Bonke v Jackson (Residential Tenancies)
[2017] ACAT 82
•9 October 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BONKE v JACKSON (Residential Tenancies) [2017] ACAT 82
RT 5/2017
Catchwords: RESIDENTIAL TENANCIES – abandonment – 26 week notice – lessor attendances – breach of quiet enjoyment – reasonable state of repair – non-functioning fire place
Legislation cited: Residential Tenancies Act 1997 ss 9, 10, 36, 61, 62, 71, 72, 76, 79, 83 standard terms 9, 52, 53, 54, 63, 64, 90, 94, 95
Cases cited:Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Withers –Norris v Pastello (2016) ACAT 95
Tribunal: Senior Member A Anforth
Date of Orders: 9 October 2017
Date of Reasons for Decision: 9 October 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 5/2017
BETWEEN:
JUANITA BONKE
Applicant/Lessor
AND:
MARK JACKSON
Respondent/Tenant
TRIBUNAL: Senior Member A Anforth
DATE:9 October 2017
ORDER
The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $2,914 on or before 30 November 2017.
2.The Office of Rental Bonds is to pay the whole of the bond to the applicant.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Overview
1.On 1 February 2008 the applicant/lessor entered an agency agreement with OzProperty, real estate agents, to manage her property in Page.
2.The agent introduced the respondent/tenant to the lessor. The parties entered a residential tenancy agreement for the premises in Page in the ACT which commenced on 3 March 2016 for a fixed term of 12 months, at a rent of $400 per week with a bond of $1,600. The tenancy agreement contained a standard ‘pet clause’.
3.During the tenancy disputes arose between the lessor and tenant with allegations of breach both ways. The tenancy ended in acrimonious circumstances when the tenant vacated on 22 October 2016 and returned the keys. The history of these disputes is summarised below in the context of the statements filed by the parties and their evidence at the hearings.
4.The lessor’s agent issued a 26 week ‘no ground’ notice of termination dated 2 September 2016 for possession at the end of the fixed term, that is, 3 March 2017. The tenant did not serve the lessor with any notice to termination and vacated on 22 October 2016. The property was relet by the lessor on 25 November 2016.
5.The lessor sought compensation for early termination (or abandonment) by the tenant which the Tribunal granted.
6.The lessor also claimed for outstanding water, cleaning and other repairs, some of which was successful. These issues turned solely factual grounds.
7.The tenant had a dog and the residential tenancy agreement contained a standard pet clause which had not been endorsed by the Tribunal. The lessor sought the cost of fumigating for fleas in accordance with the pet clause. Curiously, the lessor also argued that the ‘pet clause’ was void for lack of endorsement. The Tribunal agreed that a pet clause does require endorsement and is void in the absence of that endorsement.
8.The tenant sought compensation for breach of quiet enjoyment by the lessor in attending the premises by herself and with tradesmen to carry out renovation during the tenancy. On the facts, the tenant consented to some of these attendances but not others. Those attendances for which no consent was given constituted a breach of quiet enjoyment by the lessor for which compensation was payable.
9.The tenant also claimed for various non-functional items in the premises at the start of the tenancy. The tenant’s claim was made out on the facts although the period during which these items were non-functional was modest.
10.The tenant claimed for a non-functional wood fireplace in the premises. The lessor contended that the tenant had been told that the fireplace was non-functional before he entered the tenancy agreement. The tenant denied this. On the evidence the Tribunal accepted the lessor’s assertion and found that a functional fireplace was not a term of the tenancy agreement.
11.There was gas heating at the premises but the tenant had an aversion to gas and was hoping to use the wood fire. The Tribunal held that the tenant’s aversion to gas did not deny the presence of the gas as a reasonable means of heating and that his compensation claim for lack of heating failed.
12.The tenancy and the proceedings in the Tribunal were complicated by the existence of a collateral dispute between the lessor and her former agent, Mr Haas of OzProperty, leading to the termination of his retainer on 9 September 2016. The lessor alleged that Mr Haas had not followed her instructions on some issues and had fabricated certain documents in an endeavour to support the tenant’s case. There was an issue concerning Mr Haas’s role in the preparation of the ingoing condition report but in the end it was not necessary for the Tribunal to determine these issues.
History of the matter in the Tribunal
13.On 3 January 2017 the Office of Rental Bonds referred a bond dispute to ACAT. The parties were notified of a conference at the Tribunal on 25 January 2017.
