HELP! Tenant demand compensation due to apartment's aircon not working

fatboyslim on 28/08/2014 - 12:56
Last edited 28/08/2014 - 12:56

a long story cut short, it is a newly completed apartment for approx. a year and everything is still under warranty. Tenant's apartment's air con (which is part of the building as the entire building has the same system) not working for a few weeks and we've only been told only very recently (few days). We have since contacted the building strata/maintainance people as it is under warranty - and it has taken them a few weeks to fix that problem - entirely out of my control. Tenant then demand financial compensation because of that. BTW, this apartment is near CBD Sydney and it is not in a "cold climate area" of Australia.

What should I do? is the land lord liable for compensation in this case? BTW, we don't have landlord insurance. Would appreciate any official/unofficial advices. thanks!

Home & Garden

Comments

      • dmaca667 on 28/08/2014 - 21:39
        +13

        Defences to defamation
        Publishing something which might seem defamatory won’t be against the law if:
        - the information is substantially true,
        - the information is published with the consent of the person being defamed, or
        - the information wasn’t very important and it is unlikely that the person’s reputation will actually be damaged.

        Last one is key, it would be very hard to prove that the information is important and that your reputation as an anonymous poster on the internet was actually damaged.

      • ausmechkeyboards on 28/08/2014 - 22:50
        +5

        By the way: what you are doing could also be viewed as defamation as you made the statement on a public forum.
        I recommend you read up on the law of defamation. Your only defense would be to prove that your statement is true and I think that would be very hard to do.

        He wouldn't need to defend himself— you'd just get laughed out of the courtroom.

        • Lysander on 28/08/2014 - 23:00
          -8

          Why don't you encourage the guy to try it out in court - I am game. I hope you are willing to also bear the consequences.
          It is funny how many lawyers are suddenly on Ozbargain - where are they when companies screw over the people on Ozbargain (see Good guys, Harvey Norman, Dick Smith etc.) Would like to know where you all got your law degrees. ;-) And how many years you have got in practice in those areas?

          @dmaca667: Funny that the case law does not support your interpretation. Would you care to provide a citation in a standard textbook for your assertion?

          Just for your info: it is enough if the reputation is lessened with only one person - see the latest Australian case against Google that is now on its way to the Supreme Court.

        • ausmechkeyboards on 29/08/2014 - 16:13
          +6

          @Lysander:

          "Your honour, I was accused of possibly being a Sydneysider that has a faulty air conditioner on a semi-anonymous online forum that aggregates bargain goods and services. I am using the court's limited time today to try push forward a case for defamation. In my respectful submission, I am without a doubt a Queenslander and I would like to submit a certified document from an electrical engineer clearly stating that my air conditioner is free from defects"

          Yeah, good luck with that one mate.

        • Lysander on 30/08/2014 - 19:26
          -3

          @ausmechkeyboards:

          Well, I could say I was accused of being on par with some guy who acted like a hillbilly lawyer without legal qualifications from Sydney. That certainly would be suitable to lessen one's reputation.
          Given the fact that for a lot of Sydneysiders I know being called a Queenslander is called less than flattering why should it not work the other way?
          But seriously, you make a lot of assumptions: how come you know I am a Queenslander? just because I live in Brisbane? What if I was originally Canadian or South African or Dutch or….who emigrated and now just happens to live in Brisbane? Certainly I am not a Queenslander merely because of that, am I?

          P.S.: Read some cases - you will be amazed what is sufficient and will find out that courts differ from your opinion as to what is a waste of time and what is not.

        • ausmechkeyboards on 30/08/2014 - 20:20

          @Lysander:

          Well, I could say I was accused of being on par with some guy who acted like a hillbilly lawyer without legal qualifications from Sydney. That certainly would be suitable to lessen one's reputation.

          No, it was suggested that you could possibly be the victim of the incident (the guy with the broken air conditioner). It wasn't suggested you were a hillbilly or a lawyer, or that you lacked any legal qualifications.

          Also, it might lessen your reputation, if you were not using a pseudonym. That is of course unless you are a 300BC Spartan admiral.

          Given the fact that for a lot of Sydneysiders I know being called a Queenslander is called less than flattering why should it not work the other way?

          Ah, so that's your argument to the magistrate. "Your honour, we beat NSW in the footy a dozen times, it's offensive to be even compared to one of those bums."

          But seriously, you make a lot of assumptions: how come you know I am a Queenslander? just because I live in Brisbane? What if I was originally Canadian or South African or Dutch or….who emigrated and now just happens to live in Brisbane? Certainly I am not a Queenslander merely because of that, am I?

          Yes, you are. That's because Brisbane is in Queensland. If you were born in South Africa and now live in Queensland, guess what, you're a Queenslander! Awesome!

          P.S.: Read some cases - you will be amazed what is sufficient and will find out that courts differ from your opinion as to what is a waste of time and what is not.

          I am familiar with the case law. I'm not familiar of anything that will satisfy the idea that this is defamation. You wouldn't even be able to satisfy the idea that it was even negative, let alone that it affected your reputation in some way. You said it yourself— the people at the tribunals are not idiots, so I'm not sure why you'd assume that magistrates are.

        • Lysander on 30/08/2014 - 22:38
          -2

          @ausmechkeyboards:

          Well, you must have read "special NSW case law", not the official one.

          Also, I am not a Queenslander merely because I live here - absolutely ridiculous. Next months I live in WA, then I suddenly become Western Australian?

          You know, even though I only have a merely registrable interest in what you call football, since I have been in OZ I have always wanted NSW to win, just to be fair and make it a bit more interesting. I do not know any true Queenslander (Australian, born and bred in Queensland) that would consider someone like me a Queenslander as they do not root for NSW.

          Well, it was suggested I am the tenant who could not deal with a landlord who obviously does not want to accept his or her responsibility and liability. Being in the legal profession I do not think it would be great for my reputation and to acquire clients (and instil confidence in them) if I indeed was such a tenant as no client would trust me with cases involving larger stakes anymore.

