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On a previous thread on the NCAT forum, I relayed the following problem I was having:
“Just hoping for some advice. Our building is undergoing some foundation work resulting in some noise which my tenant has complained about. I was negotiating with her through my agent to do a rent reduction but then she suddenly stopped paying rent and has refused to pay anything and stopped all communication. I think she wants me to break her lease so she doesn’t incur a break fee. My agent has since issued her with an eviction notice and we have an NCAT hearing booked on to recover the rent”Her rent was $720 per week and she wanted to pay $320 per week. I was willing to go to $500 per week at which point she simply stopped paying anything. Subsequent to receiving the NCAT notice, the tenant decided not to go to the tribunal and paid their rent and then tried to get out of the lease which I refused given her actions. Her lease was up a month later in any event and her bond was returned in full.
Fast forward 3 months and I have received an NCAT notice to appear at a hearing she has initiated under the following orders:1) Section 187(1)(d) – An order as to compensation – An order for economic losses, for loss of one room due to privacy, dust, sound, vibrations and noise, and partial loss of apartment (due to dust, sound, vibrations and noise) use during tradesman work hours of the day. The order revolves around the inability to work from home during that time.2) Section 45 – An order reducing the rent payable where the premises are unusable or uninhabitable or destroyed– An order for non economic losses as a result of the noise pollution, severe anxiety, stress, depression, lack of sleep, disruption to both my working patterns and lifestyle as well as moving
I was sympathetic to her and was really willing to reduce the rent by 30% when she simply stopped paying altogether. It appears the main crux of the issue is that she couldnt work at home but I never provided the apartment as a work place but rather as a residential space. The works were carried out during the day on weekdays only as this is the time most people would be at work. Also she had the ability to fight this case at the original NCAT mediation hearing I requested but paid the rent instead.In any event I would appreciate any advice on how to deal with this at NCAT, whether it would be beneficial to seek legal representation and any other similar experiences.Thanks
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The following document may be useful:
http://www.tenantsrights.org.au/Resources/Renovations/Renovation%20intro%20sheet.pdf
A few things come to mind:
1. Whatever the Strata Act says may be interpreted differently by different NCAT Members:
2. How long did the noise go on for? How many days? How many hours in the day?
3. How long did you propose she pay $500pw?
4. The fact that she stopped paying rent but returned to paying rent only after she rcvd the NCAT notice, will on the balance of probabilities be seen by NCAT as her complying with the term of the lease. Did she pay up all her outstanding rent? I had a tenant who refused to pay one month rent and was told by NCAT that so long as he was not in rent arrears by the end of the lease the tenant is in compliance with the terms of the lease.
5. Understand that many tenants (and for that matter landlords and neighbours) are opportunistic. It costs her $49 in NSW to apply to NCAT. In her mind the NCAT process has a good payoff: possibly:
THE UPSIDE
#weeks of noise x $weekly rent (and maybe a small quantum of other costs), versus
THE DOWNSIDE
(capped at) $49
6. How much $ is she seeking from you at NCAT?
My questions are:
How many weeks did the noise go on for?
How many of those would you say was LOW LEVEL noise?
How many of those would you say was MEDIUM LEVEL noise?
How many of those would you say was HIGH LEVEL noise?
Are you in NSW?
Did you in writing offer to lower the rent from $720pw to $500pw?