This is an application by Kumar Venkataiah and Keethi Cheluvaraj (the tenants) for various orders pursuant to sections 50, 65, 66, 73, 187 and 190 of the Residential Tenancies Act 2010 (RT Act), and on other unspecified grounds, that would require the landlords, Kai and Harumi Sekiguchi (the landlords), to pay them $50,000.00 in compensation for damage and loss the tenants contend they have suffered due to various actions and inactions by the landlords, landlords' Managing Agent, the Executive Committee of the Owners Corporation of the Strata Plan in which the residential premises is located, and some neighbours. This application was made to the Tribunal on 20 April 2021 (the tenants' application).
The tenants' application also sought a declaration pursuant to section 115 of the RT Act that a termination notice that had been issued to them on 12 January 2021 was retaliatory and of no effect. That application has been considered and determined in a related application brought by the landlords for a termination order (RT 21/21196) (the landlords application) which was heard together with the tenants' application.
When the application was made, only Mr Venkataiah was listed as an applicant party on the tenants' application. However, it is clear from the face of the residential tenancy agreement that he and his wife, Ms Keethi Cheluvaraj, are co-tenants. As the outcome of these proceedings will also determine her rights with respect to the subject matter of the application, Ms Cheluvaraj is a proper party to the proceedings and is joined as an applicant.
The application had been first listed before the Tribunal in a Group List for Conciliation and Hearing on 17 May 2021. That hearing was conducted by telephone in accordance with NCAT's Coronavirus (COVID 19) Temporary Changes to NCAT Operations procedure (18 March 2020 and as subsequently updated). The tenants attended that listing of the application in person. The landlords were represented, with leave, by a Managing Agent, Mr Costa Athanassiou. In accordance with the usual practice where both parties are present in person at the first listing of an application, the Tribunal attempted to assist the parties to resolve the dispute cooperatively by conciliation. Those efforts were not successful. As a consequence, the proceedings were adjourned for a Special Fixture hearing.
Prior to the first listing of the application, the Divisional Registrar had issued directions to the applicants to file and serve their evidence to which they had responded. It appears that at the first hearing both parties advised the Tribunal that they were content to proceed on the basis of the evidence the tenants had filed, so no further directions were made for the filing an exchange of evidence. The tenants bundle was marked Exhibit A1.
The application was listed for final hearing by telephone with the landlords' application. Both tenants attended the hearing and gave oral evidence under a promise to tell the truth. The landlords were again represented by Mr Athanassiou, who also gave evidence under a promise to tell the truth. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.
The dispute arises from a residential tenancy agreement that was made on 2 December 2017 for an initial fixed term 26 week period which ended on 1 June 2018. The tenancy has continued on a periodic basis since the end of that fixed term agreement. The residential premises is a town house in a Strata Plan which was completed in 2017. The house has three bedrooms and bathrooms, living and utility rooms and a garage. The rent payable under the agreement is $520.00 per week
The complaints the tenants pursue in this application may be summarised as follows:
1. The roof of the premises has leaked since the start of the tenancy through a sky light in one bathroom despite repeated requests by the tenants that the sky light be repaired to prevent water ingress. The leak has caused water to spill onto the floor of the bathroom and noise which has disturbed the tenants' sleep. On 19 March 2021 Mr Venkataiah slipped and fell in pooled water that had leaked onto the bathroom floor through the sky light and suffered a serious personal injury;
2. The tenants have been unfairly fined three times for parking their car in visitor parking on the common property of the Strata Scheme. The fines are unfair because other owners and occupiers of Lots within the Strata Scheme have not been fined when they have parked their cars in the visitor parking area and because the landlords agent told the tenants it would be ok to park in the visitors car park for a "few hours". As a result of their refusal to pay the fines the tenants received notification from the landlords' agent of a proposed listing on the TICA Tenancy History Database which compelled them to pay the amount in dispute which was $329.95. The fines were issued on or before 30 October 2018;
3. The landlords unreasonably refused permission for the tenants to install the NBN in May 2020 and did not grant permission until December 2020 by which time the tenants had to wait a further 3 months for its installation. As a result of the landlords' refusal the tenants had to endure a costly and poor quality alternative internet service for a period of approximately 10 months;
4. The landlords failed to repair the lock on an external door of the premises for a period of 4 weeks leaving the premises unsecured. The landlords have refused to allow the tenants to change the security code which is known by the tradespersons who installed the new lock which they say creates a further safety and security risk for the them;
5. A tile on the front stairs of the town house became cracked and loose in October 2019. The tenants reported the cracked tile on 16 October 2019, but it was not repaired by the Owners Corporation until March 2021;
6. The landlords unreasonably refused to permit the tenants to install flyscreens on the windows of the premises when the tenants requested to do this at the landlords' expense in December 2018;
7. The landlords have failed to clear the gutters of the premises over the course of the tenancy and only did so in March 2021;
8. The landlords have prohibited the tenants' son from playing ball games in the common property of the Strata Scheme at the request of the Owners Corporation. The children of other owners and occupiers have not been prevented from playing in the common areas;
9. The tenants are victims of bullying, harassment, and discrimination perpetrated by a group of neighbours who have ganged up on them and cause them to be treated differently to other owners and occupiers by the Owners Corporation and its Strata Manager.
