The Applicant, tenant entered into a Residential Tenancy Agreement with the Respondents, landlords on 31 January 2019. The term of the Agreement was 52 weeks and covered the period 1 February 2019 - 30 January 2010. The property was in Sandringham, NSW. Prior to signing the Agreement, the Applicant paid a holding deposit. At the time of signing, the Applicant paid a bond equalling 2 weeks rent. The rent payable was $520 per week.
Prior to signing the Agreement the Applicant says she inspected the property. Pm 17 January 2019 at about 4.30pm. The Applicant says that there was a tenant living there, the property was full of the tenant's belongings and there were boxes everywhere on the floor. The Applicant says that the agent told her that the property was very messy but that it would be professionally cleaned, carpets would be cleaned and things would be sorted before the Applicant moved in.
The Applicant received a complete set of keys after 6pm on 31 January and a copy of a condition report for her to complete within 7 days.
She went to the property after 6pm, inspected it and sent an email to the agent of the Respondents expressing concerns about the state of the property as follows:
"Hi Georgia,
Firstly thanks for calling in with the right key in the arvo, at least we got in and didn't have to call a locksmith. You were very professional and easy to deal with lease etc so thanks. I was keen to get back and see the property as I honestly flew through there at inspection as tenant there and weird so really didn't spend long and the house was messy and stuff everywhere and wanted to get an idea of what furniture I would have to sell etc moving from a house to a unit. Because there was furniture and crap everywhere at the time of inspection I couldn't really see the state of the property with beds there still there over torn carpets, boxes on floor and things on walls - so I didn't get a good look.
After you left I looked at bedrooms, hall, bathroom and kitchen. I actually feel sick, my thoughts are my god what a dump I cannot believe the state of the place, how am I to have my kids live here, I cannot believe I didn't ask to see the property empty before I signed a lease. I have always lived in nice places and very house proud. I knew it was a step down from what I was used to as wanted to save money but thought in the right area still 3 beds, garage etc but my god, what a nightmare. With all the crap at inspection I didn't see the true state of the place.
Carpet ripped in bedroom, ceilings all brown (think mould and water damage all through hallway ceiling), bathrooms (think mould and water damage all through hallway ceiling), bathrooms all mould in grout and both soap dishes broken. Blinds broken as discussed. I don't know what professional cleaner you have as still pretty dirty.
I feel completely trapped, I have a removalist booked for 9.00am in the morning, whilst the kids in day care. Has the owner seen the state of the property? Is there any intention to replace broken soap dishes in bathroom, cracked glass shower recess, investigate obvious water problems from ceiling? My main concern is water damage and mould in the ceiling. My son has Asthma and this will not be good for him, things can always have a lick of paint but water damage not so easy to fix.
If I cancel my removalist now I still have to pay and need to be out of current place so don't have anywhere to store stuff and feel I need to go ahead. Is the owner aware/seen the ceiling?
I have taken photos of the property (as you have). I will give you a buzz tomorrow. I don't really know what you can do at this point.
Thanks
Kate."
The Applicant arranged for some items to be moved into the property but she did not reside in the property with her children at all because her son has Asthma. The Applicant stayed with her parents but paid rent to the Respondent.
On 22 February 2019 the Applicant commenced these proceedings seeking orders that the tenancy agreement be terminated as a result of the state of the premises, that the bond be returned to her and that she be paid compensation. She had previously asked for a waiver or reduction of rent as a result of the state of the premises but this was not allowed by the landlord.
On 8 March 2019 the following orders were made by consent in the Tribunal:
1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination;
2. By consent, the order for possession is suspended until 15 March 2019;
3. The Applicant was then given leave to amend her claim by 5 April 2019 by sending a copy of the amended claim to the Divisional Registrar and the Respondent and the amended claim was to include:
4. A list of each item claimed, specifying the monetary amount of each claim.
5. Both parties were then directed, after that date to provide documents that they relied upon for the final hearing of the matter.
