Gawron v Nia (Residential Tenancies) [2016] VCAT 1535 (9 September 2016)

1. In Summers v Salford Corporation [1943] AC 283 at 289 "unfit for human habitation" was found to mean unfitness for any reason, regardless of the cause. Premises may be unfit for human habitation even if it is physically possible for someone to live in them, if the state of them is such that there is a risk of injury to the body or health of a person living in them.
2. In the present case all urgent repairs had been completed by 15 July 2016, three days before the Notice of Intention to Vacate was given by the tenants. They would not let the plumber in to attend to the last claimed gas leak. There is no report from Energy Safe Victoria as to the cause of any such final gas leak, and the evidence of both the agents and the tenants was that the plumber had been 'cleared' and no fault found with his earlier workmanship. The tenants' medical evidence shows that even if there had been earlier gas leaks their blood gas levels on Saturday 16 July 2016 were within normal levels. I am not satisfied on the evidence that the tenants have established on the balance of probabilities that the state of the premises was such that there was a risk of injury to the body or health of persons living in them at the time the tenants issued their Notice of Intention to Vacate on 18 July 2016. Accordingly I am not satisfied that the premises were unfit for human habitation at the time the tenants issued the Notice of Intention to Vacate.
3. The tenants have provided no evidence that the premises were destroyed totally. The premises were relet on 10 August 2016 for a higher rent and it is not plausible that the premises were totally destroyed on the 18 July 2016 when the tenants issued their Notice of Intention to Vacate.
4. The tenants have provided no evidence that the premises were destroyed to such an extent as to be rendered unsafe on 18 July 2016, the day they issued their Notice of Intention to Vacate. The electrical faults on 14 July 2016 may have rendered them unsafe at that time, but the emergency electrician attended that night and resolved the immediate issue by disconnecting one power point. The agents' evidence was that when they contacted that emergency electrician next day he declared the premises to be safe. Their evidence was also that no electrical works have been required at the premises since that time, and the new tenants have not raised any concerns. The emergency electrician was not at the hearing so could not elaborate any further on the condition of the premises.
5. In all the circumstances, based on the evidence, I am not satisfied that the premises were destroyed totally or to such an extent as to be rendered unsafe on 18 July 2016, the day the tenants issued their Notice of Intention to Vacate. Accordingly, I find that the tenants were not entitled to issue the Notice of Intention to Vacate.