Lynch v Manion (Residential Tenancies) [2021] VCAT 1156

For the written reasons provided, the Tribunal orders that:

1. There is no order to be made for the repairs to be carried out, the Tribunal noting that these repairs will be attended to by the rental provider after the tenancy ends.

For the written reasons provided, the Tribunal orders that:

1. The renter must vacate the rented premises by 4 October 2021.

2. At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made after 1 November 2021 and no later than 4 April 2022.

Warning to the renter: If you fail to vacate the rented premises by 4 October 2021 the residential rental provider can request the principal registrar to issue a warrant of possession. You may then be forcibly vacated from the rented premises by a police officer or an authorised person carrying out a warrant of possession.

1 Tracey Lynch (the renter) lives in a one room bedsit in Carlton (the premises) owned by Leah Manion (the rental provider).

2 The rental provider is wanting to sell the premises and requires vacant possession.[1] The renter says she is unable to move and wants to remain living in the premises during the sales campaign and seeks repairs carried out while she remains in occupation.[2]

3 For the reasons provided, it is reasonable and proportionate to make a possession order in favour of the rental provider, with the purchase of the warrant of possession delayed by the maximum time of 30 days, with no order for repairs during the tenancy, with the rental provider unable to carry out repairs while the premises are occupied.

4 In December 2020, the rental provider made enquiries with a real estate agent about selling the premises.

5 On Sunday 11 April 2021, the renter emailed the rental provider and advised that the toilet door handle was broken and that mice were entering the apartment through two holes in the kitchen.

6 On 12 April 2021, the rental provider responded that "we will address both the handle and mouse situation". She then referred to an "attached letter for your review". This letter advised that the rental provider had decided to sell the premises, and that any sales campaign would involve a disruption to the renter. It continued-

Based on the above we understand that these inspections may or may not suit you, hence why we have provided three options below for your consideration.

1. We sell the property as a vacant possession, which would require you to vacate the property. We would of course (give) (sic) the appropriate notice to you.

2. We sell the property as a tenanted property and you agree to the terms and conditions required by the real estate agent to perform their duties and we will ensure to the best of our ability that the terms and conditions are fair and reasonable to all parties involved.

3. You may be interested in purchasing the property prior to us engaging an agent, meaning we would enter negotiations via a private arrangement with you.

Please note that it is our intention to begin seeking fee proposals from various agents in the area two weeks from this email and engage an agent following those discussions.

7 On 9 May 2021 at 10.32pm, the rental provider sent a notice to vacate and contract of sale to the renter by email. The Notice to Vacate required the renter to vacate on or before the termination date of 12 July 2021 and stated that the reason for giving the notice was because-

The property is to be sold or offered for sale with vacant possession.

8 On 28 May 2021, the renter served the rental provider with a notice of repairs required to be undertaken at the rented premises. It referred to:

1. A failure / breakdown of heating

2. Unsafe / smoking rusted cooking hot plates

3. Unsafe shower tiles

4. Faulty / leaking bathroom sink faucet

5. Mice infestations

6. Broken toilet door handle

7. Related losses and expenses incurred by me.

9 On 9 June 2021, the rental provider's lawyer wrote to the renter and advised that they had already addressed the heating issue in 2016 and that "Our client is willing and able to attend to any maintenance issues that require rectification, as she has done since the commencement of the lease."

10 On 22 June 2021, the renter filed an application with the Tribunal seeking urgent repairs, non-urgent repairs, right to peace and enjoyment of the premises and for the rental provider to provide their insurers details to the renter (the repair application).[3]

11 The repair application came on for hearing on 28 June 2021. The following orders were made by consent-

1. The residential rental provider must inspect and carry out any necessary repairs to the heating, hotplates, shower tiles, bathroom sink faucet and toilet door handle. The rental provider must also inspect and treat any mice infestation and any associated areas that are permitting the mice to enter the premises. The inspection, and/or any repairs, will take place on 15 July 2021 at 2pm.

2. The residential rental provider must use a suitably qualified person to carry out any repairs or works conducted at that time.

3. The application is otherwise adjourned to a date and time to be fixed, allowing two hours, after 20 July 2021 to be heard by Member Campana of the Tribunal. The parties must send all details from the inspection to the Tribunal no less than three days before the hearing.

12 There was also a note at the bottom of the order that the issues raised by the renter in relation to the notice to vacate had not been considered and were more appropriate to be raised as a defence at any hearing for possession.

13 On 1 July 2021, the rental provider lodged an application for possession based on the notice to vacate for sale (the possession application).[4]

14 By order of the Tribunal the repair application and the possession application were listed together for hearing on 21 July 2021. Due to my unavailability on that date, the proceeding was subsequently adjourned and was heard on 9 August 2021.

15 After the hearing on 9 August 2021, I reserved my decision.

16 In accordance with the order of the Tribunal made on 28 June 2021, the rental provider's electrician husband (Kevin Manion) and the building handyman attended the rented premises on 15 July 2021.