The parties complied with these orders and the Applicant paid full rent for the premises for the period 31 January 2019 - 14 March 2019 the date that possession of the property was handed back to the Respondents.
The tenant now claims in her amended claim dated 4 April 2019 - tab 18 of Applicant's bundle of documents the following:
"I am seeking compensation for monies outlaid since being accepted as the tenant for the abovementioned property and signing the lease.
I am seeking such compensation as the Landlord has breached their obligation the minute I received the keys as:
(1) They had failed to meet their obligations in regards to security and safety
(2) They had failed to meet their obligations in regard to health and safety
(3) They failed to meet their obligations to allow me to live in reasonable comfort (smell of property).
Furthermore, once notified (the day I signed the lease) of the issue regarding mould and water damage they did not attempt to remedy the mould or water damage issue (5 weeks to do this).
The agent was aware I was not residing at the property due to it being inhabitable because of the mould/water damage ceilings and walls and smell from rotten carpet/walls all causing a possible threat to my children. They ignored my request for a rent reduction or rent waiver (as requested by the Tenancy Union until the matter was rectified and paid full rent the entire time).
Because of the landlords/agents breach of their obligation I have;
(1) Had to live out of a suitcase at my parents with 3 small children for 6 weeks.
(2) My children have been very upset not understanding why we do not have a house and that their toys are boxed up
(3) I have had to spend more time commuting to work (another hour to my day as Kirrawee, where parents live opposite direction to where I work in Maroubra and further from Sandringham, decreasing my time with my kids and increasing my petrol costs.
(4) I had the cost of relocating my internet connection $90.00 to Sandringham with the provider before signing lease then have to cancel it and set up fee again when I get a new property.)
(5) Change my Electric provider details, then ring and cancel and change again.
(6) I have had to take time off work and also have my own free time off taken up by the inconvenience of meeting people at the apartment I was not living at to fix things that should have been done prior to the property being leased out such as:
- Meeting and letting in glazier O Brien glass for broken window
- Meeting the shower screen guy
- Meeting Mega Seal for their inspection
- Meeting Strata to assess water damage/bathrooms
- Meeting Mould Dr - Arranged by agent
- Meeting my mould inspector SESA for inspection
- Meeting locksmith guy to fix broken sliding door balcony
- Meeting window guy to do audit of windows and provide safety child locks
- Liasing with the Tenancy Union to establish what my rights were in this situation
- Spending time, money etc. lodging documents to the Tribunal
Meeting with removalists
It has been a complete nightmare and I never want to have to go through this process again.
I would like money back for
Rent outlaid for property I never resided in.
- Initially $520.00 holding deposit
- Another 4 weeks rent plus 4 weeks rent for bond $2600 when signing lease.
- 2 x $1040.00 = 2 more weeks rent $2,080.00 = Totalling $5,200
- (received my bond back in March $2080.00) - requesting $3,120.00.
Mould Inspection Repot SESA $1815.00 (mould issues should have been addressed before I moved in. Furthermore if they gave me a copy of their mould report or told me of their intentions or actions I would not have had to get my own.
Removalist costs incurred (moving into an out of a property in a span of 6 weeks $1890.04. I will have to incur a removalist cost again myself, which I will pay to move out of my parent's property.
Total cost requesting for compensation/reimbursement is $6,825.04.
The Response from the Respondents to this Amended Claim is that the Applicant had the opportunity to inspect the property prior to signing the Residential Tenancy Agreement and she is bound by the terms of the Residential Tenancy Agreement. She is not entitled to any compensation as they have not breached any of their obligations under the terms of the Agreement or the obligations under the Residential Tenancies Act. Further they say that the rental amount payable for the property reflected the state of the property.
[2]
Jurisdiction
The Application is brought within time and the Tribunal has jurisdiction to deal with this Application under the Residential Tenancies Act 2010.
[3]
Evidence
Both parties provided a bundle of documents to each other and the Tribunal prior to the hearing date.
