CRUMBLIN v LOVERING (Residential Tenancies)
[2020] ACAT 55
•20 July 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CRUMBLIN v LOVERING (Residential Tenancies) [2020] ACAT 55
RT 613/2019
Catchwords: RESIDENTIAL TENANCIES – oral tenancy agreement – claim from lessor for rental arrears and unpaid utility bills – claim from lessor for compensation for costs associated with the condition of the premises at end of tenancy – claim from tenant for compensation for failure to repair heating – claim from tenant for breach of quiet enjoyment
Legislation cited: Residential Tenancies Act 1997 ss 6A, 36, 55, 68 standard terms 52, 75
Cases cited:Bonke v Vanner [2019] ACAT 24
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8
Tribunal: Senior Member J Lennard
Date of Orders: 20 July 2020
Date of Reasons for Decision: 20 July 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 613/2019
BETWEEN:
WAYNE CRUMBLIN
Applicant
AND:
JAMIE LOVERING
Respondent
TRIBUNAL: Senior Member J Lennard
DATE:20 July 2020
ORDER
The Tribunal orders that:
1.The tenant is liable to pay to the lessor the amount of $1,270.27 being:
(a)Cost of gas usage - $198.99
(b)Cost of water usage - $131.58
(c)Repairs to premises - $940
2.The lessor is liable to pay to the tenant the amount of $5,100 being:
(a)Refund of money paid as rental bond but not lodged - $2,400
(b)Compensation for failure to repair the heating system - $1,200
(c)Compensation for loss of peace, comfort, and privacy - $1,500
3.The lessor shall pay to the tenant the amount of $3,829.73 within seven days of the date of these orders.
………………………………..
Senior Member J Lennard
REASONS FOR DECISION
1.The applicant as lessor and the respondent as tenant were in a residential tenancy agreement commencing 31 October 2017 and terminating 24 July 2019. The parties did not enter into a written agreement. Section 6A of the Residential Tenancies Act 1997 (RT Act) provides:
6A What is a residential tenancy agreement?
(1) An agreement is a residential tenancy agreement if, under the agreement—
(a)a person gives someone else (the tenant) a right to occupy stated premises; and
(b)the premises are for the tenant to use as a home (whether or not together with other people); and
(c) the right is given for value.
(2) The agreement may be—
(a)express or implied; or
(b)in writing, oral, or partly in writing and partly oral.
(3) The right to occupy may be—
(a) exclusive or not exclusive; and
(b) given with a right to use facilities, furniture or goods.
…
2.The RT Act applies to the agreement and the terms of the agreement are the standard terms set out in the Schedule to the RT Act, plus any other terms orally agreed to by the parties, so long as they are not inconsistent with the terms of the RT Act or the standard terms. The parties agreed that the shed in the backyard would be retained by the lessor for his own storage space, (there was no precision in the terms as to the manner and frequency of the lessor’s access to that storage), and that the tenant did not have access to the underhouse storage area. The parties did not agree to a fixed term and so the tenancy is a periodic tenancy.
3.Rent was $600 per fortnight: $250 was to be paid into the lessor’s mortgage account by way of direct bank transfer and the balance to paid in cash to be collected by the lessor. The evidence before the Tribunal was that the lessor generally collected the cash payments every fortnight, no receipts were issued for the cash payments and the lessor did not maintain any records or a rent schedule.
4.The tenant paid a rental bond of $2,400 to the lessor at the commencement of the tenancy. The lessor describes this as a “security payment”. The amount was never lodged with the appropriate authority as a rental bond; but was mingled with the lessor’s funds in his bank account.
5.The lessor did not provide an ingoing condition report.
6.On 26 July 2019, the lessor served on the tenant a notice to remedy regarding rental arrears and unpaid utility bills. That notice stated, “you are required to remedy the breach within 14 days after the service of this notice, that is by Friday 9th August 2019.”
