Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies)
[2009] ACAT 26
•10 August 2009
AUSTRALIAN CAPITAL TERRITORY
CIVIL AND ADMINISTRATIVE TRIBUNAL
BELL & BELL v BOCCOLA, CAMPBELL & LAWRENCE (Residential Tenancies) [2009] ACAT 26
RT 77 of 2008
Catchwords: RESIDENTIAL TENANCIES – Fair wear and tear
Residential Tenancies Act 1997 (ACT)
Taylor v Webb [1937] 2 KB 283
Verscheure & Bradbury v Richards & Retmock (Residential Tenancies) [2009] ACAT 11
Taylor v Campbell 108 NYS 399, 400, 123 App. Div 698.Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224 (14 August 2006)
Haskell v Marlow [1928] 2 KB 45Worrall v Commissioner for Housing [2000] ACTRTT 12 (31 July 2000),
Abela, Michael Joseph (Landlord) v Walker, Danielle Amanda (Tenant) [1997] NSWRT 15 (20 January 1997)
Tribunal: J. Lennard, Senior Member
Date: 10 August 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 77 of 2008
GRAEME & MARGARET BELL
(Applicants/Lessors)
AND
NAOMI BUCCOLA and HARRIET CAMPBELL and ANNA LAWRENCE
(Respondents/Tenants)
DECISION
Tribunal: J. Lennard, Senior Member
Date: 10 August 2009
Decision:
1. The lessors’ application for compensation is dismissed.
2. The bond of $1840 is released to the tenants.
……………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 77 of 2008
GRAEME & MARGARET BELL
(Applicants/Lessors)
AND
NAOMI BUCCOLA and HARRIET CAMPBELL and ANNA LAWRENCE
(Respondents/Tenants)
REASONS FOR DECISION
THE TENANCY
The applicant lessors and the respondent tenants entered into a residential tenancy agreement in relation to premises at 36/29 Thynne Street, Bruce, ACT, for a fixed term of 6 months commencing 11 July 2008. This tenancy was subsequent to a tenancy entered into in January 2008 between three joint tenants (including Anna Lawrence and Naomi Boccola) and the lessors (‘the first tenancy’).
The respondent tenants vacated the premises and the tenancy terminated on 27 January 2009.
The tenancy agreement comprised the standard residential terms and four endorsed terms: the carpets were to be professionally cleaned at the end of the tenancy; tenants were not to keep pets without permission; the tenants were to change light bulbs, tap washers, fuses and batteries within the premises and the tenants shall not park cars on the lawns or verges of the premises.
The parties to the first tenancy completed a detailed inventory and condition report at the commencement of that tenancy. This report describes the premises as in a good to very good condition. Timber flooring had been installed in the entry, dining, lounge and kitchen areas of the premises. The inventory report describes the flooring as follows:
ENTRANCE: Floor – as new timber flooring – no scratches or damage – clean.
LIVING ROOM: Flooring – near new timber flooring – 1x noticeable scratch and a few minor scratches – (all to be repaired) – clean – excellent condition.
FAMILY ROOM/DINING ROOM: Floor – near new timber flooring – excellent condition - no scratches or damage – clean. 1x gouge to floor near centre bench – (to be repaired) [the tenants have added] minor dints/scratches in floor near sliding door.
KITCHEN:Flooring – wooden timber flooring - near new- no scratches clean intact.
The ACAT notes that no inventory or condition report was completed at the commencement of the tenancy which is the subject of these proceedings.
THE DISPUTE
The wooden floor is a floating floor which consists of a timber base, cross ply timber core and a laminate top. This floor was installed in May 2007.
On 13 August 2008 the lessors and lessors’ agent attended the premises and noticed what they describe as “…extensive damage…across the entire floor – with some areas more heavily pitted than others”.
The lessor claims compensation for the cost of replacing the wooden floor in the entrance, dining and living rooms of the premises.
The lessors’ evidence consisted of :
a.The inventory report
b.Photos dated 17. 01.2008
c.Photos taken after the tenants had vacated
d.A piece of the flooring, taken up for replacement
e.Oral evidence as to the explanation given by the lessors to the tenants as to the special care requirements and limitations on use of timber flooring.
f.Various reports and quotes relating to the necessity of replacing rather than repairing the flooring.
10.The tenants do not deny that the flooring has been marked, but object to the claim on the bases that:
a.The marks on the flooring is not damage but attributable to fair wear and tear; and
b.That the quality of the flooring is such that it does not resist even normal use.