          I mean would you trust a divorce lawyer who could not handle the divorce from his own wife? But I also like our argument except of course I have always supported NSW so it does not work for me using the footy but maybe other things.
          I am neither a Queenslander nor a Sydneysider - and will never be either - sorry.

          You know, if Lysander is my real name, there are not too many people in the legal profession in Australia with that name, don't you agree.

          No, I am not the Spartan general as I am not quite that old yet. But if I was, I certainly would not have any problems with defending tenants against greedy landlords, or landlords against nasty tenants as my trusty sword would sort those issues out with one smooth move, don't you think? Ha, ha, ha.

        • johnno07 on 01/09/2014 - 22:56
          +3

          @Lysander: It's quite impressive how quickly you went from being informative and interesting to being an obnoxious prick.

          P.S Please don't sue me, oh mighty one.

      • ScoopedAndDuped on 29/08/2014 - 16:21
        +1

        You should never withhold rent. This is a breach of the tenancy agreement and would provide grounds for the landlord to issue a notice of the breach and, if not remedied a notice to terminate the tenancy agreement. This is outlined in the Residential Tenancies Act 1987 (there are variations on this act based on your state)

        Unless specific amendments were stated in the tenancy agreement I doubt the tenant is entitled to any compensation or reimbursement. If the tenant has provided notice of the defect in writing, the landlord is required to make arrangements for repairs within 5 days… if it is deemed to be an emergency repair. (See the aforementioned act).

        Considering Lysander's recommendation is to withhold rent and put your tenancy in jeopardy, I would take his advice and assured credentials with a pinch, or even a truck load of salt.

        Note: I don't claim any legal qualifications. Read the act, find the information for yourself or consult a solicitor.

        • Lysander on 30/08/2014 - 19:30
          +1

          Where do I say to withhold rent? All I am saying is that the tenant is entitled to compensation and that is correct, even in NSW.

          Of course the tenant cannot now breach his or her legal obligations just because the landlord did. If you want to win in the courts you must come with "clean hands", in other words, you cannot also be in breach of your legal obligations.

          The tenant should pay rent and do everything else he or she is supposed to do and if the landlord does not provide compensation after negotiation then the courts should be involved.

        • Cheshire Cat on 30/08/2014 - 20:18
          +5

          @Lysander:

          Right here.

          "I live in QLD but yet I am the tenant in Sydney. If I was the tenant I would not bother with Ozbargain but write a letter setting a deadline and after that withhold rent."

      • Cheshire Cat on 30/08/2014 - 00:15
        +1

        As you say you are in QLD and really need to brush up on NSW law if you want to give advice there. As it states on the fair trading page linked above http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owner…

        Never withhold rent or you will be in breach and can have your tenancy terminated.

        While I was mistaken that the air con wasn't necessary (it's on the list for urgent repairs) the length they took to notify would factor heavily in the reasonable time to perform the repair.

        • Lysander on 30/08/2014 - 19:33
          -1

          First: 9 weeks and counting is NOT reasonable.
          Secondly: While Fairtrading is a great and useful source of information, the people who make the ultimate decision are the judges/courts. There have been a good number of cases where instituions like Fairtrading, ACCC etc. were wrong in what they say and lost in court. Therefore, be careful by overrelying on them (hence their disclaimer as to legal advice).

        • Cheshire Cat on 30/08/2014 - 20:24
          +1

          @Lysander:

          Agreed, which is why in my earlier comment I corrected the assumption that the tenant had only notified a few weeks ago. Time for the landlord to sack his agent really….or make them cough up the compensation. At the very least I would be demanding they don't charge me for managing my property for that period as they obviously weren't (have requested that myself when an agent was stupidly slow to inform me of something)

          And you keep bringing up court..who is going to court over $200? Even $500, there's a reason we have tribunals for such small simple matters. Lawyers are terrible and always recommend court action over every little thing…and I have lawyer friends who think so as well. (And don't get me started on the old boys club that is judges in this country).

        • Lysander on 30/08/2014 - 22:43

          @Cheshire Cat:

          I never would advocate going to court as a first step, as courts are expensive and sometimes somewhat unpredictable. But as the last resort I would. Talking, negotiating, compromising is always better but some people do not want to do that or do not understand any other language or only accept things when a judge says or orders them.

          I could give you several examples, mostly companies who behave like them. And yes, I have taken some of those to court for $20 as it was not about the money but about showing them that they cannot do whatever they like with ordinary people, and also to have this on a public record, in case they do it again in the future because courts do not like repeat offenders as they see it as an affront agsinst their authority. And of course to make it expensive for them as it seems that the more money they have to spend, the better they learn for next time.
          Sometimes it is not about the money but about principles and reading this thread there seem to be some people who I would also put into the category of requiring such lessons because they advocate illegal acts aganst someone who merely exercised their normal rights.

  • nekro on 28/08/2014 - 18:15

    hahah.. when is an air conditioner not an air conditioner.. anyways hope the residents of Australia are warm in summer and cool in winter :P

  • [Deactivated] on 28/08/2014 - 18:26
    +1

    OP - whatever happens, please be sure to update this thread and keep us posted :)

  • [Deactivated] on 28/08/2014 - 19:03
    +1

    Just reduce the rent by $50 then increase the rent by (($50 + cost to replace) / 12 months) + amount you would have increased anyway next time you are legally allowed to. When the tenants calls up to ask why their rent has been raised by $17 per month you tell them "market value around the area" or "inflation" or whatever legally justifiable excuse you can make. They will get the hint. I know I did when I asked for a small thing (not stupid enough to ask fir reduced rent though). Lesson learnt.

    • Lysander on 28/08/2014 - 19:47
      -7

      Except that people are not stupid and not everybody will put up with it. Also, judges are not stupid and might make that connection.
      The real question always is if one is prepared to go to the trouble of involving courts or tribunals.
      Most people probably won't but if you are unlucky and get one that will, then you are screwed in such a case.

      • kingmw on 29/08/2014 - 00:51
        +5

        The landlord is legally allowed to increase the rent as they see fit after the contract expires. They do not need to provide a rationale for the increase. If the tenant does not like the increase then they will have to move out and find alternative accommodation.