7.On 27 July 2019, the lessor served a second notice on the tenant:
On Monday morning I, Wayne Crumblin will be lawfully entering the property that I own and have the leased to Jamie Lovering, the property of 15 Poole Place Latham, 2615
I use the mechanism of the A.C.T. Tenancy Act, 1997 which reads
Division 4.6 Abandonment of Premises
61 Effect of abandonment
If a tenant abandons premises that the tenant occupies under a residential tenancy agreement, the agreement terminates on the day of abandonment.
AND
61 Lessor may enter premises to confirm abandonment
(1) This section applies if a lessor of premises under a residential tenancy agreement has taken all reasonable steps to contact the tenant and believes on reasonable grounds that the premises have been abandoned by the tenant.
I have taken all reasonable steps to contact you via your chosen form of communication, e mail and have had no dialogue with you! On a visual inspection of my property, the house appears empty or abandoned.
On a previous inspection of the external fixtures of the property you have made alteration to the building, I use the Residential Tenants Agreement , paragraph 55 & 56 parts1 & 2 to alert you to the damage you have caused to the property!
You have installed a ceiling/roof ventilation fan into the metal roof of the workshop, without written permission. You have removed paving capping blocks from 0the rear retaining walls and you have damaged the outdoor lighting. Negligence has been identified with the operation of the venetian blinds on the front facing wall of the property. Your dog that was never included in the tenancy agreement has caused damage to the front western red cedar door leaf. Any one of these breaches are significant grounds for eviction from this property!
8.On 29 July 2019, the tenant sent an email to the lessor. The email was a notice of intention to vacate the premises. The tenant stated that he had intended to give three weeks’ notice but that, having received the notice that the lessor intended to enter the premises on 29 July, he no longer felt safe in the premises and would not be going back.
9.The parties each make a claim for compensation. I will deal with the lessor’s claims in order and then the tenant’s claims.
The lessor’s claims
10.When a lessor has conducted himself without knowledge or understanding of the RT Act or the standard terms of a residential tenancy agreement, it is difficult for him to rely on those only at the end of the tenancy. Section 36 of the RT Act provides for the circumstances of termination of a residential tenancy agreement. The lessor claims that the tenant abandoned the premises.
11.The tenant gave evidence that he had been objecting to the numerous visits by the lessor to the premises. The tenant had asked for the heater to be repaired and this had not happened, that the lessor had frequently visited the storage area and entered the premises without prior notice or permission. The text messages between the lessor and the tenant show that these visits by the lessor were often on weekends. On 7 July 2019, the tenant sent the following message to the lessor:
Not sure why u would think its ok to enter the house without permission. I wasnt even aware u were coming today. And next thing u are in my garage with all my belongings. Please call before you wish to come over, i have repeatedly requested a phone when you are on your way. Otherwise i will need written notice 14 days before you intend to come onto property, and neither of us wants to go through that rigmarole. (errors in original)
12.On 18 July 2019, the tenant sent the following message to the lessor:
Hi Wayne in regarding your unannounced visit today after i expressly requested notice before any visits again, and it was not regarding getting the heater fixed, which is my only interest at this point in time. I am requesting all visits be formally announced in writing giving at least 7 days notice as stated in the residential tenancy act 1997 Clause 79-82.
13.At this stage, the relationship between the parties was broken and each party, belatedly, turned to the law and the terms of their agreement. The tenant was increasingly angry at the intrusions by the lessor, the lessor was frustrated by his inability to collect rent, and the situation was deteriorating rapidly. There were heated arguments between the parties. The tenant gave evidence that, because he could see that the tenancy could not continue, he had packed some of his goods and moved them to storage. The tenant stated that he intended to give three weeks’ notice to end the tenancy. The lessor had engaged neighbours to observe the tenant and report on his conduct: the lessor gave evidence that he had been informed by the neighbours that it “looked like the tenant had moved out”. The lessor produced in evidence a photo from the neighbour’s CCTV showing a moving van in the or near the driveway. This and a text message from the neighbour were produced for the hearing. The test message states that the tenant’s car was seen at the premises, by the neighbour, on 28 July. There is no evidence that the lessor had viewed this footage prior to serving the notice of inspection on 27 July 2019, which stated “On a visual inspection of my property, the house appears empty or abandoned.”