The Applicant attended in person and gave oral evidence. The landlords did not attend to give evidence but the landlords' real estate agents presented the landlords' response and evidence.
The Applicant relies upon the following documents:
1. Chronology;
2. Correspondence between her and the agents and other parties; tabs 2,6,7,9, 10,12 and 12;
3. Witness Statement of Megan The, tab 4;
4. Witness Statement of Carol Davies tab 5 ;
5. SESA Mould Inspection Report, tab 14
6. Hospital Discharge Papers and Asthma Action Plan for her son Ned Fitzharris tab 17,
7. Invoices and receipts, tabs 3 and 19.
The Respondent relies upon a folder of documents which include:
1. Overview of events
2. Residential Tenancy Agreement
3. Photographs
4. Advertisement
5. Correspondence between Applicant and agents
6. Correspondence between agents and contractors
7. Condition Report
The Applicant, tenant bears the onus of proving that the Respondent landlord has breached the terms of the Residential Tenancy Agreement on the balance of probabilities.
Legal Principles
Section 52 of the Residential Tenancies Act provides:
1. A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.
2. A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises.
3. This section is a term of every residential agreement.
Section 63 of the Residential Tenancy Act provides:
1. A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises
2. A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises
3. A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part.
4. This section is a term of every residential tenancy agreement.
Clauses 18.1 and 18.3 of the Residential Tenancy Agreement between the Applicant and the Respondents provides that the Landlord agrees to make sure that the residential premises are reasonably clean and fit to live in and the landlord agrees to keep the residential premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises.
The issues to be determined by the Tribunal are: Is the Landlord in breach of Sections 52(1) and (4) of the Residential Tenancies Act and clauses 18.1 and 18.3 of the Residential Tenancy Agreement; and If a breach is found, is the Tenant entitled to claim compensation as a result of the breach and, if so what is the amount of the compensation to be awarded?
[4]
Is the landlord in breach?
On the evidence before me, the tenant complained of the state of the property as soon as she was given possession on 31 January 2019.
The state of the property was as complained about in her email to the agent dated 31 January 2019 - tab 2 of the Applicants bundle of evidence and included carpet ripped in bedroom, ceilings all brown (thick mould and water damage all through hallway ceiling), bathrooms all mould in grout and both soap dishes broken. Blinds broken, place is dirty and needs cleaning.
This is corroborated by the witness statements of Kate Fitzharris - tab 4 of Applicant's bundle of evidence, and Carol Davies - tab 6. It is also documented in the folder of photographs at tab 8 and the ingoing condition report that she completed and her email to the agent dated 4 February 2019 - tab 6.
At the hearing and in the evidence before me, the agents did not dispute that this was the state of the property.
In response to her emails the agent sent an email dated 4 February 2019 - tab 7 which includes:
"…we understand your concerns and wish to promptly attend to this issue. At this stage the following have been booked: 4/2/19 Megasealed to qualify and inspect bathroom and possible leaking: 4/2/19 Mould Doctor to qualify and inspect mould issue."
The agent also sent an email dated 5 February 2019 which includes: In relation to remove and treat all mould from the property, black mould in bathrooms, bathroom doors, mould in ceilings and bedrooms, halls and inside one built in wardrobe
"as advised we have Mega Sealed attending to inspect, qualify and quote to repair possible leak."
In relation to establishing source of water/damp issues (above ceiling in kitchen, hall, walls and floors) rectifying these and both bathroom leak problems
"we have advised strata to investigate of a possible leak occurring from the unit above."
In relation to remove badly damaged carpet in room where all rotten/mouldy/wet and replace with undamaged carpet. Remove/fix/treat carpet in hall that is damaged by water in corner of hall.
"as advised we have mega sealed attending to inspect, qualify and quote to repair possible leak. The landlord is not in a position to replace the carpet in that particular room."
