Daniel McDougall & Satarani Kerin v Bradley Freer
[2006] ACTRTT 10
•22 March 2006
Daniel McDougall & Satarani Kerin v Bradley Freer [2006] ACTRTT 10 (22 March 2006)
CATCHWORDS
Surrender of tenancy
Surrender by estoppel
Mitigation of losses
Condition reports
Evidential burden to prove losses
ISSUES
Whether a surrender of a lease can be effected pursuant to section 36(g) of the Residential Tenancies Act 1997 on the basis of a purely oral assent from the landlord by reliance on the doctrine of equitable estoppel or section 12 of the Fair Trading Act 1992 (misleading and deceptive conduct).
Whether a landlord who takes a premises off the market for renovations is mitigating losses arising from an abandonment.
The effect of a landlord failing to prepare a condition report at the start of a lease.
The need to prove the loss sought.
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Sections 29, 30, 36(g), 62
Clauses 21-23, 64 Standard Residential Terms
Fair Trading Act 1992, section 12
CASE LAW
Calabria v Fletcher ACTRTT3 [2001];
Rodopoulos v Leu ACTRTT9 [2002];
Loncar v Barkovic ACTRTT9 [1999];
Bernard v Blahova NSWCTTT1 [2005];
Walton’s Stores (Interstate) Ltd v Maher 1988 76 ALR 513;
Minister for Immigration and Ethnic Affairs v Kurtovic 1990 932 ALR 93;
Attorney General of NSW v Quinn 1990 93 ALR 1;
Haoucher v Minister for Immigration and Ethnic Affairs 1990 93 ALR 51.
[2.3.5] [2.15.0] Residential Tenancies Law and Practice in NSW; 2003 Edition; Anforth, Thawley and Christensen.
Case Reference Number: RTT 05/1497
Re: Premises at 24B Hovea Street, O’Connor ACT 2602
Decision
1The tenants application is dismissed.
2The landlords cross claim is dismissed.
3The Office of Rental Bonds is to pay the whole of the bond to the tenants.
Member: A. Anforth
Date: 22 March 2006
REASONS FOR DECISION
Background
1. This case concerns a claim by two tenants for an order from the Tribunal to prematurely terminate a fixed term lease, and a cross claim by the landlord for rent and cleaning costs arising out of an abandonment of the premise by the tenants in the fixed term.
2. The premises are located at 24B Hovea Street, O’Connor in the ACT. The premises take the form of a granny flat at the back of a house.
3. One of the tenants had been in the flat since 1999 at which time the flat was owned by the predecessor in title to the present landlord. The tenants were post graduate students at the ANU. There was a series of 12 months leases, the last of which was from 13 February 2005 to 12 February 2006 at a rent of $165.00 per week. The bond was paid at the time of entering the original lease in 1999 in the sum of $460.00 which has remained with the Office of Rental Bond at all material times.
4. There was a condition report on the premise prepared at the time of commencement of the original lease in 1999 but none prepared in relation to any of the subsequent leases.
5. The present landlord purchased the premises on 7 October 2004 and notices of attornment were duly served on the tenants. The landlord was a carpenter by trade.
6. The tenants entered a 12 month fixed term lease with the present landlord on 13 February 2005. In late May 2005, being only part way into the fixed term, one of the tenants obtained an offer of employment in New Zealand which was apparently irresistible. The tenants then joined in an approach both orally and in writing to the landlord to release them from the balance of the lease.
7. The above is common ground between the parties. The parties however differ on the response given by the landlord to the tenants request to be release from the balance of the lease. The tenants assert that the landlord told them that there was no problem and that he had another tenant to move in. The landlord denies making such a statement. It is common ground that the landlord did not assent to the tenants request in writing.
8. It is common ground that the tenants vacated on or around the 4 July 2005 at which time the landlord embarked upon substantial renovations of the flat. The tenants had paid rent to the end of the first week in July 2005. The renovations were completed either on or before the 26 July 2005 at which time a new tenant immediately took possession. The rent for the renovated premises was increased from $165.00pw to $235.00pw.