        The tribunals will not get involved in this unless the tenant complains it is an excessive rental increase, which in this case of $17 per month this would not be.

        http://www.tenants.org.au/factsheet-04-rent-increases

        • kwaker on 29/08/2014 - 07:48
          +1

          what makes you believe $17 per month isn't?

          if its shown that you did so in retaliation for the tenant enforcing their rights, your not allowed to just increase the rent as much as you want and you have to justify it if they lodge a claim i.e market value and inflation and also the devaluation based on the homes age and condition also.

          is it worth risking having paying tenants leave and have the house vacant for weeks/months until you get new tenants?

        • edgar28 on 29/08/2014 - 09:34
          +1

          @kwaker:

          Yes , better take the risk than suffer whole year. Agent told me increment should not be more than 20% and must be deemed reasonable. The standard form normally allow u to circle 10-30 $.

        • Lysander on 29/08/2014 - 11:55
          +1

          See below. Courts and tribunals do not like retaliatory actions, and the advice given here is a lovely record. Do not think people are stupid.

          @edgar28: I would be careful with legal advice given by estate agents. To become one only takes a short course. To become a lawyer (and hence qualified to dispense legal advice) takes several years of training.

        • edgar28 on 29/08/2014 - 12:47

          @Lysander:

          The form are approved template from Real Estate Institute …..

        • kwaker on 30/08/2014 - 04:21

          @edgar28:

          I took a landlord to the tribunal, she was breaking the law by charging tenant for electricity when the landlord was going onto the property and using it.

          she yelled at the member:

          "ive been doing it for 30 years and so I know im allowed"

        • Lysander on 31/08/2014 - 22:30

          @edgar28:

          Remind me please, what are the names of the honourable judges working for the Real Estate Institute?

          Only Parliament and to some extent courts (also their main function is to interpret and apply the law) make law, not some institute.

          It seems to me that you are a bit to "authority" obedient - if it sounds official, then it is official??

        • edgar28 on 01/09/2014 - 15:25

          @Lysander:

          yeah Australia has too many institution giving a lot of advices that is useless in terms by law, I agree with you but by not following when you go to court they bite you back by not following the guidance provided that the institution that has certain "voice/ representing those members" in lobbying the law requirement.

          any advise not using real estate institution standard template? or can we draft our own conditions? My previous landlord did though……. not sure it's legal or not, from the condition, most of it very favourable to her as landlord……..

  • Azza on 28/08/2014 - 19:05
    +11

    You can't provide compensation for something you didn't know was working. You must assume everything works until the time the tenant notifies you.

    Given the fact he told you three weeks late is irrelevant so take the claim from the date he made the claim. So you're now looking at a few days plus a few weeks. I will take that as 4 weeks.

    Now that's clear answer these question:
    What reasonable effort was made by the tenant and/or the landlord to rectify this issue? ie did you provide alternatives? e.g. a portable heater.
    Was the tenant informed of the potential delay and/or were they kept up to date with the progress?

    If you can answers those questions fully and unbiased I think you will have your answer to whether the tenant deserves compensation. Be honest with yourself.

    • Lysander on 28/08/2014 - 19:48

      Absolutely right.

  • [Deactivated] on 28/08/2014 - 19:53
    +2

    No compo required as you have started the ball rolling to get the ac rectified.

  • Wallyt99 on 28/08/2014 - 20:02
    +1

    Aircon value = $1000
    Apartment value =$300000
    Rental =$300 per week
    Reasonable Compensation =$1 per week

    • bobz79 on 28/08/2014 - 21:59
      +1

      Great calculation! $300 per week in Sydney CBD? You may want to double or triple it!

      The value of the apartment includes its amenities as well. For eg: Similar apartment with lesser amenities would probably have say 20% less rent. So if the owner is expecting a premium for the a/c, then he should reduce the rent as well.

      It is quite obvious that people here who are demeaning the tenant are house owners, and quite inconsiderable ones! It is as simple as this. You rent a hotel for 3 days - A/C rooms $120 per night, non-A/C $100 per night. A/C wasn't working first night, you patiently waited. Reported next day and it wasn't fixed by end of 3rd day. Would you still pay whole $120 per day? Obviously not, you would ask for a discount/compensation, at least for the period after reporting it. The tenant is asking the same here.

      Most probably he would negotiate if you explain the scenario nicely. But if you want to be a bad-ass, you are going to end up as the loser. The tenant is a consumer who is paying you for what you said you would offer. If you offer less, why should he still pay same!

      @Lysander, great job fighting for poor tenants and creating awareness among owners :-)

      • Wallyt99 on 28/08/2014 - 22:09

        Whilst my calculations weren't perfect they were demonstrative. The useful life of AC is obviously less than an apartment so that is one factor I didn't include. Nevertheless the damage is purely economic - there is no pain and suffering here. The rental Dyson at $10 a week Max and that is only as a good will gesture.

      • Lysander on 28/08/2014 - 22:50

        Thanks. I hope that some time in the future the imbalance between tenants and landlords is eradicated and people deal a lot more amicable with each other.

        By the way: great example to demonstrate the principle - I think even the most hardened landlords on here understand that reasoning and would not be able to argue that they would just put up with such a hotel.

  • [Deactivated] on 28/08/2014 - 20:08

    Surely the cost of compensation is not huge. A percentage of weekly rent for a few weeks. Couldn't be a huge amount in the scheme of things. Might be worth it to keep a great tenant around. Do they pay rent on time and look after the property otherwise?

    What is the cost of finding another tenant? A weeks rent or two with the vacant property potentially? Would this offset the compensation?

    Plus get some insurance, otherwise we might see you back on here in a few weeks because the unhappy tenant trashed your property and you had no way to recover from that.

  • Tigi on 28/08/2014 - 20:14
    +3

    I think Azza pretty much sums this up: You can't provide compensation for something you didn't know was working. You must assume everything works until the time the tenant notifies you.

