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Expert Lab Reports Prove Critical in VCAT Demand for Compensation

The rental nightmare begins with mould...

Imagine you rent a property and after some months you discover actual mushrooms growing up from the floor in your bathroom. Sure, the house is a little tired, but maybe that persistent cough or that lingering smell wafting into your bedroom each night giving you that headache…could it all be related?

So, what do you do? In this case, you call your property manager. She says she’ll send someone around to take a look. Another week goes by and you get used to the smell after half an hour indoors. An email arrives from your managing agent saying that the handyman couldn’t get in because no one was at home. A shame we both work and our kids are at School. More time goes by. Finally, he arrives and shrugs off your concerns saying it’s just the grout around the shower that came away. The only solution: some new silicon, end of story.

But your story is just beginning. You and your family have all been sick - off and on, little things, but the mushrooms grow back over Winter and in comes the rain…leaking, a drop here, another there, through the roof.

This is not the start of a screenplay - this is real life: your life, happening in your rented house. Yes, it belongs to someone else, but what happens when you can’t get the stakeholders to listen and take action on your problems? 

This blog post aims to highlight what happened to one Family and demonstrate how they only succeed by taking matters into their own hands and getting professional help. Please post and share this blog to anyone who you know who is dealing with mould or a difficult landlord or property manager. Read the legal determination. It shows what the Family did before they got some natural justice. The judgement highlights the important role of scientifically credible data in supporting any claim for adverse amenity and OHS risks.

Read on and see how this played out...

What was the tipping point that made them feel they had no option but to start a civil claim?

Toxic mould and poor indoor air quality can make your home a health risk. Landlords must, under Victorian law, keep rented property in good condition. If landlords and property owners refuse to conduct these repairs, tenants may be entitled to compensation based on the costs of fixing the problem themselves and the loss of use of their property.

Despite the laws in their favor, some tenants have an uphill climb in proving the necessity of water damage and mould-related repairs against stubborn landlords and/or property managers.

Our clients Bronwyn and Jarrod Rogers learned just how difficult it can be to obtain their landlord’s help remediating a serious mould problem that developed in their rented home. With the support of an expert report provided by Biological Health Services, the couple recently succeeded in obtaining an award for compensation against their landlord pursuant to a claim before the Victorian Civil and Administrative Tribunal (VCAT).

The Rogers’ began complaining of a mould issue in their home’s bathroom beginning as far back as 2014. Unfortunately, the family began suffering adverse health effects related to the mould issue: including sinus, asthma symptoms, and chronic coughing - but the landlord still refused to act. The couple provided official notice to their landlord of the mould on two separate occasions, but did not receive a response. The couple then enlisted the help of the Director of Consumer Affairs Victoria. They also obtained independent air quality and mould testing that resulted in a report from Biological Health Services’ own mould and air quality expert, Dr. Cameron Jones, PhD which concluded that a serious mould problem had spread throughout the home, posing a foreseeable threat to the health of the family.

After spending a great deal of time and expense on proving the existence of and remediating the mould and air quality problem, the Rogers came before VCAT to demand compensation from their landlord. They presented the Tribunal with our expert’s report, along with photographs and emails that had been sent to their landlord, documenting the need for remediation and compensation. The Tribunal cited and quoted from Dr Jones’ report on numerous occasions in its opinion which ordered the landlord to compensate the Rogers’. The Tribunal’s opinion noted that the “technical expertise” of Dr Jones made his report more convincing than the lay opinions offered by the landlord as well as the property manager of the firm who leased the property in the first place. The opinion also noted that the Tribunal found Dr Jones’ report persuasive in describing the risks of harm posed by insufficient or delayed remediation.

The ruling referred to these parts of the law

It is important to note that the member made this determination with regard to the following aspects at Law:

The Law

1. A landlord must ensure that rented premises are maintained in good repair under section 68(1) of the Residential Tenancies Act 1997 (“the Act”). A landlord who fails to carry out repairs of which he knows or ought to know is in breach of this duty.

2. A claim for compensation for breach of duty may be made under section 209 of the Act after the service of breach of duty notices.

3. Compensation may also be claimed by a party where they have suffered loss or damage because the other party failed to comply with the tenancy agreement or that party’s duties under the Act.

The Tribunal has a general power to order the payment of compensation to any party under section 472 (1)(f) of the Act.

Why the tenants won

The member concluded that:

75. I am satisfied on the basis of all reports that there was an air quality problem in the rented premises.

76. The landlord responsibility was to maintain the premises to a safe and liveable standard. To the extent that the risks posed by the air quality were known and might apply to a normal person the landlord had a duty to act.

77. The Report provided by Dr Jones indicates that that risk was evident in the office and the ensuite particularly. He also alerted the landlord to the risks which might eventuate from protracted and inefficient and ineffective of the mould effected areas in the ensuite. The landlord’s acts devalue if not disregard this evidence.

78. The tenant acted to prevent further consequences to their health by the mould removal and also to the levels of particulate matter in the house.

How this could impact on you?

If you’re a landlord or property manager, it can be more cost-effective to remediate a mould or air quality problem before a tenant begins to occupy the space. As well, if a tenant can show/prove there is a mould problem based on valid air quality testing and/or mould sampling, then the managing agent should make a serious effort to convey such results to the landlord and impress on them the importance of addressing any underlying building defects as well as following any remediation recommendations.

That way, you’ll be spared the costs of representation, as well as the hassle of a drawn-out legal battle. Additionally, conducting mould and air quality testing prior to leasing your property will allow you to avoid losing rental income by undertaking any indicated repairs before the property is occupied.

Mould testing options

Our mould testing, air quality, and water damage inspection and remediation experts are available to provide a consultation and inspection for your mould or air quality issue in Melbourne and throughout Victoria. We also provide testing kits (here at mould.net.au) that allow you to obtain scientifically valid samples which can be sent through the mail for analysis and lab reporting anywhere in Australia. Contact us for a consultation on your issue at: +1300 13 23 50 or email us at: [email protected]

References

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