14.On 22 January 2017 the lessor advised the Tribunal that she claimed the following from the tenant:
(a)Six weeks rent from 14 October 2016-25 November 2016 = $2,400.
(b)A re-letting fee of $440.
(c)Advertising fee of $110.
(d)Cleaning $300.
(e)Fumigation for fleas $200.
(f)Replacement of cement slabs $308.
(g)Rubbish removal $60.
(h)Replacement of back door lock $88.
(i)Garden $110.
15.On 25 January 2017 the tenant responded denying the lessor’s claims and sought compensation for:
(a)breach of quiet enjoyment caused by the unapproved visits by the lessor to the property and aggressive phone calls;
(b)a defective front window held on by tape;
(c)no lock on the rear door;
(d)leaking garage roof; and
(e)lack of heating.
16.The tenant appended to his response:
(a)a copy of the 26 week notice of termination of 2 September 2016 issued by the lessor’s then agent, OzProperty and due to expire on 3 March 2017 being the end of the fixed term of the tenancy agreement;
(b)a letter from the lessor to the tenant of 18 October 2016 purporting to revoke the previous 26 week notice; and
(c)photos of the taped front window, missing lock on the back door and drip pattern in the garage roof.
17.The matter did not resolve at the Tribunal conference on 25 January 2017 and procedural orders were made for the parties to file their evidence and submissions.
18.On 28 February 2017 the lessor filed a statement setting out the history of the matter and the claims she made. The statement alleged that the tenant fell into rent arrears by mid May 2016 and the lessor’s agent issued a series of notices to remedy the breaches. On 27 August 2016 the lessor directed her agent to issue a 26 weeks ‘no grounds’ notice to termination. The agent told the lessor that such a notice could not be lawfully issued during the fixed terms of a tenancy. Notwithstanding this advice, a notice dated 2 September 2016 was issued on behalf of the lessor and served on the tenant requiring possession at the end of the fixed term; but there is a dispute over when that notice was issued and sent. The lessor’s statement recounts a later dealing with the tenant in which the tenant confirmed that he did received the 26 week notice from OzProperty on 2 September 2016. The lessor suspects that the notice was only issued after the termination of OzProperty’s agency on 9 September 2016.
19.In her statement the lessor said she disagreed with her agent’s view of the law on the notice and said that she terminated the agency agreement with OzProperty effective 9 September 2016 and appointed Ms Taylor of Manageme Real Estate.
20.In her statement the lessor said that on 17 October 2016 the tenant advised the lessor’s new agent, Ms Taylor, which he proposed to rely upon the 26 week notice and vacate on 21 October 2016. On 18 October 2016 the lessor instructed her new agent to inform the tenant that the 26 week notice was invalid and he cannot vacate on 21 October 2016 in response to that notice. Notwithstanding this, the tenant vacated on 22 October 2016 at which time it is alleged that the rent was only paid to 13 October 2016.
21.In an email to the Tribunal of 4 April 2017 the tenant referred to a second notice of termination which he alleged was served on him on 27 October 2016 by a personal friend of the lessor (Joan Fisher). No copy of this notice has been produced by either party and its details are otherwise unknown. Any such notice would be totally irrelevant and ineffective because it was after the tenant had already vacated the premises.
22.In the 28 February statement the lessor asserted that the tenant had abandoned the property and claimed a slightly different total of $4,038.93 plus the Tribunal lodgement fee of $145, composed of:
(a)outstanding rent of $400 to the date of abandonment;
(b)rent until a new tenant was found on 25 November 2016;
(c)reletting and advertising fee of $400;
(d)outstanding water of $72.93;
(e)fumigation in accordance with the pet clause of $210.00;
(f)cleaning of $300;
(g)damage to the front door, backdoor and lounge room wall, no amount specified;
(h)gardening and rubbish, no amount specified;
(i)grease on garage floor, no amount specified; and
(j)cracked pavers, no amount specified.
23.The lessor’s statement appended various document including the residential tenancy agreement, condition reports, rent ledger, notices to remedy and the 26 week notice of termination.
24.On 9 March 2016 the lessor filed further documents in support of her statement of 28 February 2016 including colour photos of the property bearing the date 24 October 2016.
