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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Fitness for habitation
        -  Landlord's obligation to provide premises fit for habitation
        -  Where premises not in reasonable state of cleanliness
        -  Premises infested with fleas

Landlord's obligation to provide premises fit for habitation      

The tenants instituted proceedings against the landlord in the Tribunal, seeking orders that:

(a) the landlord carry out certain repairs;
(b) and seeking compensation for the loss suffered as a result of those repairs not having been completed earlier; and
(c) also for money the tenants had spent on the premises for the landlord by mutual agreement.

The tenants had rented a five bedroom unfurnished home. At the time of initial inspection they had pointed out to the agent the large amount of furniture still on the property, and the generally poor condition of the premises overall. The agent had assured the tenants that the property would be fully cleaned and all furniture would be removed prior to them moving in. However, this had not occurred. The agent had requested that the tenants delay moving in, but this had not been possible.

There were many problems with the property. The top drawer in the kitchen cupboard did not work properly. There was a broken window. The front step had been broken, and was a safety hazard. There was also a problem with the en-suite which caused water damage to the premises.

The tenants claimed economic loss of $13,721. However when the Tribunal pointed out to them that the limit of the Tribunal’s jurisdiction was $10,000, they elected to continue proceedings before the Tribunal and to abandon any claim above $10,000.

The Tribunal noted that, in the time between filing the application and the hearing, the Residential Tenancy Agreement had been terminated. Therefore, there was no point in making an order requiring repairs to the property.

The Tribunal noted that the most disconcerting aspect of the affair was that there had been an informal agreement reached between the landlord and tenant for repairs to the property. The Tribunal pointed out that such an agreement was not within spirit or terms of the Residential Tenancies Act. The Tribunal noted that the Residential Tenancies Act 1987, and the new Residential Tenancies Act 2010, specifically provide for the landlords’ and tenants’ obligations under a Residential Tenancy Agreement when repairs are required.

The Tribunal also noted that the landlord’s argument that the tenants rented the premises “as is” could not assist the landlord. The landlord has an obligation to provide premises which are fit for habitation, and an obligation to ensure that the amenities of the property are in working order, and are maintained in working order.

The Tribunal made orders for compensation.

Wilkinson & Van Baal v Sharma [2011] NSWCTTT 319

Where premises not in reasonable state of cleanliness 

The tenants instituted proceedings against their landlords in the Tribunal, claiming compensation of $14,407.

The tenants had moved to Australia for one of them to take up an employment opportunity. They signed a standard form Residential Tenancy Agreement for residential premises in Mosman for one month, and then for a period of a further 11 months.

The tenants complained that the premises had been very dirty at the commencement of the tenancy. They alleged that they had been unable to use all of the house. They had only been able to sleep on a mattress in one room. The premises had smelled very mouldy, and they had been unable to open up the house and air it out, because they had not been provided with keys to some of the windows and doors.

The tenants sought compensation, partially being a refund of rent for the period from the beginning of the tenancy until the time when carpets had been re-laid.

They also claimed $375 as compensation for cleaning costs they had incurred.

Further, the tenants also sought $10,000 compensation in relation to painting the inside of the premises, which they said they had agreed with the landlord.

The tenants sought to institute the proceedings after the expiration of the time limit for doing so. However, because the parties had been in negotiations in the intervening period, the Tribunal extended the time for filing the application.

The Tribunal noted that, under section 52 of the Residential Tenancies Act 2010, the landlord must “provide the premises in a reasonable state of cleanliness and fit for habitation”. The Tribunal was satisfied that the premises were fit for habitation, but was also satisfied that they were not in a reasonable state of cleanliness.

The Tribunal held that, once the landlords had been made aware of these premises not being in a reasonable state of cleanliness, they had taken immediate steps to remedy this breach by re-cleaning the premises. However this re-cleaning had been unsuccessful and further cleaning had been necessary.

The Tribunal therefore awarded the tenants damages of $375, but rejected the claim for a refund of rent.

The Tribunal was not satisfied that the tenants had suffered any other loss.

The Tribunal was also not satisfied there had been any firm agreement reached regarding painting the premises, and so did not allow the claim in that respect.

The Tribunal noted that, in order for the tenants to claim damages for non-economic loss, for example, anxiety, distress or inconvenience, the tenants would have to have suffered a loss of at least 15% of the most severe case, that is, $75,000. The applicants here had not suggested they had suffered non-economic loss amounting to $75,000.

McCannell and Bellgham v Smith and Robertson [2011] NSWCTTT 395

Premises infested with fleas 

Landlords have a duty under the terms of the Residential Tenancy Agreement to ensure that the premises are reasonably clean and fit to live in.

The tenants applied to the CTTT for the refund of rent paid in advance and the bond, claiming that the premises were never fit for habitation due to the presence of fleas. The tenants also claimed the cost of storage because they were unwilling to move their belongings into the property while it was infested.

The tenants notified the landlords of the existence of fleas and the landlords arranged for pest controllers to visit the property in order to undertake treatment. The pest control treatment was ineffective. The tenants made ongoing complaints to the landlord and the pest controllers were called out on a number of occasions in an attempt to rid the property of the fleas.

The landlords’ agent admitted that she had seen fleas when she visited the property three weeks after the pest control treatment. After that inspection, the landlords offered to arrange for a different pest control contractor to undertake another treatment of the property.

The tenants declined that offer and notified the landlords that they considered that the tenancy was terminated. The landlords disputed that the flea problem was as serious as alleged by the tenants.

The CTTT held that the landlords had breached the agreement from its inception by failing within a reasonable time to provide premises that are reasonably habitable. The CTTT accepted that the fleas were at an unacceptable level from the inception of the tenancy. The CTTT held that that the tenants were entitled to view the attempts at eradication as having been exhausted and could refuse to consider an offer to use a different contractor. The CTTT ordered that the landlords refund to the tenants the rent paid in advance and their bond, together with the storage fees claimed.

Alexandratos & Marra v Laing & Simmons Newtown [2010] NSWCTTT 174