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My tenants filed an application with NCAT to sever the lease I have with them given the noise, dust, deteriorating living conditions and risk to their health imposed on them by the renovations from the owner next door.
NCAT upheld their claims and allowed them to vacate 6 months before their lease expired without paying the agreed break fee or any rent due until the end of the lease because NCAT said the noise and dust from a neighbour’s renovations made my premises “uninhabitable”.
Naturally I was not happy, to put it mildly. As my tenants and I agreed on the amount from the bond that should be surrendered by the tenants for damage they caused, NCAT coaxed us to finalise the matter “by consent”.
Which we did.
Given NCAT did not hold me responsible for the impact on my tenants’ living conditions, I asked the NCAT Member what I can do about my expected loss of rent (until I find a replacement tenant. He suggested I could take the neighbour who renovated, to the local court claiming the renovations were carried out in a manner that affected the tenants’ right to quiet enjoyment, which is why he deemed the premises “uninhabitable”. In short, the neighbour (who never lived in his unit, but bought, renovated and flipped the property) committed a nuisance and I should seek damages for the loss of rent which I would sustain until a new tenant is found and starts paying me rent.
Well, to the Local Court I went, given I lost $17k while the premises were empty, as it took many months to find a suitable tenant.
I represented myself and I lost. (It was not economically justified to hire a lawyer given the quotes received and the quantum involved). The Court found the neighbour was reasonable in his conduct and hence no nuisance was committed.
1) Must the local court decisions be consistent with NCAT’s decisions? It seems in this case they are polar opposites.
2) Can I appeal? What are my chances?
Note: as “consent orders” were issued by NCAT, there was no mention of the “uninhabitable” status of my premises as the reason the tenants could vacate and hence I had no evidence to pony up at the Local Court. FYI, soon after the matter was heard by NCAT I asked for chapter and verse of what transpired at the hearing and was told that when consent orders are handed down, what I am after is not documented for then parties. But if I want proof of what went down at NCAT, I need to buy a recording of the (long) proceedings, requiring me to buy several CDs and then pay for a transcription service to produce a hard copy.
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