Harati v Symphony at Wakerley
[2024] QCAT 121
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- Unreported Judgment
- Harati v Symphony at Wakerley[2024] QCAT 121
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Harati v Symphony at Wakerley[2024] QCAT 121
Harati v Symphony at Wakerley[2024] QCAT 121
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Harati v Symphony at Wakerley [2024] QCAT 121 |
PARTIES: | hamidreza harati (applicant) v symphony at wakerley (respondent) |
APPLICATION NO: | Q372/24 |
MATTER TYPE: | Residential tenancy matters |
DELIVERED ON: | 13 March 2024 |
HEARING DATE: | 4 March 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Scott-Mackenzie |
ORDERS: | The rent payable by the applicant to the lessor under the residential tenancy agreement entered on 7 September 2023 is reduced from $550.00 per week to $492.00 per week. |
CATCHWORDS: | CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – where applicant applied for an order reducing proposed increase of rent under s 92 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether the application should have been made under s 71 – whether application within time – whether s 71 applies – whether rent should be reduced Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 71, s 92, s 190, s 191, s 417 Mark Coker v Ray White Moranbah [2011] QCATA 206 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Ms Song |
REASONS FOR DECISION
Application
- [1]The applicant, on 22 January 2024, made application to the Tribunal for an order under section 92 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) (rent increases) and section 191 of the Act (failure to comply with maintenance obligation).
Background
- [2]The premises occupied by the applicant are situated at unit 3, 8 Carr Street, St Lucia (premises and applicant’s unit). The premises are a two-bedroom unit with two bathrooms and a one-car garage.
- [3]The applicant entered into a residential tenancy agreement in respect of the premises for a term starting on 30 October 2020 and ending on 30 October 2021 (first tenancy agreement). The rent payable under the tenancy agreement was $400.00 per week.
- [4]The applicant entered into a second residential tenancy agreement in respect of the premises for a term starting on 31 October 2021 and ending on 29 October 2022 (second tenancy agreement). The rent payable under the agreement was again $400.00 per week.
- [5]A third residential tenancy agreement was entered into by the applicant in respect of the premises for a term starting on 30 October 2022 and ending on 28 October 2023 (third tenancy agreement). The rent payable under the agreement was $410.00 per week, an increase of 2.5% on the rent payable under the first and second tenancy agreements.
- [6]A fourth residential tenancy agreement was entered into by the applicant in respect of the premises for a term of twelve months, starting on 29 October 2023 and ending on 26 October 2024 (fourth tenancy agreement). The rent payable under the agreement is $550.00 per week, an increase of more than 34% on the rent payable under the third tenancy agreement.
- [7]The rent payable under the fourth tenancy agreement is that challenged by the applicant in the proceeding.
Withdrawal of the application for an order under section 190 of the RTRA Act
- [8]At the commencement of the hearing of the proceeding, the applicant withdrew the application for an order under section 190 of the RTRA Act. Instead, he explained, he relies on the state of repair of the premises as evidence the rent payable under the fourth tenancy agreement is excessive.
Correct section
- [9]The applicant applied to the Tribunal for an order under section 92 of the RTRA Act. Late in the hearing of the proceeding, the respondent raised for consideration by the Tribunal whether the applicant had made the application within the time required by section 92(3) of the Act. The time required for an application under the section is 30 days after the tenant receives notice of the proposed rent increase and, if the agreement is a fixed term agreement, before the term of the agreement ends.
- [10]In Mark Coker v Ray White Moranbah[1], the then Deputy President of the Tribunal, Kingham DCJ, observed:
Rent increases can be challenged under the RTRA Act. Which section confers jurisdiction is determined by the nature of the tenancy. If the increase relates to a periodic tenancy or is made during a fixed term tenancy, the application may be brought under s 92. If the increase relates to a new fixed term tenancy agreement entered after a previous fixed term tenancy expires, s 71 applies.[2]
- [11]Section 71 of the RTRA Act also contains a temporal requirement for an application to the Tribunal under the section in relation to an increase in rent. The application must be made within 30 days after the tenant enters into the new agreement.[3]
- [12]The fourth tenancy agreement was entered into on 7 September 2023. The applicant made the application now before the Tribunal on 22 January 2024, more than 30 days after he entered into the agreement.