14.The lessor had continually ignored his obligation to give notice to the tenant of visits to the premises. I accept the tenant’s evidence that he left without giving the intended three weeks’ notice because he felt unsafe. The lessor had throughout the tenancy behaved in a manner which breached the terms of the tenancy agreement. He had not only visited the premises but entered the house without permission. On one occasion the lessor entered the house when the tenant was absent and forced the tenant’s cleaner to remove air conditioning units from the bedroom windows. It is not unreasonable for the tenant to describe the conduct of the lessor as the conduct of a bully and to form the view that if he remained in occupation of the premises and the lessor carried out the inspection that an assault may occur. This was corroborated by Mr Bailie, a witness called by the tenant: he had been living in the premises for a period of two to three months and stated that the lessor had visited one or two times every week, that the discussions between the lessor and the tenant “were a little bit heated” and he formed the view after one heated discussion that it was clear that the tenancy was coming to an end and that the tenant had “had enough”. Mr Bailie stated that the lessor told the tenant to move out during a heated exchange on 18 July 2019.
15.The lessor’s conduct including the failure to have regard to the requirements of the RT Act and/or the terms of the contract in relation to notice, ingoing and outgoing inspection reports, insisting on collecting rent and utilities payment in cash at the premises on an ad hoc basis, failing to undertake repairs and failing to lodge the rental bond, combined with the tone of the last letter are sufficient for the Tribunal to find that the conduct of the lessor is a repudiation of the residential tenancy contract. The lessors’ conduct is a gross or substantial departure from the terms of the contract.[1] His conduct evinces an intention to largely ignore the terms of the agreement and to perform it only on a manner substantially inconsistent with his contractual obligations.
[1] See Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 at [44]
16.The lessor has repudiated the contract. He has served a notice to remedy on one day and the very next day served a notice that he will enter the premises to determine if they have been abandoned, in circumstances where there is no evidence of abandonment. The tenant has vacated in response to these two notices. In accordance with section 36(i) I find that the tenancy terminated on 29 July 2019.
Rent arrears
17.The lessor claims two weeks’ rent arrears, and compensation of three weeks’ rent because the tenant did not give notice. The lessor did not provide any evidence to establish the claim of rental arrears up to 29 July 2019. This part of the claim is therefore dismissed. In light of my finding regarding termination of the tenancy the claim for compensation in lieu of notice also is dismissed.
Outstanding utilities bills
18.The lessor retained all utilities accounts in his name and from time to time demanded payment from the tenant. The tenant paid amounts as asked, and in cash. No receipts were issued by the lessor. There is no evidence before the Tribunal as to those previous amounts or how they were calculated.
19.The lessor retained access to a storage shed which was connected to the electricity. The lessor is bound by clause 42 of the residential tenancy agreement which provides that the lessor must pay for all services for which there is not a separate metering device so that amounts consumed during the period of the tenancy cannot be accurately decided. The lessor cannot therefore require the tenant to pay the electricity account. The tenant has paid for electricity in the past and concedes that the lessor would have used very little electricity in the storage shed. The lessor provided no evidence to support his claim for $462 electricity costs. This part of the claim is dismissed.
20.The tenant conceded that he is liable to pay for gas and water usage. The tenant shall pay to the lessor the amount of $330.57, being $198.99 gas usage and $131.58 water usage.
Claims for costs associated with the condition of the premises at the end of the tenancy
21.The lessor did not provide an ingoing condition report, an outgoing condition report or any evidence of routine inspection reports or verbal requests or comments to the tenant in relation to the condition of the premises during the tenancy. Section 29(1) of the RT Act provides that a lessor must, not later than the day after the tenant takes possession of the premises, give the tenant two 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. Section 30(3) of the RT Act provides that 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.