11.ACAT accepts that the flooring is considerably marked and that the marks now evident from the photos, the piece of flooring and the evidence of the parties were not present at the commencement of the first tenancy.
ISSUES
12.Have the tenants breached the tenancy agreement?
The agreement between the parties may consist of both written and oral terms. The lessors contend that the agreement consists of the standard residential tenancy terms, the endorsed terms and an oral agreement in relation to the care and use of the floors. This oral agreement is alleged to have arisen from a conversation with the tenants at the commencement of the first tenancy, to which two of the current tenants were parties. The tenants deny that the oral agreement was ever made.
The relevant written terms of the agreement are found in clauses 63 and 64 of the standard terms reproduced below with emphasis added:
Tenant to look after the premises
The tenant shall take reasonable care of the premises and keep the premises reasonably clean
63During the tenancy, the tenant must -
(a)not intentionally or negligently damage the premises or permit such damage; and
(b)notify the lessor of any damage as soon as possible; and
(c)take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.
64The tenant shall leave the premises -
(a)in substantially the same state of cleanliness, removing all the tenant’s belongings, and any other goods brought onto the premises during the duration of the Tenancy Agreement; and
(b)in substantially the same condition as the premises were in at the commencement of the Tenancy Agreement, fair wear and tear excepted.
13.Did the agreement also contain an undertaking in the terms put forward by the lessors as to special care and use of the floor?
The lessors assert in their written application that “[a]t the signing of the initial lease agreement in January [2008] the three tenants were made aware of the need to ensure care with maintenance and walking on timber flooring with shoes”. In oral evidence each lessor gave evidence as to the conversation and stated that they had supplied felt pads and walk-off mats for the tenants to use and that they had conveyed the special nature of the floor to the tenants and that shoes should not be worn on the wooden flooring.
14.In statutory declarations the three tenants from the first tenancy deny that they were ever given special instructions, beyond the use of felt pads on furniture, with regard to the care or use of the flooring. Manuals and manufacturer’s guides and instructions were not provided by the lessors. The lessors made application for the endorsement of four terms at the commencement of the first tenancy, yet did not include any term relating to the need for special care of the flooring nor did they seek to include a requirement that the tenants would not wear shoes in the premises. Taking into account the written and oral evidence of each party, further submissions from the tenants and the absence of any written reference to the need for care of the flooring, ACAT finds that there is no oral term imposing any special obligation for care of the wooden flooring nor any term requiring the tenants to refrain from wearing shoes on the wooden floor.
15.The issue for the tribunal is then whether the marks and indentations on the floor go beyond fair wear and tear. Each party has made extensive submissions in relation to the meaning of ‘fair wear and tear’.
16.The state of the wooden flooring: the piece of flooring supplied and the photos from each party show that areas of the flooring are marked with small round indents which appear to be marks made by high heels. The indentations are uniform in size and have broken the surface of the laminate. The photos submitted by the lessors also show some areas of scratching and gouging in the kitchen and dining areas. These marks appear to come from the movement of furniture. The photos submitted by the lessors are close-ups and do not reveal any pattern to the marks. The photos submitted by the tenants are distance shots and show that the living area is largely unmarked but that there is a concentration of marks in the kitchen and dining area.
17.The tenants state that they did notice some marking of the floor from late July 2008 and that though they had not caused the marks either intentionally or negligently, from that point on they had not worn shoes inside the property and they had required visitors and guests to remove their shoes prior to entering the property. This evidence is also contained in the statutory declarations made by the tenants. The oral evidence of the tenants in this regard is supported by correspondence with the lessors’ agent dated 8 October 2008.
18.The term ‘fair wear and tear’ is not defined in the Residential Tenancies Act 1997 (ACT). The Butterworths Australian Legal Dictionary (1997) offers the following explanation:
Fair wear and tear is the deterioration of premises due to both reasonable use and ordinary operation of natural forces.
A tenant is not liable to repair deterioration caused by reasonable wear and tear in the ordinary and reasonable use of the premises; however the tenant may be liable to prevent damage consequent upon fair wear and tear.
19.The phrase “fair wear and tear” was considered by the UK Court of Appeal in Taylor v Webb [1937] 2 KB 283 where that Court stated that the phrase “wear and tear” refers to disrepair “…brought about by the tenant or other person present on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant’s occupation in the course of the ‘fair’ use of the premises for any purpose for which they were let”. This definition was adopted by the ACAT in Verscheure & Bradbury v Richards & Retmock (Residential Tenancies) [2009] ACAT 11.
