Commissioner for Social Housing in the Act v Wolf
[2015] ACAT 28
•2 April 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT v WOLF
(Residential Tenancies) [2015] ACAT 28
RT 14/49
Catchwords: RESIDENTIAL TENANCIES – termination of tenancy – compensation for damage to property – unclaimed goods – evidence of condition of tenancies
Legislation cited: Residential Tenancies Act 1997 s 29, 30, 83
Uncollected Goods Act 1996
Tribunal: Ms J. Lennard – Senior Member
Date of Orders: 2 April 2015
Date of Reasons for Decision: 2 April 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 14/49
BETWEEN:
COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Applicant
AND:
EMOKE WOLF
Respondent
TRIBUNAL: Ms J. Lennard – Senior Member
DATE: 2 April 2015
ORDER
The respondent tenant is to pay the applicant landlord, the sum of $2559.19 within seven days of the date of this order.
………………………………..
Ms J. Lennard
Senior Member
REASONS FOR DECISION
Hearings
The Commissioner for Social Housing filed an application with ACAT on 15 January 2014. That application was for an order pursuant to section 83 of the Residential Tenancies Act 1997 (ACT) (the RT Act) that Ms Wolf resume occupancy and return to her assigned property.
That application was heard on 30 January 2014, where the matter was adjourned to allow the applicant to amend the application to seek an order for termination of the tenancy. The tenant was served with a copy of the order and notices of the next hearing at two addresses, the rented premises and the address where she was now believed to be residing. The applicant filed an amended application on 12 February 2014 seeking a termination and possession order pursuant to section 83 of the RT Act.
On 20 February 2014 a termination and possession order was made by ACAT in the matter and was otherwise adjourned to a preliminary conference in relation to the lessor’s application for compensation for lost rent and other end of lease damage.
The matter was set down for a preliminary conference on 28 August 2014 and adjourned to 4 September 2014. The presently constituted Tribunal presided at the hearing on 4 September 2014.
Appearances
Mr Phillipson represented the Commissioner for Social Housing. There was no appearance by Ms Wolf. It is noted that Ms Wolf did not appear on any of the above occasions. The Tribunal is satisfied that hearing notices and a copy of the applicant’s submissions and evidence were filed on the respondent tenant at the rented premises, at a second address where she was thought to be residing in and by email.
The hearing on September 2014
After hearing from the applicant the tribunal made the following orders:
1.The application is adjourned for a written decision.
2.the applicant is to provide to the tribunal into the respondent written submissions in relation to:
a)the final amount of compensation claims;
b) the effect of the Uncollected Goods. Act 1996 (ACT) upon the amount claimed on whether the Residential Tenancies Act 1997 applies to the claim; and
c) whether the document headed Property Condition Report prepared by Spotless meets the requirements of section 29 of the Residential Tenancies Act 1997.
The amended application heard on 4 September 2014 was for the payment of compensation in the amount of $2559.19. This was compensation for repairs to the property made up as follows:
a)removal of rubbish $864.69;
b)removal of large items of furniture and equipment $788.21;
c)removal and disposal of sharps and syringes $86.61;
d)external and internal clean $373.07;
e)washing down of all ceilings and woodwork $341.09;
f)steam cleaning and shampooing of carpets $105.52.
The submissions filed by the applicant
Details of the compensation sought
The evidence relating to the quantum of this claim was a copy of an invoice directed to the tenant for the work as described above. Attached to the invoice was a work order detailing the work performed by Spotless to restore the premises to a condition suitable for renting to new tenants. The total amount claimed as $2559.19 as outlined above.
The applicant made no application for compensation for the cost of storage of the tenant’s goods and thus no claim is made in relation to the Uncollected Goods Act 1996. Nevertheless, the applicant made brief submissions as to the application of the Uncollected Goods Act 1996 to goods left behind by tenants of residential premises.