22.The tenant gave evidence that the house was reasonably clean at the commencement of the tenancy; that the blinds were in need of repair and there was a leaking tap. The evidence before the Tribunal established that the house was renovated in 2005, and had been occupied by tenants up to about 2009; the lessor had then re-occupied the premises for some time and immediately before this tenancy the lessor’s son and his partner had lived in the premises and that some of their friends had “lived there randomly”.
23.The claims of the lessor are dealt with below:
(a)Replacement of fly screens: the lessor claims $220 and provided a quote dated 2 September 2019 for an amount of $165. The evidence before the Tribunal establishes that the fly screens were installed in 2009, that there had been numerous occupants and tenancies prior to this tenancy. There was no evidence as to the condition of the flyscreens at the commencement of the tenancy and no evidence of any deterioration which would not be attributed to wear and tear on flyscreens of that age. This claim is dismissed.
(b)Repair of sliding door lock: the lessor claims $104.50 and provides a quote dated 2 September 2019. The lessor claims that the tenant placed a lock on this door during the tenancy. The tenant denies this. There is no evidence to support the lessor’s claim. This claim is dismissed.
(c)The lessor claims $202.95 for replacement of keys. The tenant gave evidence that he returned all keys to the lessor. There is no evidence to support the lessor’s claim. This claim is dismissed.
(d)The lessor claims $200 for reprogramming of roller door remote, but provides no invoice. There is no evidence to support the lessor’s claim. This claim is dismissed.
(e)Six blinds: The lessor claims that the tenant damaged the blinds. The blinds were installed in 2009. The tenant gave evidence that the blinds needed repair at the commencement of the tenancy. The photographs before the Tribunal reveal minimal damage to the blinds. There is no evidence to support the lessor’s claim the that state of the blinds is more than could be attributed to fair wear and tear in blinds of that age. This claim is dismissed.
(f)Garage roof repairs.
(i) The lessor provided a quote dated 13 August 2019 for the removal of whirlybirds installed in the roof and replacement of roof sheeting, in the amount of $1,200. This work has not been undertaken. The lessor gave evidence that he only noticed the whirlybirds at the end of the tenancy. The lessor provided a letter form a neighbour, Mark Viney which stated:
Two whirlybirds appeared in the roof of the extended garage area. Both are visible from my property Whilst I cannot comment on the exact timing of their appearance, to the best of my knowledge it would have been in the March/April 2019 timeframe.
I do not accept the evidence of the lessor that he had not noticed the whirlybirds, given the many times he was present at the premises.
(ii) The tenant gave evidence that he had requested permission to install the whirlybirds prior to the summer of 2018. The tenant gave evidence that the area was an enclosed carport and was very hot during the summer months. The tenant states that he had permission from the lessor to install the whirlybirds. This is supported by the evidence of Mr Bailie, who installed the whirlybirds.
(iii) Section 68 of the RT Act provides that the tenant must not add any fixtures or fittings to the premises without the consent of the lessor; and, that any fixtures or fittings not removed by the tenant before the tenant leaves the premises becomes the property of the lessor. If a tenant has permission of lessor to make improvements, then there is no breach of the residential tenancy agreement nor is there any requirement that the tenant remove the fixtures and make good unless that was a condition of the permission.[2]
[2] Bonke v Vanner [2019] ACAT 24; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8
(iv) I am satisfied on the balance of probabilities that the lessor gave permission to the tenant for the installation of the whirlybirds; and that there was no condition imposed that the tenant should remove them and repair the roof at the end of the tenancy. This claim is dismissed.
(g)Repairs to retaining wall: The lessor gave evidence that the caps of the retaining wall and lighting on top of the wall had been damaged during the tenancy. The tenant states that this area is in much the same condition as at the beginning of the tenancy but also states that plumbing work may have caused some damage. There is no evidence to support the lessor’s claim. This claim is dismissed.