20.THE NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224 (14 August 2006) considered the explanation of fair wear and tear in Haskell v Marlow [1928] 2 KB 45
The meaning is that the tenant (for life or years) is bound to keep the house in good repair and condition, but is not liable for what is due to reasonable wear and tear. That is to say, his obligation to keep in good repair is subject to that exception. If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception. Reasonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces. The exception of want to repair due to wear and tear must be construed as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant being assumed. It does not mean that if there is a defect originally proceeding from reasonable wear and tear the tenant is released from his obligation to keep in good repair and condition everything which it may be possible to trace ultimately to that defect. He is bound to do such repairs as may be required to prevent the consequences flowing originally from wear and tear from producing others which wear and tear would not directly ‘produce’.
…
For example, if a tile falls off the roof, the tenant is not liable for the immediate consequences; but, if he does nothing and in the result more and more water gets in, the roof and walls decay and ultimately the top floor, or the whole house, becomes uninhabitable, he cannot say that it is due to reasonable wear and tear, and that therefore he is not liable under his obligation to keep the house in good repair and condition. In such a case the want of repair is not in truth caused by wear and tear. Far the greater part of it is caused by the failure of the tenant to prevent what was originally caused by wear and tear from producing results altogether beyond what was so caused. On the other hand, take the gradual wearing away of a stone floor or staircase by ordinary use. This may in time produce a considerable defect in condition, but the whole of the defect is caused by reasonable wear and tear, and the tenant is not liable in respect of it.
21. In Abela, Michael Joseph (Landlord) v Walker, Danielle Amanda (Tenant) [1997] NSWRT 15 (20 January 1997), the NSW Tribunal considered the meaning of fair wear and tear. The concept of fair wear and tear is wide ranging. Clause 64(b) requires the tenant to leave the premises in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted. The purpose of the exception is to identify that deterioration of the premises which occurs during the tenant’s occupation of the premises and is as a result of the acts usually incident to creating and maintaining conditions for living in the ordinary way. (Taylor v Campbell 108 NYS 399, 400, 123 App. Div 698.)
22. There does not appear to have been much consideration of the boundaries of this concept by the superior courts. The most useful consideration I have been able to locate is the U.K. Court of Appeal in Taylor -v- Webb (1937) 2 KB 282. The relevant part reads:
The phrase ‘wear and tear' is a very old English idiom and the clause ‘fair wear and tear excepted" has been common in leases and tenancy agreements for two or three centuries. It is, like may idiomatic expressions, complex in meaning; it implicitly refers to both cause and effect, and in each aspect it covers two classes of disrepair, (a) that brought about by the normal or ordinary operations of natural causes, such as wind and weather, in contradistinction to abnormal or extraordinary events in nature such as lightening, hurricane, flood or earthquake; (b) that brought about by the tenant or other person present on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant's occupation in the course of the "fair"…use of the premises for any purpose for which they were let…
23. If I correctly understand the courts reasoning, and particularly the reference to fair wear and tear being both the cause and effect, the court is construing the phrase in two parts:
(a)the word fair goes to the cause, ie. the nature of the use by the tenant which gave rise to the damage concerned (See also Regis Proerty Co v Duydley 1959 AC 370 to the same effect), and in particular, an intentionally caused damage can never be fair wear and tear; and
(b)the words wear and tear go the effect ie. how substantial is the damage concerned.
24. Thus it can be said that fair wear and tear generally relates to damage or deterioration that happens through the ordinary day to day use of a place by the tenant (carpet is worn down by walking upon it, plaster cracks as building settles, garden mulch breaks downs over time) and by the operation of natural forces (sunlight fades carpets, rain rusts garden furniture). The tenant is not liable to compensate the lessor for any loss or cost relating to such deterioration or damage. Careless or negligent use of the premises by the tenant, where that negligence causes deterioration of the premises will render the tenant liable for associated cost.
25. In determining whether particular deterioration is fair wear and tear or negligent damage the Tribunal must consider, inter alia:
a.The age, quality and condition of any item at the beginning of the tenancy;
b.The average useful lifespan of the item;
c.The reasonable expected use of such an item;
d.Any special terms of the tenancy agreement relating to that item;
e.The number and type of tenants, and
f.the length of the tenants occupancy.
