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Hypothetical Scenario:

Suppose I'm a landlord in a contract with a tenant, and I may only inspect the premises if it has been three months since the last inspection.

Let's also suppose however that the contract states that the tenant must clean away all mould from the premises, and if mould is found during an inspection, the tenant can be asked to clean it.

Now suppose I arrange an inspection of the premises one month after the last, in breach of the contract.

Questions:

  1. While I have breached the contract by inspecting the premises a second time in three months, if I have not caused damages to the tenant, could there be any legal repercussions?

  2. Suppose in the second inspection I find mould in the premises and issue the tenant a breach of contract form (for not cleaning the mould). Could the tenant claim the costs of cleaning the mould as "damages" for my breach of contract under the "but for" test?

  • which country? Do you need prior notice? Are there provisions for emergency inspections due to for example a leaking pipe in a neighboring apartment? – Trish Mar 19 at 14:36
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    Australia, I do require to give prior notice and I did provide sufficient notice. There are provisions for emergency inspections but this wasn't one. It was a breach. – Kenshin Mar 19 at 14:38
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if I have not caused damages to the tenant, could there be any legal repercussions?

If by "arrang[ing] an inspection" you mean that landlord and tenant agreed to have the premature inspection, then the tenant has no cause of action against the landlord. I am not knowledgeable of Australia legislation, but I highly doubt that the statute prohibits the parties to willfully agree on having that premature inspection.

Note that if the tenant received the notice and did not object to it, then that would constitute tenant's implied agreement to have the extra inspection to the extent that the tenant knew or reasonably should have known about it.

If the tenant objects to the landlord's notice, then the landlord would have to comply with the contract or proceed in accordance with the Residential Tenancies Act 1997. In particular, see sections 76(d) (entitling the lessor to access the premises if safety reasons in relation to the premises can be justified) and 79(3) (either party "may apply to the tribunal for an order permitting access at a specified time").

(In line with the initial version of my answer, note that section 76(e) allows the parties to willfully agree to have extra inspections)

Also note that section 79(2) requires that the inspection notice be given to the tenant one week in advance.

Could the tenant claim the costs of cleaning the mould as "damages" for my breach of contract under the "but for" test?

No. The tenant's duty to remove the mould applies constantly (more precisely: with reasonable or practicable frequency) and irrespective of when the inspections are conducted.

Likewise, it is reasonable to enforce the tenant's duty from the standpoint that the effects of mould (such as a reduced value of the property) materialize regardless of inspections schedule.

  • One last question, in response to your edit, suppose the tenant did object on contract grounds. Then other than if they tried to physically stop me from entering, does it change things? – Kenshin Mar 19 at 15:20
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    @Kenshin I expanded my answer now that I learned about the Residential Tenancies Act 1997, and also apropos of your follow-up question. – Iñaki Viggers Mar 19 at 15:43
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Suppose the landlord gives notice to the tenant of intention to make an inspection beyond those specifically permitted in the lease, and the tenant objects. If instead of obtaining an order under the Residential Tenancies Act (or following a comparable procedure in some other jurisdiction) the landlord simply uses a key to access the apartment and inspect, without having agreed to an inspection with the tenant, then the landlord will have breached the promise of "quiet enjoyment" given to the tenant.

This will be a separate breach from any breach that the landlord discovers, such as a failure to prevent mold from developing by regular cleaning. Damages, if any, for this breach by the landlord might be set off against damages owed to the landlord for a breach by the tenant.

The extent of any such damages would depend on the circumstances. If the tenant was unreasonable and no actual harm was done or significant inconvenience inflicted by the landlord's entry, damages might be small, or there might even be no damages awarded. But that will be a decision made by a judge or jury, and will depend on the whole of the facts of the case as presented. It cannot be predicted in general.

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