    The reason the tenant might be asking for compensation is that in some parts of the world where it's freezing, this is build into the law, e.g. in New York: http://www.nyc.gov/html/hpd/html/tenants/heat-and-hot-water.…

    To my knowledge, and I'm sure a few lawyers here will correct me if I'm wrong =), there's no such law in NSW, although if something fails there's an expectation on the landlord to fix it within a reasonable time. I would say reasonable time starts from the notice, not the fault. If the fix is taking longer than expected, maybe there's an expectation to offer an alternative, e.g. dyson rental from $7.19 a week: http://www.radio-rentals.com.au/dyson-air-multiplier-tower-f…. However the landlord could only fix or offer an alternative within a reasonable time if the tenant notifies the landlord.

    Otherwise, it's akin to a tenant knowing they have a faulty dryer, keeping quiet and then presenting the landlord with dry cleaning bills because they're not allowed to air laundry in the balcony. Or keeping quiet on the mulfunctioning oven and presenting the takeaway bills. You get the idea.

    Of course all the above is only my opinion and based on common sense; there may be laws to override this, so keep us updated. If I were you, though, I would deal with this politely and most obligingly with the tenant (think of the state of your apartment, bond money can only get you so far), but would consider hard before extending the lease when it expires…

    • Lysander on 28/08/2014 - 22:48
      +1

      Obviously the reasonable time starts from the point of notification - no reasonable person would argue otherwise. However, I find it hard to believe that the OP was not notified of the fact the whole complex's air con system failed by the body corporate or whoever else is looking after the complex. In that case, it is from the point of such notification or when the landlord should have been aware of it in reasonable circumstances.

      By the way, while I agree with your reasoning the law sometimes does not see it that way. Just check out the postal rule (Adam v Lindsell if I remember correctly) - then you know what I mean.

      You are right in that compromise and being polite goes a long way.

      The property owners here seem to forget possible consequential costs such as those that asdubstep mentioned.

      Be civil to people and they will also treat you in a civil way. Or in other words, treat other people as you would like to be treated - then you should have no problem.

  • mini2 on 28/08/2014 - 20:56
    +1

    I'd be checking if the tenant's paying market or above market rent, are they paying on time and what are their intentions on staying/renewing and vacancy rate in your block/vicinity. If everything's in your favour, tell them too bad, so sad go to the CTTT if they wish and get the case thrown out of there. If it's in the tenant's favour, I'd suck it up and offer them something to keep them happy (and renew..) - losing a couple of hund's here beats having the propery vacant for weeks and let fee.

    Landlord insurance wouldn't have helped in this instance and heck, it's just $300ish a year, go get it from the likes of EBM or Terri Scheer (heard good things re the former, heard crappy feeback re the latter).

  • edgar28 on 28/08/2014 - 22:55
    +1

    Make sure you up the rent if he willing to pay, good on you.

    When he move out, remember to put honest comment during referencing such as "tenant report fault not in timely matter, request for compensation"
    in the future he would need to pay more for others' rent.

    • Lysander on 28/08/2014 - 23:06

      Yes, and the tenant will also report you to BC, your bank etc. I guarantee that in the future you will also have a much harder time getting credit etc.
      What about the tenant making a website about the landlord (based in the US so it is covered by freedom of speech) posting true statements and opinions about the landlord ("landlord greedy bastard"; "landlord does not want to repair faulty items" etc.)? That will make a great impression for future tenants.

      Are you people all in kindergarden? If you do something wrong, admit it, accept it, pay up, and learn from it. Don't engage in a childish revenge game as in 99.9% of cases it will get you in even more trouble.

      And people wonder why there are osmany lawyers around - taking this thread as an example I am not surprised at all anymore.

      • edgar28 on 29/08/2014 - 00:03
        +4

        Dude, the landlord did, with his duty of care, fix the air con.

        freedom of speech or not, the tenant can say whatever he wants to make it bad about landlord.
        I see no sense that the tenant can contact the bank and make the landlord credit rating bad.

        the referencing is an honest feedback, i didn't ask the landlord to fake it……. and it's not a revenge game. Some people try to be hard and we need to teach them a lesson too. Two edge swords matey. You are simply too bias in this case.

        it seems like the "lawyer" is the only one that is educated and the rest is purely kindergarten mindset

        i met too many of the "ego" lawyer thinks the world is stupid and always make the law so complicated and only they exploit the loophole and make other normal citizen's life hard.

        • Lysander on 29/08/2014 - 12:03
          -1

          It is not a matter if he fixed but how long it took to be fixed. Can you see the difference?
          In fact, there are several people on here who also understand the issue and the law, not just the lawyer.
          Just because you had one bad experience with a laywer, does not make all lawyers incompentent and ego-driven.

          Would it not also be honest by the tenant to say: " I wenforced my rights and wanted somethig fixed and because I did that my lease got cancelled and/or the rent went up suddenly".

          This is not a discussion about landlords and tenants but about the OP's situation. In this particular situation the OP is wrong and needs to accept it. I am sure there are many other cases where the tenant is wrong - unfortunately this is not one of them.

      • kingmw on 29/08/2014 - 00:58

        What is the tenant going to report to the bank? That the rent has increased and that their client the landlord can afford to borrow more money?

        Also if the tenant did publish very negative statements and identified the landlord then the tenant may be up for defamation. The landlord has rights as well.

        Also freedom of speech comes under the Bill of Rights in USA which Australia does not have. Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights, with the exception of political speech which is protected from criminal prosecution at common law per Australian Capital Television Pty Ltd v Commonwealth.

        • Lysander on 29/08/2014 - 12:08

          Read the latest Google case. The US does not give a damn about Australian law and the Australian judges seem to agree that they do not have to.
          If the server is hosted in the US then US law will apply. If the statements are covered by freedom of speech you will not even get the name or proof of the name of the poster, hence no defamation action possible.

          Why do you think it is so hard to remove any content from forums hosted in the US?

          Banks will not like to be involved in this kind of legal wrangle for fear of bad publicity. They will rather decline a customer than running this risk.