The tenants documentary evidence in relation to the leaking roof consists of a photograph of a sky light which appears to be hanging loose from the ceiling and which has an accumulation of twigs and leaves in its cup, a photograph depicting a wet tiled floor on top of which sits a bucket, an email exchange concerning a maintenance request dating to on or about 26 February 2020 in which the tenants request and the landlords agent refuses to repair a reported roof/ceiling leak. The relevant sections of the maintenance request and its refusal are set out following:
Brief Description: URGENT ROOF LEAK.CEILING LEAK
Details - Tenant has reported that water is currently leaking through the upstairs bathroom light and skylight "please be advised this was temporarily fixed by your office earlier in the year and is now an issue again. We would like a permanent solution please"
…
As a courtesy we inform you that the below maintenance request that you submitted has been cancelled.
…
Brief Description: Roof leak
Details: Due to extreme rain event roof cover for toilet blown off. Builders have temporarily fixed it. Permanent fix to be done.
Date 26-Feb-20
Reason: The bathroom skylight appears the same way it appeared when tenant moved in. Photos can be provided. If the cover is loose, tenant may tighten the cover by hand using the nut in the centre of the cover. Not a genuine repair that requires intervention by a tradesman
The tenants have also submitted in relation to this element of the claim an email Mr Venkataiah sent to the landlords' agent on 19 March 2021 to advise that he had slipped on water that had leaked through the skylight onto the bathroom floor at approximately 4am that morning and was experiencing pain in his left foot and knee. There is also a doctor's certificate in evidence dated 19 April 2021 which states
This is to certify that Mr Kumar Venkataih (sic) He is a patient of this clinic. From the medical history I know that on 19/03/2021 he had a fall (mechanical fall) and injured his Lt lg.
I wish him the best.
And there is doctor's script for what the tenants contend is a pain relief medication (Meloxicam) written by the same doctor also dated 19 April 2021.
The tenants ask the Tribunal to order the landlords to carry out a repair to the skylight to prevent water ingress, and to compensate them in unspecified amounts for the loss of comfort and amenity they have suffered due to the leaking sky light over the course of the tenancy, and for Mr Venkataiah's personal injury which they contend was caused by water leaking onto the floor.
Even on the very limited evidence available to me I am satisfied that the tenants are entitled to the order for repair. They plainly put the landlords on notice, via their agent, that water was entering the bathroom through and around the skylight on 26 February 2020. The landlords' agent's response to the tenants' request for repair was manifestly unreasonable. Without any inspection first being carried out by a suitably qualified tradesperson thr agent characterised the request as "not a genuine repair" and directed the tenants themselves to go about attempting to fix the sky light. As a matter of law it is the landlords' responsibility to maintain the premises in a reasonable state of repair, including in relation to waterproofing, not the tenants. That is the case whether the skylight is merely loose, or requires more substantial repair.
