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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Repairs
        -  Reasonable state of repair
            >  NEW Tenants bear onus of proof
            >  Failure to maintain premises
            >  Failure to maintain air conditioning unit

Tenants bear onus of proof 

The tenants claimed compensation in the Tribunal under section 187(1)(d) of the Residential Tenancies Act 2010. The tenants argued they were entitled to compensation because the landlords had breached their obligations under the Act to provide and maintain the premises in a reasonable state of repair.

The tenants claimed the soil in the back yard was built up due to a subterranean infestation of ants and other pests. The landlord had arranged for a pest company to spray the premises, but this had only been effective for a short period.

Further, the tenants claimed the air conditioner at the property had caused a foul odour to spread throughout the premises, and that the landlord had only made the necessary repairs to the air conditioner in the second or third week of the tenancy.

Also, the window in the main bedroom did not close and could be pushed in, and the tenants believed there had been a previous break-in. This had been repaired by the landlord about one week after the commencement of the tenancy.

The tenants claimed they had not been given the keys to the letterbox. The tenants also claimed there had been a foul odour in the main bathroom. The tenants had raised this with the landlord’s agent at the beginning of the tenancy, and at the six monthly inspection. However this issue had not been resolved. he landlord’s agent denied that this foul odour existed.

The tenants also made a number of other minor allegations.

The landlord noted that the tenants, as applicants in the proceedings, bore the onus of proving their case. That is, the tenants had to prove, on the balance of probabilities, that it was more likely than not that the events had occurred as they alleged.

The Tribunal noted that s 63 of the Act sets out a landlord’s general obligations. A landlord must provide and maintain residential premises in a reasonable state of repair, having regard to the age of the premises, the rent payable, and the prospective life of the premises. Further, this obligation applies even though the tenant had notice of the state of disrepair before entering into occupation of the premises. However, the landlord is not in breach of the obligation, if the state of disrepair is caused by the tenant’s breach of the Act. Further, this obligation is a term of every Residential Tenancy Agreement by force of the Act.

The Tribunal noted a landlord had not breached his obligations unless he had notice of the need to repair, or ought reasonably to have known of the need for repair, and had failed to act with reasonable diligence to have the repair carried out.

In regard to the faults that had been fixed within one to three weeks after commencement of the tenancy, the Tribunal found the landlord acted with reasonable diligence.

With regard to the failure to provide keys to the letterbox, the Tribunal held that there had been a breach, but it had only been a very minor one. It made an order for compensation of $100.00.

With regard to the alleged smell from the bathroom, the Tribunal held that the tenants had failed to prove this smell existed.

With regard to the infiltration of pests, the Tribunal held that there had been a breach of s.52 of the Act, which provides that a landlord must provide the premises in a reasonable state of cleanliness, and fit for habitation by the tenants. However, the Tribunal did not accept that this was a very extensive troublesome problem, and awarded nominal compensation of $150.00.

Chenhall & Wightman v Axiak [2011] NSWCTTT 535

Failure to maintain premises 

Landlords should make certain that necessary repair works to rental premises are undertaken promptly and that appropriate records are maintained.

A tenant made an application to the CTTT, claiming that the landlord had breached the Residential Tenancy Agreement by failing to carry out electrical repairs.

About four weeks into the tenancy, there was a short circuit of the electricity supply in the laundry. The tenant reported the fault to the landlords. Three weeks later, an electrician inspected the laundry, declared it unsafe and disconnected the supply of electricity to the laundry. Over a period of seven months the tenant continued to request that the landlord undertake the electrical repairs needed to restore power to the laundry. The tenant then gave notice of termination of the tenancy and vacated the premises. Electricity was not restored to the laundry during the tenancy.

The landlord claimed that the electrical fault, caused by water damage, could not be repaired until certain roof works had been completed. The landlord contended that the roof repairs were delayed due to the involvement of an insurance company.

The CTTT found that the landlord had breached the Residential Tenancy Agreement by failing to restore the electricity supply to the laundry in a timely manner. There is a statutory term of every Residential Tenancy Agreement that the landlord must maintain the premises in a reasonable state of repair. This obligation is strict – if the premises are not maintained in a reasonable state of repair, the landlord will be liable, and no practical difficulties in performing that maintenance will be taken into account at all. The CTTT awarded the tenant $200.00 for non-economic loss. In assessing this figure, the CTTT considered that the inconvenience of using an extension cord to get power to the laundry was minor and any anxiety suffered by the tenant regarding electrocution was rectified with the work completed by the electrician.

Page v Durrant [2010] NSWCTTT 127

Failure to maintain air conditioning unit 

Several months after a tenant rented a house she discovered the air conditioning was not working properly – it was stuck between 16° and 19°C – and she let the agent know in November. She complained again in December and in January, emphasising an expected heatwave.

The agent contacted the landlord, who said he would arrange for the unit to be serviced. Nothing was done until March, when the agent inspected the unit and confirmed there was a genuine problem. He contacted the landlord again and eventually reached the original supplier’s technician, who confirmed the air conditioner had been accidentally locked and successfully talked the tenant through resetting the control.

The problem may have been due to “user error” or a power outage. In any case, the problem remained for approximately three months, but once addressed was easily fixed. The Court was at a loss to understand why the landlord, who lived next door and had an identical unit, did not personally look into the problem.

The Residential Tenancies Tribunal, which first heard the case, concluded the landlord was in breach of his statutory duty by failing to ensure the air conditioning system was in a reasonable state of repair after being advised by the tenant it was defective. The Tribunal held that if someone had attended the premises to inspect the air conditioner when the tenant first complained, it is possible the subsequent problems could have been largely avoided. The landlord was ordered to pay the tenant $1,660.00.

The tenant also complained of an unkempt backyard. She had been promised the area would be landscaped and maintained. This did not occur and the landlord was “inattentive and episodic” in its maintenance. After complaining several times, the tenant employed someone herself to slash the high grass and weeds. The Tribunal ordered that the landlord reimburse the tenant for these expenses.

Cowled v Britten-Jones [2010] SADC 21