7 no 3, 1999
Residential Tribunal Lead Paint Case
Extracts from a NSW Residential Tribunal Hearing: 25/5/1999 by Tom Kelly, Member, 3 June 1999. The full text of the decision is available from 14816)  NSWRT 77 (25 May 1999)
Fitness for Habitation
Reasons for Decision
The tenant applied to terminate the lease pursuant to section 70 of the Residential Tenancies Act for landlord's breach of the lease. The breach alleged by failure to provide premises fit for habitation and/or failure to maintain the premises pursuant to section 25 of the Act. The tenant also sought compensation.
The landlord applied to terminate the lease pursuant to section 61 of the Act on the basis the premises were wholly or partly uninhabitable.
Mr Turner, a tenant's advocate appeared for the tenant and Mr Pretti, a Real Estate Agent appeared for landlord.
Essentially the facts were mostly not in dispute and I find:
Residential tenancy commenced on 21 November 1998. Each party had its differing views on the state of the outside paint. From the photos I find it was peeling and did not look good but did not appear as bad as tenant would have me believe. There is no evidence that the rent was not realistic for the condition of the house.
The premises had previously been painted in 1992 by a professional painter who used paint with an excessive lead content.
At some time the peeling paint flaked off the outside walls. This did not come to tenant's notice until March 1999 when her young child was seen to eat a flake in the garden. The tenant then told a friend who told her this could be medically dangerous and consequently the tenant referred this issue to the local council which got an analysis from the Department of Health which said the lead content was 2.48% and the recommended maximum level was 1%.
Consequently the council gave 30 days notice to landlord on 16 April to rectify which caused the landlord to serve a termination notice on tenant on 13 April. This is the first time either party became aware of the seriousness of the problem.
In view of the Department of Health's report; the councils notice; and the orders sought by both landlord and tenant I find premises were not fit for habitation and were rendered uninhabitable and as the amount of lead in paint does not change, this has been the situation since 1992 and was the situation on 21st November 1998; and further that the outside of the house is unlikely to have been in a better condition on 21st November 1998 than it was in March 1999.
I find landlord has not breached section 25(1)(6) in failing to maintain the premises as tenant had not requested an action and, as soon as the landlord found out about the seriousness of the problem they sought to terminate the lease.
I further find that, pursuant to section 25(1)(a) the landlord did not provide the premises that were fit for habitation. This was the situation when the tenancy commenced on 21st November 1998 as the lead of the paint would have been no different than at the time of the analysis and the extent of flaking from the walls would not have been likely to be different to that in March 1999.
Furthermore the fitness for habitation should be considered in the content of the provisions of the lease which stated:
"no more than 1 adult and 3 children may ordinarily live in the premises"
Flaking paint is much more serious with young children playing in the yard.
It was contended on behalf of the landlord that to breach section 25(1)(a) the landlord had to intend to do so. It was further contended that the landlord had to know the premises were not habitable. This is rejected. Habitability is a physical not mental state and should be judged objectively not subjectively.
Section 61 can not apply if the landlord has breached the lease and the breach of section 25 excludes the provisions of section 61.
As the parties agreed to a termination I have done this as a consensual variation of the lease.
On the question of damages the tenant brought evidence of:
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