RESIDENTIAL TENANCIES -** compensation - leased premises not a valid address
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Original judgment source is linked above.
Catchwords
RESIDENTIAL TENANCIES -** compensation - leased premises not a valid address
Judgment (10 paragraphs)
[1]
The application was made on the basis that there was a legal impediment to the lessor entering into a residential tenancy agreement in relation to the address at 77b Gwen Meredith Loop. Clause 51 of the standard terms of residential tenancy agreements, found in Schedule 1 to the Residential Tenancies Act 1997 [RT Act] provides that the lessor guarantees that there is no legal impediment to the use of the premises for residential purposes by the tenant. The lessors conceded that the building was approved as a single dwelling and had not been approved by ACTPLA for use as two dwellings or in any form of dual occupancy. I am satisfied that there was a legal impediment to the use of the premises as two separate dwellings. The lessors are therefore in breach of clause 51 of the residential tenancy agreement.
Clause 52 of the standard terms provides that the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises. A residential tenancy agreement is defined in section 6A of the RT Act as an agreement where the lessor gives the tenant a right to occupy stated premises if the premises are for the tenant to use as a home and the right is given for value.
In accordance with clause 51 the lessor 'guarantees' that the occupation of the premises as a residence is lawful, so that the tenant's quiet enjoyment of the premises will not be disturbed by force of the law. The word 'guarantee' is absolute and makes the satisfaction of this clause a matter of strict liability. Thus, the motivations of the lessor, or the reasonableness of the lessor's actions are irrelevant to whether the clause has been breached or not. In the tribunal formed the view that the constructive withdrawal of utilities and services would amount to interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
Quiet enjoyment is the legal concept of a tenant being entitled to hold the premises and use them for normal residential purposes without interference. It is a right in the tenant to enjoy the premises for all usual purposes free from interference. The RT Act provides that under a residential tenancy agreement the premises are for the tenant to use as a home.[3] This would encompass the notion of reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises,[4] and would include, but is not confined to, the right to prevent others from entering the premises, the right to prevent others from damaging the premises, and the right to use the house and surrounding gardens for relaxation and enjoyment.
Traditionally the covenant for quiet enjoyment protected the tenant from direct interference by the lessor. However, recent decisions and legislative reforms have extended the types of interference from which a lessor is obliged to protect a tenant. The quiet enjoyment of premises is interfered with if the tenant's ordinary and lawful use and enjoyment of the premises is substantially or materially disturbed. It is not necessary that the physical possession of the premises by the tenant be interrupted. The breach does not have to render the premises entirely unfit. It is enough if the premises are materially less fit for use for their ordinary or usual purposes.[5] Interference may be by act or omission. Interference with quiet enjoyment is a question of fact.
A wide range of conduct has been found to amount to interference with quiet enjoyment: failure to carry out repairs[6]; carrying out of repairs[7]; violent and abusive behaviour[8]; noise alone[9] and failure by the lessor to take steps to prevent others from causing interference with quiet enjoyment.[10]
The tenants right to quiet enjoyment arises out of their use of residential premises, and the interference must be one that involves the use of the residential premises leased to them by the lessor.
The breach of the covenant for quiet enjoyment or nuisance must involve an interference with the use of land. Traditionally, such interference arose by way of, for example, noise, smoke, pollution, sawdust, escaping water, fire, and so on. Personal discomfort is not actionable per se, unless it arises out of the use of the land. Personal discomfort may give rise to other causes of action, such as assault or negligence.[11] Personal discomfort may be caused by being prevented, through the conduct of neighbours, from being able to make full use of premises or land. The definition of 'premises' as set out in the RT Act includes land and part of any premises.[12]
The tenants are unable to obtain full use of the upstairs part of the building as residential premises. This is because the tenants are not able to obtain the full benefit of the bargain:
(a) they are unable to have the phone and internet connected;
(b) they are unable to obtain insurance;
(c) they are unable to have mail delivered; and
(d) have ongoing concerns as to whether in an emergency the appropriate services would be able to locate them.
The accumulation of those factors amount to interference with quiet enjoyment or peace, comfort, security and privacy. Even though the building might be a really nice place, with really good facilities otherwise and even though it might be possible to overcome some of the problems such as the heating and cooling, it is not possible without a valid and recognised address, to overcome those emergency services, mail delivery, insurance and internet and phone problems.
The result of the lessors' conduct in entering into a residential tenancy agreement in relation to what was essentially the upstairs part of a discreet dwelling has meant that the lessors have not delivered to the tenants premises of which they could have full and appropriate use as a home. The lessors are in breach of clause 52 of the residential tenancy agreement.
The breach by the lessor of clauses 51 and 52 are serious breaches of fundamental terms of the contract. The applicants are entitled to an order terminating the residential tenancy agreement.
Section 83 of the RT Act provides that ACAT may make an order requiring the payment of compensation for "... any other loss caused by the breach of a residential tenancy agreement."
The tenants have sought a refund of rent paid since the commencement of the residential tenancy agreement. The Tribunal takes into account that the tenant has had some benefit from the agreement - all utilities have been at no cost to the tenants, and they have had a place to stay, albeit in difficult circumstances. The tenants have however paid a total of $6660. The Tribunal determined that the tenants would be entitled to a refund of a portion of the rent paid as a result of the breach of clause 51 of the residential tenancy agreement and awarded an amount of $100 refund for each of the 18 weeks of the agreement - a total of $1800.
Where the lessor has breached clause 52 and caused direct or indirect interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises, the tenants are entitled to compensation. In this instance, the tenants have been unable to make full and proper use of the residence as their home, and the lessors are not in a position to remedy the breach. The Tribunal takes into account the distress, inconvenience and lack of peace, comfort and privacy that they have suffered over an 18 week period. The Tribunal also takes into account that the lessors through their agent responded inappropriately by characterising the tenants' desire to terminate the tenancy, as a break lease. The Tribunal also takes into account that the tenants will incur the costs of moving and the inconvenience of hunting for a new home much sooner than they would have, but for the breach by the lessors. I have determined that the lessor shall pay the tenants compensation in the amount of $3000.
[2]
[1] Transcript of Proceedings 7 April 2016 pages 2-3