A Zillmere tenant has succeeded in a rent compensation claim on the grounds that the rented home was “partly unfit” for habitation when she began occupation in March 2013.

Stephanie Cutajar brought the claim in QCAT against Place Estate Agents over more than 20 defects – all noted by her on the entry condition report – including faulty pool equipment, dishwasher, floorcoverings, and bathroom fittings defects.

She relied also on the absence of an appropriate safety certificate for the swimming pool and a Public Health Act provision prohibiting the exposure of flaking lead paint in premises that may be accessible to children.

In addition to reimbursement of the expense of pest control, obtaining the pool safety certificate and a test to determine lead levels, the tenant claimed a reduction of $50 to her weekly rent of $440.

A building inspection report verified her complaints. And samples of flaking paint taken from the exterior of the home and one from an internal wall in the bedroom returned positive lead concentrations up to 17.3%.

As a result Queensland Health’s environmental unit notified the owner of his statutory obligations to protect children from the toxic lead particles.

Following the September 2013 hearing before tribunal member Paul Favell, Ms Cutajar “inappropriately” made direct contact with him to notify that the family had contracted Legionella which she assumed was from the mould in the bathroom or defective air-conditioning.

What troubled member Favell more though, was whether compensation was appropriate “in circumstances where the condition of the property was open to be observed when the property was rented”.

He drew assistance from the provisions of s 185 of the RTRAA that among other things, require a landlord to ensure – at the start of a tenancy – the premises are clean, fit for occupation, in good repair and comply with all laws.

Against that background, he found the landlord in breach of 13 of the items complained of and that some of the breaches endangered health and safety.

Ms Cutajar’s claim in respect of pool maintenance was dismissed as there was no agreement that the landlord was to maintain it: “In the absence of agreement, the obligation is on the tenant”.

All in all, the tribunal decided the rent reduction was appropriate at the amount claimed, $50 per week, for a six-month period.

The landlord was also ordered to promptly remove the lead paint exposure on the property.

Cutajar v Place Estate Agents [2013] QCAT 726 Member Favell 23/10/2013


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