The tenants' compensation claims in relation to this issue are far less compelling. Although the tenants complain of many sleepless nights due to the noise caused by water leaks, and about the constant inconvenience of catching and cleaning away water that entered the bathroom through the skylight these claims appear to me implausible. First, the tenants have only produced objective evidence of complaint to the landlords' agent about the skylight leak on two occasions, being 26 February 2020 and 19 March 2021. The complaint made on 26 February 2020 does refer to a similar leak "earlier in the year" but the implication of that statement is that there had been no recurrence of the leak since that time up to 26 February 2020. There is no objective evidence of any complaint made about a leaking skylight between 26 February 2020 and 19 March 2021. If the situation had been as bad as the tenants contend I am satisfied there would be greater evidence of complaint. I am thus left to conclude, despite what the tenants claim, that water ingress through the skylight was an infrequent event, possibly related only to extreme weather events or particular weather conditions that caused rain to penetrate.
In assessing the impact of these infrequent events on the tenant's comfort and amenity it is necessary to take account of the fact that the area of the premises in which the water entered was a bathroom (wet area). The area immediately below the skylight was a tiled floor tapering to a waste outlet in the centre of the floor. In these circumstances it is difficult to see how the tenants could suffer the degree of inconvenience in catching and cleaning away water they contend for. It may be accepted that some mopping may have been necessary but most water would have run off through the waste of its own accord. I am also obliged to take into account that the premises had three bathrooms, two of which remained in use, and that if the falling water did create noise, the impact of that could have been reduced by closing the bathroom door during the rain event.
An application in relation to a breach of a residential tenancy agreement must be made within three months of the applicant becoming aware of the breach, the breach being in this case, the landlords' failure to maintain the premises in a reasonable state of repair (section 190(1) of the RT Act and Regulation 39(9) of the RT Regulation). Clearly, the tenants' application in so far as it concerns the leaks that occurred on 26 February 2020 is out of time. However, the application insofar as it concerns the leaking event on 19 March 2021 is within time. Doing the best that I can on the state of the evidence I will allow the tenants $100.00 in compensation for their loss of comfort and amenity of the premises, and their disappointment, in relation to that event.
The tenants claim for personal injury compensation arising from the landlords' breach cannot be entertained. There is no sufficient evidence to establish the nature or impact of any such injury or if that injury has the necessary causal relationship to the leaking sky light. This element of the claim is advanced on the basis of bare assertions supported by a vague medical history and doctors' script. This evidence is wholly insufficient to discharge the tenants' onus of proof.
There is no dispute that the tenants repeatedly parked in the visitors' car park on the common property of the Strata Scheme. On three occasions that they did so they were issued with fines by the Owners Corporation which total $329.95. The specific dates in relation to which the tenants were fined, and the details of the fines themselves are not in evidence. However, it appears from a later statement issued to the tenants by the Strata Scheme Manager which is in evidence that each of the fines was issued before 30 October 2018. The tenants objected to the fines and refused to pay them until October or November 2020 (the actual date not being in evidence) when they were paid in response to correspondence from the landlords' agent which stated that this debt would be listed on the TICA Tenancy History Database if it was not paid.
The tenants contend that the landlords should compensate them for the cost of the fines and for their pain and suffering in an unspecified amount for the discrimination, harassment and threats they received in relation to the fines from members of the Executive Committee, Strata Manager, and the landlords' agent.
Three bases for a compensation order in relation to the parking finds are asserted. First, it is said that the tenants were not provided with a copy of the Strata Schemes By-Laws by the landlords' agent, and as a consequence, the tenants did not know that they were prohibited from parking in the visitors' car park. Second, it is said that the landlords' agent granted the tenants permission to park in the visitor car park for a "few hours" and that the fines were issued to them in spite of that permission. Third, it is contended that the tenants were treated differently to other owners and occupiers, including members of the Executive Committee, who also parked in the visitors' car park but were not fined.
The landlords contend that the fines were issued by the Owners Corporation for breach of the By-Laws concerning the use of visitor car parks by the tenants. They submit that their Managing Agent made appeals to the Owners Corporation, via its Strata Manager, to waive these fines, but the Owners Corporation refused to do so. They contend that the tenants were provided with a copy of the Strata Schemes' By-Laws at the start of the tenancy and that they were repeatedly warned by Members of the Executive Committee, Strata Manager and staff of the landlords' Managing Agent not to park in the visitor car park prior to the fines being issued. The landlords deny that the tenants were ever given permission by their Managing Agent to park in the visitor's car park for a few hours.
