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Benchmark - Real Estate Cases Commentary
Tenancy matters
    •  Compensation
        -  To tenant
            >  NEW For water damaged caused by bathroom leaks
            >  Unrepaired water leaks causing damage to possessions
            >  Damage caused by water leaking into premises

For water damage caused by bathroom leaks 

The landlord applied for an order from the Tribunal that the tenant give the landlord vacant possession of the residential premises.
The landlord was represented by its agent at the hearing. The tenant did not appear, and no explanation was given for that non-appearance. The Tribunal was satisfied that the tenant had been served with a copy of the application.

The landlord’s agent gave evidence that she was aware that the tenant was still residing at the premises and that a termination notice had been served.

The landlord alleged that the tenant was more than fourteen days in arrears of rent when the notice was served. The landlord relied on two increases in rent to establish this, and provided to the Tribunal two notices of rent increase, dated in September 2010 and June 2011.

The Tribunal noted that section 41(10) of the Residential Tenancies Act has the effect that a rent increase notice older than twelve months does not give the Tribunal power to make an order. Therefore, the landlord could not rely on the notice from September 2010.

With regard to the notice in June 2011, the Tribunal assumed, in the absence of evidence to the contrary, that it had been delivered by post.

Therefore, it would have been deemed to be served on 28 June, rather than the date it was posted on 22 June, and it therefore did not give the required sixty days’ notice as required by Section 41 of the Residential Tenancies Act. Therefore, this notice was invalid.

When the invalidity of the two increases in rent were taken into account, the Tribunal noted that the tenant was only twelve clear days in arrears of rent.

However, section 88 of the Residential Tenancies Act states that a termination notice given by a landlord solely on the ground of failure to pay rent has no effect unless the rent has remained unpaid for at least 14 days before the notice is given.

Therefore, the Tribunal held that the termination notice was invalid, and it dismissed the landlord’s application.

Anarene v Solomon [2012] NSWCTTT 150

Unrepaired water leaks causing damage to possessions  

A tenant brought proceedings against the landlords under section 47 of the Residential Tenancies Act (NSW). Section 47 allows the CTTT to order a reduction or rent where the CTTT considers that the rent is excessive “having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises”.

The tenant stated that, prior to moving into the property, which was a unit that was part of strata property, she was aware that there was water leakage around a light in a bedroom, the lights did not work in the kitchen, window blinds were broken or missing, and a number of appliances were not working. The tenant stated that the landlords’ agent had agreed that these faults would be corrected before she moved into the premises. However, this was not done.

During the course of the tenancy, the premises suffered major water leaks, affecting every room in the premises, and damaging a number of the tenant’s personal possessions.

The tenant brought these proceedings, and then vacated the premises and terminated the residential tenancy agreement.

The CTTT found that there had been water leakage and damage, although not to the extent claimed by the tenant.

The CTTT held that the landlords were correct in saying that the responsibility for the water leakage and the repairs lay with the strata plan’s owners’ corporation, and not with them. However, the CTTT pointed out that this was not the point. When the CTTT had regard to the nature of the fittings, appliances, and facilities provided with the premises, the CTTT considered that it was appropriate to order a reduction in rent under section 47.

The CTTT ordered a reduction in rent for a period of one year leading up to the termination of the residential tenancy agreement, and ordered the landlords to recompense the tenant for this amount.

Olsen v Massey [2010] NSWCTTT 382

Damage caused by water leaking into premises   

The tenants brought proceedings against the landlord for breach of the residential tenancy agreement, alleging that there had been a major problem with water leaking into the premises. A plumber, and other tradesmen, came to look at the problem, but whenever there was rain, there continued to be leaks. Property belonging to the tenants was damaged. The kitchen became unusable. Eventually, it was not possible to continue living in the house and the tenants moved out.

The report of the landlord’s own building inspector showed that the landlord was aware of the leakage problem before the commencement of the tenancy.

After lodging the application in the CTTT, the tenants denied access to the landlord, or tradesmen engaged by the landlord.

The tenants sought compensation for loss of use of part of the premises, for loss of wages for the period of unpaid leave taken by the tenants when they had to take to vacate the premises, for relocation expenses, for the cost of changing contracts for broadband and landline telephony services and for the value of the tenants’ property that was damaged.

The CTTT did not allow the claim for the loss of wages. It held that the tenants had known about the problem for some time, and then agreed with the landlord on a date on which they would move out. The CTTT was not satisfied that the loss of wages was due to breach of the tenancy agreement by the landlord.

The CTTT also did not allow the cost of the tenants having to change their broadband and landline contracts. Again, the CTTT held that these costs were not caused directly by the landlord’s breach.

The CTTT held that the tenants had failed to lead evidence that any of their property had been damaged by the water leakage into the property.

Taking into account the loss of use of the premises, and the inconvenience and discomfort suffered by the tenants, the CTTT ordered compensation of $1,900.00.

Rezaelan & Markus v Phillips [2010] NSWCTTT 306