Pursuant to Section 210 of the Residential Tenancies Act (“the Act”), a tenant may apply to the Tribunal for an order that the landlord pays compensation for loss or damage suffered by the tenant due to a failure of the landlord to comply with their duties under the Act or the lease. These claims may be in relation to claims for inconvenience, loss of amenity, or loss of quiet enjoyment, for example.
So, what should you do if your tenant starts making these claims?
The Supreme Court made it clear that there is a duty imposed on a landlord to ensure that a rental premises is in good repair. This is a strict and absolute liability on a landlord and means that the landlord has a positive obligation to identify and rectify any defects of which they are aware or ought to be aware (Sheilds v Deliopoulos [2016] VSC 500).
It is clear that, in the first instance, the best way to avoid a tenant making a claim against you at VCAT for compensation is to assess any complaints made by your tenant to ascertain if they have a proper basis and, if so, work to fix the issue. For example, if your tenant is reporting that the air-conditioning is no longer working, and you have rented the property to them on the basis that there is an operational air-conditioner, it is your responsibility as the landlord to fix this.
However, if the matter has escalated and the tenant has taken steps to make a VCAT application, the Tribunal will take the following into consideration:
The actual loss suffered by the Tenant;
The reasonableness of the conduct of the parties when attempting to remedy the issue; and
What attempts have been made by the tenant to mitigate their loss.
It should be noted that a party is not entitled to damages for losses, which, had they taken steps to mitigate, they would not have suffered (Ball v Gavin [2016] VCAT 286).
One key consideration that the Tribunal considers when assessing whether or not the tenant has taken steps to mitigate their losses is whether or not the tenant has taken steps to enforce their rights under the Act as soon as it became apparent to them that you as the landlord were not taking positive steps to arrange the repairs in a reasonable period of time. A tenant has the following options in this situation:
arranged for the repairs to be done and for the landlords to reimburse her the cost of the repairs (if the repairs were urgent);
if they can not afford to pay for the repairs, apply to the Tribunal for an order that the landlords undertake the urgent repairs;
where the repairs were not urgent, requested Consumer Affairs Victoria to investigate whether the landlords were in breach of their duty to ensure that the rented premises were maintained in good repair and made an application for an order that the landlords undertake the non-urgent repairs if the landlords failed to make satisfactory arrangements for the repairs to be carried out; or
where the repairs were not urgent, served a breach of duty notice on the landlord and applied to the Tribunal for compensation if the landlords failed to comply with the breach of duty notice.
Therefore, should you be in a position where your tenant has brought an action against you at the Tribunal, it is important to bring the Tribunal members’ attention to:
your actions to repair the issue; and
the tenant’s inaction in mitigating their losses.
How we can help
Whilst many people opt to self-represent at VCAT, our office has extensive experience in assisting landlords defend applications made by tenants. The process can be timely and stressful for those who are not familiar with the legal framework surrounding the issues.
If you wish to discuss your options further or require assistance with matters discussed herein, please contact one of our lawyers on 03 9450 9400.
Comments