Neither party has filed a full copy of the residential tenancy agreement that was made on 2 December 2017. Only the front and signature pages are in evidence. It is therefore not possible for the Tribunal to know with certainty what the agreement said in relation to the By-Laws of the Strata Plan, if anything. Nevertheless, the agreement appears to be in standard form, and the standard form agreement in force at that time included in clause 35 a landlord obligation to provide the tenants with a copy of the Strata Scheme's By-Laws within seven days of the agreement being signed (see schedule 2 of the Residential Tenancies Regulation 2010).
The first difficulty for the tenants is that even if that obligation were breached by the landlords any application to the Tribunal in relation to that breach had to be made within 3 months of them becoming aware of the breach: section 190(1) of the RT Act and Regulation 39(9) of the RT Regulation. The tenants must be taken to have become aware of the breach (if it existed) when they received warnings and ultimately fines related to them parking in the visitors' car park. This was before October 2018 and their application to the Tribunal was not made until 22 April 2021, some two-and-a-half years later. The application, insofar as it concerns the parking fines, is therefore manifestly out of time.
In any event, the tenants own submissions (at page 9) disclose that they were informed of the By-Law concerning visitor parking by a neighbour in August 2018 and this was apparently before any fine had been imposed. On their own case the tenants were thus on notice as to the potential consequences of parking in the visitors car park from August 2018 and did so thereafter at their own peril. There is no contemporaneous evidence that is capable of satisfying the Tribunal that the landlords' agent granted the tenants permission to park in the visitors car park for "a few hours". That is denied by the landlords and that denial is congruent with the fact that the landlords' agent did not have the power to grant such permission within its gift. The landlords' agent is not the Owners Corporation of the Strata Scheme or its Strata Manager. Additionally, the tenants received three fines, which reflect persistent behaviour in parking in the visitors' car park contrary to the relevant By-Law. These fines thus do not relate to a single instance of parking in the visitor car park for a "few hours". If the tenants were treated differentially to other owners and occupiers in the issue of these fines that is not a matter that can be dealt with in residential tenancy proceedings for the reasons stated following in relation to the tenants discrimination claims..
This element of the tenants claim is therefore out of time and without merit. It must be dismissed.
There is no factual dispute in relation to the tenants' claim that the landlords refused to permit them to install the NBN when they requested permission to do so in May 2020. The refusal appears in email to the tenants dated 25 May 2020 from the landlords' Property Manager. The reason for refusal stated in the email is as follows:
The landlord has advised that they are not going to approve the NBN connection to the property unless you pay for the compensation of the parking charge - total amount $329.95
As mentioned previously, NBN is not be installed until approval is given by the landlord.
..
The landlords' permission to install the NBN was subsequently given on 22 December 2021 after the tenants had paid the parking fines that had been issued to them by the Owners Corporation. That approval appears in an email to the tenants from the landlord's agent issued on that date. The NBN was subsequently installed on 11 March 2021, which was the first available date the NBN contractor could offer the tenants after they obtained the landlords' approval.
The tenants contend that as a result of the landlords' refusal to permit them to install the NBN they were forced to rely upon mobile data which was expensive, slow, and unreliable. Some evidence of the slow speed of the internet connection the tenants had to rely on has been submitted. No actual evidence of economic loss associated with the use of alternative data sources has been submitted.
This element of the tenants' case engages the provisions of section 66 of the RT Act as it was in force in May 2020, which includes the operation of section 66(2A) which had been introduced to the Act by the Residential Tenancies Amendment (Review) Act 2018. The section provides:
66 Tenant must not make alternations to premises without consent
A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises;
A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation, that is of a minor nature;
(2A) The regulations may make provision for or with respect to the following:
(a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,
(b) the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install the a fixture, or carry out alterations, additions or renovations, of that kind.
(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.
(4). A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.
(5) This section is a term of every residential tenancy agreement.
