In the courts

Here, we take a look at some recent tribunal cases around Australia – and think about the lessons they offer.
 

Mould warrants compensation

The problem of mould is being taken seriously by the New South Wales Consumer, Trader and Tenancy Tribunal, as three recent cases demonstrate.

  • A tenant and his family moved out after only two nights in a newly-leased property. They testified that mould had caused respiratory problems and skin rashes, which cleared up when they moved out. The tribunal found the property was not fit for habitation, and ordered a refund of their bond and rent paid in advance. As well as the mould, the tenant complained of rodents, food left in the property, a dirty bathroom and debris under and outside the property.
  • Landlords who failed to insulate a tin ceiling in an extension were ordered to compensate their tenants $5,400 – or $200 a month for the 27 months spent in the property. The tenants testified they had consistently complained about the roof, with condensation dripping on their furniture, heat of up to 50 degrees in summer and noise during rain so loud it was impossible to have a conversation or watch TV. The landlords claimed they could not afford $2000 in repair costs, but the tribunal found this was irrelevant. The tribunal awarded some costs of repairing damage against the tenant, however they did not award the full amount quoted as the work in the quotes had not been performed.
  • Tenants were awarded more than $3000 in compensation for a five-month period in which insufficient work was done to prevent or clean up mould. The couple had a one-year-old baby who was particularly prone to health issues, and they frequently complained about the mould. The property manager passed on their concerns to the landlord, and some efforts were made to combat the problem – but these were ineffective. The tribunal also awarded the tenants more than $800 for damage to a change table, furniture and mattress.
Too many breaches without eviction backfires

A real estate agency, which issued the tenant in a $1500-a-week luxury penthouse with eight breaches for arrears, is not allowed to terminate the lease, according to a ruling from the Queensland Civil and Administrative Tribunal (QCAT).

“There’s a common misconception in the industry… Eight breach notices are not more deserving of action than two (required for termination),” the tribunal found.

“If… the lessor allows the breach behaviour to continue past two breaches then the tenant may have a legitimate expectation that the lessor will conduct business this way and that the lessor will tolerate minor breaches.”

However, the tribunal noted that the tenant was now clearly on notice that the rent was expected to be paid promptly “and his failure to do so may not have such a happy outcome for him in the future”.

No signed tenancy agreement, no deal

A Queensland real estate agency has been ordered to refund bond and advance rent taken from prospective tenants who later decided not to sign a tenancy agreement.

The agency argued that a verbal contract was in place, and noted that they had stopped advertising and opening the property, claiming that the tenants had effectively broken the lease.
 

QCAT found that it was obvious that there was an initial intention to enter into a lease but it never eventuated.
In the absence of a signed lease, the bond and rent in advance could only be “characterised as a holding deposit”, QCAT ruled.

“If (the agency) proceeded on the assumption that this tenancy was signed, sealed and delivered, when it was not, then that was done at its own risk.”

Estimates insufficient for gas charge

A Victorian tenant has been found not liable for gas charges relating to a hot water service shared by the entire complex.

The Victorian Civil and Administrative Tribunal was not satisfied that an individual meter existed for hot water to the tenant’s home, which did not have its own hot water storage tank.

Even if a separate meter existed, the amount of gas use attributed to the tenant would, at best, be an estimate – and, as such, could not be legally charged to the tenant.