26.The submissions of the parties each address the issue of fair wear and tear. The applicant lessors submit that the flooring was not substandard, but was selected because it was a ‘high quality hardwood timber floating floor’. Apart from this the applicant merely asserts that the damage goes beyond fair wear and tear. The respondent tenants submit that the deterioration of the flooring was caused by walking upon it and that ‘the majority if not all of the damage would fall into the second category mentioned in the Abela case, being disrepair caused unintentionally and as a normal incident of a tenant’s occupation of the property…it should be considered that it would be a normal incident of living to walk around the property with shoes on.’ The ACAT considers that walking across floors and wearing shoes while doing so is manifestly an ordinary and usual incident of daily living.
27.Further the tenants submit that the flooring itself was substandard and not suitable for the purpose of walking upon. The following evidence as to the quality or standard of the flooring was before the Tribunal:
a.The 25 year warranty provided by the manufacturer – this extends only to the structural integrity of the layered floor and was subject to numerous exceptions – including damage caused by high heel shoes, furniture or equipment, pet claws, pebbles or sand;
b.The evidence as to the hardness of the particular wood;
c.The photos submitted by the applicants and the respondent; and
d.The piece of the flooring submitted by the applicant. The Tribunal examined the piece closely and noted the thin layer of hardwood walking service, and that the flooring was marked by dropping a set of car keys from a height of approximately 45 cms.
28.The evidence of both parties is that the marking on the floor was identified early in this tenancy:
i.Towards the end of July or in early August by the tenants
ii.at an inspection by the lessor and the agent.
29.The tenants gave evidence that once they had noted the markings they ceased wearing shoes in the house and imposed a ‘no-shoes rule’ upon their visitors and guests.
30.The lessors have not been able to point to any evidence of misuse of the premises.
31.The Tribunal finds that the markings identified on the floor are attributable in all the circumstances to fair wear and tear. Therefore the lessors’ application for compensation is dismissed.
32.The tenants’ counter claim. The tenants claim compensation for breach of the tenancy agreement by the lessors’ agent in conducting inspections of the property without giving the notice required by clause 79(1), and by way of a reduction of rent for a period of time in which the back yard was unable to be used due to construction works.
33.Section 71 of the Residential Tenancies Act 1997 provides that the ACAT must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant's use or enjoyment of the premises has diminished significantly as a result of the loss of the use of all or part of the premises or interference with the tenant's quiet enjoyment of the premises or the tenant's ability to use the premises in reasonable peace, comfort and privacy by the lessor or anyone claiming through the lessor or having an interest in, or title to, the premises.
34.Section 71(2) states To remove any doubt and for subsection (1), a tenant's quiet enjoyment of premises is interfered with if there is substantial interference with, or a significant lessening of freedom in exercising, the tenant's rights.
35.Under section 83(d) the ACAT may make an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement.
36.As to the inspection made without notice the tenants have not made out this claim, but merely assert that the letter claimed by the agent to be sent as notice of the inspection was not received by them. There is no submission or evidence as to what if any harm or distress resulted from this alleged breach. No complaint was made at the time.
37.The lessor concedes that the work to construct a pergola in the back yard took longer than anticipated and that the tenants were unable to access and use the back yard for a period of two weeks. The delay was contributed to by a number of factors including bad weather, a delay in obtaining supplies and a delay while the lessor attended to urgent family matters following the death of her father. This work was not a necessary repair but was work which would have increased the tenants amenity and enjoyment of the premises. While it is true that even necessary repairs can interfere with the tenants use and enjoyment of the premises Worrall v Commissioner for Housing [2000] ACTRTT 12 (31 July 2000), the tenants have not produced sufficient evidence to establish that the loss on amenity or interference with their quiet enjoyment of the premises occasioned by this work constituted substantial interference with, or a significant lessening of freedom in exercising, the tenant's rights. The Tribunal notes that no action or complaint was made by the tenants during the tenancy.
38.The ACAT therefore dismisses the claim made by the tenants for compensation for breach of the tenancy agreement.
ORDERS
- The bond of $1840 is released to the tenants.
…………………………………………….
J. Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 08/77
APPLICANT: GRAEME & MARGARET BELL
RESPONDENTS: NAOMI BUCCOLA and HARRIET CAMPBELL and ANNA LAWRENCE
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT: STACKS LAWYERS
OTHER:APPLICANT: SELVES, MS V SMITH & MR R CUNNINGHAM
RESPONDENTS: SELVES
TRIBUNAL MEMBER: MS J LENNARD
DATE OF HEARING: 2 MARCH 2009 PLACE: CANBERRA
DATE OF DECISION: 10 AUGUST 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
7
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