9. The landlord claims rent from the tenants from 5 July 2005 to 25 July 2005 being $471.40 and cleaning costs of $500.00. It is common ground between the parties that the tenant paid the landlord $150.00 for rubbish removal from the premises.
10. The landlord asserts that the premises were left in a filthy condition requiring cleaning. The tenants deny this and assert that the premises were left in a better state of cleanliness than that in which they had received the premises at the start of the original lease in 1999.
The proceedings:
11. On 18 July 2005 the tenants lodged an application with the Tribunal. The application sought an order ending the lease as of 4 July 2005, seeking release of the bond of $460.00 and recovery of over payment of rent of $84.47. The application was accompanied by the following statement by the tenants (all typographic errors are origin):
Background
The Flat is behind the main House at 24 Hovea Street O'Connor. Access is via a side lane adjacent to the carport attached to 24 Hovea Street. The 2 properties at this stage were not separated.Initially a lease was signed for the Rear Flat at 24 Hovea Street O'Connor in Feb 1999 for a 12-month term being 13 Feb 1999 - 12 Feb 2000 between Monica Brunner (Owner & Landlord) and Sitarani Kerin (tenant). Sitarani had moved from interstate and was commencing PHD studies at ANU and was on a limited income.
The rent being $115 per week and a bond of $460 was paid to the Rental Bond Board unfortunately we no longer have the Bond number. The Flat was furnished including 2x wardrobes, dressing table, 2x bedside tables, telephone stand, old upright vacuum, 2x beige carpet squares, wooden desk, plastic bin and garden hose (copy attached). The Condition report indicated that there were some problems with the flat particularly in the lounge (threadbare carpet), in the Dining room (rusted inoperable blinds), in the bathroom (ceiling mould) (floor cracks) (shower mould) and in the laundry (ceiling dirty) (floor cracks). (Copy attached).
Generally the place was in poor condition but considering the rent being charged and the proximity to amenities it seemed satisfactory. During occupation of the flat the Toilet cracked and was replaced, the hot water system was replaced. Most of the blinds during occupation became partially operable but were still functional (i.e. they could be opened and closed to allow light in but the cords to raise the blinds had perished). We also had deadlocks and window locks fitted at our own expense. Monica Brunner had placed the 2 large carpet squares over the worst areas of carpet in the Lounge and room adjacent to the kitchen. Monica had indicated that she hadn't had the carpets steam cleaned as the cleaning was likely to cause more damage to the carpet. She also advised the premises had been vacant for approx. 8 months awaiting council approval for the dwelling (during that time we believe the flat had been used by builders who were working on the main house).
Monica Brunner then reverted to her maiden name Monica Beran.
A second lease was signed for Feb 2000 - Feb 2001 between Monica Beran (Owner & Landlord) and Sitarani Kerin (Tenant) rent increased by approx 10%.
I moved to the ACT in June 2000 and was also placed on the lease. Thereafter (Feb/2001-Feb/2003, Feb/2003-Feb/2004, Feb2004-Feb2005) leases were signed between Monica Beran (Landlord) and Sitarani Kerin and Daniel MacDougall (Tenants). The rent continued to increase by approx 10%. The rent paid for the last lease with Monica Beran Feb 2004 – Feb 2005 was $650 per calendar month.
Cursory inspections took place on or around the signing of the new leases. As Monica got to know us these became less and less formal but no new official reports were completed other than the original report in Feb 1999.
In June 2004 Bradley Freer and Laurie Laffin came around to inspect the exterior of the property they took measurements and spent at least an hour assessing both houses. Laurie Laffin asked us whether we would be interested in having a fence put up between the 2 properties. They did not indicate that Bradley Freer was interested in purchasing the property. We believed they were working on behalf of Monica Beran.