(h)Yard and house repairs: The lessor claims $6,730 and provided a quote dated 21 August 2019.
(i) The tenant concedes liability for the following:
(1)Repairs to fridge recess - $150
(2)Repairs to architrave in bathroom - $160
(3)Repairs to eaves where CCTV cameras were mounted and removed - $280
(4)Removal of rubbish from garage area - $350
(ii) There is no evidence provided by the lessor to support the remainder of the claim.
(i)End of lease clean:
(i) The lessor states in his application:
No end of lease cleaning was performed; the amount of $1600 was conservatively factored in after the hours of cleaning performed by me and Ms Leonie Barker. All bedroom carpets were shampooed twice due to the putrid condition that they were left in! 8 hours (4 hours each) was required to scrub the cream floor tiles and cement coloured grout. The grout was black, and the tiles had a film of “grunge’ over them that required scrubbing by hand with strong solvents and stiff brushes! The stove …appeared to have never been cleaned but was well used and abused! … no dusting or window cleaning has ever been performed at the property by Jamie Lovering…. Shower recess and bathroom were also untouched, soap scum had built up in shower cubicle, glass screen had not been cleaned probably in months. …
(ii) The tenant provided a letter from ARACA Cleaning Solutions which stated:
(1)An eight hour clean had been undertaken at the beginning of the tenancy. The premises were generally clean but some areas – bathroom, ensuite and kitchen needed extra attention.
(2)Each week the cleaner undertook the following work: cleaning of ensuite, bathroom and toilet; clean the kitchen including the stove; dust and wipe down all surfaces; clean inside and outside of sliding glass door; vacuum and mop all floors.
(3)The cleaner did an end of lease clean taking two people five hours and at a cost of $600.
(iii) Mr Bailie gave evidence that an end of lease clean was done on the day the tenant vacated and that the cleaner had done a good job.
(iv) I do not accept the evidence of the lessor. The claim is dismissed.
(j)The lessor claims that he left a Makita compound saw, valued at $659 at the premises and this was missing at the end of the tenancy. There is no evidence to support his claim. The claim is dismissed.
The tenant’s claim
24.The tenant makes a claim for compensation for failure to repair the heating system. On 18 June 2018, the tenant asked the lessor to repair the heater. On 24 June 2018, the tenant sent a copy of the error message from the heating system to the lessor. At some time after that the lessor had a technician examine the system and was told that it was beyond economic repair. A replacement of the ducted gas system would cost $8,000. The lessor did not replace the heater during the tenancy.
25.Section 55 of the RT Act provides that the lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement; the tenant must notify the lessor of any need for repairs, and the lessor must make repairs, other than urgent repairs, within four weeks of being notified of the need for the repairs. Repairs to heating are urgent repairs.
26.The lessor claims that the heater was not working at the commencement of the tenancy and that the split system air conditioner installed in the lounge room was sufficient to heat the house. The lessor gave evidence that he did not repair the heater because he could not afford the cost of $8,000.
27.The tenant gave evidence that it was not drawn to his attention prior to the tenancy that the heater did not work; he constantly requested the heater repairs, but was ignored. The tenant disputes the lessor’s evidence that the heating was adequate and says that the bedrooms were not heated by the split system. This evidence is supported by statements of Mr Bailie, and Jaye Keller, who lived in the house for the first part of the tenancy. The tenant purchased oil filled column heaters for use in the bedrooms.
28.Ms Baker, for the tenant, made submissions in relation to the extra costs of electricity, but provided no cogent evidence or explanation of the calculations. I note that the tenant has not made any application for a refund of electricity costs unlawfully demanded by the lessor.
29.The tenant is entitled to expect that appliances such as fixed heaters, will be in good and working order. The lessor has an obligation to repair heating systems throughout the tenancy. The lessor’s failure to repair the heating system is a breach of the tenancy agreement. The tenant is entitled to compensation for that breach. Taking into account that the request for heating repairs was more than one year from the end of the tenancy, the cost to the tenant of purchasing heaters, and the inconvenience of constant requests to the lessor being ignored, I award an amount of $1,200 compensation to the tenant.
