Cutajar v Place Estate Agents [2013] QCAT 726

CITATION: Cutajar v Place Estate Agents [2013] QCAT 726 PARTIES: Stephanie Cutajar (Applicant) v Place Estate Agents (Respondent) APPLICATION NUMBER: MCD1866/13 MATTER TYPE: Other minor civil dispute matters Residential tenancy matters HEARING DATE: 12 August 2013 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 23 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent pay the applicant the sum of $1,827 by 4pm on 15 November 2013. 2. The landlord remedy the flaking lead paint so that it is no longer a danger by 4pm on 15 November 2013. 3. The landlord remedy the faulty chlorinator by 4pm on 15 November 2013. CATCHWORDS: MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY MATTER – Where claim for compensation by way of rent reduction – Where condition of property open to be observed when rented – lessors obligations at start of tenancy – lessors obligations while tenancy continues – Where failure of lessors maintenance obligations results in the health or safety of persons being in danger Residential Tenancies and Rooming Accommodation Act 2008 ss 94, 185, 191 -- 1 of 12 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Stephanie Cutajar RESPONDENT: No appearance REASONS FOR DECISION [1] The named respondent was the agency responsible for renting 84 Gillies Street, Zillmere to the applicant. The relevant rental bond number is 4884612-X. [2] The applicant contends that from the start of the tenancy the respondent rented a house that did not comply with council regulations because of poor pool safety and the overall state of disrepair of the building. The applicant contends that the house has a host of safety and health issues because of cockroaches, mould and lead paint. The respondent is alleged to have failed to meet its obligations under the rental agreement, by failing to supply regular pool maintenance. [3] The applicant made the following complaints about the premises: a) The underlay of the carpet is stained with faeces and has not been replaced despite the advice of the agent that it would be replaced; b) The dishwasher is non-operational and contains cockroach faeces throughout; c) Notice of entry was not given on 13 March when someone entered the building and „wipper-snippered‟ the long grass beside the pool resulting in clippings flying into the pool; d) No monthly pool equipment maintenance has been performed; e) According to the pool certification obtained by the applicant, the pool chlorinator is broken causing excessive amounts of chemicals to be purchased; f) There are building and pool defects according to building and pool certification reports, including: i) Sliding windows jammed in the front entry/veranda; ii) Kitchen door not fit for purpose as internal door is being used externally; iii) Linoleum lifting in the kitchen a safety hazard; iv) Laundry not fit for purpose as there is no drain; v) The sliding laundry door not on tracks; vi) Tiles on laundry floor are broken and not water resistant; vii) Material deterioration in the basins, tubs and sinks; viii) There is a barrel bolt in the toilet door; ix) There is cracked fibro in the toilet; -- 2 of 12 -- 3 x) There is no dual flush on the toilet; xi) There is mould on the bathroom ceiling; xii) There is leaking from the bathroom ceiling and loose skirting tiles; xiii) The front screen door is not fit for purpose with hole in it; xiv) Exposed paint is flaking and lead-based; xv) There are no resuscitation signs, no self-closing gates and missing timber paling in pool; and xvi) The smoke detectors are insufficient. [4] A building inspection report completed by Ray Hardy of ProCheck on or about 3 April 2013 noted that the building‟s overall condition was “below average” and the major defects in the subfloor were noted as “high”. [5] The applicant seeks the following orders under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (Act): a) Compensation for the property being let in a condition partly unfit to live under section 94 of the Act by ordering a reduction in rent ($1,300); b) Breach of section 191 and 94 of the Act in lieu of excessive mould, lead paint and disrepairs, and order for reimbursement of lead test ($29); c) Reimbursement of pest control measures undertaken for the cockroach infestation ($220); and d) Reimbursement for pool cleaning costs ($706) and certificate ($72). Total damages sought are in the order of $2,041. [6] Section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 provides: Rent decreases (1) This section applies if the premises- (a) are destroyed or made completely or partly unfit to live in, in a way that does not result from the breach of the agreement; or (b) no longer may be used as a residence lawfully; or (c) are appropriated or acquired compulsorily by an authority. (2) This section also applies if- (a) services, facilities or goods to be provided to the tenant under the agreement are no longer available or are withdrawn other than because the tenant failed to meet the tenants‟ obligations under the agreements; or (b) the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant. -- 3 of 12 -- 4 (3) The rent payable under the agreement decreases accordingly or, if an order for decreasing the rent is made by a Tribunal to the extent stated in the order. (4) A Tribunal may made an order for a rent decrease only if- (a) the tenant applies to the Tribunal for the order; and (b) if this section applies because of sub-s(1) – the premises are partly unfit to live in. (Underlining added). [7] Section 191 provides: Orders of Tribunal (1) This section applies if, on an application made to a Tribunal by the tenant for an order under this section, the