After contacting Monica Beran we then found out that she was interested in selling the property, and that Laurie Laffin was acting on behalf of Elders Real Estate (Managing Agent for sale of property) and that Bradley Freer was interested in purchasing the property.
Later that month I allowed Laurie Laffin and Bradley Freer access to the interior of the flat. They spent close to an hour assessing the property at this stage I pointed out some of the major faults including the poor condition of the carpet throughout, the fact that the blinds were old and were not fully functional, the cracked tiles in the Laundry and Bathroom, Permanent mould in the shower unit, large hole in plasterboard under sink in Kitchen. I also mentioned that there was a noticeable "water hammer" (pipes rattling) when the Main House used their taps or shower and that the plumber who had replaced the hot water system had advised there was little that could be done to alleviate the problem due to the state of the plumbing in general. Neither seemed overly concerned about these issues and only mentioned placing a fence between the 2 properties and how that would improve our privacy.
On the 7th October 2004 we received letter from solicitors representing M.I.O Beran and Bradley Freer advising that the property had been sold and all future payments should be made to Bradley Freer (copies attached). We made all payments accordingly at this stage we were paying $650 per calendar month.
Over the course of a weekend in Late October - early November 2004, without specific notice, Bradley Freer and Dom ? (Bradley Freer's apprentice) placed a fence between the 2 properties. The location of the fence changed considerably over the course of the weekend. The 2 properties were designated 24A for the main House and 24B for the Flat. Other general external maintenance was completed including the removal of a drain pipe, which flowed directly over our access gate, removal of rubbish, etc.
Bradley Freer was allowed access some time in November 2004 or December 2004, I'm unsure of the exact date, to replace the taps in the kitchen as they had literally fallen apart. We again mentioned the "water hammer" and that it had gotten worse Bradley Freer indicated that he had increased water pressure to 24A as he had replaced their hot water system. He also advised that he would separate the water supply to the 2 houses, this never eventuated.
Reason for Dispute
Since October 2004 we have dealt directly and solely with Bradley Freer regarding our tenancy at 24B Hovea O'Connor, other than inspections prior to the purchase of the property, where Laurie Laffin accompanied him. I'd also like the Tribunal to know that Bradley Freer trades as ACE (Australian Carpentry Excellence) Contractors and is a Builder and Carpenter by Trade and has a number of properties he rents. I feel he may use his connections to the Real Estate / Building industry to better his position in this matter.
In February 2005 Bradley Freer dropped off a new standard form rental agreement. Bradley Freer (Owner & Landlord), Sitarani Kerin and Daniel MacDougall (tenants). The new rent was $165 per week ($715 per calendar month) which was to be paid twice a month $357.50 directly to Bradley Freer's account.
I think the actual agreement indicated $330 twice a month but Bradley Freer realized that he had miscalculated the rent and we calculated the new bimonthly payments.
The Lease did not have the term dates completed. I added the Term to reflect the other agreements we had had with Monica Beran (i.e. 12 months from Feb 2005 - Feb 2006).
We then placed the completed agreement in our letterbox as requested by Bradley Freer for him to collect and lodge. Bradley Freer had advised us he would supply us with a copy. We never received a copy of the lease. We noted that it remained there for at least the next week before he collected it.
At no stage did Bradley Freer request another Inspection other than the inspection carried out prior to purchasing the property and anything we may have been discussed when he replaced the taps in the kitchen. Bradley Freer did not seem concerned about the current state of the flat. We had offered him access for a more formal inspection to take place as had occurred when Monica Beran was the Landlord.
Bi-Monthly payments of $357.50 continued until the end of June 2005. We also made a good will payment of $178.75 being the first quarter of July to take our rental payments beyond the date of vacating the Flat.
On 26 May 2005 I called Bradley Freer and advised him that we had to terminate the lease as Sitarani Kerin had been offered a position in New Zealand. This was an opportunity too good to refuse in terms of Sitarani Kerin's career. Bradley Freer was concerned but assured me that the matter of the lease should not be too much of problem. I followed up this conversation with written advice (copy attached) but at this stage we did not have a concrete date for vacation.