25.On the same day the lessor issued a subpoena to OzProperty for its file and to another person. OzProperty produced on 21 March 2017, being:
(a)The ingoing condition report signed by the lessor’s agent on 4 March 2016 and by the tenant on 11 March 2016. This report noted “new stove delivered 5 March 2016” and “brand new oven”; cracked window; “rear door latch off”; cracked and taped lounge room window; leaking roof in the garage; and generally poor paint work.
(b)The tenancy application form dated 28 February 2016.
(c)Photographs of the property said to have been taken at the commencement of the tenancy.
(d)An addendum to the residential tenancy agreement being a ‘pet clause’ signed by the agent on 4 March 2016 and unsigned by the tenant.
(e)A rent ledger.
26.The matter was listed for hearing on 24 March 2017. Both parties appeared in person, as did Mr Haas, real estate agent. At the hearing the Tribunal traversed the ambit of both parties’ claims. The lessor claim was as per paragraph 23 above.
27.The tenant said that he had not been served with the lessor’s application containing the statement of 28 February or any other documents. The tenant said he wished to press a counter claim for which he had evidence that had not been filed. The counter claim consisted of:
(a)Lack of heating in the house.
(b)Leaking garage roof.
(c)Absence of locks on windows and doors.
(d)Breach of quiet enjoyment from uninvited visits from the lessor and from the lessor carrying out renovations during the tenancy.
28.The tenant denies any rent arrears to 22 October 2016. He said all rent had been paid by electronic deposit. The Tribunal observed that it should be an easy matter for the tenant to show the rent paid from his bank statements.
29.The tenant asserted that the lessor had been present at the premises on a daily basis throughout the period of the tenancy. The Tribunal said that if this were true then a serious breach of the tenant’s quiet enjoyment had occurred. The lessor said that the statement was an exaggeration and that she had only been present for a matter of weeks and not daily. The tenant then qualified his statement to the effect that he did not have records of the dates and times of the lessor uninvited attendance at the premises. The Tribunal counselled the tenant against exaggerating and pointed out that exaggeration affected his credit and that the extent of this entitlement to damages depended on the real extent of any breach by the lessor.
30.The Tribunal asked Mr Haas why it had been necessary for the subpoena process to take place given the right of the lessor to take possession of her file once she had paid any outstanding fees from OzProperty. Mr Haas offered a range of explanations which centred on the difficulties he had experienced with the lessor and her alleged levels of aggression towards OzProperty staff. The Tribunal expressed dissatisfaction at this explanation and noted that resources had been consumed in the subpoena process which could have been avoided by the simple act of OzProperty providing the lessor with her file.
31.The lessor asserted that Mr Haas had been instructed not to advertise the property with the fireplace and to tell prospective tenants that the fireplace did not work. She said there was gas heating in the premises but the tenant told her that he had an aversion to using gas. The tenant did not deny this assertion by the lessor.
32.The Tribunal noted the matter was not ready for hearing and endeavoured unsuccessfully to mediate a settlement. The hearing was adjourned and orders were made for the tenant to be provided with the lessor’s documents filed; the tenant to respond to the lessor’s claim, for the tenant to particularise his counter claim and for the lessor to respond to the counter claim.
33.On 11 April 2017 the tenant provided details of his counter claim. The tenant listed the various defects and lack of cleanliness in the property at the commencement of the tenancy. The said that the lessor was carrying out renovations for approximately the first six weeks of the tenancy and during this period had been using the tenant’s TV, shower and kitchen for her own use. He said that in May 2016 the lessor and her tradesmen entered the property uninvited and worked on the floor in the bathroom, toilet and laundry. The tenant was told he could not use those facilities for the time being.
34.On 10 May 2017 the lessor filed her response to the tenant’s counter claim. Much of the content of the response is not easy to follow. Part of the response is directed to issues that did not form part of the tenant’s counter claim.
35.The lessor recounts a discussion between herself, her agent (Mr Haas) and the tenant on 27 February 2016 at the viewing of the premises, in which the tenant offered to take responsibility for the maintenance of the premises. The lessor said that she did not accept this offer.
36.The lessor does not appear to deny the allegation that she was carrying out renovations during the first six weeks of the tenancy. Rather she argues that there is some inconsistency in the tenant’s application that should result in this part of his counter claim being dismissed. The lessor then asserts that she was carrying out painting of the inside and outside of house for several weeks into the tenancy, but only at the tenant’s request. She said that the tenant was away from the premises for part of this time.
