In this series, we collect submissions from Australian renters about their sticky sharehouse situations and pass them on to tenancy lawyers. Tenancy laws differ in each state and territory and these lawyers are not providing legal advice, rather sharing their general views about whether any renters’ rights might have been violated. Before making any legal decisions, please always contact your own lawyer for advice.
Mary, 26
“We moved into a crumbling mansion in Sydney. It had character, but over the two years we lived there it became basically uninhabitable.
A condition of us moving in was that they would fix several problems with the house including the damaged wall. This did not happen.
As soon as we moved in, in late 2020, we noticed issues with water damage in the living room wall and eventually the upstairs bedroom. It started as a small discolouration near the ceiling but spread to take over the whole living room wall. We raised concern with our landlord via our real estate agent requesting that the area be looked at as there was obviously a leak somewhere.
Then La Niña came, which basically made the issue 1000 times worse. The living room and bedroom walls became wet to the touch and the damage spread.
We requested again and again for repairs however we were given answers like ‘everyone’s houses are mouldy and wet right now’ and ‘repairmen are all booked out’ and ‘we will get back to you’ etc.
They sent someone around and they cleared the gutters and said that it would fix the issue but, unsurprisingly, it did not fix the roof leak nor the mouldy walls.
We contacted them essentially once a month until 2022. Eventually, we had a literal black and green mould feature wall that you saw as soon as you walked down the hallway into the house. The upstairs bedroom also had an entire wall taken over by mould and damp and I reckon it made us all sick with congestion.
In June 2022, we thought we had finally made progress when they said they would finally repair it by repainting the walls with ‘waterproof sealant’. I was highly skeptical, especially when I saw the repairman just paint over the mould and not treat it at all.
The visible water damage seeped through the paint the very next day. We emailed our real estate agent. No response.
At this point, we were completely fed up with the constant admin and knew they were just waiting for us to give up and stop contacting them about it. It was a structural issue that would cost thousands to fix.
Then, in late 2022, landlords listed the property for sale and gave us a few days’ notice of inspections, which we knew was illegal. We are asked for a rental reduction for this as well as the ongoing mould issue to which they said ‘no way’.
Eventually, they sold the house for more than $2 million.
The incoming landlords wanted to increase the rent without fixing the mould issue so, in December 2022, we decided to move out and opened up a case with the previous landlords at the NSW Civil and Administrative Tribunal (NCAT).
I’ll spare you the nitty gritty legalities but obviously, we won.
NCAT ordered them to pay us $5000 in compensation. But still today they are refusing to pay us. They ghosted us, ignored all our corespondance and, because they had left off information from our original rental agreement including their bank details, so we can’t even give NCAT their bank details to seize the money.
So now what?
Is this common in Australia? What avenues can tenants pursue outside or on top of VCAT/NCAT? And what can they do if their landlords don’t comply with or appeal VCAT/NCAT orders?”
Christopher Carr, Tenancy Lawyer at WEst Justice
Dear Tenant,
Unfortunately, the presence of mould in rental properties is an all-too-common experience for renters in Australia and it is a serious issue. I’m sure there is barely a renter out there who cannot tell the story of a mouldy sharehouse.
As a starting point, rental properties must be fit for habitation and be in a reasonable state of repair and cleanliness.
Once you’ve moved in, an important question and point of dispute that often arises is: who or what caused the mould growth? If it is caused by the actions of the tenant (for example, by not opening windows reasonably often to adequately ventilate the property or encouraging moisture build-up) then it is the tenant’s responsibility to address. However, if it was caused by defects in the building itself, such as its design, including if it is impossible to ventilate, a faulty roof, or any type of water leak or ingress, then it should be the landlord’s responsibility.
In some cases, landlords or their agents will emphasise that any fault lies with the actions or omissions of the tenant even where a structural problem is visibly apparent or strongly suspected. It may be useful for a renter dealing with mould to keep a record of what they have done themselves (if anything) to reasonably prevent damp and mould growth and what effect (if any) it had so that they can fight this presumption where it comes up.
If a renter discovers mould in their rental property, they should inform the landlord or agent as soon as possible. Once put on notice of the problem, a landlord must act promptly to fix it. If they don’t, tenants generally have mechanisms to force the landlord to carry out the repairs, such as by taking them to a Tribunal like VCAT or NCAT and seeking orders requiring them to do so. On top of this, if the landlord fails to comply with their duties under the law or the lease to maintain and repair the property, a tenant can be awarded monetary compensation.
However, as your situation highlights, it is not uncommon for landlords to fail to comply with these orders.
Where this happens, a tenant may need to enforce the order, which can be quite complicated. As a basic first step, a tenant can send the landlord a copy of the order and ask that it be complied with. It is an offence for a person not to comply with a Tribunal order in Victoria, so a tenant can also report the landlord to the relevant authority if they fail to comply (in Victoria, this is Consumer Affairs Victoria). If a landlord fails to comply with an order requiring them to pay money, a tenant can also generally take action through the Courts – for example, to get the sheriff to seize assets (such as property that can be sold to pay down the debt or money in bank accounts), or divert some of their income to pay off the debt by instalments.
There clearly needs to be better regulation and oversight of the standard of rental housing in Australia. In Victoria, the government has enacted minimum standards that a property must meet in order to be rented, including that it must be free from damp and mould related to the building structure.
However, it’s left up to tenants to take action where properties do not meet these standards. Given the imbalance of power (chiefly driven by the extremely tough rental market across Australia right now), many tenants often don’t take action for fear of retaliation from the landlord. There are mechanisms in place to try to prevent this and to better protect renters, but regrettably, they can be difficult to enforce.
In Victoria, a landlord can be fined up to $11,538.60 (or $57,693 if they are a body corporate) for renting a property that does not meet the minimum standards, but I’m not aware of this ever occurring.
As an aside, I have heard the idea of landlord bonds floated in the past. The concept would require landlords to pay a bond that would be held by an authority (just like tenants do) and distributed to tenants where they receive orders for monetary compensation exactly like in this scenario. Unfortunately, I’m not aware of the scheme existing anywhere in Australia but were such a scheme in existence it might encourage landlords to maintain their rental properties better and also be a lot easier for you to receive your $5,000.
There are many resources renters can access for actual legal advice or more information on your rights.
Government fact sheets or tenants unions can be a good place to state – each state has them. If you live in Victoria and need to speak to a lawyer, you can contact WEst Justice or Anika Legal, which offers a free consultation service.
Or if you just need to vent about a fucked landlord, rental situation or a general rental horror story, you can email us at [email protected], and we’ll pass the story on.
The post True Story: I Took My Landlord to Court for Mould and Won appeared first on VICE.
