PLEASE NOTE: this FAQ is sourced from the blog of the NSW Tenants Union and so refers to NSW tenancy law and legislation. The sections of legislation referred to are very similar in the ACT so we have posted the answer here for your interest. Please call the ACT Tenants Advice Service for detailed information and advice about how this might apply in the ACT and to your situation. If you already have air-conditioning installed but it is not working, please see our factsheet on repairs here.
Source: The Brown Couch
Date: 8 January 2013
There might be a few of you wondering whether you can make your landlord install air-conditioning.
The answer is: maybe, there’s an argument for it, but it depends.
The Residential Tenancies Act 2010 does not say anything specifically about air-conditioning. (It does, however, contemplate that facilities for ‘cooling’ (and, for that matter, ‘heating’) may be ‘essential services’ that justify an urgent repair in the event of a breakdown).
The most relevant provisions for sweltering tenants are the contractual obligations the Act places on landlords to provide the premises ‘fit for habitation’ (section 52(1)) and to provide and maintain the premises ‘in areasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises’ (section 63(1)).
The ‘fit for habitation term’ and the ‘reasonable state of repair term’ are, apparently, two separate obligations. The Tribunal has pondered their relationship and differences here.
The fit for habitation term is the more objective: it means that the premises are safe and reasonably comfortable. This comes from the nineteenth century English case of Proudfoot v Hart (1890) 25 QBD 42, where the words ‘fit for habitation’ were held to mean that ‘the premises might be used and dwelt in not only with safety, but with reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were to be occupied’. As the Tribunal observes, consideration of ‘the class of persons’ should now be dispensed with as anachronistic, and instead a generally observed, contemporary standard of safety and reasonable comfort should be applied.
The ‘reasonable state of repair’ term is more relative: the standard here may vary according to the rent payable for the premises, and to how much longer the premises are to remain standing. This means, in particular, that the standard of repair for relatively expensive premises may be relatively high – higher than what might be required to be merely ‘fit for habitation’.
A case for air-conditioning could be made under either of these obligations, but it will depend very much on the circumstances.
For example, it’s possible to think of premises – for example, a west-facing flat, with fixed windows and no insulation, somewhere that regularly gets hot – that will not be reasonably comfortable without air-conditioning, so the case might be made that air-conditioning is required for those premises by the fit for habitation term.
On the other hand, in other premises – say a $5000 per week penthouse in a luxurious new building – air-conditioning might be required under the ‘reasonable state of repair’ term, even if the discomfort is not so bad as to make the premises uninhabitable.
In any event, the extreme weather conditions today will be a poor test of what’s required by these obligations. For today, keep a T-shirt in the fridge. If your place gets uncomfortably hot even in ordinary weather, consider asking your landlord to do something about it.
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