In early June 2005 we mentioned to the residents in 24A Hovea Street that we were moving some time at the end of June - start of July they expressed an interest in the flat. On 6 June 2005 I called Bradley Freer with the final dates for vacating the flat, 3 July 2005 being the chosen date to hand back keys, conduct final inspection. Bradley Freer indicated that he had new tenants (friends of the residents in 24A Hovea Street). Bradley Freer advised us that we should not concern ourselves about the lease.
I followed up this conversation with a letter sent registered post (RD 23104522 rec'd 20/6/05) (Copy attached)
At this stage I thought the matter was resolved and did not refer anyone to Bradley Freer as Sitarani and myself were aware of a number of colleagues who were looking for accommodation. We would've been happy to allow prospective tenants to inspect the flat and to pay for any advertising if we could not personally find a new tenant. We had found the flat through ANU's accommodation services and thought it would be great for student/s.
On 3 July 2005 (indicated date for vacation) I phoned Bradley Freer to remind him we were vacating the flat that day he suggested leaving the keys with the tenants in 24A Hovea Street.
It was then that I found out that new tenants had not been found and Bradley Freer was going to hold us liable for the rent until new tenants had signed a lease and asked that we continue to pay directly into his bank account until otherwise advised. I told him we had paid for the first quarter of July 2005 and would not be paying anymore until the matter of new tenants had been resolved.
I told Bradley Freer I felt I'd been misled and indicated my concerns.
Bradley Freer arrived in the afternoon approx 3 P.M. on 3 July 2005 and found that there was an amount of rubbish that had yet to be removed he indicated his concerns and insisted we resolve the matter immediately (he indicated that the Police had been called and that until the rubbish was removed I could not leave the Country and that the Police would assist him if need be).
Rather than arguing with him at this stage and considering I was preparing to leave the Country the next day 4 July 2005 I decided reluctantly to comply with his request.
He assessed the rubbish to be removed and advised that it would cost $150 to remove (copy of receipt attached)
In fact part of the rubbish I paid $150 to have removed included a CD Stand, 2-year-old vacuum (with new bags), stereo cabinet, wire baskets. General furnishings that we thought would have been useful to the new tenants as we thought that being friends of the tenants in 24A Hovea Street there was a good chance the new tenants had little in the way of furnishings. We had already given the tenants in 24A Hovea Street a TV/Video stand the week before and thought they may have also used some of these items.
As Bradley Freer drove me to the Bank to pay for the rubbish removal I told him that I felt threatened and misled by his comments about the Police.
After that had been resolved Bradley Freer did an inspection throughout and advised me that as far as he was concerned the Flat passed inspection. His only concern was that the carpet had not been steam cleaned (not it's general condition) although it had been vacuumed and deodorized as per Monica Beran's inventory. I advised him of Monica Berans previous comments about the carpet.
He did not indicate that he would replace the blinds, replace the carpet and tiles throughout or that he would paint throughout. He certainly did not advise me that he would make these changes let alone try to use our bond to pay for them.
I indicated that I was concerned about the lease and a dispute arose about the liability for the Rent. I told Bradley Freer that I understood my responsibilities but I felt misled considering he had advised us he already had new tenants.
I also advised him we had been happy to refer people to him and to allow prospective tenants to view the premises as well as pay for any advertising. We hadn't because we thought Bradley Freer had already found new tenants.
A friend then came around to help me with the final removal of my possessions and the dispute stopped there. I commented to my friend who had a look through the flat that Bradley Freer had inspected and the only remaining issue was finding new tenants. Bradley Freer collected the keys and my contact details (PO Box and Email), left the premises to discuss matters with the residents in 24A Hovea Street and then left altogether.
On 7 July 2005 I sent an email expressing some of my concerns and cc'd a copy to his Solicitor (copy attached) but had no response.
