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Tribunal determines what is fit for habitation

In our last article, we explored new changes to residential tenancy laws that will prescribe in detail when a premises is fit for habitation. While landlords have always been obligated to ensure their premises are fit for habitation, the Residential Tenancies Act (2010)(Act) does not define fit for habitation for the purposes of section 52 of the Act.   

In the absence of a definition in the Act, over the years, the Tribunal has applied the “reasonable comfort” test to determine what constitutes fit for habitation.

In Bhandari v Laming [2015] NSWCATAP 224, the tenant complained of a strong smell of cigarette smoke permeating into the upstairs Potts Point unit that the tenant occupied. The smoke was coming from the downstairs unit. There was a mechanical problem with the internal ventilation passages in the building that allowed the smoke to enter the upstairs unit. The Tribunal awarded damages to the tenant comprising of a rent reduction and removalist costs. Interestingly, the appeal panel said that the landlord’s obligation to provide a premises fit for habitation is not conditional upon the landlord being at fault or demonstrating that they took reasonable steps to have the owners corporation rectify the problem. The landlord can’t escape liability by showing that it is a strata issue. The landlord must provide a premises that is fit for habitation.

In Raats v Zein [2016] NSWCATCD 62, the tenants complained of a mould infestation in a Waitara townhouse. The cause was a plumbing leak. The Tribunal was satisfied that the mould infestation constituted an unreasonable interference with the comfort of the tenants judged by contemporary standards and ordered compensation to the tenants for removalist costs.

In Marsters v Graham [2016] NSWCATCD 73, the tenant claimed their belongings were damaged by water from a storm caused by a structurally unsound roof. While the landlord released the tenant from the lease and refunded their rent and bond, the Tribunal awarded the tenants compensation under section 187 of the Act for their damaged furniture and other belongings in an amount of $7,822.21. The Tribunal applied the concept of reasonableness. The Tribunal found that it was reasonable to expect the structure of the roof of the premises was sufficiently secure and in a state of repair to ensure that the copious amounts of water that entered the premises did not occur.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your tenancy rights and obligations.

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