Tribunal is satisfied - (a) The lessor has failed to comply with the lessor‟s maintenance obligation under s 185(3) or 186(4); and (b) The failure results in the health or safety of persons being in danger; and (c) The failure is reasonably capable of being remedied (2) A Tribunal may order the lessor to remedy the failure within the time decided by the Tribunal. (Underlining added). [8] Section 185 provides: Lessors obligations generally (1) This section does not apply to an agreement if- (a) The premises are moveable dwelling premises consisting only of the site for the dwelling; and (b) The tenancy is a long tenancy (moveable dwelling). (2) At the start of the tenancy, the lessor must ensure: (a) The premises and inclusions are clean; and (b) The premises are fit for the tenant to live in; and (c) The premises and inclusions are in good repair; and (d) The lessor is not in breach of a law dealing with issues about the health or safety of person using or entering the premises. (3) While the tenancy continues, the lessor- (a) Must maintain the premises in a way that the premises remain fit for the tenant to live in; and (b) Must maintain the premises and inclusions in good repair; and (c) Must ensure any law dealing with issues about the health or the safety of persons using or entering the premises is complied with; and (d) If the premises include a common area – must keep the area clean. Editor’s note – see section 217 (Notice of damage) for the tenant‟s obligation to notify the lessor about damage to premises and the need for repairs. -- 4 of 12 -- 5 (4) However, the lessor is not required to comply with subsection (2)(c) or (3)(a) for fixtures attached to premises and inclusions supplied with premises, (the non-standard items) if- (a) The lessor is the state; and (b) The non-standard items are specified in the agreement and the agreement states the lessor is not responsible for their maintenance; and (c) The non-standard items are not necessary and reasonable to make the premises a fit place in which to live; and (d) The non-standard items are not a risk to health and safety; and (e) For fixtures, the fixtures were not attached to the premises by the lessor. (5) In this section- Premises include any common area available for use by the tenant with the premises. (Underlining added). [9] In the reasons for seeking the orders, the applicant says, from the start of tenancy, the agent/owners have rented a house that: [i] did not comply to council reg. i.e. pool safety and was in a state of disrepair. The house has safety issues and health issues i.e. lead and mould throughout house, was infested with cockroaches and agent/lessor will not meet obligations i.e. regular pool maintenance; i.e. I was informed the agent sacked the agent that let the house and revoke any promises he made on the agents behalf. We went to mediation and the replacement agent now is not responding. However did agree to address issues, to date, nothing has been done and no contact on her behalf. [10] In an addendum to a Form 11 – Remedy to Breach, the applicant in addition to the building defects said to be addressed in the building and pool certification reports said, (1) Carpet was replaced one week after entry as a result of pre-existing faeces stains, however the underlay which contained evidence of faeces stains was not replaced even though I was advised by Mario Sultana and Trent that it would be done. (2) The dishwasher was not operational at changeover and contained cockroach faeces throughout. There is no mention of this fact on the advertisement or on open day. As a result of the dishwasher being riddled with cockroach infestation, I was forced to pay for pest control. (3) Notice of entry was not given on 13 March as someone entered the property and whipper-snippered the long grass beside the pool which resulted in the clippings ending up in the pool. (4) No monthly pool equipment maintenance to date has been performed. (5) According to the pool certification I obtained, inter alia, the pool chlorinator is broken causing excessive amounts of chemicals to be purchased. [11] The applicant says that she is seeking compensation for the expenses I have outlaid in regard to the pest control ($265), pool certificate ($72) and lead test ($29). On 6 March I asked for compensation for the pest and pool expenses. These were denied as they were already done, to which I asked for substantiation i.e. copy of the pest and pool reports, but as yet have received nothing. This documentation (Pest and Pool invoice/certification) should have been presented at time of changeover. -- 5 of 12 -- 6 [12] A report from ProCheck has been provided. Much of the report is very general in nature and is the type of report that one might expect from a pre-purchase report. The report assessed the overall condition in the context of its age, type and general expectations to be below average, with the assessment of the major internal condition as being typical, as was the assessment of the major external condition. The minor defects were noted as typical and as to site condition it was said, The site within 30metres of the building was assessed on the basis of meeting the requirements of the NCC and being constructed and maintained in a way that does not promote conducive conditions, has adequate drainage away from the building, does not have inappropriate trees or gardens close to the structural elements, and has been secured with compliant or maintained fencing or walls that meet security and safety requirements for the homeowner. The site was noted to be below average. [13] As to the entry porch area, it was said, Windows Condition: Operational defect – the sliding