17 Mr Manion and the renter provided different accounts of what occurred on the day and about the items requiring repairs. I will deal with the evidence and findings related to each item separately.

18 The renter says that there was no inspection or repair of the heater on 15 July 2021. She says the heater is not functioning properly and has been faulty since 2016. She disputes claims by the rental provider that the unit was "removed, rebuilt and reinstalled" in 2016.

19 Mr Manion says he asked the renter on the day of the inspection what other items he needed to attend to and was not referred to the heater. The renter disputes ever being asked.

20 It is clear there is a dispute about the heater and whether or not it is functioning. The 28 June 2021 order of the Tribunal required the rental provider to inspect the heater and carry out any necessary repairs (if it was found not to be functioning correctly). There was no inspection and therefore this item remains outstanding.

21 The renter says that the cooktop is unsafe and smokes. She says that the cooktop and its seals have been leaking fluid and grease down onto the microwave and cupboards directly underneath.

22 Mr Manion says he inspected the hotplates which he found were "pitted" and required replacement. He says he has not ordered the same as the renter informed him on the day that she does not use the cooktop. He says he did however clean up the sludge build-up behind, beside and under the microwave and fridge. Photographs were produced showing plastic, paper bags, and boxes piled on top of the cooktop.

23 The renter says that friends have given her the bags to assist with moving if she is required to relocate.

24 On the evidence presented I am satisfied that the cooktop requires replacement. I make no assessment as to the liability for the damage, other than to say that it appears to have arisen in what would be considered to be fair wear and tear.

25 The renter says that the tiles directly under the fixed shower head are loose and were responsible for her having a fall in October 2018.[5]

26 Mr Manion says he inspected, dried and cleaned the shower base and tile on 15 July 2021. He says he applied adhesive to enable the tile to stick to the recess and then the tile was duct taped around the four edges to allow the adhesive to cure. Mr Manion says he advised the renter that the curing process would take about 12 hours, and that the rental provider's solicitor would be in touch to arrange a suitable date and time to remove the tape. A photograph of the work was provided. Evidence was also provided of the solicitor's attempts to arrange a time to return to the premises.

27 The renter says that the tile has not been fixed properly. No additional photographs of the tile were produced.

28 In the absence of any further photographic evidence from the renter and with the renter not responding to requests from the rental provider to return to the premises, I am satisfied that the rental provider has complied with their obligation to have the premises in good repair. I will make no further order in relation to this item.

29 The renter says she first advised the rental provider that the shower and bathroom sink were dripping water in 2016. She says Mr Manion did not inspect this item during his attendance in July 2021.

30 Mr Manion agrees that he did not inspect this item and says the renter did not take him to this item during his attendance.

31 This item was on the list of items to be inspected in the Tribunal's order of 28 June 2021. As such this item remains outstanding and the rental provider remains obliged to inspect this item and carry out any necessary repairs.

32 Mr Manion says that a new door handle was fitted to the bathroom door. A picture of the new handle was provided.

34 As the faulty bathroom door handle has been replaced by a new handle, there is no further order to be made in relation to this item.

35 The renter says she experienced a mice infestation when works were carried out in an adjoining unit in April 2021. She says the building manager made some preliminary repairs at the time which were insufficient.

36 Mr Manion says that the renter showed him 2 small openings on one corner of the kitchenette where she believed the mice were entering the apartment. He says he sprayed one of the holes and filled the inside of the hollow section of the kicker with an expanding foam filler. He says a plastic blanking plate was also placed over the hole in the kicker. Mr Manion says he did not take any pictures of the work as it slipped his mind.

37 I am satisfied that the works carried out by the rental provider are sufficient to comply with the obligation to have the rented premises in good repair and so make no further order in relation to this item.

38 I am satisfied that there are three items requiring investigation and possible repair from the matters of complaint raised in the renter's repair application. The leaking bathroom sink faucet and heater need to be investigated to determine if these items need to be repaired and the stovetop needs to be replaced.

39 However, I decline to make orders requiring these repairs to be undertaken at this time, due to the restrictions on the attendance of trades at a property that is occupied under the Covid health orders. Any order that I would make today would be for a date after the end of the tenancy, noting that I have determined that it is appropriate for a possession order to be granted to the rental provider for the reasons that follow.

40 An application for possession under section 322 of the Residential Tenancies Act 1997 (the RT Act) can only be made if the rental provider has given the renter a notice to vacate.

41 Under s.91ZZB of the RT Act, a rental provider may give a notice to vacate rented premises, if the premises are immediately after the termination date to be sold or offered for sale with vacant possession.

42 Such a notice to vacate is required to be accompanied with documents approved by the Director of Consumer Affairs Victoria.[6]

43 The rental provider sent the notice to vacate, along with a copy of the contract of sale, to the renter by email on 9 May 2021. I am satisfied it was given to the renter on 9 May 2021.

44 The notice to vacate required the renter to vacate the premises by 12 July 2021. This termination date was 64 days after the renter was given the notice. As such the notice specified a termination date that was not less than 60 days after the date on which the notice was given and therefore complied with s.91ZZB(4) of the RT Act.