          How do I know you ask? Because not only do I help wronged tenants but also wronged landlords and other people who need legal help but cannot afford it. I am not biased - as long as someone is treated unfairly I am happy to help (resources and time permitting) them. And yes, I have had cases like this. In fact, my future brother in law is fighting with Google right now about the removal of defamatory information.

      • ShannonIngram on 30/08/2014 - 20:55
        +2

        Utter BS. A tenant cannot report a landlord to their bank or a credit reporting agency to the point it would have any effect on them getting credit. Maybe if it was a commercial facility or the landlord was doing something seriously unethical (ie bad enough to end up on today tonight) but in this case - the landlord and their agents have taken steps to repair a malfunctioning air conditioner - no bank is going to have an issue with that. Also reporting to BC is not going to have any effect - they are already aware of the issue as it sounds like a shared facility that is affecting the whole block.

        Also from a quick google, looks like your overseas website idea wouldn't apply either - this court case in the high court where damaging material from overseas was available to download on a computer in Victoria was found that they were subject to the defamation laws of Victoria. http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html

        That said, I actually agree with most of what you have had to say in this thread. The landlord definitely has a duty to ensure that the air con is working. The landlord should be taking steps to ensure this is fixed in a timely manner and compensating the tenant when it is not.

        To jump straight to looking at it from a legal angle I think is the wrong approach and the only winners will be the lawyers - although I do think that if the landlord was taken to the tribunal and could demonstrate the steps that that have been taken to date, the tribunal is likely to side with them or award minimal damages (ie 3 repair attempts - not like they are ignoring the issue).

        At the end of the day, this issue may have been solved with communication and updates as to what is being done to rectify the problem. A portable heater could have been provided during the time of repairs and if this would done might have cost the landlord all of $100 to fix. Now that it has gone on for as long as it has, a claim of 1 or 2 weeks rent doesn't seem that unreasonable to me.

        • Lysander on 01/09/2014 - 11:30

          I think that is not the right case - I think it is nor offically reported yet but rather in "slip opinion" format. Also, having a judgement is one thing but being able to enforce that judgement is an entirely different matter. The US has not enforced a single defamation judgement from a foreign country so far so why should it suddnely change for Australia (especially since the latest Google case in the Australian courts confirms that)?

          The overseas website works - I am having enough trouble with it myself now on behalf of some clients. Good luck trying to get any info from US providers without a US court judgment and going to court in the US is not fun and very expensive. Also it is very unrpedictable in those cases. Would not trust Google anyway - as I said there is a reasoning it takes several years to get a law degree and even longer to become a lawyer.

          As to reporting anything to the bank - do you think the bank will not use such information in its decision making, even unofficially, once they have such info? To think they do not is naive. Which is why defamation is such a serious issue because once the info is out there, especially on the internet, there is no way to absolutely delete it anymore.

          Same of course goes for the things you post yourself on FB, Twitter etc. Companies use those resources, too, to investigate job applicants and its employees and collect that information before making decisions on hiring or promotion. The net is a blessing and curse at the same time.

        • ShannonIngram on 01/09/2014 - 22:48
          +1

          @Lysander: Fair enough. I'm not a lawyer and not quite sure about it not being officially reported yet - however it is a high court case from over a decade ago so one would imagine it's something to rely on. My understanding of it was that it didn't matter that the website was overseas and that as the content could be accessed locally you could be tried locally.

          I absolutely do think that the bank will not care if a landlord took a few weeks to repair an air conditioning unit. I'm a mortgage broker and this is my area of expertise. The bank does assess character when looking whether to loan money but this matter is so trivial it would not even rate. As I said, if it was something more serious, absolutely it may impact ability to get credit i.e. the "today tonight" test, but in this case even if you were to call or write to the bank directly with that info, it's unlikely to have any effect and in fact the bank is likely to cite privacy laws and refuse to even confirm the person has an account there. Even if that bank did for some reason record what you were reporting, there is no way to link that to a new bank to stop the person getting finance there.

  • fatboyslim on 28/08/2014 - 23:09
    +2

    OK, so this is what's happening:

    Tenant knew problem start of July, have been notifying the building manager and they tried repairing it 3 times. the agent first got the email 3 weeks after. and now tenant is claiming the air con has let him down for 9 weeks and would like 2 weeks rent free. We were only been told of the problem late last week, when he demanded compensation.

    so we r in the process of offering him 1 week's free rent instead, and will also attempt to shift the claim back to the builders since it should be under warranty still.

    still negotiating….. also will start to look at landlords insurance too. out of the few IPs, this is the only one I havn't got and claim is on this one… LOL

    • kingmw on 29/08/2014 - 01:04
      +1

      You should look at these cases to guide your decision.

      http://www.reinsw.com.au/default.aspx?ArticleID=9982

      The last case on the page in 2010, shows that despite a "very cold" air con between November and March the Tribunal only ordered compensation of $1660.

      Overall, I do not believe you have breached your statutory duty or repair a defective air con within a reasonable timeframe and thus you are not liable for any compensation to the tenant. Additionally as he did not inform you for the first 3 weeks, you were not obliged to repair the air con during this time.

      • kwaker on 29/08/2014 - 08:02

        clearly they did not like the landlord in this case and this excessive amount was clearly made for personal reasons.

        seen this lots of times, go in acting like a … then you will get creamed. the courtroom is rarely about law and all about psychology

      • JimmyF on 29/08/2014 - 12:22
        +1

        AC is more than cooling, its HEATING and cooling and HEATING is a requirement of a landlord.

    • kingmw on 29/08/2014 - 01:16
      +4

      Also I am concerned about why your agent did not inform you earlier about this. Since he/she is your agent, they should be keeping you informed of all matters concerning your property including common property.

      • Cheshire Cat on 30/08/2014 - 00:27

        Definitely time to ditch your agent. I've dropped a few that were lax in reporting things to me they should have. In my experience as a landlord and renter it's the agents that are often the problem not the tenants and landlords.

    • MITM on 29/08/2014 - 07:24

      I wouldn't think the warranty covers your compo claim, just the repair and replacement of the AC.
      Try getting compo from Aust Post for the contents of a non delivered parcel. They will only give you a replacement stamp and then they'd ask did you have insurance.

