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NSW Property Law - Right to Have Damaged Carpet Removed?

Discussion in 'Property Law Forum' started by Q&A, 30 September 2016.

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  1. Q&A

    Q&A Member

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    Hi.

    Previous tenants damaged the new apartment in over a 6-month period. The damage is pungent odour & all surfaces stained by tobacco, smoking, nicotine & possibly illegal drugs.

    A verbal agreement was made with the agent to assist with the cleanup in lieu of 2 weeks free rent. The carpet in one bedroom needs replacing as the odour still strong. It cost to owner is a max $2,000 (rent $1,200 pw).

    Health issue of "thirdhand smoke".

    As a tenant, do I have the legal right under property law to remove the carpet & force the agent to pay for replacement carpet?
     
  2. Rod

    Rod Well-Known Member

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    Hard to say. It will depend on the wording of the cleanup agreement.

    In normal circumstances, no, but here you have an agreement of some kind with the agent to fix a problem. The issue you have is what was supposed to happen if the problem is not fixed. Not enough detail to know.
     
  3. Q&A

    Q&A Member

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    Agreement was verbal, but witnessed by co tenant & many emails, photos & recorded phone calls to clarify existing issues & effort required to restore property badly damaged by nicotine (after only 6 months). No explicit discussion about what happens if cleaning process doesn't work because all parties hoping for resolution with minimal disruption.

    Here is an email sent to agent which articulates intentions of all parties & our willingness to contribute is a positive manner.

    I write to formally request for the carpet in the master bedroom of xxxxxx, xxxxxxx to be replaced.

    As you know, due to the previous tenants’ dereliction of their obligations, the master bedroom in general had an overpowering odour which permeated the whole house. We mutually agreed to attempt to treat it to see if it could resolve. After many hours of cleaning (including steam cleaning and deodorising, scrubbing the walls and ceilings of all rooms), we have managed to reduce the odour considerably. However, the lingering odour in master bedroom remains unbearable within the room and still permeates the rest of the upstairs area. We suspect this is due to the chemical stains on the carpet, which cannot be removed and therefore the carpet is ruined beyond repair.

    The only way to mitigate the nauseating odour is to keep windows and doors open permanently. When windows and sliding doors are closed the smell is extremely strong and will be very hard for us to live in for an extended period of time. I’m sure you would agree this is not a practical solution and means we cannot settle. In addition, I attach 2 articles to validate our concerns that we are now concerned at the risk to our ongoing health and wellbeing.

    I wish to thank you for the generous gesture of allowing us to receive two weeks’ rent gratis in return for our labour to clean the townhouse thoroughly and remove all traces of the misuse and destruction of property left by the previous tenants.

    I think it is fair to state that we have acted in mutual good faith (including our own willingness to pay for new blinds), but we now face into the reality that the carpet in the master bedroom cannot be salvaged.

    Therefore I am officially requesting for the master bedroom carpet (including underlay) to be completely replaced. In the interim, until the carpet and underlay can be ordered and delivered, I seek your permission to remove it immediately.

    This will have the effect of immediately removing the odour and the carpet will also remove the smell throughout the house, enabling us to settle without fear of illness or damage to our property due to odour permeating the material.

    I would invite you to make a time to come and inspect as soon as possible to satisfy yourself that the above claim is legitimate and reasonable. In the meantime, I thank you for your speedy consideration of the urgent approval to remove the carpet and discussion on timing to replace.
     
  4. Rod

    Rod Well-Known Member

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    If they do not remove the carpet the only other recourse is to give a notification of defect (can't remember the correct term ATM) under the lease agreement saying you intend to move if the problem is not fixed. Landlords do need to provide accommodation that is safe and fit for habitation.

    You may need an expert report though to back your case. Odours are hard to prove without some kind of air analysis. Else it may become a stand-off with you saying the place smells and the landlord saying it doesn't. The burden of proof then becomes yours, not the landlords.
     
  5. Q&A

    Q&A Member

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    I won!

    The agent has agreed to extend my lease start date by 2 weeks (paperwork to be amended next week). This now becomes my budget to go buy new carpet (for which I had previously obtained 3 quotes). The bottom line in this case is that the offshore owner (Chinese) is more of a vulture capitalist than an investor.

    Their Chinese (Sydney based) property manager is going to manufacture a story that I was delayed by 2 weeks moving in hence the change in the lease start date. All up I will have received 4 weeks "free" rent of which 2 were spent restoring the property to its original glory.

    All of this would seem highly unethical but I've just come back from living in Asia for 5 years & this is how business is done there. They seem to prefer protracted negotiations rather than rushing to court.

    Thanks for your input. I like your tag line.
     

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