45 I am satisfied that the notice is valid, was given in accordance with the requirements of the RT Act[7] and can support an application for possession.

46 After considering the evidence of both the rental provider and the renter, I must make a possession order if satisfied that the rental provider was entitled to give the notice and the notice has not been withdrawn,[8] the renter is still in possession of the rented premises[9] and in the circumstances of this application, it is reasonable and proportionate having regard to section 330A of the RT Act, to make a possession order taking into account the interests of, and the impact on, the residential rental provider and the renter.[10]

(a) Was the rental provider entitled to give the notice and the notice has not been withdrawn?

47 Based on the history of the rental provider's engagement with real estate agents, the correspondence from the rental provider to the renter providing options related to the sale of the property in April 2021, the preparation of a contract of sale, and that the works proposed to prepare the property for market are minor in nature and can be carried out in a short period of time, I find that the rental provider intends to immediately offer the premises for sale.

49 I am satisfied that the rental provider was entitled to give the notice as the grounds for giving the notice have been established and the notice has not been withdrawn.

(b) Is the renter still in possession of the rented premises?

50 The renter was in possession of the premises after the termination date and remains in occupation.

(c) Is it reasonable and proportionate to make a possession order?

51 For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard, in this application, to the following criteria set out under section 330A of the RT Act:

(a) whether any other order or course of action is reasonably available instead of making a possession order,

(c) any other matter the Tribunal considers relevant.

52 The renter's position: The renter has been in the premises for six years. She claims that she is unable to move due to physical and mental health issues, and has produced medical evidence in support that state she is unable to move ahead of mid-September 2021. The renter says that she is a pensioner and unable to pay for a removalist. She says she uses her savings and Centrelink benefits to pay the rent. The renter says she has looked at some other properties but is not prepared to take on a 12-month lease because she is uncertain about being able to pay the rent or what the future will hold. The renter was asked about her ability to move to another unit within the complex where she is currently living, that is being offered for rent at a cheaper rate than her current apartment. She claimed she was not physically capable of moving.

53 The rental provider's position: The rental provider says that the agent she has engaged has advised her that the premises will obtain a higher price if they are tidied up and some minor renovation work is carried out. The agent has also advised the rental provider that it should be sold with vacant possession as it will attract a greater market of buyers. The rental provider gave evidence of wanting to sell the premises to fund future endeavours for her family, and not of any impending financial need. The rental provider's agent has advised that there are numerous properties for rent that are in a better condition than the premises and available at a cheaper rent, including the unit which appears to be close to the premises and within the same complex.

54 The hearing of this application for possession was heard in early August 2021. Due to other demands on my time, I have not been able to attend to these reasons until late-September. While the last six weeks has been met with harsher lockdown restrictions for metropolitan Melbourne, recent vaccination targets have provided an avenue for greater freedom of movement, including property inspections.

55 I accept that the renter has made the premises her home for six years and that she will find it mentally challenging to relocate. While she has physical injuries that will impact on her ability to move premises, they are restrictive in nature and not prohibitive. The renter has limited possessions requiring relocation and has already started the task of preparing them for a move, with photographs showing many items in boxes and shopping bags being collected for easy transport.

56 I do not accept that the renter cannot move or that she will be rendered homeless if a possession order is made. There are a number of rental properties on the market that are close to the premises that offer the same amenities and are cheaper to rent. The renter's reluctance to enter a fixed term lease of 12 months is unfounded given her history of being able to pay a more expensive rent where she currently resides.

57 After viewing the photographs provided of the premises, I am in no doubt that a "tidyup" would attract a greater number of buyers. I also accept that the property would suit an owner occupier rather than an investor. While the rental provider is in no immediate need to sell the premises, she has waited five months since first putting the renter on notice that she wanted to sell. She is entitled to realise her asset, and it is reasonable that she wants to take advantage of the current market and get the best price possible by selling it with vacant possession.

58 Taking into account the interests and impact on both the rental provider and the renter, I am satisfied that it is reasonable and proportionate to make a possession order.

59 As the rental provider was entitled to give the notice to vacate, the notice has not been withdrawn, the renter remains in occupation of the premises and a possession order is reasonable and proportionate, I must make a possession order.

60 In making a possession order under Part 7 of the RT Act, the Tribunal may postpone the issue of the warrant of possession up to a maximum of 30 days after the date of the order, if satisfied that (a) the renter would suffer hardship if the issue of the warrant were not postponed and (b) the hardship would be greater than any hardship that the rental provider would suffer because of the postponement.[11]

61 The renter will need time to source and relocate to a new home. It is clear that she would suffer hardship if not given time to do so. The rental provider is in no immediate need to sell the premises and a further period of time before she has vacant possession will enable her to prepare for the immediate sale of the premises when it is unoccupied.

62 It is appropriate in the circumstances to delay the issue of the warrant for the maximum time allowed.

[5] The renter is making a personal injury claim related to this matter with the rental provider's insurer. I make no finding in relation to this claim.