    • parisienne on 29/08/2014 - 11:03
      +2

      Seriously fatboyslim…if you have an investment property,you MUST have landlord insurance (i cannot believe that you don't have it.Don't start LOOKING at it..GET IT,AND ASAP).I think that if you cannot afford (or just can't be ar$ed getting)insurance,then you cannot afford the property (unless of course you have a stash of cash under the bed to pay for any mishaps).We have an investment property,and the first thing we did was get insurance (what if someone has an accident in the house,if the property gets broken into and destroyed or you have the place vacant for weeks on end…got money for those instances ? And don't think for one second that these things don't happen).

      • andyken on 29/08/2014 - 11:25

        just curious, if i was a tenant, and my renter home got burns, who need to pay for the house? the tenant or the landlord?

        • xordis on 30/08/2014 - 10:48
          +2

          I am guessing you are meaning the house/appt was burnt down/out?

          Here is how it works. (for a unit)

          Tenants insurance - covers their belongings
          Landlords insurance - covers fittings and fixtures (kitchens, bathrooms, walls, carpet, cupboards etc)
          Body Corp insurance - covers structure etc. (anything outside your walls)

          For a home (I have a unit so I am not 100% on this) it would be the same thing except the landlord would need full coverage of inside and out. eg landlord/structural type combined.

        • andyken on 30/08/2014 - 19:49
          +1

          @xordis: thank you

    • Lysander on 29/08/2014 - 12:12

      OK, that's a good start.
      But do you see that the problem here is not the tenant as regards notification but the building manager and the agent who did not notify you. You should have a word with them to prevent this from happening again in the future. After all, this is what YOU pay them for.
      If you take out an IP now, you could not claim for thngs that happened before you took it out. Also, I doubt that this would be covered but maybe with the variety of IP out there, it is. Good luck.

    • JimmyF on 29/08/2014 - 12:24
      +5

      So the tenant TRIED to work it out with the building people, that failed and then went to the agent, who sat on it for a few weeks and when that FAILED they went for compo and the agent went oh and flicked it to you. Sorry, but I agree with them. having no HEATING/COOLING/FRESH AIR for 9 weeks and counting (as you don't say its FIXED yet?) is fair grounds for some compo.

      Pay up the two weeks, put a bill into the building mgmt to recover costs, move on.

      • Cheshire Cat on 30/08/2014 - 00:29
        +1

        Yeah looks like the tenant tried pretty hard. Terrible agents though.

  • keysersoze on 29/08/2014 - 03:27
    +1

    So the building manager failed to notify you of the repairs that needed to be done to the air con 3 times and it took the agents over a month to notify you? I'm not a lawyer but sounds like the tenants performed reasonable steps to have the air con fixed. I don't know sounds like if the tenant sues you they have a better than 50% chance to win and if you jack up the rent they'll just leave so its up to you if its worth not having any rental income for a few weeks because you're trying to screw people who have a legitimate grievance. I know if I didn't have a heater I would be (profanity) pissed off its reasonable for the tenant to ask for a little compo for the problems if say Telstra or whatever cut off your home phone or internet for a few weeks you'd definitely be asking for compensation as well.

    • Lysander on 29/08/2014 - 12:16

      You are right. This is common sense.
      Also, the same people siding with the OP here would be the first people to demand compensation from Telstra I am sure.
      But the Op has taken good steps towards resolving the issues. It is always best to negotiate and compromise and only use courts as last resort.

  • AG_ACT on 29/08/2014 - 06:01

    WOW! Makes me very glad I self manage.

    It's not summer, so issue is a non functioning heater. Had you known on time, you could have bought a few oil heaters at 59 a pop for the interim while the issue was being rectified. Too late now but I'd include a suggestion that your liability should be limited to the cost of temporary heaters in your offer of one week rent.

    I don't know what your agent is like but usually they charge 1 weeks rent + gst so it probably isn't worth the hassle if they are looking after your property otherwise.

    • MITM on 29/08/2014 - 07:20
      -1

      Self manage - went down that path. Felt like I had to tuck them into bed each night to ensure they were safe and sound.
      If you strike good tenants, all is well. But eventually they come and go, and new tenants seem to think they are entitled to a concierge service.
      Once I got a "please change the stairwell light bulb" because it was too high to reach - for gods sake.

      • tonka on 29/08/2014 - 10:00
        +1

        How do you change those high up lights? I, ve always been curious, seems an extension ladder would be needed but stairs would be in way.

      • mousie on 29/08/2014 - 16:35
        -2

        happily take their money though no probs?

  • Geewhizz on 29/08/2014 - 06:35
    +1

    OP the wording of your post is a little confusing. You initially state that the tenant only advised you a few days ago of the problem? If that's the case then any liability on your part would only begin at that point, as it's their responsibility to notify of any problems in a timely manner.

    Ask yourself, how good a tenant are they? If they look after the place and pay their rent on time, and aren't forever costing you money for simple maintainence jobs they could easily have done themselves (probably not an issue with a new building, but who knows) it's probably worth your while to do what you can, within reason, to keep them happy, and send a bottle of wine as an apology for the inconvenience.

    You're probably best off to speak to the RTA (Residential Tennancies Authority) or whatever they are called in your state. They will tell you where you legally stand, and I'm guessing could advise you on what compensation would be appropriate, if any.

  • t_c on 29/08/2014 - 06:38

    Should compensation be calculated from time renter notified building manager or from time landlord was notified?

    • Lysander on 29/08/2014 - 12:18

      From th epoint when tenant fulfilled his or her duty to report which in this case I am pretty certain would be when reported to the building manager who can be viewed as an agent of the landlord (given they pay for him with BC fees etc.)

  • MITM on 29/08/2014 - 07:17
    -1

    Now a few more facts emerge.
    Seems OP wasn't kept informed by Managing Agent until MA passed the claim to OP last week.
    I'd sack the MA immediately (even if they manage OPs other IPs.) for failure to manage. Then sue for any claim they caused you to pay - (though I wouldn't, I'd cut my loses with them)
    Competition is fierce. A new MA would take on the challenge to rectify (negotiate $0) the situation, and other IPs are the cream on top.