- [13]However, on 18 September 2023 the applicant made a dispute resolution request to the Residential Tenancies Authority. A reference in a provision of the Act about making an application, by virtue of section 417(2) of the RTRA Act, includes a reference to making a dispute resolution request to the Authority.
- [14]The dispute resolution request was made within 30 days after the applicant entered into the fourth tenancy agreement. It follows the application now before the Tribunal was made within time.
Legislation
- [15]The relevant section, section 71 of the RTRA Act, applies if:
- an agreement (the existing agreement) between a lessor and tenant creates a residential tenancy for premises;
- the lessor of the premises enters into a new agreement with the tenant (the new agreement) for the premises that starts after the end of the existing agreement;
- the new agreement contains one or more significant changes to the terms of the existing agreement; and
- at least one of the tenants mentioned in the existing agreement is a tenant for the new agreement.[4]
- [16]If the tenant considers the significant change is unreasonable, he or she may apply to a Tribunal for an order under the section.[5]
- [17]As I have said, the application must be made within 30 days after the tenant enters into the new agreement.[6]
- [18]If the significant change relates to an increase in rent, the Tribunal may reduce the rent payable under the agreement.[7]
- [19]Importantly in the context of the proceeding before the Tribunal, section 71(6) of the Act requires the Tribunal, in deciding an application that relates to an increase in rent, to have regard to the following:
- the range of market rents usually charged for comparable premises;
- the proposed increased rent compared to the current rent;
- the state of repair of the premises;
- the term of the tenancy;
- the period since the last rent increase (if any);
- anything else the Tribunal considers relevant.
Material
- [20]The parties filed in the Tribunal more than 1,400 pages of documents. Many of the documents were either irrelevant, or only marginally relevant, to the issue falling for determination by the Tribunal, and many documents were duplicated. Having said that, the documents helpfully included extensive material touching on the range of market rents usually charged for comparable premises and the state of repair of the premises.
Hearing
- [21]The proceeding was heard by the Tribunal on 4 March 2024. The applicant was self-represented. Ms Song appeared on behalf of the respondent.
Evidence
Applicant
- [22]The applicant offered as evidence of the range of market rents usually charged for comparable premises the following:
Unit 3, 159 Sir Fred Schonell Drive, St Lucia
The premises comprise a two-bedroom unit with one bathroom and a one-car garage.
The premises were rented on 22 February 2024 for $440.00 per week. The premises are in a better state of repair, the applicant stated, than the premises occupied by him.
Unit 5, 195 Sir Fred Schonell Drive, St Lucia
The premises are a two-bedroom unit with three bathrooms and a one-car garage. The premises were rented on 15 March 2024 for $480.00 per week. It was said by the applicant the premises are in a better state of repair than the premises occupied by him.
Unit 1, 344 Swann Road, St Lucia
The premises are a two-bedroom house with one bathroom and a one-car garage. The premises are rented for $550.00 per week.
- [23]The increase in rent payable under the fourth tenancy agreement, the applicant submitted, is more than 34% higher than the rent payable under the third tenancy agreement. Under the third tenancy agreement, the rent was increased by $10.00 per week.
- [24]The premises, the applicant further submitted, were built in the 1960s.
- [25]The applicant filed in the Tribunal many photographs depicting the state of repair of the premises. They show significant damage to carpets, walls, and tiles. They also show old and damaged curtains.
- [26]I accept the premises are not in a good state of repair.
Respondent
- [27]Ms Song drew attention to the premises at unit 3, 159 Sir Fred Schonell Drive, St Lucia having one more bathroom whilst the premises at unit 5, 192 Sir Fred Schonell Drive, St Lucia have only one bathroom. Unit 9, 8 Carr Street, St Lucia is in the same building as the applicant’s unit and has the same number of rooms. It was rented on 28 November 2023 for $560.00 per week.