37.The lessor then records that she arranged tiling of the bathroom, toilet and laundry which was commenced on 21 June 2016 and was completed in a day or two. She said that the tenant consented to these renovations being done during the tenancy.
38.The lessor said that she had left Canberra after the lease was signed although the date that she left is not clear. She returned to Canberra between 13 and 28 June 2016 for the tiling work.
39.In her response, the lessor admits that the stove was not working at the commencement of the tenancy and that the tenant was told that a new stove would be installed as part of the renovations. It was in fact installed two days into the tenancy.
40.The lessor said that if the wood fire formed part of the advertisement of the premises then this was an error on the part of her agent. She admitted that the fireplace did not work and denies that she undertook to have it fixed. The premises had gas heating.
41.The lessor also:
(a)denied that the yard was in a state of disrepair at the commencement of the tenancy;
(b)denied that the garage was unclean at the commencement of the tenancy but did not deny the leaking roof;
(c)denied that absence of a rear door lock;
(d)admitted the cracked kitchen window and said that she had instructed her then agent, Mr Haas, to attend to it, which he did not;
(e)admitted the broken front window. She said that she had instructed a tradesman to fix it and in the meantime to put masking tape on the glass to hold it secure;
(f)denied that she had used the tenant’s shower, TV or kitchen during her periods of access; and
(g)denied liability for any personal travel time incurred by the tenant in connection with the case.
42.The lessor denied that the 26 weeks ‘no grounds’ notice was actually served on the tenant by her then agent, Mr Haas, until after Mr Haas’ retainer had been terminated on 9 September 2016. The lessor alleged that Mr Haas had deliberately withheld documents relating to the tenancy and not passed them on to the new agent for the lessor.
43.The matter was listed for further hearing on 12 May 2017. The parties appeared in person. Both parties relied upon their filed statements although the lessor complained about the brevity of the particulars provided by the tenant. Each party was given the opportunity to ask questions of the other, and the Tribunal asked question of both parties. Mr Haas gave evidence by phone and was questioned by both parties and the Tribunal.
44.The lessor tendered a range of photographs bearing date stamping of 26 October 2016. The photos showed:
(a)The cracked pavers.
(b)The heavy vehicle parked by the tenant at the premises.
(c)Various rubbish lying around the yard.
(d)Some overgrown gardens and some patches of long grass.
(e)The wood fireplace and the oven.
(f)Various rooms.
(g)The water meter and readings at 4 March 2016 and 25 October 2016.
45.The photos of the internal premises were not sufficiently clear to permit any conclusion concerning their cleanliness.
46.The lessor tendered a copy of the advertisement of the premises on OzProperty site posted in January 2016. It made no reference to a wood fireplace and during the course of the hearing it was conceded by the tenant that this was so. The advertisement also said the premises were heated by gas and that it was ‘pet friendly’.
47.The tenant conceded that the wood fire was not on the advertisement of the premises but he saw it when he inspected the premises. He denied that he had been told before entering the tenancy agreement that the fireplace was not operable. He denied the proposition put by the lessor that undertaken to fix the fire place himself.
48.The tenant said that he had executed the tenancy agreement in the office of OzProperty on 3 March 2016 but had not signed the condition report for a week later. He completed the condition report in his own handwriting. There was a volume of questions directed to the tenant concerning a possible second condition report prepared in April 2016 of which no copy had been produced to the Tribunal. The tenant was confused about this issue and suggested that what he was calling the second condition report may have been the first of the periodic inspection reports.
49.The lessor questioned Mr Haas about the ingoing condition report. Mr Haas agreed that the handwritten comments in the tenant’s column of the condition report that he signed dated 4 March 2016 were in his handwriting. He was questioned on the disparity in dates between when he signed the condition report on 4 March 2016 and when the tenant signed on the 11 March 2016. Mr Haas said he and the tenant attended the premises on 11 March 2016 because the lessor was still painting on 3 and 4 March 2016. He had no explanation for how or why he had annotated the tenant’s comments.
50.Mr Haas was questioned about the existence of an unsigned typed copy of the ingoing condition report bearing the tenant’s comments that was apparently in the OzProperty file delivered to the new agent. He had no explanation for the existence of this document. The Tribunal was not provided with a copy of this document.
51.The tenant said that Mr Haas had transcribed the tenant’s comments because of the poor handwriting of the tenant. But there was no copy of the original condition report bearing the tenant’s handwritten comments.