On 13 July 2005 I called him and left a message. He called back within an hour and advised that the Flat had been advertised on the weekend for $235 per week and that approx. 18 groups had been through and he had approx. 9 applications, 3 of which he deemed suitable tenants. He also advised me that no lease had been signed as yet. Bradley Freer commented that considering he had made extensive alterations he was being very selective about the new tenants. He also indicated that he would not be pursuing any further rental payments.
I then asked about the bond he indicated that he had had an independent inspection done and the Flat was deemed not fit for habitation and that he would be making a claim against the Bond, in fact claiming all the Bond of $650 (not sure where he got this figure from as the existing bond is only $460) as he had to undertake repairs.
I have been advised that Bradley Freer has taken this opportunity to replace all the blinds, paint throughout and re carpet the property as well as laying lino in the kitchen laundry and bathroom and to increase the rent from $165/week to $235/week.
He is also advising prospective tenants who call about the flat Sitarani and Myself would attest to the fact that the Tenants in 24A Hovea Street were hardly ever there and never had parties or caused any disturbance, this I feel is misleading as Bradley Freer never requested a testimonial and at that stage we were not easy to contact in New Zealand.
We have had some minor conflicts with the tenants residing in 24A Hovea Street about noise, which had been resolved amicably without Bradley Freer's assistance.
I then advised him that I didn't understand how we could be held liable for the renovations considering the flat was in a similar state to when we first rented the property in 1999 and that the only Condition report was between the previous landlord and Sitarani Kerin (not Bradley Freer or Daniel MacDougall) and took place in Feb 1999.
I told him that if it was uninhabitable (which I dispute) it had been uninhabitable throughout our occupation (since Feb 1999). I also asked why he hadn't mentioned this earlier (either prior to purchase or at the start of the lease signed in Feb 2005) and if he had concerns about the property why he hadn't conducted an official inspection report after he bought the property or before signing the new standard Rental agreement.
He then indicated he was not concerned about that and if we disputed his claim against the bond the matter would have to go to the Residential Tenancies Tribunal and his lawyer would be representing him and he would not lose the case. He suggested I take 24 hours to think about the dispute and get advice as we may have more to lose than the bond itself. He indicated that if it went to the Tribunal he would be asking for more compensation for the Rubbish removed and he would produce receipts that would amount to a considerable cost, not specified. He then asked I consider this and call him back.
I quickly thought that if we don't challenge his claim through the Tribunal it might falsely indicate we accept liability for the condition of the flat.
Again we do not accept that we caused the Flat to be in it's previous condition we may have caused some wear and tear but kept it in good order considering it's original state in Feb 1999.
I advised him that it was up to the Tribunal to make a decision and that considering everything that had gone on in the past I felt the only way to resolve the matter was through the Tribunal. He then advised it might not stop there as he had taken action against a previous tenant in Lyons through the Small Claims Tribunal and had been awarded $6500 compensation.
I took these comments to be a threat.
I also thought that if we don't challenge his claim through the Residential Tenancies Tribunal he could pursue further compensation through Small Claims Tribunal.
I don't understand how a matter could be referred to both Tribunals surely a matter taken to the Residential Tenancies Tribunal should finish there. Considering that he inspected and passed the flat how can it be deemed uninhabitable and who has made this decision? Considering the renovations have already been undertaken how can I get an independent assessment as I do not believe that we've been living in such sub-standard conditions for the last 6 years. We left it in a similar state to the original condition report (obviously there has been some wear and tear but not enough to require such renovations).
It may not have been the prettiest Flat but it was comfortable and habitable. We have a number of friends who will attest to that fact. If the Tribunal requires we can seek declarations showing that during the time we rented the flat we did all that we could to preserve it's condition and that in the time between October 2004 and June 2005 (Bradley Freer as Owner and Landlord) the Flat's condition did not change. I can also seek a declaration about the condition of the flat when I handed the keys to Bradley Freer on 3 July 2005.
