The relevant statute in this case is the Residential Tenancies Act 1997
Repairs and Maintenance
Pursuant to section 62 of the Residential Tenancies Act a tenant of any residential property bears the responsibility of reporting any damage or repair of the rented premises to the landlord as to soon as the damage is apparent and reasonably practicable. However, it is submitted that the complaint to the landlord should be submitted in writing. The tenant may also elect to take any photos of the damage so as to avoid any misunderstanding or allegations of speculations from the landlord. It bears noting that the tenant cannot be held liable for breach of an obligation to report the complaint. The significance of reporting a compliant of damage is to be awarded any compensation if possible.
By dint of section 68 of the Residential Tenancies Act it is incumbent upon the landlord to ensure that the premises of the tenant are kept in good condition. This includes an obligation to repair the house and keep it in good maintenance. Section 67 of the Residential Tenancies Act provides that the landlord should take all reasonable and practicable steps to ensure that house is in a habitable condition. It is imperative to note that section 64 of the Residential Tenancies Act provides that the tenant can only perform repairs in the rented premises if the landlord has given consent. The tenant can seek legal action if he or she has made a complaint to the landlord but the landlord does not take action. The tenant primary claim would be that the landlord has failed to maintain and repair the property. The health of the tenant is vital during his or her stay in the premises. Therefore, if the mould affects the tenant’s health he has the right to file an application to the tribunal.
In Carol’s case it is the responsibility of the tenant to ensure that the mould problem in Carol’s house is removed and the wood scrape at her front door is repaired. It can be argued that it was the responsibility of Carol to ensure that she reports the growth of the mould in her house to the Landlord or his agent. In addition, she had a right to report the problem with the wood scrape at her front door that was hindered her from closing the door. Carol can therefore take pictures of the damages that have been caused by the wood scrape at her front door and the mould as evidence that she may present to the tribunal.
On the other hand section 63 of the Residential Tenancies Act provides that the tenant bears the responsibility of ensuring that the premises are reasonably kept clean. Ideally, the tenant has the responsibility of conducting the general cleaning of the house. However, the tenant does not have an obligation to clean dirt that has not been cause by her use of the premises. The question that begs in Carol’s case is who owns the dog. It is apparent that the dog is owned by Carol. Therefore, it is the responsibility of Carol to ensure that she cleans the mess on the property that has been caused by her dog.
If the property is owed by a corporation section 46 and 47 of the Owners Corporation Act 2006 provides that it is the responsibility of the owners corporation to ensure that the property is maintained in good condition and the services are in good repair. If the mould has grown on the roof tops, balconies and other common spaces, the owners has the responsibility of ensuring that it is repaired and removed. According to section 60 of the Victorian Civil and Administrative Tribunal Act a tenant bringing a claim against a landlord whose property is managed by a corporation has the right of joining the owner’s corporation as an interested party in the claim he files at the Tribunal. It is thus prudent to note that Carol can bring a claim against the landlord and join the owner’s corporation if any as an interested party in the claim she may be filing at the Tribunal. Her claim will be for the damage that has been caused by the mould and the wood scrape in front of her door.
By dint of section 61 of the Residential Tenancies Act the landlord of a rented premise has an obligation to ensure that the house is in a good state of repair and that it is fit for the purpose that it was intended. Therefore, the landlord in Carol’s case has an obligation to ensure that Carol’s house in kept in a good state of repair and that it fit for the purpose that it was intended for. The wood scrape in front of Carol’s door implies that the house has not been kept in a good state of repair and it is not fit for the purpose. This is because her door had difficulty in closing and the mould could be harmful to her health. It should thus be borne in the mind of carol that the landlord has breached obligation under section 61 and she can therefore bring a claim against the landlord.