52.The tenant was questioned about his assertion that the lessor had slept overnight in her car in the garage and whilst parked at the front of the house. The tenant admitted that he had not actually seen the lessor asleep in her car but inferred this fact from the presence of the car and some observations of the content of the car.
53.The tenant said that he had never received fourteen or seven days written notice prior to the lessor’s attendance at the house. The lessor put to him that he has received seven days oral notice by phone which he did not deny.
54.The tenant said in response to a question from the lessor about her presence undertaking renovations “you told me that you’d be finished within a month.”
55.The lessor admitted her presence at the house for initial period of weeks from the start of the tenancy. the periods were 4-7 March, 12-14 March and 25-28 March. She then returned in June for the tiling work. She denied using the tenants jug, shower or other personal items.
56.The parties were given to 22 May 2017 to file and serve any final submissions. On that date the lessor filed her final submissions. No submissions were received from the tenant.
57.The lessor’s submissions:
(a)pointed to the lack of evidence adduced by the tenant in support of his counter claim;
(b)a propensity of the tenant to exaggerate the times that the lessor was at the house;
(c)alleged that Mr Haas had fabricated the ingoing conditions report to support the tenant’s case;
(d)pointed to the lack of dates on the photographs provided under subpoena by Mr Haas;
(e)the advertising of the property did not include a wood heater;
(f)alleged that the presence of a ‘pet clause’ in the executed residential tenancy agreement was done without her consent and was not endorsed by the Tribunal as a special term of the tenancy. The lessor further alleged that the pet clause was fabricated by Mr Haas on the day after the tenancy agreement had been entered;
(g)pointed out that the tenant had not denied cracking the pavers;
(h)denied the tenant’s assertion that there was rubbish in the yard at the commencement of the tenancy;
(i)denied that she slept in her car in the garage of the premises or whilst parked overnight at the front of the house;
(j)denied that she was sleeping in her car at the front of the house on 24 May at which time she asserted that she was not in Canberra;
(k)pointed that there was only one copy of the ingoing condition report produced under subpoena by Mr Haas and the notations on it were in his handwriting and not that of the tenant. The lessor asserted that the documents were a fabrication.
(l)alleged that the tenant had not been truthful with the Tribunal on 24 March when he denied having received the lessor’s claims and other documents. He could have been prepared for that hearing. The tenant’s lack of diligence had necessitated the adjournment of the hearing for which the lessor should be awarded costs; and
(m)the cost of the filing fee of two subpoenas issued at $123.
Jurisdiction
58. The ACT Civil and Administrative Tribunal is a statutory body with exclusive jurisdiction to hear and decide any matter arising from residential tenancy agreements under section 76 of the Residential Tenancies Act 1997 (RT Act). Section 79 of the RT Act permits a party to a residential tenancy agreement to apply to the Tribunal for resolution of a tenancy dispute. Section 72 of the RT Act describes a tenancy dispute as a dispute between parties to a residential tenancy agreement that arises from the agreement. It includes an application for compensation made under the RT Act. Section 83(d) of the RT Act gives the Tribunal power to make an order requiring the payment of compensation from any loss caused by the breach of a residential tenancy agreement.[1]
The lessor’s case
[1] Withers –Norris v Pastello (2016) ACAT 95
59.The major part of the lessor’s claim is:
(a)the rent arrears to the date the tenant vacated on 22 October 2016 being eight days at $400 per week or $457; and
(b)the claim for lost rent until a new tenant was found on 25 November 2016 being four weeks and four days at $400 per week or $1,829.
60.The lessor produced her rent records in support of her claim that the tenant was eight days in arrears as of 22 October 2016. The tenant denied this but did not comply with the Tribunal’s invitation to produce his bank records said to evidence all his payments. The Tribunal is satisfied that that tenant was in arrears and allows the sum of $457 to the lessor.
61.The notice issued by the lessor and served on 2 September 2016 gave more than 26 weeks notice and did not require possession until the end of the fixed term. This notice complied with standard term 94 of the standard tenancy agreement of Schedule 1 Residential Tenancy Act 1997 and was valid:
94 The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that—
(a)the notice is for 26 weeks; and
(b)the notice does not require the tenant to vacate the premises during a fixed term.
62.Standard term 95 permits the tenant to vacate two weeks prior to the date nominated in the notice which would have been 17 February 2017. But the tenant vacated on 22 October 2016 and therefore not in compliance with the Notice or prescribed term 94.
