Residential and commercial leases – and the legislation that regulates them – contain numerous provisions requiring a landlord to ensure the premises are kept in “good repair”.
Tenant Vikki Shields claimed that a number of maintenance issues at her Boundary Road rental constituted a breach of that obligation by landlord Peter Deliopoulis under her.
Her list of defects included holes in the walls and floor; dampness; mould; rats and other pests; defective electrical wiring; faults with doors and windows; and unserviceable fixtures and appliances.
Deliopoulis did not dispute that the premises were in poor condition but produced evidence that he had spent $10.5k over the nearly 6 years of the tenancy to “upgrade” the dilapidated home for which he received only modest rent.
His frustration with the ongoing the expense was put on record when he wrote to the managing real estate agents to state in June 2010 “that no further repairs to the property will be done” other than that which is essential “for the safety of the tenant/property”.
When she asked for more repairs, Shields was given notice of termination.
A Tribunal ruling on the affair concluded that the acceptance by the tenant of the relatively poor condition of the tenancy – in consideration of low rent and no rental increases – had absolved the landlord of any further obligation.
On appeal, the Victorian Supreme Court noted (as applies in Queensland) a mandatory requirement on the landlord’s part to ensure that the premises are put into and maintained in ‘good repair’.
This obligation was held to apply regardless of the general condition of the premises at commencement or any acquiescence on the part of the tenant.
As is the case in Queensland’s RTAA s 185, Justice Melissa Daly ruled the presence of the word ‘ensure’ imposes a duty “on a landlord that is strict and absolute” and requires lessors to “identify and rectify any defects of which they are or ought to be aware”.
While the age and character of a premises might have some relevance, the state of repair at the commencement of the tenancy does not qualify what amounts to ‘good repair’.
Furthermore, the landlord’s obligation “cannot be diluted by charging a low rent.”
Shields’ appeal was upheld and the dispute will be re-examined in the Victorian Civil & Administrative Tribunal.
Shields v Deliopoulos [2016] VSC 500, Daly AsJ, 7 September 2016
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