windows are jammed up and the timber casement windows‟ operation are stiff. Refer to the leasing agent for rectification. All windows and doors needs to be checked for serviceability. [14] As to the kitchen, it was said, Doors Condition: Not fit for purpose – the external door is a hollow core construction. Manufactures recommend external doors to be solid core construction for security and fire safety. Refer to the leasing agent for rectification. [15] As to the floors, it was said, Floors Condition: Safety hazard – the lino type floor covering is noted to be lifted on the joins and there is a possibility of injury through tripping. Refer to the leasing agent for rectification. [16] As to the laundry area, it was said, This wet area is not fit for purpose in a habitable bedroom. The performance provisions of the NCC 02.2 is to safeguard the occupants from illness or injury from the accumulation of internal moisture in a building and redirected surface water - Refer to the leasing agent for rectification. [17] As to the Doors Condition in the laundry, it was said, „the sliding door is function is stiff (sic) and not on the guide. Not operating as intended and needs adjustment for repair, maintenance item‟. [18] As to the Floors Condition in the laundry, it was said, Safety hazard – cracked/chipped and missing tiles were noted in some areas. There is the possibility of injury through cutting feet on cracked tiles with sharp edges. Recommend the leasing agency contact a licensed tiler to assess and rectify as necessary to maintain the waterproof membrane. Under the NCC requirements, the entire laundry floor must be water resistant in conjunction with all floor/wall junctions to be waterproof. The tiles are incomplete at the laundry. In wet areas, this forms part of the waterproofing system and a tile will be required to complete the project as per NCC 3.8.1.1. Wet areas include bathrooms, showers, laundries and sanitary compartments. Any penetrations or mechanical fixings through surface materials must be waterproof. -- 6 of 12 -- 7 [19] Concerning the basin/tubs and sink and taps, it was said, Major defects, safety hazard – material deterioration – the laundry tub is rusting and will require replacement to be safe for all users. This has the possibility to cause injury with rusted sharp edges and is not fit for purpose. Recommend (a) contacting (sic) a plumber for advice and rectification. [20] So far as the toilet was concerned, it was said, Doors Condition: Safety issue. A barrel bolt has been fitted to the inside of the door. This is inappropriate as there is no way of gaining access in case of emergency once the door has been locked from the inside. A carpenter or a locksmith will be able to fit a privacy set that can be unlocked from the outside, as required in case of emergency. Safety issue – the door area is restrictive and the door swings inwards. In case of an emergency, the door cannot be readily removed from the outside, as is required by the NCC 3.8.3.3 Recommend that lift-off hinges be installed to the door by a carpenter to the enable of an unconscious occupant from the enclosed sanitary compartment. This is a safety issue, particularly in older homes, compliance prior to the requirement in the Building Code. Alternatively, the door can be reversed to swing outwards. [21] As to walls condition, it was said, „damage defect – cracked fibro requires rectification to ensure safety, refer to health and safety on living and working with asbestos. Refer to the leasing agent for rectification‟. [22] As to the toilet pan, it was said, the pan seal is noted to be leaking and requires replacement. Refer to the leasing agent for rectification. The system is noted to be the older type with no water saving features like dual flush. Recommend seeking the advice of a licensed plumber. [23] As to the bathroom‟s ceiling condition and walls condition is was said, water penetration/damp related defect – mould like substance was noted to the ceiling. This may be a moisture related through poor ventilation. Walls condition: operational defect – the skirting tiles have come loose and are not fit for purpose. Refer to the leasing agent for rectification. [24] As to bedroom 2, ceiling condition, it was said, „water penetration/damp related defect, mould like substances noted to the ceiling. This may be a moisture related issue to penetration or poor ventilation‟. [25] It was also said, The paintwork to the weatherboards revealed isolated cracking of paint, adhesion failure and delamination at. (sic). The defective surface needs to be stripped back to the base materials and repainted so that waterproofing issues are met. Recommend a painter to assess the loose flakes to test whether there is lead content. Refer to Queensland Health for more information on living with these issues. Major defect. Water is ponding at the base of the wall. Saturation of clay foundation soil may occur and cause a reduction in soil strength which may lead to shear failure in the footings. The ground levels need to be adjusted to allow the water to flow away from the house. Surface water must be diverted away form (sic) the dwelling and graded to fall 50mm in the first metre as per AS 287-1996, 5.2.1. Paths can also interfere with the flow of water and recommend you get a licensed landscaper in to advise and rectify. This will need to be attended to prevent unhealthy conditions. -- 7 of 12 -- 8 [26] The photos presented show an older type premises (approximately 80 years old) with some aspects of poor condition. There are matters which would normally be expected to be raised in an entry condition report. [27] The applicant makes a complaint about the