I hope that the matter can be resolved with out going to such lengths I've tried to provide as much evidence and detail as possible to the Tribunal and hope that if the Tribunal does require further information the fact that we are residing currently in New Zealand may complicate and delay our responses.
I'd like to reiterate Since October 2004 we have dealt directly and solely with Bradley Freer regarding our tenancy at 24B Hovea O'Connor. Other than inspections prior to purchase of the property, where Laurie Laffin accompanied him.
I'd also like the Tribunal to know that Bradley Freer trades as ACE (Australian Carpentry Excellence) Contractors and is a Builder and Carpenter by Trade and has a number of properties he rents I feel he may use his connections to the Real Estate / Building industry to better his position in this matter.
Once again I feel misled by Bradley Freer's conduct throughout this matter and not only do I feel misled but I feel he's taken this opportunity to renovate the premises at our expense (Bond and possibly more) for his own gain as he is now asking $235 per week which is a 40% increase on the rent $165 per week we were paying until the end of June 2005.
Had he not undertaken the renovations I feel that he would not have been able to increase the rent, I also feel that he misled us about the new tenants so we would not try to find new tenants, this has given him an opportunity to renovate while the flat is vacant which may not have been the case if we were aware that Bradley Freer hadn't found new tenants.
12. Annexed to the above statement was:
(a)In Inventory of the content of the flat dated 15 March 1999
(b)A Condition Report dated 13 February 1999
(c)A Notice of Attornment to the tenants advising that Mr Freer had become the landlord since 7 October 2004
(d)A letter from the tenant, Mr McDougall, dated 26 May 2005 to the landlord, Mr Freer, advising his intention to vacate on 30 June 2005.
(e)A letter from the tenant, Mr McDougall, dated 6 June 2005 to the landlord, Mr Freer, advising that the vacation date will be 4 July 2005.
(f)A note from the tenant to the landlord dated 3 July 2005 enclosing $150.00, said to be for removal of rubbish left on the premises.
(g)A email from the tenant to the landlord dated 7 July 2005 which read as follows:
re: Vacation of 24B Hovea Street O'Connor as per previous correspondence regarding our intention to vacate 03/07/05
26/05/05 Telephone Conversation
26/05/05 Confirmation Letter06/06/05 Telephone Conversation
06/06/05 Registered Post RD23104522 (rec'd 20/06/05)
03/07/05 Telephone call and in person discussionBrad I've been in contact with the Tribunal and have been advised that we can have the dispute regarding the VACATING of the abovementioned property resolved through the Tribunal.
Unless this matter is resolved in a timely manner I will feel obliged to pursue this issue through the Tribunal.
Considering that we have had numerous discussions and you've had more than ample time to formally dispute our decision to vacate I feel disappointed that it's come to this.
I am aware of our responsibilities and am not trying to avoid any legitimate claim you have, I'd also note that there is still the issue of the Bond to be resolved and that we have paid the rent past the date we vacated the premises $178.50 paid 30/06/05.
I feel that during the time you've owned the property (June 2004) we have tried to be as helpfull as possible in a range of matters.
I hope we don't have to resolve this issue through the Tribunal but it may be the only option.
Our new Contact details are as follows
Daniel Macdougall C/- Dr. Sitarani Kerin Otago University History Department PO Box 56 Dunedin 9001 New Zealand
13. On 6 July 2005 the tenant emailed the Tribunal in the following terms:
I'm having a problem with my Landlord, re 24B Hovea Street O'Connor I entered into a 12 month lease in Feb of this year and had to abandon the property as my partner got an offer to work in New Zealand for the next 5 years.
