A 35-year-old Sydney man has launched legal action against his landlord, claiming to be the victim of “retaliatory eviction” from his North Bondi apartment after asking for a rent reduction because *checks notes* his balcony collapsed.
Pius Binder claims he was living at the North Bondi property for about four years before his balcony started coming away from the wall of their apartment block in October.
“Two people were on it the night before and could have been harmed,” Binder said in the documents lodged with the NSW Civil and Administrative Tribunal.
“Thankfully nothing happened.”
After flagging the safety hazard with the real estate company Coastline Agency, he was asked to seek temporary immediate accommodation, which he claims took six weeks to be reimbursed for.
Following a building assessment in December, it was found that both of his balconies, as well as others in the building, were unsafe and therefore, the use of these areas were restricted.
Due to not being able to use his balcony — something that most people renting a Bondi pad would want to use — Binder, as well as another tenant, applied for a rental reduction to reflect the reduced value he was getting from the property. Binder asked for a 40% reduction ($364 per week) but was ultimately only offered $50 off.
Under the Residential Tenancies Act, “the rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable.”
But as if not being able to use your North Bondi balcony in summer wasn’t already bad enough, Binder claims he was issued an eviction notice just days later, along with another tenant who had also asked for a reduction.
Binder’s termination notice stated that the North Bondi property had become “partially uninhabitable” as a result of the balcony issue, but he claims the eviction was for a different reason.
“I feel that they were evicting us so they could rent (the units) out again in summer because it was still January and in Bondi, it’s pretty popular,” Binder told 7 News.
This is where it gets a bit murky because of Australia’s notoriously open-to-interpretation rental laws.
The “frustration” clause means that landlords or tenants may issue a termination notice if “residential premises under a residential tenancy agreement are, otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable or cease to be lawfully usable as a residence.” This argument, however won’t hold up if it is found that a safety risk is the result of a breach in contract such as maintaining adequate repairs to the property.
Multiple other tenants including a professional builder and an engineer have since provided statements to the tribunal claiming that they had raised maintenance issues previously.
“This incident seemed almost inevitable given the history of maintenance neglect,” former tenant and professional builder Rob Kerr said in his statement.
Under the NSW Residential Tenancies Act, landlords are obligated to maintain a “reasonable state of repair” only while the property is actually being rented. This loophole means that once a tenant has been evicted due to uninhabitable conditions, the landlord has no legal responsibility to repair this before re-listing the property.
However, there is also a “retaliatory evictions” clause that protects tenants from being evicted for exercising their rights. Earlier this year, two Sydney landlords lost a bid to evict a long-term tenant after NCAT ruled that their termination was “retaliatory” following her requests maintenance requests.
Basically, the onus is now on Binder to prove that his eviction was, at least in part, motivated by his request for a rent reduction.
The case will be heard at NCAT on May 23, with the landlord set to defend the action.