Loss of quiet enjoyment
30.The tenant concedes that it was always agreed that the lessor would have use of the storage facility in the back area of the premises. This would necessitate the lessor having access to that area. It is the manner of that access and conduct beyond those visits which the tenant complains about. The tenant gave evidence that the lessor had attended the premises on more than 60 occasions without giving notice as required by the terms of the residential tenancy agreement. On at least five occasions the lessor entered the house without proper notice. The tenant gave evidence that on one occasion the gate was left open and his dog got out, that the lessor moved the tenant’s vehicle without permission and on another occasion the lessor’s vehicle blocked the driveway.
31.The tenant says that the unpredictability of the visits was a cause of stress for himself and his daughter. The visits were for access to the storage, to collect mail delivered to the lessor at the premises and to collect rent and payments for utility bills. The tenant gave evidence that he had requested the lessor to arrange payment by direct debit or bank transfer, but this was not arranged.
32.The text messages between the parties indicate that when notice was given, it was by text and often required access that day or within hours. The messages also show that access was required at various times, including outside of business hours and on weekends.[3] The texts show that the tenant asked the lessor to “ring before you come” on several occasions. Towards the end of the tenancy the tenant was requesting seven days written notice and complaining about unannounced visits by the lessor.
[3] See Clause 75 Standard Terms, Schedule 1 Residential Tenancies Act 1997
33.The lessor did not disagree with the evidence of frequent visits, but said that this only became an issue at the end of the tenancy, and that this was “just the way it was”.
34.The tenancy agreement provides that the lessor must not cause or permit any interference with the reasonable peace, comfort, and privacy of the tenant in the use by the tenant of the premises.[4] The tenant may permit access to the premises at any time. The lessor did not comply with clause 75 of the tenancy agreement and the nature and manner of the frequent visits had the cumulative effect of causing interference with the tenant’s use of the premises in peace comfort and privacy. Interference with quiet enjoyment is a question of fact. Motive is not relevant. The lessor chose to conduct the tenancy according to his own convenience and wilfully disregarded the terms of the RT Act and the tenancy agreement and thereby his obligations and the tenant’s rights.
[4] Clause 52 Standard Terms, Schedule 1 Residential Tenancies Act 1997
35.The lessor shall pay to the tenant compensation of $1,500 for breach of clause 52 of the tenancy agreement.
36.The tenant also made claims for compensation relating to the cost of moving from the premises and storage. On the evidence before me I cannot be satisfied that the costs claimed by the tenant were caused by the conduct of the lessor. These are the costs that all tenants vacating at the end of a tenancy must bear. There is no legal basis for the claim of pest control and asbestos reports paid for by the tenant at the end of the tenancy. These were not at the request of the lessor. The claim for a refund or $20 per week being internet costs is dismissed. This was not a separate charge levied by the lessor but a component of the rent calculation.
Orders
1.The tenant is liable to pay to the lessor the amount of $1,270.27 being:
(a)Cost of gas usage - $198.99
(b)Cost of water usage - $131.58
(c)Repairs to premises - $940.00
2. The lessor is liable to pay to the tenant the amount of $5,100 being:
(a)Refund of money paid as rental bond but not lodged - $2,400
(b)Compensation for failure to repair the heating system - $1,200
(c)Compensation for loss of peace, comfort, and privacy - $1,500
3.The lessor shall pay to the tenant the amount of $3,829.73 within seven days of the date of these orders.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER:
RT 613/2019
PARTIES, APPLICANT:
Wayne Crumblin
PARTIES, RESPONDENT:
Jamie Lovering
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
JR Baker Law
TRIBUNAL MEMBERS:
Senior Member J Lennard
DATES OF HEARING:
17 March 2020
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