    Tenant would still get "no intent to renew" letter. This will cost 1 week +gst. Get new MA to waive this cost once only.
    It's just a business decision where all parries must harmonise to work. You have 2 loose wheels on your wagon.
    Ultimately you need excellent tenants and MA for this venture to succeed. Don't be afraid to churn them.

    • paul_5666 on 29/08/2014 - 09:39
      +5

      Some people on here sound like exetel. Make a reasonable complaint to TIO, then get notice of service cancellation.

      • Lysander on 29/08/2014 - 12:19

        Plus vote for that comment. Put very succinctly.

    • Typical16-bitEnjoyer on 29/08/2014 - 10:16
      +1

      So because the tenant was without aircon - cooling and heating - for over 2 months, that is your reason to evict them?

    • Lysander on 29/08/2014 - 12:32

      If you want no complaints there is a simple solution: Ensure everything works.

      You want tenants that pay their rent reliably on time but do not complain if the landlord does not fulfill its obligations. Good luck finding those. If the rent was $10 a week maybe, but not in Sydney with rents of upwards $750 a week.

      Being a landlord is not a licence to print money or a get rich quick scheme - it does come with responsibilities and duties, too.

  • kwaker on 29/08/2014 - 07:29
    +3

    I can tell you from experience that the cttt in nsw has awarded someone $5 per week compensation.

    Its not worth the time and hassle just offer some amount that you think is fair and reasonable and move on, if they are good tenants then make them happy too, otherwise you will end up getting what they think you deserve from them because at the end of the day its very hard for landlords to chase up debts when their house has been trashed.

  • tonka on 29/08/2014 - 09:56

    Should be a number you can ring. Tell them you are a tenant and ask their advice. I did this (many years ago) when landlord renovated bathroom and would be offline a couple of weeks. Was told no go for rent reduction even though stuck with bucket baths for weeks . Landlord is entitled to time it takes for maintenance of property.
    Was told same thing as landlord when tenant had to go 4 weeks with no stove while replacement was on order.
    Call the advice line.

  • X3 on 29/08/2014 - 10:03
    +1

    fatboyslim - just call the Department Of Fair Trading and find out exactly what your rights are.

    You may be offering the one weeks free rent for nothing.

  • p1 ama on 29/08/2014 - 10:05
    +3

    Tenant's apartment's air con (which is part of the building as the entire building has the same system) not working for a few weeks and we've only been told only very recently (few days).

    I'm not a lawyer, but from a personal perspective, the tenant sounds like a major ass. If I was a tenant and something was broken, I would aim to get it fixed as soon as possible. Sounds like he's just out there to get what money he can. It's August, who even uses air-con in August anyway.

    • Typical16-bitEnjoyer on 29/08/2014 - 10:19
      +2

      The tenant was without air con for over 2 months. Seems instead of bothering the landlord and agent they tried to resolve it directly with the building management. Only when it was still broken for several weeks they approached the agent. What's unreasonable about this?

      • edgar28 on 29/08/2014 - 10:38
        +1

        I believed if the other party never tell you and you be expected to know?

        I'm not gifted like you to read other peoples's mind……. even if you can, that's mean you are stalking other people's mind all the time?

        • Typical16-bitEnjoyer on 29/08/2014 - 16:17
          +2

          Well from the follow up post looks like thats an issue between the landlord and the managing agent not communicating.

          Just because the agent doesnt advise the landlord doesn't mean the problem doesnt exist.

      • p1 ama on 29/08/2014 - 15:26

        The OP states:

        Tenant's apartment's air con (which is part of the building as the entire building has the same system) not working for a few weeks and we've only been told only very recently (few days). We have since contacted the building strata/maintainance people as it is under warranty - and it has taken them a few weeks to fix that problem - entirely out of my control.

        This implies that the tenant chose to do nothing for a few weeks and then notify the OP recently after which the OP have contacted the maintainence people who have taken a few weeks to fix the problem.

        If the tenant notified the OP straight away, there would have been less of a wait and I think that would be the common sense thing to do here. It sounds as if the tenant realised that he is indifferent to using the air-con and chose to not do anything about it so that he could later claim compensation.

        • Typical16-bitEnjoyer on 29/08/2014 - 16:16
          +1

          No, read the OP's follow up post. The tenant reported it to the building management, and when it still wasnt fixed then they reported it to the managing agent.

        • JimmyF on 29/08/2014 - 16:23
          +2

          As always the op spun it his way in the first post…. he later updated in a comment (On the first page) and said this

          "Tenant knew problem start of July, have been notifying the building manager and they tried repairing it 3 times. the agent first got the email 3 weeks after. and now tenant is claiming the air con has let him down for 9 weeks and would like 2 weeks rent free. We were only been told of the problem late last week, when he demanded compensation."

          So the tenant was working with the building manager who failed to fixed it, then tried with the agent who DID NOTHING for 4 weeks, then after what would have been 7 weeks without AC, he asked the agent for compensation. Which is then WHEN the agent contacted the owner. Now really, its not the tenants fault the agent did nothing for 4 weeks is it!? I mean the tenant has no direct line to the owner. The owner should be cranky at the agent, not the tenant!

          So its now 9 weeks (maybe 10) and the tenant still has no AC and still no sign of getting it fixed. I think its fair to ask for compensation!!

    • [Deactivated] on 29/08/2014 - 10:43

      It's August, who even uses air-con in August anyway.

      It's also a heater.

  • SoBargainVerySave on 29/08/2014 - 11:02
    +1

    Worked in property management for 3 years, and I think 1 week's rent is far too generous for that prick. I've been on both ends, as a property manager and as a tenant and;

    Not to sound like an ass but I would have pushed the tenant to go to tribunal (only because it is a lot more expensive for them to apply than it is for a landlord). If you have everything in writing, and you can prove that it wasn't reported in a timely manner the compensation outcome could be as little as $70 bucks I reckon.

