouring tenant's son concerns an incident on the driveway of the Complex. In this case, the common property the tenant has the use of as part of the residential premises includes the driveway.
7. Another of the tenant's complaints about the neighbouring tenant's son concerns him using a machete in a nearby street on another man. That alleged conduct occurred on a public street near the Complex. The public street is not part of the residential premises. The neighbouring tenant's son's alleged conduct thus involved an interference with the tenant's use of the public street, not the residential premises.
8. Apart from the machete incident, I am satisfied that all the tenant's other complaints concern her use of the residential premises, being her apartment and the common property.
9. Thirdly, the interference must be by a neighbouring tenant (defined in s 3 to include an authorised occupant, thereby prima facie capturing Ms P's son), not some other person.
10. Most of the tenant's allegations concern the conduct of persons other than the neighbouring tenant, that is, her son. Some allegations also concern conduct by persons who were invited onto the common property by the neighbouring tenant's son.
11. Ms Dowell says that the son, since he became an adult, is no longer on the lease. There is conflicting evidence as to when he turned 18. A copy of Ms P's tenancy agreement is not in evidence to indicate whether her son is currently named as an occupant.
12. It needs to be considered whether the alleged conduct of the son and other persons can constitute an inference with the tenant's quiet enjoyment "by" the neighbouring tenant. Section 50(3) does not contain the words of extension "cause or permit" which are found in s 50(2). However, the foundation for the landlord obligation imposed by s 50(3) is the tenant obligation to the landlord imposed by s 51(1)(c). That obligation does contain these words of extension. Additionally, a tenant's liability for the performance of that obligation is regulated by s 54 which makes a tenant vicariously liable for the conduct of others lawfully on the residential premises.
13. In these circumstances, I am satisfied that the conduct of Ms P's son (and those persons who are on the common property by invitation of the son) can constitute an interference with the tenant's quiet enjoyment.
14. Fourthly, the interference should involve the tenant, Ms Couso and not some other person.
15. I note that several of the tenant's complaints concern the conduct of the neighbouring tenant (and/or her son) towards tenants other than herself (such as death threats on the occupants of units 4 and 18). That conduct cannot constitute an interference with the tenant's quiet enjoyment of the premises unless it also has some form of substantial impact on Ms Couso in her use of the rented premises and common areas.
16. The neighbouring tenant's son's threats against the tenants of unit 4 (W Smith) and unit 18 (N Smith) did not directly interfere with tenant's quiet enjoyment of her rented premises. Nevertheless, I accept that it was an indirect substantial interference with her peace and comfort. I accept that it caused Ms Couso to fear for her own safety in the use of her apartment and the common property. It gave rise to a reasonable apprehension of violence in a context where she had also been threatened with violence by the neighbouring tenant's son.

Findings

1. Ms Couso presented evidence that she has been subjected to serious and sustained harassment, abuse, intimidation, and threats of violence from the neighbouring tenant's son, which has substantially impacted on her use of her rented premises.
2. I find that the neighbouring tenant and her son have substantially interfered with the tenant's quiet enjoyment of her rented premises and the common property by the verbal abuse and threats of violence towards her and throwing a pot plant at Ms Couso's car whilst it was in the driveway of the Complex.
3. I also find that the neighbouring tenant and her son (and the son's invitees onto the residential premises) have frequently caused severe noise nuisance, such as screaming and slamming doors at irregular hours, which has also interfered with Ms Couso's quiet enjoyment.
4. As to whether the respondent has "taken all reasonable steps" to prevent the neighbouring tenant from interfering with the tenant's right to quiet enjoyment, a copy of the ASB policy or management plan that Ms Dowell refers to was not provided to the Tribunal. Whilst DCJ has conducted interviews and issued strike notices, without any policy document with which to compare, it is not clear whether procedures have been properly followed. It is also not clear why at times the matter was deemed by DCJ to be resolved, when clearly it was a live issue.
5. Although Ms Dowell has not referred to them, DCJ has in place additional policies for the management of its social housing tenancies including its Good Neighbour Policy and its Sustaining Tenancies Policy, which are directed towards the management of antisocial behaviour and tenancies that are at risk. Copies of these polices have not been provided. There is no evidence that DCJ took any action in accordance with these policies.
6. DCJ also has agreements with various departments such as NSW Health and NSW Police to assist it in the provision of its tenancy services. These agreements permit referral for mental health and substance dependence services and the sharing of information held by NSW Police, in relation to its social housing tenants.
7. Whilst DCJ has twice issued NSW Police with a request for information concerning the neighbouring tenant and her son, it is significant that the Police's response in June 2020 was that a more sustained effort was required.
8. There is no evidence that DCJ took any action in accordance with its agreement with NSW Health to the extent that the neighbouring tenant's conduct and her son's conduct were associated with a mental health condition or substance dependence. This is particularly significant when there is clear evidence that DCJ was on notice from 15 September 2021 from NSW Police that both Ms P and her son suffered from serious mental health conditions.
9. Another of the steps available to the respondent included filing a claim at the Tribunal to obtain orders for specific performance by the neighbouring tenant of her obligations in relation to the quiet enjoyment of other tenants or for termination of the neighbouring tenant's residential tenancy agreement for breach of that obligation. I note that the evidence discloses a least two other potential bases upon which such orders under the Act could be sought, including the causing of nuisance: s 87 of the Act and using the premises for an illegal purpose (drug use): s 91(1)(b) of the Act.
10. The respondent has not taken any steps at the Tribunal to obtain a specific performance order and has only taken steps to terminate the tenancy by serving a termination notice on 26 July 2022, some 28 months after the antisocial behaviour began occurring. I note however that the Police recommended that eviction was not a recommended course.
11. When balancing the needs of tenants in a communal living environment and the need to protect socially vulnerable tenants such as Ms P and her son from homelessness, I am satisfied that whilst DCJ took some action, the respondent could reasonably have done more to prevent a breach, such as: 1. engaging with NSW Health; 2. taking action in accordance with internal policies; and 3. obtaining a specific performance order from the Tribunal.
12. I have also taken into account the lengthy period during which the conduct persisted. I am satisfied the respondent has breached its obligation to the tenant to take all reasonable steps to ensure that the neighbouring tenant does not breach Ms Couso's quiet enjoyment.
13. I therefore find there has been a breach of s 50(3) and clause 12.3 of the RTA.

Compensation

1. The claim of $15,000 compensation relates to non-economic loss for the stress and disappointment Ms Couso says she has suffered as a result of the behaviour.
2. This is a legitimate head of loss and falls short of a personal injury assessable under the Civil Liability Act (NSW) 2002.
3. The tenant has produced medical evidence of the adverse impact of the antisocial behaviour on her state of mind, which I accept. She is entitled to be compensated for the non-economic loss of the effect of the breach on her rational feelings of distress, anxiety and disappointment caused by the breach.
4. The tenant has not quantified this loss, but sought the jurisdictional limit of $15,000.
5. I find $15,000 to be excessive. The tenant is not entitled to claim compensation on behalf of other tenants in the Complex. Doing the best I can on the available evidence and based on similar cases, I allow $3,000 to the applicant.

Work order

1. I am also satisfied the tenant's requests for her rangehood to be repaired have not been addressed. This constitutes a failure by the respondent to reasonably maintain Ms Couso's premises and I made a work order accordingly.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 11 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2023