Tenants baby broke window that didn’t meet current building standards. Who pays?

Only if you break it.

You've learnt a good lesson - it is not safe for toddlers to lean against old glass windows.

 

The glazier would not replace with non standard glass, regulations would require the replacement glass be of the new standard required by law ...

 

In Victoria

I disagree with this comment. A toddler (or anyone) should be able to touch a glass window without it breaking.

It would be bizarre to warn tenants that they must never touch the glass - how would they clean the windows?

But if they kick it etc and it breaks, The tenant should pay.

 

You will at least be more educated

 

In 2008, we bought a block of units, originally built in the 1970's.

In our Building Inspection Report, our inspector (who we had used many times) pointed out two safety issues:

1. In one of the units on the first floor, there were some glass windows that was thin. He said it was compliant when built and still legal. He was concerned that someone could fall through the window and suffer major injury or even worse. His recommendation was to replace it with thicker, safer glass which we did (the morally right thing to do).
2. Both units on the first floor had balcony railings which were compliant when built and still legal but were slightly under the current code height (I can't remember the exact amount but it was something like 50mms). His recommendation was to leave as is, so we did.

Same here.

If i was the tenant, I would have written to the PM to get it fixed immediately (so my family is safe, warm, ...) and agree to pay for it now on the condition that you reserve the right to dispute whose fault it was and will continue to seek a full refund through the legal system.

One thing I have learnt in life is that:

"There is a big difference between being morally right and legally correct".​

We all have different moral compasses but we all have to obey the same laws. Some people get the two totally confused.

 

A bit ot but years ago i had a tenant that first admitted not knowing how their windows broke,
After getting told that it would be their cost to repair it, they filed a police report saying someone had thrown something in to break in,

So I had to either prove it was them or pay for it

Not much I could do, nor was it worth the hassle of pursuing it as it wasn't that expensive surprisingly

 

3 different posters have claimed this now but glaziers do still use non-standard glass on occasion for a variety of reasons. I found this out when my old dog jumped through a window. Even though I requested and paid for shatter-proof glass, they gave me the non-standard version. Next time it happened (!) I spoke to the manager who replaced the sub-standard product with the up-to-standard version for free, his suggestion. I had not spoken to the 'right person' first time.
As a tenant, I would've paid 'cause I like the house plus don't want my dogs to be seen as a problem. However, as a landlord, I would replace all glass if a baby was renting.
While in principle I see your point, I think you should start looking for a new place to rent.
1. it's gone too far as demonstrated by not fixing over winter
2. rentals are cheaper atm and you can do better
3. find something better suited to toddlers. Big question mark about so many windows and leaving baby's bedroom exposed in winter esp when we should all be taking extra care of our health. Difficult to not judge both LL and tenant.
Wattle

 

Land lord will move her on anyway if they are smart. High risk tennant. Who knows what next they will 'have a go on'. And the relationship has gone south anyway. Edited to say I had an agency and tennants having a go for mould. Amost the identical situation Ken McElory talks about in one of his videos on tennants and scams. I changed PMs. Orderd full reports. Funny after that the scamming tennants moved on. I got a good one in now and a professional manager non mr and mrs husband and wife PM and RE.

 

@amber3456

TLDR

• Glass was to code when built (no requirement to upgrade/replace)
• Tenant caused accidental damage
• Glazier can't replace like for like
• Tenant has finally applied to VCat

Maybe I missed something in translation, why hasn't the agent replaced the glass? If it's broken it it no longer watertight and may be causing damage to the property.

Who arranged for the glazier tenant or agent? Why hasn't the agent been brought to task for repairs & maintenance (ie has the agent's spend been set too low or are they too scared/junior to seek the landlord's approval? Has it been boarded over (duct tape is not a solution).

How much extra has it cost to heat the house over winter? Peeing into a breeze is no substitute for evaporative cooling.

Why is the glass non-compliant with AS1288-2006? is it size (>1m²) or location (extending to floor/adjoining a door)? This hasn't been addressed.

Does the new glass for the existing recess in the window frame? ie does the entire window frame require replacement?

Regardless of whether other windows have been replaced if there is no obligation to replace all windows to the latest standard unless changes to the legislation is retrospective.

Glazing compliance audit

 

Lawyers just want everyone to sue everyone else.

 

Nah I back Terry on this one. I suspect the landlord will be in a world of trouble at VCAT, especially leaving it for 6 months.

 

Didn't have Terry pegged as a lawyer like that, but maybe!

 

Six months is ridiculous, from both parties, but I still don't understand what the landlord has done wrong, especially since they offered to pay for the materials (reading between the lines)?

 

Probably quite a few things.

They should have fixed it at the time, even if they dispute liability - because if they're wrong then they're up for 6 months worth of both partial rent reduction AND general damages on top. They only need to be partially wrong as well.

Even taking the landlord's case at its highest, they would still almost certainly be found to be contributarily negligent - there's a bunch of cases that are very similar on the facts but with much higher levels of tenant culpability - I think one of them was that the tenant outright punched the window and then then lessor was still partially liable because the glass was not safe and did not conform to current safety standards. This was notwithstanding the fact that there was not regulatory requirement to update the glass to meet current standards.

Lastly as most importantly, nearly all the pro-lessor punters in this thread seem to have forgotten that damage is only a tenant's liability if its intentionally or negligently caused. I'm yet to hear much evidence of that - instead the small bits here and there circumstantially support the fact that it could have happened without negligence of the toddler (glass was weak, window poorly located). Sure we don't know exactly what happened - but that only favours the tenant because the lessor has the burden of proof - and that's going to be tough.

So I'm not surprised the OP has had a couple of lawyer's opinions go her way. There's literally at least two of this thread that wouldn't be surprised if it went that way just on the short info provided.

There's probably some lessons for landlords in all this imo. Main one is that technical compliance with building regulations isn't strict proof against civil liability.

 

I notice that the lawyers letters seem a bit noncommittal though...

 

I'm also a lawyer and I'm with terry_w and thatbum.

The fact that the legislation didn't require the glass to be upgraded would be a defence against a building inspector or government official seeking to force you to upgrade the glass, or impose a fine for non-compliance.

It is not a defence to an action in negligence by the tenant (though it may be considered).

 

Can there be a case for negligence where no injury or significant loss has happened?

And is that the kind of thing VCAT considers in a case of deciding who pays for a window to be glazed?

 

No, but as a landlord you should always be seeking to meet your duty of care to avoid such claims. Arguably having the 3mm glass is in violation of the duty of care, particularly as some (but not all) of such panes have previously been replaced due to safety concerns.

No, I was responding to all those who seem to think that statutory compliance is determinative.

What the Tribunal will consider is this: the landlord has an obligation to provide the premises in a condition that's safe for tenants to live in. Arguably if the tenants, immediately prior to this incident, had asked for all 3mm glass windows to be replaced on this basis, they'd be likely to have gotten an order, and the landlord would have had to bear the cost.

The fact that there's been an incident and the landlord "got away with it" in the sense of no negligence claim arising should cause the landlord to thank the gods for their good fortune, not seek reimbursement for an upgrade that they were arguably required to provide anyway.

Look at it this way, imagine the landlord had done the right thing and ordered for all the 3mm glass to be replaced. On the day that the glaziers are coming, the incident that's the subject of this thread happens. Can the landlord now seek a contribution from the tenant towards repairs required to make the premises safe? Of course not.