Regulation 22 of the RT Regulation is made pursuant to section 66(2A). It relevantly states:
22. Fixtures or alterations, additions or renovations to residential premises - s 66(2A) of Act
(1) For the purposes of section 66(2A)(a) of the Act, the following are kinds of fixtures alterations, additions, or renovations of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent:
…
(j) installing a carriage service for connecting a phone line or accessing the internet and any facility or customer equipment associated with the provision of the service.
…
(2) For the purposes of section 66(2A)(b) of the Act, a fixture, or alteration, addition, or renovation specified in subclause (1)(h) or (j) may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.
(3) However, this clause does not apply -
(a) to premises under a residential tenancy agreement that comprise or include a lot in a strata scheme if the fixtures or alterations, additions or renovations -
(i) affect common property, other than a prescribed fixture, or alteration, addition or renovation that is cosmetic work (within the meaning of section 109(2) of the Strata Schemes Management Act 2015), or
(ii) would contravene the by-laws made for the strata scheme
Section 109(2) of the Strata Schemes Management Act 2015 prescribes "cosmetic work" in the following terms:
"Cosmetic work" includes but is not limited to work for the following purposes:
(a) installing or replacing hooks, nails or screws for hanging paintings and other things on walls
(b) installing or replacing handrails
(c) painting
(d) filling minor holes or cracks in internal walls
(e) laying carpet
(f) installing or replacing internal blinds and curtains
(h) any other work prescribed by the regulations for the purposes of this section (no other work is prescribed by regulation)
I am satisfied that the installation of the NBN is cosmetic work within the meaning of section 109(2) of the SCM Act. Although the installation of a carriage service is not specifically referred to in that section, the list of cosmetic works is not closed, and the installation of a carriage service is work that has very limited impact on the fabric of common property which aptly falls within the scope of the section. It follows from this conclusion that the landlords had it within their power to consent to the tenants' installation of the NBN in that they were not prevented from doing so because this affected the common property of the strata scheme.
Regulation 22(1)(j) of the RT Regulation specifically provides that it is unreasonable for a landlord to refuse to permit a tenant to install a carriage service such as an internet connection. The landlords' refusal was thus unreasonable by operation of that section. I am also satisfied that this was the case on an objective basis. In this day and age most people rely upon reliable internet services to perform activities of daily life, including in relation to work, study and entertainment. It is quite unreasonable to interfere with the tenants' receipt of such a service. The question of the visitor car park fines was an entirely independent issue and one in relation to which the landlords had a readily available remedy, which was an application to the Tribunal to determine that dispute. It was unreasonable for the landlords to link consent to install the NBN to payment of the car park fines. They had nothing to do with each other.
As I have noted, the tenants have failed to file any evidence of economic loss suffered as a result of the landlords' refusal to permit the installation of the NBN. Nevertheless, I am satisfied that it had a significant impact on the comfort and amenity with which the premises could be used as a residence and that it also resulted in serious disappointment of the tenants' reasonable expectations of their possession of the premises. Doing the best that I can on the evidence before me I will allow the tenants $500.00 in compensation for that damage and loss calculated at $50.00 per month for 10 months.
The tenants claim in relation to the door opening device (or lock) and security code is difficult to grapple with. This issue is not referred to in the tenants' original application. What is said about in in the submissions filed on 27 April 2021 is set out following:
We had to live in fear of robbery for 4 weeks before to fix the security lock, despite urgent request. Replacement lock is not like for like. I cannot change the security code and the code to open my house is known to two tradesmen, who installed the lock. We are living in secure (sic) even after repair. New lock doesn't even have a mechanical key nor key pad light up. Need to rely completely on remembering the code and mercy of its performance. If battery fail or multiple wrong entries will lock us out and any other issue can lock us out.
The only evidence the tenants have filed in support of this element of the claim is an email to Mr Venkataiah from Mr Athanassiou dated 23 March 2021 which is apparently in response to a complaint made by Mr Venkataiah about the tenants' inability to change the security code for the opening device. Mr Athanassiou states:
The contractor is a licensed and qualified locksmith who we have been using for over 14 years; there is no safety concern.
They are not in the business of giving the passcodes to any property they visit to strangers.