95(1) If a tenant is required to vacate the premises in accordance with clause 94, the tenant may vacate the premises at any time during the 2 weeks before the date specified in the notice to vacate provided the tenant gives the lessor 4 days notice of intention to vacate.
(2) In this case, the tenancy terminates on the date that the tenant vacates the premises.
63.The tenant could have served a notice of termination on the lessor pursuant to standard term 90 based on the lessor’s breaches, but he did not do so.
64.The actions of the tenant in vacating on 22 October 2016 constituted an abandonment within the meaning of sections 36(e) and 61 of the RT Act.
36(1) Despite anything to the contrary in any territory law, a residential tenancy .agreement must not terminate or be terminated other than in the following circumstances:
…
(e)if the tenant abandons the premises that are the subject of the agreement;
61. If a tenant abandons premises that the tenant occupies under a residential tenancy agreement, the agreement terminates on the day of abandonment.
65.The lessor is entitled to her rent loss until in accordance with the caps set out in section 62(3) of the RT Act:
62(1) If a tenant abandons premises before the end of a fixed term agreement, the former lessor may apply to the ACAT for the following compensation:
(a)compensation for the loss of the rent that the former lessor would have received had the agreement continued to the end of its term;
(b)compensation for the reasonable costs of advertising the premises for lease and of giving a right to occupy the premises to another person.
(2) On application, the ACAT may award compensation of the kind mentioned in subsection (1) (a) and (b).
(3) The amount of compensation the ACAT may award—
(a)under subsection (1) (a) must not exceed an amount equal to 25 weeks rent;
and
(b)under subsection (1) (b) must not exceed an amount equal to 1 week's rent.
(4) In deciding the amount of compensation that may be awarded under subsection (2) in relation to costs, the ACAT must have regard to when, apart from the abandonment of the premises—
(a)the agreement would have ended; and
(b)the lessor would have incurred the costs mentioned in subsection (1) (b).
66.The amounts set out in section 62(3) are the maximum that can be awarded. In the present case the lessor managed to find a new tenant with effect from 25 November 2016 and so her rent loss is only from the period 22 October 2016 to 25 November 2016.
67.There was no suggestion that the lessor did not act promptly and reasonably in securing a new tenant and the time taken to secure the new tenant was relatively small. The Tribunal allows the abandonment claim in the sum of $1,829.
68.The lessor is entitled to the reletting fee and advertisement costs capped at one week rent. It is standard practice in the ACT for real estate agents taking on a new lessor to charge the first week rent as part of their management agency agreement. The Tribunal allows $400 for the reletting fee.
69.The lessor claims for various items of damage to the property. Standard term 63 of the RT Act provides:
63 During 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.
70.The lessor satisfied the Tribunal that the pavers at the front of the house were cracked beyond repair. The Tribunal is satisfied that the tenant owned a heavy vehicle which he parked in the same area on or adjacent to the pavers. The tenant did not deny that his vehicle probably cracked the tiles. The pavers were robust and would have taken some trauma to break. The pavers were to walk on not to drive a heavy vehicle on. The Tribunal is satisfied on the balance of probabilities that the tenant or the driver of the tenant’s vehicle cracked the pavers.[2] The Tribunal allows $308.
[2] Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
71.The lessor claims for the cost of fumigating the house to remove the effects of the tenant’s dog. The house was advertised as being ‘pet friendly’ and so it is assumed that the lessor or her agent gave permission for the dog. It is a matter of some uncertainty whether a tenant needs permission form the lessor to have a dog on the premises. The presently constituted Tribunal is of the view that the tenant does require consent. On that premise the parties should have sought the endorsement of the pet clause under section 10 of the RT Act. The non-endorsement has the effect that the pet clause is void and the lessor cannot rely upon that clause (section 9 of the RT Act).
72.The tenant has a duty under standard term 64 of the RT Act to return the premises in the condition in which they were received subject to fair wear and tear:
64 The tenant must 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.
73.If the effect of the dog’s presence is such that fumigation is required i.e. there is smell, stains or fleas, in the house then the lessor is entitled to recover that cost under standard term 64 and without relying on the pet clause.
74.On the facts of this case there is no evidence of the need for fumigation under standard term 64.