The operation of the Uncollected Goods Act 1996 in relation to Residential Tenancies
The Tribunal agrees with the submissions of the applicant that the Uncollected Goods Act 1996 operates in relation to residential tenancies where a tenant leaves goods in the premises and a landlord takes possession of those goods. The Residential Tenancy Agreement at clause 64 imposes upon a tenant an obligation to leave the premises in substantially the same state of cleanliness, removing all the tenant’s belongings and any other goods brought on to the premises during the duration of the tenancy. The RT Act at section 83 provides that 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. Thus, whenever a tenant has not removed belongings and other goods brought onto the premises during the tenancy, the landlord may make an application for an order for compensation for the loss caused by this breach. The cost of storing goods and otherwise complying with the Uncollected Goods Act 1996 would be such a loss.
Whether the documents supplied by the applicant to the tenant at the commencement of the tenancy could be properly described as a report about the state of repair or general condition of the premises as required by section 29 of the RT Act.
Section 29 provides as follows:
29Condition reports
(1)A lessor must, not later than the day after the tenant takes possession of the premises, give the tenant 2 copies of a report about the state of repair or general condition of the premises, and of any goods leased with the premises, on the day the tenant is given the report.
(2)A report under subsection (1) must be signed by the lessor.
(3)The tenant must, within 2 weeks after receiving the copies of the report mentioned in subsection (1), return 1 copy to the lessor, either—
(a)signed by the tenant; or
(b)endorsed with a statement, signed by the tenant, indicating whether the tenant agrees or disagrees with the whole of the report or with specified parts of it.
(4)If the tenant returns the copy signed but without further endorsement, the tenant is taken to have agreed with the whole of the report.
(5)To remove any doubt, a condition report for premises may, but need not, contain a list of items at the premises, other than goods leased with the premises.
Condition Reports
Section 30 of the RT Act provides as follows:
30Evidence of condition of premises
(1)If section 29 (1) and (3) have been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.
(2)If only section 29 (1) has been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant was given the report.
(3)If section 29 (1) has not been complied with, evidence by the tenant about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant took possession of the premises.
The applicant provided evidence that they had provided to the respondent tenant a document headed ‘Property Condition Report’ at the commencement of the tenancy in June 2012. A copy of that report was before the tribunal. It is a brief assessment of the condition of the premises; in this case it indicates that the premises were in good condition. The document is signed by the tenant and dated 8 June 2012. Attached to that document is a Sign-Up Checklist which the tenant also signed and dated on 8 June 2012. In that document the tenant acknowledges that she has been provided with a copy of the Property Condition Report and understands that it must be returned to Housing ACT within seven days. There is no evidence that the tenant annotated, commented upon or returned the Property Condition Report to the applicant. The applicant submits that, in accordance with section 30(2) of the RT Act, the Tribunal should accept the Property Condition Report is evidence of the state of repair and condition of the premises at the commencement of the tenancy.
I am satisfied that the Property Condition Report complies with the requirements of section 29 of the RT Act in that, albeit with a minimal amount of detail, the document does describe the state of repair and the general condition of the premises at the commencement of the tenancy. As noted above, the tenant has failed to appear on each occasion on which this matter has been listed and has not provided any evidence as to the circumstances of signing the document. The applicant has provided copies of photos taken in the premises at termination of the tenancy. These photos show damage to the walls, windows and doors, the premises are generally unclean and there is a considerable amount of household goods, food, clothing and rubbish within the premises. Many of the household goods and furniture are severely damaged.
I am satisfied that the tenant has breached the residential tenancy agreement in that she has failed to take reasonable care of the premises and keep them reasonably clean during the course of the tenancy. Further the tenant has breached the residential tenancy agreement in that she has failed to leave the premises in substantially the same state of cleanliness and in substantially the same condition as they were at the commencement of the tenancy. The tenant has also breached the residential tenancy agreement by failing to remove all her belongings and other goods brought onto the premises during the duration of the tenancy.
The applicant is entitled to compensation for any loss resulting from a breach of the tenancy agreement. I find that the tenant is liable to pay the cost of cleaning and repairs and removal of rubbish as outlined above.
………………………………..
Ms J. Lennard – Senior Member
HEARING DETAILS
FILE NUMBER: | RT 14/49 |
PARTIES, APPLICANT: | Commissioner for Social Housing in the ACT |
PARTIES, RESPONDENT: | Emoke Wolf |
REPRESTATIVE FOR APPLICANT | Mr Phillipson |
TRIBUNAL MEMBERS: | Ms J. Lennard – Senior Member |
DATES OF HEARING: | 4 September 2014 |
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