In relation to paint and fix (stained and cracked ceiling from water damage) in kitchen, hall outside bedrooms and bathrooms and other walls in the bedroom and unit that are bubbled and stained by water damage.
"We will obtain a quote to have the mould cleaned off, however the landlord is not in a position to paint the property at this point in time."
In relation to replace broken exhaust fans in ensuite and bathroom (as not helping mould situation)
"We obtain a quote to repair the exhaust fan, however the exhaust fan cannot solely be relied upon, adequate ventilation is also required by opening windows)."
In relation to door lock on balcony (outside) broken and doesn't lock properly needs to be replaced or fixed.
"We will qualify if this is a strata related issue, if not will organise for this to be repaired."
In relation to replace broken soap dishes in both bathrooms as sharp and dangerous for my children
"We are obtaining a quote to replace the soap holder."
In relation to replace blinds in whole house all broken, filthy, missing slats, chains so either don't work or not there.
"A quote has been issued to dial a blind to repair existing blinds."
In relation to put in fly screens on windows and proper locks as (most windows have no fly screens and open fully) which is not within legal obligations for strata buildings as dangerous for kids.
"As per your inspection there wasn't any fly screens, at this stage the landlord will not be installing them. As the child locks - as the child safety locks are urgent we will address this. Can you qualify how many are missing?"
In relation to get broken glass window in bedroom fixed by strata (covered by blind at inspection could not see.)
"A request to strata has been submitted."
In relation to replace shower recess. Door broken won't open properly and glass door opposite glass all cracked.
"Diamond Tannous has been sent a quote to repair existing."
Black mould around all windows. All filthy, I think the windows may need resealing (might be one cause of mould problem?) Windows need cleaning.
"We will obtain a quote to have this cleaned."
On 6 February 2019 the Applicant met with Megasealed who had been arranged by the agent. The quotation from Megasealed includes: tab 9
"Both the main and ensuite showers are showing signs of prolonged leaking which is evidence through the rising dampness, visble on hallway walls. The main shower screen is not sliding and cannot be repaired, approx. cost of replacement screen is $900. It also provided for work to wall joints, grouting and sealing of the showers at a cost of $795."
As at 7 February 2019 the Mould Doctor had attended the property for the landlord to inspect and prepare a report. The tenant was in attendance at the inspection to provide access.
On 9 February 2019 the tenant met with a representative of strata to inspect the property.
As at 11 February 2019 strata had fixed the balcony lock that was defective, they fixed and replaced and checked window locks and child locks. It confirmed that there had been water leaking in the past which resulted in water damage to wall and carpet and that the water leak had been rectified by strata in the past but it was the Respondents responsibility to fix any damage to walls and carpet. The Applicant informed the agents of this via email on 11 February 2019.
However the Applicant was still waiting for an update on the other items from the agent as at 11 February 2019.She was also waiting for a response to her request for a rent waiver or rent reduction.
As at 20 February 2019 the Applicant followed up the agents for an update.
The agent confirmed that they had obtained a report from the Mould Doctor and that this had been provided to the Respondents.
This Mould Doctor report was never provided to the Applicants and it was not in evidence at the hearing. The works recommended by Mega Sealed also was not carried out.
The Applicant obtained her own report from SESA Safety & Environmental Services Australia Pty Ltd dated 19 February 2019. It was provided to the Respondents and was in evidence at the hearing.
The findings in the report are on page 6 and include:
The apartment has been subject to moisture problem in the past that originated from the bathroom with evidence visible on two walls backing the bathroom.
Significant level of surface mould was detected on the porous rendered ceilings of the main bedroom and bedroom 2 and these can be noted by light brown staining. The door of the bathroom within the main bedroom and the ceiling of the main bathroom were also identified with active mould growth. While these surfaces have been previously remediated for mould, the remediation was not successful and the current condition within these two bedrooms still present a health risk to occupants from exposure to mould and specifically to mould sensitive individuals.
