The damages are part of $3,590.88 the Tenancy Tribunal awarded Cannons Creek tenant Mohammed Janif in compensation and exemplary damages against landlord Lynne McLaughlan, Argyll Properties (2016) sole director. McLaughlan failed to repair a showerhead and oven, provide heating and harassed Janif.
Landlords who are found to be harassing tenants can be fined exemplary damages up to a maximum $2,000.
Janif took up a tenancy at Hereford Street, Cannons Creek in February 2017.
By May last year the relationship between Janif and McLaughlan had broken down when he didn’t pay his rent on time during the Covid-19 level four lockdown. And a number of repairs at the flat had not been undertaken.
Matters came to a head when Janif drove to Mclaughlan’s home on May 7 to pay his rent. He texted her and asked her to come out so he could hand over the rent.
Janif told the tribunal he remained in his car. He was about to hand her the rent, and asked her when the shower would be repaired. He says McLaughlan became enraged and answered “when I get the parts”.
He asked how long he would have to wait and claims McLaughlan yelled “I don’t care” and continued to yell at him while standing in the street with members of the public nearby. “She was angry, verbally abusive, and threatened me with eviction.” He replied, “you get lost then” and drove off without paying the rent.
McLaughlan told the tribunal Janif would not leave the outside of her house and claims that he intimidated her.
After the incident, Janif told the tribunal there were a series of unpleasant and angry text messages from McLaughlan. In the messages were false accusations about rent arrears, threats of eviction and racist language, which he says intimidated him and caused him considerable stress and upset.
After reviewing the text messages, the tribunal found McLaughlan did send unpleasant, intimidating texts to Janif in May last year – even after he sent her an apology the day after the altercation outside her house.
The texts from McLaughlan included claims he terminated his tenancy, threatened, intimidated and abused her, did not follow Covid-19 rules and she would terminate the tenancy and evict him. The tribunal found it unreasonable for McLaughlan to take words exchanged during the altercation as notice by Janif to terminate the tenancy.
After the May texts there was limited contact between Janif and McLaughlan. However, in late October the texts started again after McLaughlan became upset Janif organised repairs to the shower and deducted the costs from his rent.
Before the March Covid-19 level four lockdown, Janif told McLaughlan the showerhead was broken and he could not use the shower over the bath.
Little was done to fix the showerhead, with McLaughlan saying she could not engage a plumber during the lockdown because it was not considered an essential repair given the tenant still had the use of a bath.
In April, McLaughlan told Janif she had not been able to source the shower part. And a while later said the shop was not open to buy the required part.
Her husband visited the property at the beginning of May to inspect the showerhead and at the time found other issues.
McLaughlan subsequently sent Janif a series of texts saying she would arrange to fix the shower after the bathroom and flat was cleaned to an appropriate level under Covid-19 standards and rules. And he was not to be at the premises when a plumber would be there.
Janif offered to get the shower fixed if McLaughlan paid the bill. This was rejected. There was an unpleasant exchange of texts between the two over the payment of rent, and other issues.
Shortly after the texts, Janif applied to the tribunal for an order requiring McLaughlan to fix the showerhead.
A work order was made at the beginning of October requiring McLaughlan to repair/replace the showerhead by October 21. Failing which Janif was entitled to undertake the work and charge McLaughlan costs of up to $500 and offset those costs against rent due.
McLaughlan did not comply with the work order because a copy was sent to an incorrect address, so Janif went ahead and had the showerhead replaced.
The tribunal found McLaughlan did not understand Janif was acting in accordance with the work order she had not received. It found the tone of her texts were once again unpleasant, inappropriate and upsetting for the tenant. In one text she says, “we cannot fix the shower when you cannot speak English”.
Of particular concern to the tribunal was a text from McLaughlan on October 20 to a neighbour in Janif’s building asking the neighbours to provide letters in support for her to “take down to court”.
In it McLaughlan says, “I will not keep flats with him [Janif] there. I would rather die. If you want to stay you need to help me. He needs to go or everyone will be ... I am being serious ... I need a letter from each flat to take down to court tomorrow ...”
McLaughlan told the tribunal she was not threatening to evict tenants who did not assist her. But rather pointing out that she would not carry on as a landlord renting out the property, suggesting it was too stressful to continue. The tribunal says it did not find Mclaughlan’s explanation persuasive.
In its decision, the tribunal says McLaughlan’s continuing behaviour of communicating with Janif in an aggressive and inappropriate manner, and her apparent attempt to coerce neighbours to support her defence against claims lodged by Janif, is a breach of his quiet enjoyment to the extent of harassment which is an unlawful act.
It says McLaughlan’s behaviour was quite deliberate and intentional. And it considered an award of exemplary damages justified.
In other parts of its decision on exemplary damages for not repairing the shower, the tribunal says there is no evidence nor any rule that a tenant must clean premises prior to repairs being carried out. Plumbing repairs have been accepted as being an essential service in level four lockdowns. At level three McLaughlan could have obtained plumbing supplies and there is no justification for failing to repair the shower after the lockdown ended on May 12.
McLaughlan noted Janif could still use the bath but the tribunal says as both a shower and a bath were provided as part of the tenancy, the landlord is obliged to maintain both. And the tribunal says a landlord is not entitled to insist that a tenant not be present when repair work is carried out unless there is a good reason such as any health and safety risk for the tenant or the tradesperson.
The breakdown of costs awarded to Janif
- Compensation: Failure to repair shower $500
- Exemplary damages: Failure to repair shower $1,500
- Compensation: Failure to supply heating $50
- Compensation: Failure to repair oven $200
- Exemplary damages: harassment $1,000