pool safety certificate which was provided saying that it was „issued to me upon signing agreement however pool was not compliant at the time and BCC were going to fine the landlord‟. The certificate was given on its face by a pool safety inspector who signed it on 28 July 2011. [28] The general tenancy agreement entered into started on 2 March 2013 and is for a fixed term ending on 3 March 2014. The rent is $440 per week and there is a rental bond of $1,680. The standard terms provide for an entry condition report to be completed. [29] The entry condition report signed by the applicant on 5.3.12 comments that there was mould on doors; doors and walls look dirty; the front door was not secure; windows do not close; holes in screens; curtains filthy; and the premises were not clean. The report is quite detailed and lists most of the matters now complained of. [30] On 6 March 2013, the applicant wrote to the agent and said, Trent, I have submitted the official condition report due to not having internet connected and note the following – the condition report and photos do not truly reflect the state of the property. Also I was forced to get the pest control completed and an invoice is attached due to the cockroach infestation in the dishwasher, so I expect to be reimbursed. Also the dishwasher was not working so I would expect this to be replaced immediately as this was not mentioned on the day of inspection that it was not working. I am also inclined to get you to put in a clause so that once we leave we are not required to clean the property due to the state that we received it in. Please let me know your feedback on the above issues. [31] On 12 April 2013, the real estate agent advised the applicant that the pool inspection was able to be done on Monday 15 April and advised „you do not need to be home and they will not be entering the inside at all. They will need to inspect the pool only and quote on urgent repairs’. [32] On 30 April 2013, the applicant complained that she was wanting the real estate agent to investigate whether anyone was given authority to enter the premises. She said, I found my screen door leading to the patio key locked when yesterday and every other day I only flicked the switch as I haven‟t worked out which key locks that particular door and my kids do not have any keys on the inside and leave through the kitchen. Yesterday also coincides with your repairman coming to my property when I thought his work had finished and concreting near the pool area.” The real estate agent replied, “I have checked and we did not give any keys out to your property yesterday. I have confirmed that our handyman did attend the property, put in the cement as per your email and he has advised that he tried a number of occasions to discuss this with you but, he was not given keys as they weren‟t required. We are unsure who would have locked the door but can assure you it was neither anyone from our office nor any contractors acting on our behalf or the owner. -- 8 of 12 -- 9 [33] The applicant gave a notice to remedy which was subsequently reissued in the name of the landlords. [34] The Tribunal has also been provided with a report from pool services which says, „Chlorinator – salt master HS7000 Salt Chlorinator. Chlorinator did not appear to be in working order at the time of inspection. Recommend removal of the unit for a quote on possible repairs‟. That report was dated 5 April 2013. [35] I have also been provided with a pest control advice dated 5.3.13 which reveals that the property was tested for cockroaches, silverfish, spiders and other. [36] A letter from metro North Environmental Health Unit addressed to the applicant records that on 27 June 2013 the applicant permitted entry of the Environmental Health Officers to the house to investigate possible presence of lead in paint. Three flaking paint samples were obtained, two from the outside of the house and one from the internal wall of the bedroom. The three paint samples returned positive for concentrations of lead varying between 0.2% and 17.3%. The letter quoted section 58 from the Public Health Act 2005. [37] Section 58 provides: Lead in buildings must not be accessible to children (1) A person must not use or permit the use of lead in, or for the purposes of, constructing, erecting, altering, extending, improving, renovating or repairing a building or part of a building if the lead is, or may be, easily accessible to children. (2) The owner of a building or part of a building must not knowingly allow lead to remain in or on the building or part of the building if the lead is, or may be, easily accessible to children. [38] The letter went on to say, „considering that paint containing lead is flaking at numerous locations, both on internal and external walls with some paint flakes located on the ground, it is considered that this satisfies the meaning of accessible to children’. In light of this, the owner of 84 Gillies St has been notified of his obligation under the Public Health Act 2005 to ensure that lead is not accessible to children. [39] Exhibit 4 is a copy of various advertisements for properties said to be similar to the property in questions. They rent for $430, $370, $380 and $355 per week. [40] After the hearing of this matter and on 19 September 2013, the applicant as far as I can ascertain, without notice to the respondent, wrote to me advising that her family had been diagnosed with legionella, which she „assume(s) at this early stage from the mould, air conditioning or pool areas which were the underlying issues of my case‟. She also sought to raise what she described as an illegal change to the contract. She said that, „my latest