The Main bedroom and bedroom 2 affected by visible mould are not to be occupied without restrictions until professionally remediated.
The report then sets out how to remediate the mould.
Based on the evidence above I find that the landlord was in breach of its obligations under Section 52 to provide the residential premises in a reasonable state of cleanliness and to provide premises which are fit for habitation, also refer Bhandrari v Laming [2015] NSWCATAP 224 at [35}, [38] and [39]
"The obligation to provide residential premises fit for habitation is mandatory and according to language used in the provision, unqualified, Relevantly the obligation is not expressed to be contingent on reasonable steps or to be dependent on the landlord being at fault or having control over the event or circumstance affecting the state of the premises…. Section 52 is expressed in clear and unqualified terms because the fitness, or otherwise, of residential premises for habitation is at the core of the subject matter of the agreement."
The question of whether or not the premises are habitable turns on whether the premises "might be used and dwelt in not only with safety but also with reasonable comfort" by the tenants Proudfoot v Hart (1890) 25 QBD 420, judged by contemporary standards; Menashi v Ly [1997] NSWRT 162; as confirmed by Raats v Zein [2016] NSWCATCD 62 at [34].
In Fairly v Stadlmann [2005] NSWCTTT 482 the Tribunal commented:
"When a property is leased, it is reasonable to expect that they are [sic] fit for habitation. It is reasonable to expect that all repairs (except urgent repairs) have been undertaken before a tenant takes possession. It is not appropriate that a tenant should have to take days off work to supervise or permit access to tradesmen to undertake repairs than in the ordinary course of letting the premises should have been done before the premises were let."
In this case there are quite a number of defects in the property itself and the presence of mould and these were all in existence at the beginning of the residential tenancy agreement. As said in De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464 it is a serious matter for the Tribunal to find that residential premises are uninhabitable and such a conclusion will not be drawn lightly however these circumstances in this case seem to be consistent with those in the case of Kuek v Bettrfielf [2004] NSWCTTT 210 (cited with approval in Lewin v Zhou [2018] NSWCATD 54 (at [23} and referred to in Residential Tenancies Law and Practice NSW (7th Edition, the Feeration Press) at [2.52.2, p 158).
This case fits within the cases where mould make the premises unift for habitation Raats v Zein [2016] NSWCARCD 62 at [36], Bartley and Zawiolkowski v Harris Park Holdings Pty Ltd [2010] NSWCTTT 592, Stuart v Colley [2004] NSWCTTT 179, Roberts v Bell [2001] NSWRT 6.
The landlord did not put into evidence the age of the premises abd any evidence as to how the rent payable compared with any other premises.
Similarly I find that the landlord was in breach of its general obligation under Section 63 and the clauses in the Residential Tenancy Agreement which mirror the requirements in the Act.
The landlord is in breach and the tenant on a number of occasions requested a rent waiver or rent reduction which was denied. She is not entitled to claim for an order for compensation under Section 187 of the Act. This section includes a power to award damages for breach of contract and also compensation for both economic and non economic loss.
I order that the landlord give the tenant a refund in the sum of $3120.00 and general damages of $500 as she was required to attend numerous inspections and appointments to get repairs carried out.
I also order that the landlord pay the tenant the removalist costs in the sum of $1890.04. I accept the invoices and documents provided by the Applicant. The landlord did not submit any alternative costs.
I order that the landlord pay the cost of the SESA report in the sum of $1815.00. In this case I follow Waller v Pacorp Holdings Pty Ltd [2017] NSWCATCD 5 where the Tribunal ordered the landlord to pay for a mould report obtained by the tenant in circumstances where the mould problems arose as a result of the breaches of the landlords obligations under Sections 52 and 63 of the Act and that the need for the report and the landlords refusal to contribute to the cost of the report constituted special circumstances. The landlord had submitted that a mould report could be obtained at NIL cost on online but I am satisfied that a proper qualified expert reports comes at a price.
Total $7325.04
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 22 July 2021