The question lying embedded in this issue is whether the repairs in the premises are urgent or not urgent. Pursuant to section 3 of the Residential Tenancies Act an urgent repair has been defined as any damage at the premises that is likely to pose a serious risk on the tenant and is likely to make the house unsafe or unsecure. It is submitted to carol that the mould on her house does not qualify to be a urgent repair within the meaning of section 3 of the Residential Tenancies Act. According to section 73 of the Residential Tenancies Act a tenant file an application for an agent repair if there is a serious damage in the property that is likely to affect his or her health. The tenant has to fill the Victorian Civil and Administrative Tribunal application. If the repairs are not urgent the tenant can file a notice to the landlord under section 75 of the Victorian Civil and Administrative Tribunal Act to have the damage repaired. Since the mould is not an urgent repair Carol she can write a notice to the landlord to have the mould removed.
It is instructive to note that if the mould problem is persistent the tenant has the right under section 77 of the Residential Tenancies Act to pay rent into a special rent account until the mould has been removed. The tenant may also pay rent into the special rent account if he has served a notice to the landlord but the landlord has not removed the mould. It is submitted to Carol that if the mould problem is persistent, and may have served the landlord with a notice, she can pay the rent into a special account until the mould has been removed.
If the landlord fails to keep the house in a good state of repair and in a habitable condition he will be held in breach of the duty under the Residential Tenancies Act. It can be therefore contended that Carols landlord may be held in breach of the duty under the Act if he has failed to keep the house in a good state of repair and in a habitable condition. The landlord may be in breach of the duty
The tenant can use the breach of duty of notice to claim compensation. The breach of duty notice must be in compliance with section 208 of the Residential Tenancies Act which provides that the landlord must promise that he will not commit the breach again and that he will rectify the damage that has occurred.
A residential tenancy may be terminated in the following ways;
It can be argued that the residential tenancy in Carol’s case was not terminated according to the legal provisions under the Residential Tenancies Act. Suffice to say the agent cannot kick Carol out of the house because without following the procedure for termination that has been laid out by the law. Although Carol is to blame for the dog poo and that she had not cleaned the premises the agent ought to her with a notice to clean the premises. Against this backdrop it is imperative to note that Carol also has a right to terminate the tenancy if the premise has become unfit for habitation due to the moulds.
The following are relevant cases that have been decided by the Victorian Civil and Administrative Tribunal and other similar tribunals across Australia;
In Eskander v Catanchin (Residential Tenancies) a tenant claimed that the his premises was not fit for habitation and thus gave the landlord a vacation notice. The claimant was successful in the suit since he was given the rent that he had paid in advance and the bond by the landlord.
In Wellman v Hick a residential tenancy was held to have been validly terminated by the landlord since the tenant has failed in his obligation to the landlord. This implies that if Carol persistently keeps the premises dirty with the dog poo the landlord will be entitled to terminate the tenancy.
In Timms & Simpson v Adams (Tenancy) the tenant made a claim for compensation for damages that had been caused top the property due to the growth of moulds. The tenant was successful and was awarded compensation for the economic and financial loss that was caused by the growth of the mould which was not removed by the landlord.
In Whitcher & Ors v Leyshan (Tenancy) the tenant was awarded compensation through rent reduction following the growth of mould in her house. Carol can also claim compensation through reduction of the rent she is currently paying if the moulds have caused any damge to her property.
In Berman v Hegarty the landlord was held liable for breaching his obligation to repair the house and keep it in good condition. It can be argued that Carol can also bring a claim against the landlord of her premises for breach of duty to ensure that the premises is habitable.
Conclusion
It can be concluded that the Agent does not have the right to kick Carol out of the premises. On the other hand, the landlord may have failed in his obligation to repair the damage that has been caused by the moulds and the wood scrap at the door. Carol can bring a claim under the above provisions at the Victorian Civil and Administrative Tribunal. However, it is worth noting that Carol bears the responsibility of cleaning the dog poo because the dog belongs to her.
References
Statutes
Owners Corporation Act 2006 (cth)
Residential Tenancies Act 1997 (vic)
Victorian Civil and Administrative Tribunal Act 1998 (vic)
Cases
Berman v Hegarty [2009] NSWCTTT 452
Eskander v Catanchin (Residential Tenancies) [2014] VCAT 381
Timms & Simpson v Adams (Tenancy) [2012] NSWCTTT 53
Wellman v Hick [2013] VCAT 1437
Whitcher & Ors v Leyshan (Tenancy) [2011] NSWCTTT 351
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