    I've had to go to tribunal for a similar case, however it was for a period as long as 6 months (we fixed it as fast as we could but the tenant kept pushing for more), in the end the tenant was trying to claim $2,000 because ONE element on the stove wasn't working and claims it ruined his "passion for cooking". He did win but he only walked away with $220, then he got a rent increase notice, didn't like it so he moved out. In the end he was at a loss as he had to spend a lot of time finding a new place, pay for removalists, bond etc.

    • Lysander on 29/08/2014 - 12:23

      $22.20 in QLD. I would spend that any day on this.

      Tribunal hearings are public and there is a record. Therefore, if you lose to many, any future tribunals and courts will have access to that and will take that into account as a "repeat offender".
      Keep in mind that at least in QLD this will be on the record for life.

    • JimmyF on 29/08/2014 - 12:26
      +2

      Yeah What a prick…. not having heating/cooling for 9 weeks and complaining….. /s

      • Lysander on 29/08/2014 - 12:28
        +1

        I am not sure if some of the people here get that sarcasm. I do applaud you for it.

  • [Deactivated] on 29/08/2014 - 11:05

    I have experienced both sides of the inconvenience, however, I am not a lawyer, nor does the following constitute as legal advice.

    Firstly, the lessor is required to provide heating/air-conditioning facilities if on contract, the air-conditioner is listed as facilities that are maintained by the lessor. The lessee is entitled to compensation if the facilities are not functional as a result of neglect, however, if it is due to no fault of the lessor, the lessee only qualifies for reimbursement if the lessor does not act upon the complaint in reasonable time (of which I am not sure how long that would be).

    The air-conditioning was functioning up until the time when the lessor is made aware of the fault. In this case, it has only been a few days and the lessor has no obligation to compensate.

    If the body corporate does not repair the air-conditioning in said reasonable time, then the landlord has to compensate the lessee. It is then up to the lessor to seek reimbursement from the body corporate. The lessee doesn't deal with body corporate unless otherwise specified.

    • kingmw on 29/08/2014 - 11:18
      +1

      The tenant's first port of call is to go to the agent or the landlord for any repairs of common property. Only the agent and body corporate can request the body corporate to maintain or repair any common property.

      Thus even though the tenant initially contacted the BC to fix the AC, the BC is not obliged to perform the repair unless the request comes from the owner or their agent.

      http://www.tenants.org.au/factsheet-13-strata-scheme-tenants

      Repairs to common property

      The owners corporation is required to properly maintain all areas of common property. This includes outside walls, shared laundries, stairwells, foyers, lifts and common parking and garden areas.

      If a problem is clearly on common property, write to the owners corporation or their management agent and ask for repairs to be done immediately. Send a copy of the letter to your landlord (or their real estate agent). Ask the landlord to take action to make sure the owners corporation does the repairs. Keep copies of all letters.

      If the landlord does not chase up the owners corporation to do common-property repairs, you can apply to the NSW Civil and Administrative Tribunal (NCAT) for an order to have the repairs done. In your application you should argue that your landlord’s obligation to do repairs includes getting the owners corporation to do repairs.

  • OzJD on 29/08/2014 - 11:10
    +4

    IANAL, but in NSW, a tenant is entitled to a rent reduction for loss of utilities…

    Factsheet 06: Repairs and maintenance
    The tribunal may make an order that the rent is, or was, excessive due to a reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises.

    OP, you were notified as of the time the agent was notified. It's not the tenant's fault that the agent didn't pass on the message to you. It's unfair that you only just got the message, but the tenant did the right thing when they told the agent. I would be questioning the agent(s), and possibly finding a new one.

    It doesn't matter what month it is, or even what utility is out of service, but the tenant can request a reduction. In saying that, you can refuse, but the tenancy tribunal may make that decision for you if the tenant takes it to the CTTT.

    Section 19 (j) of the NSW Residential Tenancy Agreement states that "a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating, cooling or laundering," is considered urgent. (surprises me!)

    I also wouldn't offer anything until the issue is sorted out. I would personally offer 10% per week rather than 100% of one week (even if more than 10 weeks since tenant contacted agent) as this would mean that the tenant can't later claim for other weeks.

    • edgar28 on 29/08/2014 - 11:15
      +1

      Yes agreed. But tenant failed to inform agent after a few weeks too.

      • one man clan on 29/08/2014 - 12:03
        +4

        Please read the update.

        The tenant informed the building manager at the start of July. He then informed the agent 3 weeks later - that being mid/late July. It's now the end of August, so that's 5 weeks after he informed the agent, even if you don't count the building manager.

        • OzJD on 29/08/2014 - 15:42
          +1

          @edgar28: I'm not sure why this is relevant. Time for rent reduction should start only after the agent or landlord has been informed. There are allowances for things to get fixed, but as it's considered 'urgent' (why?), I think it's only 24h.

          @one man clan Spot on. It should be 5 weeks currently that reduction would apply, not 8.

          As for the tenant contacting the building manager, this means nothing. If I tell the bank I want money from someone, it doesn't mean that the person is going to know. I would need to contact the person, who puts the money in the bank, which gives it to me.
          Same thing applies here, the tenant should contact the agent, the agent either arranges the repair on the landlord's behalf, or contacts the landlord. (depending on agent and landlord's agreement)

        • one man clan on 29/08/2014 - 16:44

          @OzJD: Are you sure about that? You'd have to be careful about contractually who you are obligated to report defects to as a tenant. It may be sufficient to report it to the building manager, which means the 8/9 weeks being floated is correct.

    • tonka on 29/08/2014 - 11:26

      This says 'reduction or withdrawal by the landlord', which is not the case.

  • slix_88 on 29/08/2014 - 11:23
    +1

    Suddenly everybody's got their law degrees

    Good thing I bought a hybrid residential/commercial property. Got the lessee to sign a commercial lease with them being 100% liable for all operating expenses and outgoings. They are even liable to replace the air con system if it fails as per our contract.

    • Lysander on 29/08/2014 - 12:27

      Yeah, I am wondering, too where all of these "lawyers" suddenly come from. Where are they when companies try to screw Ozbargainers over? :-)

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