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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Quiet enjoyment
        -  Rights of tenant
            >  Exclusion of landlord from premises



Exclusion of landlord from premises 

A tenant and a landlord entered into a residential tenancy agreement. The relationship between them quickly deteriorated, and became acrimonious. This case was the eighth case brought by one or the other regarding this tenancy.

The rented premises were one unit in a building containing three units, all of which were owned and rented out by the landlord. The building was not held on strata title, but rather constituted a single parcel of land. Each of the landlord’s tenants was granted the exclusive right to occupy one of the units.

The Tribunal noted that the landlord’s view was that he had the right to enter, at any time and without notice, the grounds surrounding the three flats, and that he considered those grounds to be “common property”. The Tribunal tersely noted that the landlord “needs to resile from that view”.

The Tribunal held that each of the three tenants had exclusive use of his or her unit, and shared exclusive use of the grounds surrounding the building. Collectively, they have the right to exclude everyone, including the landlord. The landlord only has the right to enter the grounds in the limited circumstances set out in the Act.

By his repeated entry onto the grounds surrounding the building, the landlord had breached the tenants’ right to quiet enjoyment.

The Tribunal held that “quiet”, in this context, means more than “not noisy”. Rather, the right to quiet enjoyment involves two concepts. First, the landlord promises the tenant an exclusive and secure right to occupy the premises, which includes the right to exclude others (including the landlord) from the premises. Second, the landlord promises that the tenant can enjoy all the uses of the premises that customarily go with a residential tenancy agreement.

The tenant stated that she found the constant visits by the landlord to be an invasion of her privacy, which made her feel “frustrated, stressed, anxious, upset and annoyed”.

The Tribunal advised the landlord that he should “contemplate whether others might consider that his actions verge on the border of, if not within, the definition of staking” in the Crime (Domestic and Personal Violence) Act 2007.

The tenancy had lasted for 114 weeks. The Tribunal considered compensation of $20 per week was appropriate, given the landlord’s high handed behaviour. Therefore, the Tribunal ordered compensation of $2,280.
 
Johnson v Watters [2010] NSWCTTT 606