In oral evidence and in argument at the hearing the focus of this element of the claim was whether the tenants were entitled to change the security code for the opening device in question. Nothing sensible was said in relation to any delay in repair, or loss of security, due to the opening device's prior malfunction, if there was one. There are therefore no grounds and no evidence upon which the Tribunal could make a compensation order in relation to this issue.
The remainder of the dispute, which is whether the tenants are entitled to change the passcode for the security device, engages the provisions of section 70 of the RT Act, which is relevantly set out as follows:
70 Locks and other security devices
(1) A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises is reasonably secure.
(2) A landlord or landlord's agent must give to each tenant named in the residential tenancy agreement a copy of the key or other opening device or information required to open a lock or security device for the residential premises or common property to which the tenant is entitled to have access
…
Section 191 of the RT Act sets out the matters to be considered by the Tribunal in applications relating to security breaches. It provides:
191 Matters for consideration by Tribunal in applications relating to security breaches
(1) This section applies to proceedings before the Tribunal relating to a breach of Division 7 of Part 3
(2) For the purposes of determining whether a landlord has provided residential premises that are reasonably secure, the Tribunal may consider (but is not limited to considering) the following matters:
(a) the physical characteristics of the premises and adjoining areas
(b) the requirements of insurance companies for allowing the tenant to obtain insurance for property of the tenant kept at the premises,
(c) the likelihood of break-ins or unlawful entry or risks to the tenant's personal safety.
(3) For the purposes of determining whether compensation is payable to a tenant for a breach of the obligation to provide residential premises that are reasonably secure, the Tribunal must consider (but is not limited to considering) the actions taken, or that ought reasonably have been taken, by the tenant and the landlord for the security of the premises.
On the evidence before me I cannot conclude that there was any breach by the landlords of their obligations to the tenants under section 70(1) or 70(2) having regard to the matters to be considered under section 191. There is no issue that the locking device works effectively to secure the premises. There is no issue that both tenants have been provided with the code to open the security device in issue. That code is known to the landlords' locksmith, who installed the device, but there is no reasonable basis upon which it might be concluded that there is a likelihood that locksmith will gain unlawful access to the premises to interfere with the tenants' possessions or threaten the tenants' safety, or that the locksmith would disclose the security code to any third party. The tenants have not presented any evidence that any insurer has refused or limited insurance because of this arrangement.
It is also relevant to have regard to the terms of sections 71 and 72 of the RT Act which, relevantly, have the effect of prohibiting a tenant from changing a security device (presumably including its activation code) without a landlord's consent or reasonable excuse, and if such a change were to be made by a tenant the landlord would have to be given any new security code within 7 days unless the landlord agreed otherwise.
I am thus not satisfied that there is any basis in law for the tenants to be able to change the security code for the locking device in dispute such that it is only they, and no-one else, who knows what it is. Landlords commonly retain keys and security codes for premises subject to lease. In this respect the situation is analogous to master or duplicate keys for rented premises which are typically held in reserve by a landlords' agent or locksmith.
For these reasons this element of the claim is without merit and must be dismissed.
With respect to the broken tile on the front step of the premises, as has already been stated, an application in relation to an alleged breach of a residential tenancy agreement must be made to the Tribunal within three months of the applicant becoming aware of the breach: section 190(1) of the RT Act and Regulation 39(9) of the RT Regulation. It is clear that the tenants' complaint about the broken tile arose years before their application was made to the Tribunal and that it was rectified by the Owners Corporation of the Strata Plan before their application was made sometime in mid-March 2021. The Tribunal is therefore limited to considering if the tenants suffered compensable loss because of the landlords' failure (as between the landlords and the tenants) to maintain the tile (being common property that was maintainable by the Owners Corporation) in a reasonable state of repair during the three month period immediately prior to the date of their application.
