Victorian Civil and Administrative Tribunal|2015-01-05|Before: Member J

The application be amended to be made pursuant to s.209 of the Residential Tenancies Act 1997.
The proceeding is dismissed.

The tenant's application dated 9 December 2014 claims $1,564.00 as compensation by reason of landlord's alleged breach of duty to maintain the premises.
The tenant's application was made pursuant to s.452 of the Residential Tenancies Act 1997 ('the Act'). However, it should have been made pursuant to s.209 of the Act. By consent I amend the application accordingly.

The tenancy commenced in November 2013. The landlord served a 120-day notice to vacate with a termination date, 2 January 2015.
The tenant said that she had agreed to leave the property and had arranged to vacant the property within the next 14 days. However, she claimed that she was entitled to the amount of compensation claimed, being the equivalent of her removal costs, as a result of the landlord's breach of duty to maintain the premises.
The tenant claims that the property was in very poor condition. In particular she states that the property had the following defects ('the defects'):

Cracking from the ceiling to the floor in the first, second and third bedrooms. 2. Gaps in skirting boards throughout the house.

Pigeon infestation 2. Falling down fence 3. Bedroom door not opening.
The tenant claimed that the landlord had breached its duty to her failing to repair the defects and accordingly to maintain the property in good repair.
The tenant said that her eldest son, Arthur Edwards ('Arthur'), had a medical condition, a result of which he had the use of only one and half lungs. In addition, she claimed that her youngest son, Kaleb Kerr ('Kaleb"), suffered from asthma. Her evidence was that the medical conditions of both her sons were exasperated as a result of living in the property and, in particular, the nesting of pigeons which had caused Arthur to move out of the property.
The landlord accepted that the property was in poor condition, but stated that it was in substantially the same condition as at the time the tenant took possession. A condition report signed by the tenant and the landlord in November 2013 showed that the defects identified in her application, save for the pigeon infestation, were present at the time of her taking possession of the property.
Whilst the defects were unpleasant they did not affected the use of the premises. In addition the condition of the property was reflected in the rent paid. As such in relation to the defects I find there was no breach of duty.
In relation to the infestation of pigeons, it was agreed that it was not brought to the attention of the landlord during the course of the course of the tenancy.

The property is in poor condition. The tenant has an obligation under s.209 to advise the landlord of any defects in the premises that constitute as breach of duty. The landlord then is required to take steps to investigate and if necessary to reedy the breach by repairing the premises.
In this case the condition of the property was in substantially the same condition as at the start of the tenancy and the landlord was not informed of the infestation of pigeons. Accordingly, there is no breach of duty by the landlord as alleged.
Indeed the reason for the tenant's intention to vacate the premises was because of 120 days notice having been served by the landlord and not due to the condition of the premises.
For the reasons provided I dismissed the proceeding.

Kerr-Lubelski v The Landlord (Residential Tenancies) [2015] VCAT 326 (5 January 2015)

Kerr-Lubelski v The Landlord