- [28]Ms Song also drew attention to the comparative market analysis filed by the respondent.[8] The document contains nine units with two bedrooms, two bathrooms and a one-car garage in St Lucia said to be comparable premises. The rents range from $510.00 per week to $690.00 per week. The average rent is $620.00 per week.
Closing
- [29]In closing, the applicant referred to the premises being invaded by insects and vermin and the absence of any or any adequate pest control.
- [30]Ms Song submitted the respondent had been prompt in responding to requests for maintenance and repairs by the applicant. The premises, she further submitted, comply with minimum housing standards.
Consideration
Does section 71 of the RTRA Act apply?
- [31]I am satisfied the requirements set out in paragraphs (a) – (d) of section 71(1) of the RTRA Act are met in the circumstances here. The section applies.
Is the increase in rent a significant change?
- [32]On any view, an increase in rent payable under the fourth tenancy agreement of more than 34% of the rent payable under the third tenancy agreement is a significant change in rent.
The range of market rents usually charged for comparable premises
- [33]The premises at unit 9, 8 Carr Street, St Lucia are in the same building as the applicant’s unit. The unit contains the same number of rooms as the applicant’s unit and, on 28 November 2023, was rented for $560.00 per week.
- [34]I accept the unit is in a better state of repair than the applicant’s unit.
- [35]Unit 3, 159 Sir Fred Schonell Drive, St Lucia is located further from the University of Queensland than the applicant’s unit. It has only one bathroom. It was rented on 22 February 2024 for $440.00 per week.
- [36]Unit 5, 195 Sir Fred Schonell Drive, St Lucia is similarly located. It has three bathrooms and, on 15 March 2024, was rented for $480.00 per week.
- [37]Both units are in older buildings. Again, I accept they are in a better state of repair than the applicant’s unit.
- [38]The comparative market analysis filed by the respondent includes two units in the same street as the applicant’s unit, units 1 and 6, 22 – 26 Carr Street, St Lucia. Both units are fully furnished. They are in a better state of repair than the applicant’s unit. The units are rented for $610.00 per week and $650.00 per week respectively.
- [39]Otherwise, the units in the comparative market analysis said to be comparable to the applicant’s unit, as I have said, are rented from $510.00 per week to $690.00 per week.
The increased rent compared to the previous rent
- [40]The rent payable under the third tenancy agreement was $410.00 per week. The rent payable under the fourth tenancy agreement is $550.00 per week, an increase of more than 34%.
- [41]The increase in rent, clearly, is a significant change.
The state of repair of the premises
- [42]The photographs filed by the applicant show the applicant’s unit is not in a good state of repair. The carpets are old and damaged. Likewise, the curtains. Walls are flaking and tiles are old and cracked.
- [43]I accept the respondent has been responsive to the applicant’s requests for maintenance and repairs.
The period since the last rent increase
- [44]The last rent increase was at the start of the third tenancy agreement, on 30 October 2022. The rent was increased from $400.00 per week to $410.00 per week, an increase of 2.5%.
Anything else the Tribunal considers relevant
- [45]The additional matters I consider relevant and have taken into consideration include the age and appearance of the building in which the applicant’s unit is located. Also, I have taken into consideration the condition of the gardens and surrounds, and the age and condition of the inclusions in the applicant’s unit.
- [46]The location of the premises, within walking distance of the University of Queensland, is an important consideration.
- [47]Taking into consideration each of the matters mentioned, in particular the range of the market rents usually charged for comparable premises in the vicinity of the applicant’s unit, the significant increase in rent compared to the previous rent and the state of repair of the applicant’s unit, I am of the opinion the increased rent is excessive. An appropriate rent is $492.00 per week, an increase of 20% in the rent payable under the third tenancy agreement.
Decision
- [48]The order of the Tribunal is that the rent payable by the applicant to the lessor under the residential tenancy agreement entered on 7 September 2023 is reduced from $550.00 per week to $492.00 per week.