Case Notes ~ Tenant Compensation for Faulty Appliances and Water Leaks
WINTER & ANOR v DELACY (Residential Tenancies) [2023] ACAT 31
The tenants claimed compensation from the landlord under section 83(1)(d) of the Residential Tenancies Act 1997 (RTA) and issued a notice to vacate following issues with a faulty range hood and other appliances and three instances of water ingress that left them unable to properly use their kitchen and a bedroom for an extended period. In response, the landlord claimed half the cost of repairing damage to the walls and floors throughout the unit and compensation for loss of rent for early termination of the TA.
The Tribunal considered the respective obligations under the residential tenancy agreement (TA): the landlord’s obligations to not interfere with the reasonable peace, comfort and privacy of the tenant in their use of the premises (cl 52), to ensure that at the start of the tenancy the premises, including appliances, are in a reasonable state of repair (cl 54) and to maintain the premises during the tenancy in a reasonable state of repair (cl 55); and the tenant’s obligation to leave the premises in substantially the same condition as they found it (cl 64). Further, the Tribunal noted that clause 57 requires repairs by the landlord to be carried out within 4 weeks of being notified by the tenant and clause 59 requires urgent repairs, including a serious roof leak, a dangerous electrical fault, flooding or serious flood damage, or a breakdown of any service essential for cooking, to be carried out as soon as necessary having regard to the nature of the problem.
The Tribunal concluded -
Not having use of a range hood for 77 days prevented the tenants “from making full use of their stovetop and affected what and how they prepared meals.”
More than four weeks had transpired after the first water leak, even if identifying the source of the leak, as opposed to repairing the damage, is considered a non-urgent repair. It was “not a matter of the lessor taking reasonable steps, or repairs having been apparently completed. The defect is either repaired or it is not.” The third leak was evidence that the breach remained unremedied. On that basis the notice to vacate was effective and the landlord was not entitled to compensation for loss of unpaid rent.
Not being able to use the third bedroom meant that use of the unit overall was highly disrupted and “the distress and inconvenience associated with the second water leak did … amount to a substantial interference with the peace, comfort and privacy of the tenants” even though the tenants continued to have access to the premises.
The tenants had to move around furniture and possessions in a relatively confined space while they could not use the third bedroom. Some of the damage to the walls, doors and floorboards could be attributed to the tenants and some to the landlord’s agents moving furniture due to the water leaks. Overall, the damage did not constitute “a substantial change to the condition of the premises” noting the unit subsequently was rented for a higher amount without repairs being undertaken or promised.
The Tribunal ordered the bond be released and the landlord pay the tenants $3,882 in compensation, calculated as follows:
(a) $550 for the loss of use of the range hood;
(b) $2,332 for the second water leak equal to 50% of the rent for 51 days; and
(c) $1,000 for interference with the peace, comfort and privacy of the tenants.