CONVINE v Hogg & Gloster
[2008] ACTRTT 10
•14 August 2008
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION: CONVINE –V- HOGG & GLOSTER [2008] ACTRTT 10
(14 August 2008)
RT 59of 2008
Catchwords: Bond Dispute
Legislation:Residential Tenancies Act 1997 (ACT)
Tribunal: J.A. David, Member
Date: 14th August 2008
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 59 of 2008
RE: John CONVINE
(Lessor)
AND:Justin HOGG & Katrina GLOSTER
(Tenants)
DECISION
Tribunal : J.A. David, Member
Date : 20th March 2008
Decision :
That the Office of Rental Bonds to release $65.00 to the lessor and the balance to the tenants, Justin Hogg and Katrina Gloster in equal shares.
…………………………….
J.A. David
Member
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 59 of 2008
RE: John CONVINE
(Lessor)
AND: Justin HOGG & Katrina GLOSTER
(Tenants)
REASONS FOR DECISION
J.E. David, Member
BACKGROUND
On 29 January 2008 the Office of Regulatory Services referred a rental bond dispute between the above parties. in relation to the premises at 18/2 Postle Circuit, Holt in the ACT, to the Tribunal. The matter came for hearing on 20 March 2008. The Tribunal ordered that the Office of Rental Bonds release $65 of the balance of the bond to the lessor and the remaining balance to the tenants in equal shares.
On 14 July 2008, the lessor wrote to the Tribunal requesting details “as to how the final figure was calculated”, particularly in relation to “the amount that was deducted from the weekly rent and the total deducted in relation to uneven paving surfaces”. The lessor requested the information in order to make a claim against the Body Corporate for “delays and inaction in repairing the damage caused by trees”.
At the hearing the parties agreed that the lease was for a fixed term of 12 months commencing on 8 September 2006 and that the tenants vacated on 2 November 2007 after the lessor gave verbal notice to vacate as he was urgently selling the property.
The lessor stated that after the tenants moved out he found they had left furniture in the premises (such as a fridge, washing machine and dryer) which the lessor moved from the premises after the lease expired. Also, the lessor had the carpets cleaned and repaired the vertical blinds. The lessor claimed the following:
· Internal clean $350
· Spray weeds $ 50
· Weed garden bed $100
· Internal door damage $ 54
· One week’s rent until goods removed $245
· Move goods out $ 50
· Dispose of batteries at tip $ 20
· Repair vertical blinds $ 12
· Time to find supplier and pick up $ 24
· Carpet cleaning – balance owing $ 22
TOTAL $873
In relation to the claimed amounts, the Lessor produced receipts for the internal door damage ($54), the carpet cleaning ($132), and for one vertical blind blade ($8).
The tenants had agreed to pay one week’s rent of $245.00 to enable them to carry out the cleaning and removal of their remaining possessions. The tenants had refused to pay for the cleaning and carpet cleaning on the basis that the tenants had organised for the father of one of them, a professional cleaner, to carry out the cleaning including the carpets and had requested the further week for that to be carried out. The tenants stated the lessor organised the carpet cleaning during the further week without their agreement and only gave them over-night notice that he was doing so. The tenants said that they had been unable to clean prior to moving out as the lessor had started the painting and repairs to the inside of the premises which made it impossible for them to remain living in the premises for as long as they had organised.
Also, in a Statutory Declaration by Ms Kirstie Waltman, sister of one of the tenants, she stated that “the gardens were over grown and the pavement front and back were unweeded.” The family weeded the gardens and pavements. “Although there was no weeding done when [the tenants] moved out of the property, the gardens and pavement were in better condition from when they moved in.”
Taking all the above into consideration, the Tribunal determined that the tenants should not pay for the cleaning or carpet cleaning, weeding or spraying of weeds. As the tenants had already paid $112 to the lessor towards the cleaning costs, the Tribunal ordered that the lessor repay this amount to the tenants. Also, the Tribunal determined that the tenants should not pay for rent for the further week’s rent on the basis the further week was sought to enable the tenants to have the premises cleaned and their remaining goods removed. The lessor’s actions made this impossible and breached that verbal agreement.
The tenants said that they wrote to the lessor on 4 March 2007 requesting he carry out necessary repairs to the premises, including to the backyard fence and pavement. In the notice, the tenants stated that the pavement was so uneven that a visitor to the premises had sprained her ankle in an injury caused by the unevenness. The tenants also raised the need for repairs to the back sliding door, for a pest eradication, and to the vertical blinds “with little white ties” that “are starting to give way”. The tenants sought a rental reduction if they undertook the repairs. Apparently, the lessor did not answer the letter.
The Condition of Premises Report dated 9 September 2006, signed by both the lessor and the tenants, noted that the rear paving was “to be repaired” and that the side gate needed fixing. Despite the Condition Report and the tenant’s letter of 4 March 2007, these repairs were not carried out during the term of the tenancy. The tenants sought a rental reduction under section 71 of the Residential Tenancies Act 1997 (the Act) due to the loss of amenity they experienced due to the non-repair. This application was made on the basis that the tenants experienced a loss of amenity from the time the tenancy commenced to the date of vacation.
Under section 71 of the Act, the Tribunal has the power to order a reduction in the rent payable under a residential tenancy agreement where the tenant's use or enjoyment of the premises has diminished significantly as a result of the lessor’s failure to make repairs. . In Peters v Commissioner for Housing for the ACT [ACTRTT6 [2006] the tribunal held that it had the ability to impose a rent reduction which spans the entire period of the breach, from the lessor's initial failure to make repairs (or withdrawal of facilities) until the lessor has fully discharged (or met) his/her obligations. In this matter, the breach spanned the entire period of the tenancy as the Condition of Premises Report dated 9 September 2006 noted that the paving was to be fixed.
As the lessor seriously breached his obligation to repair, the Tribunal ordered a rental reduction of $456 (56 weeks at $8.12 per week rounded up) under section 71 for the repairs the lessor failed to carry out during the entire period of the tenancy. Of that amount $6.00 per week is for the non-repair of the paving, and $2.12 for the non-repair of the back door, the lack of pest eradication and the blinds “with the little white ties”. Whilst the Tribunal sympathises with the lessor who stated he had requested the Body Corporate to carry out the repairs to the paving, under the Act, it is the lessor who has the obligation to carry out repairs to the premises and the lessor who suffers the rental reduction if the repairs are not undertaken.
In the circumstances the Tribunal determined that the tenants were to pay the lessor the total sum of $65, made up of $54 for repairs to the internal door and a further $11 towards the repair of the vertical blind. The Tribunal ordered that amount of the bond still held by the Office of Rental Bonds be released to the lessor and the balance be released to the tenants in equal shares.
ORDERS
1.That the Office of Rental Bonds to release $65 to the lessor and the balance to the tenants Justin Hogg and Katrina Gloster in equal shares.
Jennifer David
Member
14th August 2008
0
0
1