75.The tenant had a duty to attend to cleaning of the house and yard under standard term 64. On the evidence before it the Tribunal could not determine the relative of the state of cleanliness of the house and yard, at the start and end of the tenancy.
76.The lessor claimed $73 for outstanding water consumed by the tenant. The evidence of the lessor’s meter readings was unchallenged. The Tribunal allows this claim.
77.If successful in her claim the lessor is entitled to recover the Tribunal lodgement fee.
The tenant’s claim
78.The lessor has duty under standard term 54 to provide the premises in a reasonable state of repair at the commencement of the tenancy:
54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—
(a)fit for habitation; and
(b)reasonably clean; and
(c)in a reasonable state of repair; and
(d)reasonably secure.
79.Section 71 allows tenants to apply for a reduction in the rental rate payable under a residential tenancy agreement if the tenant’s use and enjoyment of the premises has diminished significantly as a result of, for example, the failure of the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement; the loss of use of all or part of the leased premises; interference with the tenant’s quiet enjoyment of the premises or interference with the tenant’s ability to use the premises in reasonable peace; comfort and privacy.
80.In Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9 General President Crebbin said:
This tribunal and the former Residential Tenancies Tribunal have taken the approach that compensation should be awarded by way of rent reduction under section 71 of the RTA while the tenancy is still in existence and that lump sum compensation payments under section 83(d) ... should be considered where the tenancy has terminated.
81.This duty extends to leaking garage roof, the stove, oven, windows and locks. The Tribunal is satisfied that these items were not in a state of good repair at the start of the tenancy and accordingly the lessor was in breach. But the oven and stove were provided only days later causing minimal inconvenience to the tenant. The non-functional lock and windows and leaking garage roof were also of minor consequence to the tenant. The Tribunal awards $100 cumulatively for these breaches.
82.The lessor did not overtly advertise the presence of the wood fire but its presence in the house when inspected by the tenant spoke for itself. It was reasonable for the tenant to infer that the fireplace was functional unless he was explicitly told to the contrary. The lessor asserts that the tenant was so told; the tenant denies this. The tenant asserted that the presence of the fireplace was shown on the advertisement of the premise by OzProperty. He later retracted this assertion. The tenant was prone to exaggerate on other matters as well. It is not clear whether the tenant was told that the fireplace did not work but on balance the Tribunal prefers the evidence of the lessor. On this premise a functional fireplace did not form part of the leased facilities.
83.The main part of the tenant’s claim was for breach of quiet enjoyment. Standard terms 52 and 53 provide:
52. The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
53. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.
84.The breaches reside in the presence of the lessor and her tradesmen doing the painting and tiling in the house. This work was not in the nature of repair and so the tenant had no duty to permit the lessor access for the renovations.
85.There is no breach to the extent that the tenant consented to the presence. On the evidence the Tribunal is satisfied that the tenant did consent to the lessor’s presence to do the renovations for an estimated period of one month into the tenancy. The tenant did not expect that he would be residing in the premises for much, if not all, of that time.
86.The lessor admitted her presence in the house doing renovations in the periods 4-7 March, 12-14 March and 25-28 March. She then returned in June for the tiling work for two days.
87.The tenant alleged that the lessor was present every day for the first six weeks of the tenancy but then retracted this statement and said that he had not kept records or notes of the times. The Tribunal formed the view that the tenant had no clear recollection of the days or periods during which the lessor was present and was merely guessing. The Tribunal accepts the lessor’s evidence immediately above concerning her attendances at the property. The tenant consented to the lessor’s presence for the first month of the tenancy which covers all but the two days in June. There was no suggestion by the tenant that he revoked his consent or asked the lessor to limit her presence to fixed hours. The Tribunal allows $200 for the breach of quiet enjoyment in June.
88.The tenant alleged that the lessor sometimes sleep in her car in the garage of the premises or while parked overnight in front of the house. The lessor denied this. In evidence the tenant admitted that he had not personally seen the lessor in the car at these times and ergo had not seen her sleeping in the car. The Tribunal does not accept the tenant’s assertion.
Conclusion
89.The award for the lessor is $3,067 plus the Tribunal lodgement fee of $147 giving a total of $3,214. From this amount is to be deducted the $300 award for the tenant, leaving an amount owing by the tenant to the lessor of $2,914.
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Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
RT 5/2017
PARTIES, APPLICANT:
Juanita Bonke
PARTIES, RESPONDENT:
Mark Jackson
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
12 May 2017
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