4. LJ Hooker, Dickson were engaged by the lessor as selling agents. Mr Stephen Bunday, Managing Director, undertook all correspondence with the tenant and arranged for advertising and showing of the premises to prospective purchasers:

1. First contact was by phone call on 28 September 2010, with an initial meeting between Ms Minion and Mr Bunday on 30 September 2010; 2. It was agreed that the premises would be made available for inspection by prospective purchasers on Saturdays and Wednesdays at 2.30 pm: inspection would be by appointment and limited to groups of three persons at any one time. Ms Minion was to be present at the inspections. The premises were advertised with instruction to contact the agent, no open house inspections were arranged and the photos displayed were of the exterior, kitchen and bathroom.

1. Inspections by appointment took place on Saturday 30 October and Wednesday 3 November.

5. Inspections by appointment ceased from 3 November as LJ Hooker were unable to obtain a response from the tenant to messages or phone calls. The tenant engaged Donohue & co, Lawyers: on 9 November they contacted

Mr Bunday, LJ Hooker and informed him that inspections by prospective purchasers should cease and that the lessor and Mr Bunday were to stay away from the premises.

6. On 9 November Ms Minion served a Notice to Remedy on Mr Mann and his agent Mr Bunday. The Notice to Remedy stated that the tenant considered that the lessor and his agent had breached clause 52 of the Act[sic] by:

1. Excessive access 2. Repeated failure to provide adequate notice of access;

7. The Notice to Remedy required the lessor and his agent to remedy the alleged breach within 14 days.

8. On 9 November 2010 Ms Minion made an application to the ACT Civil and Administrative Tribunal (the Tribunal) for resolution of a dispute with regards to access and for compensation.

9. On 24 November 2010 the lessor served a notice of termination on the tenant. This notice was in accordance with clause 96(1)(c) of the tenancy agreement.

10. On 2 December 2010 Ms Minion wrote to Mr Mann informing him that she would vacate the premises on 23 December 2010.

1. The Tribunal heard the matter on 7 December 2010. Ms Minion, Mr Mann and Mr Bunday gave evidence. It was evident to the tribunal that the tenant was agitated and distressed; she alleges that she was pressured or 'bullied' into agreeing to access by the painters on weekends. The written correspondence between the lessor and the tenant, however, shows that the tenant had agreed to weekends. In relation to the painting of the exterior of the house Ms Minion's complaints are:

1. That the painting was done on weekends in contravention of the tenancy agreement; 2. That the painters arrived at 8.35am instead of the agreed time of 9 am on a weekend;

1. That the painters did not attend on some days and she was not informed properly of their timetable.

2. In relation to the access for prospective purchasers Ms Minion's complaints are:

1. That the agent attempted to push her into agreeing to open house inspections; 2. The arrangement of each inspection required many messages and correspondence;

1. That she was threatened with eviction if she did not allow inspections.

3. The tenant confirmed to ACAT that she intended to vacate the premises on

23 December and Mr Bunday and Mr Mann informed the Tribunal that, while the premises were to be sold, no further advertising or inspections by prospective purchasers would take place until after Ms Minion had vacated the premises.

1. Section 83 of the Residential Tenancies Act 1997 provides that the Tribunal may make orders requiring the payment of compensation for any loss caused by the breach of a residential tenancy agreement.

2. Clause 52 of the tenancy agreement provides: 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.
3. Clause 75 of the tenancy agreement provides that the lessor must not require access to the premises during the tenancy except as provided by the law, this tenancy agreement, the Residential Tenancies Act, or an order of the tribunal. However, the clause also provides that the tenant may permit access to the premises by the lessor at any time.

4. Clause 76 provides that the lessor must not have access to the premises -

(d) for the purpose of carrying out urgent repairs or for health or safety reasons in relation to the premises; or

Ms Minion submitted to the Tribunal that the conduct of the lessor, the painters and the selling agent constituted harassment and undue interference with her quiet enjoyment of the premises. Ms Minion asserted that although she agreed to inspections and access outside of the usual times, she was not comfortable in doing so. Ms Minion told the Tribunal that she often felt one thing but said another. The evidence before the Tribunal, apart from the oral evidence of each party and Mr Bunday, consisted of emails and letters. These show that the tenant was consulted appropriately; she consented to the arrangements for access by the painters and inspections by the selling agent and prospective purchasers. The correspondence was professional and polite. There was nothing unusual or unduly onerous in any of these arrangements, and once it was evident that the tenant was unhappy with the inspections, they ceased.

At the hearing on 7 December the Tribunal noted that since the inspections were suspended until after Ms Minion vacated the premises there was no need for the making of orders in relation to access.

The matter was adjourned for a written decision and parties were given

While it is true that even necessary repairs can interfere with the tenants use and enjoyment of the premises (Worrall v Commissioner for Housing [2000] ACTRTT 12 (31 July 2000)), Ms Minion has not produced evidence to establish that the loss on amenity or interference with their quiet enjoyment of the premises occasioned by the painting or the inspections constituted substantial interference with her enjoyment of the premises. Nor is there any evidence as to what loss she had suffered. The Tribunal notes that no action or complaint was made until it was evident that the house was to be sold: Ms Minion was understandably annoyed that she had allowed the painting, even though the times were not convenient, only to find that the painting was not being done for her benefit as a tenant but in preparation for sale of the premises. This annoyance is not interference with quiet enjoyment and cannot be the basis for an award of damages.

Two other matters were specifically raised by Ms Minion: the phone call by the selling agent to her father, and the unannounced visit to the premises by a prospective buyer. The Tribunal received evidence that the phone call to

Ms Minion's father had occurred, after LJ Hooker had been trying to contact her and received no response to messages. They had been informed that the premises were no available for inspection due to her illness. The Tribunal accepts that the telephone call to her father was not a deliberate invasion of her rights but motivated by concern. The Tribunal also received evidence that the prospective buyer was acting alone and contrary to the requirement to contact the agent to arrange inspection. While this is unfortunate, the visit was not caused by any action by the lessor or his agent.

TRIBUNAL MEMBER/S: Ms J. Lennard, Senior Member

DATE OF DECISION: 27/01/2011 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )