(24.08.2015) Rodents but no Relief: Claim for Tenancy Compensation rejected by QCAT

The Queensland Civil & Administrative Tribunal (“QCAT”) dismissed an application for compensation brought by tenants who claimed that the owner and agent of a residential property forced them to live in “generally unsafe and unhygienic conditions”.

The full decision is available here: Deane & Vassella v DSSWR Pty Ltd t/a Belle Property Wilston [2015] QCAT 120.

Background Facts

ratsMr Deane and Mrs Vassella entered into a lease for a property situated at Alderley in April 2013. On 20 December 2014 they applied to QCAT for compensation totaling $14,700.00 on the following grounds:

… for not providing the services advertised and reasonable expected to come with the accommodation. Namely non operational air-conditioning, non operational alarm system, broken and unsafe blinds, a narrow stairwell that was unable to fit many of our furniture items, a narrow staircase that also caused damage to our mattress plus generally unsafe and unhygienic conditions which we were forced to live in due to the negligence of the owner and agent”.

Evidence was before QCAT that, over the course of the lease, Mr Deane and Mrs Vassella had complained about unsafe blinds, and problems with the property’s air-conditioning and alarm system. From January through to the end of May there were also complaints made about possums and vermin.

From photographs before QCAT it appeared ducting had come away from an air-conditioning vent and vermin were running through the ducting which meant their faecal matter was dropping from vents onto the property’s floors. This was consistent with photographs before QCAT which depicted a possum staring through an air-conditioning vent and faecal matter in an area behind a fridge.

On 20 May 2014 the tenants issued a “Notice to Remedy Breach” on the owner and its agents which complained about the following breaches:

Continuing problem with rats/vermin. This was originally reported last year and no action has been taken. Council has confirmed evidence of long term infestation. Blinds are unsafe and were on previous breach notice. These are not safe. Alarm system is not in working order and owner refused to make it in working order. Air-conditioning system not completely operational. We will also seek rental compensation” (emphasis added).

The agent contended before QCAT that all of the concerns raised by Mr Deane and Mrs Vassella were addressed appropriately and remedied as best as possible.

Legal Requirements

The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act“) regulates residential tenancies in Queensland. The Act provides:

  1. At the start of a tenancy a landlord is required to ensure that premises are clean, fit for a tenant to live in, and in good repair;
  2. While a tenancy continues a landlord is required to maintain premises in a way that the premises remain fit for the tenant to live in and in good repair; and
  3. A 6 month time limit applies in relation to claims for compensation. The time limit runs from the date that a tenant becomes aware of a breach.

QCAT’s Decision

Regarding all of the tenant’s complaints, the Tribunal found that Mr Deane and Mrs Vassella had been aware of the breaches which they alleged for a period greater than the 6 months and they had therefore failed to bring their application for compensation within the required 6 month timeframe. The Tribunal did not have the power to extend this time limit. On this ground alone, the Tribunal considered that the application should be dismissed.

The Tribunal went further, however, and stated that even if the application had been brought within the time limit it would not have awarded the compensation which had been claimed. The section of the Act relied upon by Mr Deane and Mrs Vassella did not authorise QCAT to make an Order for compensation for “loss of amenity”. What was required before an award could be made was identification of a breach of the lease.

The Tribunal adopted comments in a previous decision that “questions of fitness for habitation and repair are to be judged against a standard of reasonableness having regard the age, character and locality of the residential premises and to the effect of a default on the state or condition of the premises as a whole …”.

Given the age, character and/or locality of the property, the Tribunal was not satisfied that there was a breach of the lease.

Are you a party to a residential tenancy dispute? Groom & Lavers has expertise in all forms of dispute resolution. Remember, as illustrated above, time limits are very important. Contact Groom & Lavers for an appointment today on (07) 4616 9600, or via our contact page.