It is clear that the tenants reported the cracked tile to the landlords' agent on 16 October 2019 and requested its' repair. That request was referred at that time by the landlords' agent to the Owners Corporation's Strata Manager, the tile being common property. There does not appear to be any dispute as to the condition of the tile. It is on the bottom step on the outer front edge. The cracked component is also apparently loose, although I note that it did not detach over a two and a half year period after the tenants' complaint. The cracked tile did not affect the function of the step because it was on the periphery of it, other than perhaps to cause users to step cautiously so as to avoid the cracked area, but the outer edge of a step is not a usual tread area anyway. It is somewhat unsightly, but not seriously so. The primary and perhaps only real impact of the broken tile was therefore aesthetic.
Nevertheless, the appearance of residential premises is a factor of the consideration of possession in return for which rent is paid, and the broken tile is at the front entrance of the premises, which is a high impact area in terms of the presentation of the premises. It must be accepted that the appearance of the tile had some minor negative impact on the value of possession relative to rent paid. Doing the best I can I will allow the tenants $20.00 in compensation calculated at approximately $10.00 per month for the two month period the tile remained cracked (21 January 2021 to mid-March 2021) within the three month period before the tenants' application wade to the Tribunal.
The tenants submit that the guttering of the premises was "full of tree branches and leave (sic), stinking for 3 years" and was not cleaned until 21 March 2021. The tenants seek an unspecified sum of compensation in relation to the condition of the gutters.
The evidence in relation to the tenants' complaint about the condition of the guttering is limited to two photographs, one which is stated to be "before cleaning" and the other is stated to be "after cleaning". The 'before' photograph depicts an accumulation of leaves and twigs in the guttering. The 'after' photograph depicts leaves and other detritus scattered on an area of pavement apparently immediately in front of the guttering. It would appear that the 'after' photograph dates to on or about 21 March 2021. It is not entirely clear on the evidence when the 'before' photograph was taken but I infer that it was immediately before the gutter was cleaned.
There are two difficulties for the tenants in relation to this element of the claim. First the evidence is not sufficient to establish any breach of the agreement by the landlords in relation to the guttering. The guttering is common property of the Strata Scheme and it is the Owners Corporation that is responsible for its maintenance. There is no evidence that the tenants ever made a complaint to the Owners Corporation, the Strata Manager or the landlords' agent about the condition of the gutters. There is no other evidence of persistently clogged guttering. The tenants' claim that the guttering was clogged for 3 years is a bare assertion.
Even if some breach of the agreement in relation to the guttering had been established I am not satisfied on the evidence presented that the tenants suffered any compensable loss as a result. No loss of comfort or amenity of the premises is established in the complete absence of any complaint about the condition of the guttering over the course of the tenancy. Nor is there any inherent likelihood that an accumulation of leaves in guttering would result in a "stink" - that is a condition which requires some form of proof. Even if some smell was created, it is difficult to see how that could impact on the tenants comfort and amenity when the guttering is located on the outside of the premises, in the open air, and at a height of more than 3 metres. Even on the tenants own case, it is not suggested that the gutters leaked or overflowed into the premises or around its immediate exterior.
This element of the claim is therefore without merit and must be dismissed.
In or around December 2018 the tenants requested, via the landlords' agent, that the landlords install flyscreens on the windows of the premises. This was refused on 19 December 2021. The tenants repeated their request shortly afterwards and it was again refused. Both requests were premised on the landlords paying the cost of installation of the flyscreens.
I have set out above the law relating to minor alterations to residential premises as it was in force in May 2020. This element of the dispute predates the amendments to the residential tenancy legislation set out there. Nevertheless, I take the view that section 66(2A) of the Act and Regulation 22 of the RT Regulation did not change the normative content of section 66 as it was in force prior to the enactment of those provisions. Those provisions only particularised or gave statutory recognition to the pre-existing common law.
That being the case there are three insurmountable difficulties for the tenants in relation to this element of the claim.
First, the walls and windows of lots in a Strata Scheme are common property. A lot owner cannot alter the appearance of common property, such as by installing flyscreens, without permission of the Owners Corporation. The installation of flyscreens is not "cosmetic work" for the purposes of section 109 of the SCM Act or for that matter "minor work" within the meaning of section 110 of that Act because they alter the appearance of the Lot and the common property. The tenants have not filed any evidence, in the form of a By-Law or resolution of the Owners Corporation that establishes that the landlords had the power to grant consent to the installation of flyscreens.