bills for pool maintenance on 13 August for $124.50 and on 18 September for $283, incurred after our trial are attached’. That correspondence was in the circumstances inappropriate, without -- 9 of 12 -- 10 making an application to have the hearing reopened and granted. Notice should have been given to the respondent. [41] In the letter she also requested that the estate agents should be reported for „their illegal dealings‟. In my view, that is not a matter for the Tribunal. [42] The matters raised in the application require a consideration of whether or not the orders sought by the applicant are appropriate in circumstances where the condition of the property was open to be observed when the property was rented. [43] Insofar as there may be a breach of legislation concerning the existence of lead paint and its exposure to children, that is not a matter which arises in my view under the Residential Tenancies and Rooming Accommodation Act and is a matter which can be pursued through the relevant authority by way of prosecution or otherwise as required. [44] Section 185 of the Residential Tenancies and Rooming Accommodation Act requires the lessor at the start of the tenancy to ensure that the premises and inclusions are clean. It also requires the lessor to ensure the premises are fit for the tenant to live in and to ensure the premises and inclusions are in good repair. The lessor is also required to ensure it is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises. The lessor is required to maintain the premises in a way that the premises remain fit for the tenant to live in and maintain the premises and inclusions in good repair while the tenancy continues. The lessor must also ensure during that time that any law dealing with issues about the health or safety of persons using or entering the premises is complied with. [45] The exclusions provided for in s 185(4) do not apply here. [46] I am satisfied that the lessor in some respects is in breach of s 185(2)(a), (c) and (d). [47] The respects in which the lessor has not ensured those obligations have been met are: a) The pool fencing was not compliant; b) Sliding windows in the front entry/veranda are jammed; c) The linoleum lifting in the kitchen a safety hazard; d) The lack of a drain in the laundry area; e) The sliding laundry door was not on tracks; f) Tiles on laundry floor are broken and not water resistant; g) Material deterioration in the basins, tubs and sinks; h) There is a barrel bolt in the toilet door; i) There is cracked fibro in the toilet; -- 10 of 12 -- 11 j) There is mould on the bathroom ceiling; k) There is leaking from the bathroom ceiling and loose skirting tiles; l) The front screen door is not fit for purpose with hole in it; m) Exposed paint is flaking and lead-based; [48] I am also satisfied that the lessor is in breach of its obligations under s 185(3)(a), (b) and (c). [49] Section 191 of the Residential Tenancies and Rooming Accommodation Act does not apply with respect to breaches of s 185(2) but it does apply with respect to breaches of s 185(3). I am satisfied that at least some of the aspects of the breaches of s 185(3) result in health or safety of persons being endangered and that the failure is reasonably capable of being remedied. [50] I am not satisfied that there was any agreement reached between the landlord and the tenant as to the maintenance of the pool. If the pool chlorinator is faulty, then it should be repaired or replaced. However, in the absence of an agreement about the maintenance of the pool, it is in my view the obligation of the tenant to maintain it. The tenancy agreement did not provide for either party to maintain the pool and in the absence is such the obligation is on the tenant. [51] I cannot be satisfied that there is any cause of the so-called legionnaire outbreak established however it is appropriate in my view that the lessor be compensated for the general poor state of the cleanliness of the property and the existence of mould. [52] I am not satisfied that section 94 applies with respect to all of the matters raised by the applicant but I am satisfied that the premises were partly unfit to live in because of the mould issue and the lead paint issue. [53] The applicant seeks the reimbursement of pest control measures in the sum of $225 because of the treatment required for the cockroach infestation. In my view it is appropriate to make an order that the landlord pay that amount. It is also appropriate that there be an order that there be a reimbursement for the pool certificate in the sum of $72. [54] It is also appropriate that the respondent pay for the cleaning of mould from the bathroom ceilings of $220 (Exhibit 3). [55] In my view it is appropriate that there by a rent reduction to compensate for the matters I have identified above in the sum of $50 per week for a 6 month period. Since the rent has been paid the above amount should be paid to the applicant. That credit in the sum of $1,200 is allowed on the basis that the tenant has dealt with the issues identified including cleaning, mould and is prepared to live with the other issues complained of except for the lead paint. -- 11 of 12 -- 12 [56] Further I order the landlord to remedy the flaking lead paint so that it is no longer a danger by 4pm on 15 November 2013. [57] The applicant should have the filing costs of $110. [58] The appropriate order will be that: a) the respondent pay the applicant the sum of $1,827 by 4pm on 15 November 2013; b) the landlord remedy the flaking lead paint so that it is no longer a danger by 4pm on 15 November 2013; and c) the landlord remedy the faulty chlorinator by 4pm on 15 November 2013. -- 12 of 12 --