No Obligation on Landlord Re Tenant’s Quiet Enjoyment

In the recent decision of Abdel-Messih v Mao [2016] NSWCATAP 223, the NSW Civil and Administrative Tribunal found that a landlord was not liable for a third party’s actions disrupting the ‘quiet enjoyment’ of a tenant.

Mr Abdel-Messih (‘tenant’) entered into a residential tenancy agreement with Mr Mao ‘(landlord’). Mr Abdel-Messih sub-let the premises (a strata lot). The building manager conducted an unauthorised inspection of the premises and  deactivated the tenant’s security card which prevented him from accessing common property or his unit. The tenant alleged that the building manager became verbally abusive and would harass him on common property.

The tenant applied to the Tribunal seeking orders to obtain a further security card for his sub-tenant and to require the landlord to comply with the residential tenancy agreement. The tenant claimed that because the building manager was abusive, the landlord had failed to perform his obligation under the residential tenancy agreement to provide ‘quiet enjoyment’.

Orders were made in the following terms:

1. The landlord was to provide the tenant and authorised sub-tenants with access to the residential property;
2. ‘Access’ is to include activating cards that allow access to lifts and common property; and
3. Where the tenant/sub-tenant do not have an activated access card, the landlord and/or his agents are to take reasonable steps to ensure that building management acts cooperatively with the tenant/sub-tenant.

The tenant appealed, seeking further orders, namely that:

1. The landlord is to ensure quiet enjoyment of the tenant by raising the issue or putting a motion before the owners corporation in general meeting to change the building management;
2. No locks or security devices can be changed without order by the Tribunal or agreement of both parties; and
3. The landlord is to ensure the tenant and his sub-tenants are provided security devices to access the premises.

In relation to point 1, the tenant submitted that the building manager acted as an agent for the landlord, and that the obligation of the landlord to provide quiet enjoyment meant that the landlord had a responsibility to take affirmative action against the building manager, such as raising the issue at owners corporation meetings.

Ultimately, the Tribunal decided that there was no utility in making the orders requested by the tenant because the tenant and landlord had since entered into a fresh tenancy agreement, and it would be inappropriate to make orders relating to a new agreement which did not exist at the time of the original proceedings, and where there have been no breaches of the new agreement. Further, specific orders were found to be inappropriate because the Tribunal found that the building manager could not be considered an agent of the landlord, nor was he considered to be employed by the landlord. Instead, the building manager is an agent of the owners corporation, per section 13 of the Strata Schemes Management Act 1996 which states that an owners corporation may employ persons to “…assist in the exercise of any of its function” including “management and control of the use and common property of the strata scheme.”

The Tribunal found that the landlord could not be found responsible for the building manager’s actions, and did not therefore breach his obligation to provide quiet enjoyment to the tenant. It was found that by emailing the building manager, the landlord actually did take reasonable steps to ensure the security card was reactivated to allow the tenant to access the premises.

Further, the Tribunal found that the deactivation of the access card was valid as the tenant did in fact breach the by-laws of the building by “[giving] access keys to any other person.” The by-laws provided that if this was to occur, the owners corporation was authorised to “deactivate the access key.”

The appeal was dismissed, with indication from the Tribunal that there is no positive obligation upon a landlord to take action to prevent third parties from interfering with a tenant’s right to quiet enjoyment.