Second, the installation of flyscreens, where they did not previously exist, is a capital improvement to premises. A landlord has no obligation to a tenant to improve the condition of premises subject to lease. The duty is one of reasonable maintenance of the existing fabric of the premises. Even if the landlords were permitted by the rules of the Strata Scheme to install flyscreens they did not breach any obligation owed to the tenant by failing to carry out this improvement.
Third, and again assuming for argument's sake that the landlords did have the power to consent to the installation of flyscreens, it is a precondition to the operation of section 66(2) of the Act that the minor alternation is to be carried out at the tenant's expense. In other words, it is only in circumstances where a minor alteration requested by a tenant is to be paid for by the tenant that a landlord's consent to the minor alteration can be unreasonably withheld for the purposes of that section. In this case there is no issue that the tenants requested the landlords to pay for the flyscreens and never offered to do so themselves.
This element of the claim is therefore misconceived and must be dismissed.
The tenants' complaint that their son has been prevented from playing ball games on the common property potentially engages the landlords' obligation not to interfere with the tenants' quiet enjoyment of the premises (section 50 of the RT Act), which includes any common property provided to the tenants under the residential tenancy agreement.
The brief facts in relation to this dispute are that by email dated 11 June 2020 the landlords' agent (James Ferreira) wrote to the tenants to advise, in part, that he had received a "complaint from strata" in relation to "ball games being played on the common property which is not permitted". He then states" "[y]ou are requested to cease this behaviour effectively immediately, failure to comply with result in penalties and NCAT proceedings". There has been no further instance of the landlords or their agents communicating with the tenants in these terms since, but it appears to be accepted that this direction continues in force.
There are difficulties grappling with this element of the tenants claim. First the dispute concerns the application of the Strata Scheme's By-Laws or resolutions of the Owners Corporation which are not in evidence. The effect of the relevant By-Law or Owners Corporation resolution is that ball games using a hard ball, including a tennis ball, cannot be played on common property, apparently due to the risk that a ball might cause injury to a person involved in or in proximity to the game, or cause damage to the common property.
A tenant is entitled to use of common property devised under a residential tenancy agreement subject to any applicable By-Law or other strata scheme regulation. It is simply not possible for the Tribunal to assess whether the restriction imposed by the landlords' agent, at the behest of the Strata Manager, falls within or outside what the By-Law or other regulation of the Strata Scheme provides.
In any event the trigger event for this element of the claim dates to 11 June 2020, which was more than 10 months before the tenants' application was made to the Tribunal. As has already been noted, an application in relation to an alleged breach of a residential tenancy agreement must be made within three months of the applicant becoming aware of the alleged breach. On one view the application insofar as it concerns this issue is more than seven months out of time.
The alleged breach may be capable of being construed as continuing conduct by the landlords because the restriction on the use of the common area continues in force. If this restriction is construed as continuing conduct the application would remain within time, at least in so far as it concerns the period three months prior to the application being made.
But it still falls to the tenants to prove a breach of their right to quiet enjoyment, and in the circumstances of this element of the claim that means that the tenants must prove a substantial interference by the landlord with their use of the common property as it was devised to them under the residential tenancy agreement. That onus cannot be discharged if the interference alleged amounts only to the enforcement of rules concerning the use of the common property imposed by the Strata Scheme. In these proceedings it is not open to the Tribunal to determine if the By-Laws and any other regulation of the Strata Scheme are reasonable.
The tenants have not established on their evidence that the landlords' restriction on their use of the common property went beyond what the By-Laws and any other regulation of the Strata Scheme required. Their claim that this restriction constituted a substantial interference with their right to quiet enjoyment of the premises therefore must fail.
The tenants' application insofar as it concerns their alleged bullying, harassment and discrimination by neighbours (paragraph 8(i)) is misconceived. None of the conduct alleged is conduct by the landlords or the landlords' Managing Agent. Nor are the persons the tenants accuse of this conduct other tenants of the landlords. The landlords are therefore not in any way liable for the conduct of these other people and no orders can be made against these other people directly in proceedings brought under the RT Act. This element of the tenants' application must therefore be dismissed.
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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: 20 August 2021