I contacted my landlord on the 26/5 by phone and in writing and again on 6/6 and confirmed by registered post and advised him we intended to vacate due to unforeseen circumstances (ie Work). On the 6/6 my landlord advised that the Flat would be let shortly after we departed as the residents in 24A Hovea were interested in the flat (they had friends that were looking for accommodation). I contacted my landlord on the 3/7 as this was the date we abandoned the residence. He then informed me that he did not have a new tenant and that I should continue to pay the rent even though the property was vacant I then indicated that I had advice to the contrary (Tenants Union Pamphlet). He then advised me if we didn't pay the rent as usual he may be forced to refer the matter to Debt Collectors he also indicated that he may not be able to advertise the property this weekend as he may not be in Canberra. He also indicated that I had a responsibility to find a new tenant.
I understand I have a contractual obligation regarding the rent whilst the flat is vacant and that advertising costs may also be incurred and am not trying to avoid this responsibility.
On the other hand I feel as if I've been misled and taken advantage of Obviously this has caused me a great deal of stress considering that I was left the country the next day 4/7.
Could you please advise me whether there is a way to easily resolve this matter considering I'm residing in NZ at present and had been given the impression that the matter was resolved.
I'm now concerned that my landlord will delay the advertising and re- letting of the flat as our final discussion was quite heated.
14. On 8 August 2005 the Tribunal received the following statement from the landlord:
I, Bradley Freer, wish to defend the claims made in the case of the above Termination of Tenancy & Rental Bond Dispute. I have attached the particulars that I wish to rely upon in defending these claims.
I refer to the eight page letter submitted by the applicant, and present my defence case as follows:
Page 1 Paragraph 2 Line 11
Claim: "The condition report indicated there were some problems with the flat
particularly in the lounge (threadbare carpet) and in the dining room (rusted
inoperable blinds)"
Defence: Nowhere in the condition report does it indicate the existence of threadbare carpet or rusty blinds.
Page 2 Paragraph 3 Line 2
Claim: "...at this stage I pointed out some major faults including the poor condition of the carpet throughout, the fact that the blinds were old and were not fully functionable"
Defence: At no stage throughout the one hour assessment of the flat (which occurred on 23/6/04) were any faults to the carpet or blinds raised. At this point my assessment was that the carpet and blinds were in good order and the flat was in a neat and tidy state. During this assessment I compared the condition of the property to the existing condition report of 13/2/99 conducted by Monica Beron and found it to be compatible, except for the condition of the yard which was in desperate need of general maintenance.
Page 2 Paragraph 5 Line 1
Claim: "Over the course of weekend in late October early November 2004, without specific notice, Bradley Freer and Dom paced a fence between the two properties. Other general external maintenance was competed including the removal of a drain pipe, which flowed directly over our access gate, removal of rubbish etc."
Defence: Discussions were held between myself and Daniel MacDougall two weeks prior to the fence being erected. We confirmed a date for this to occur. The aim was to provide more privacy for both dwellings, and Daniel MacDougall was extremely happy and supportive of this action. On the day of erecting the fence it was not brought to my attention that I was imposing on either tenant's private space. I also took the opportunity to improve the state of the yard as it had not been well maintained by Daniel MacDougall. This included mowing, edges wippersnipped, gardens trimmed and some rubbish removed. Once completed, I requested that Daniel MacDougall keep the yard in the same neat and tidy state going forward.
Page 2 Paragraph 6 Line 3
Claim: "We again mentioned the water hammer and that it had gotten worse. Brad Freer indicated that he had increased water pressure to 24A and that he had replaced their hot water system. He also advised that he would separate the water supply in the two houses."
Defence: Yes - the hot water tank was replaced in 24A. The other statements above are false and misleading.
Page 3 Paragraph 1 Line 4
Claim: "I'd also like the tribunal to know that Bradley Freer trades as Ace Contractors and is a builder and carpenter by trade and has a number of properties he rents I feel he may use his connections to the Real Estate/Building industry to better his position in the matter.
Defence: Yes - I am a Carpenter. The above statement is a matter of the tenant's personal opinion and is not supported by fact or evidence. My occupation has nothing to do with the disputes of this case.
Page 3 Paragraph 2 Line 12
Claim: "We then placed the completed agreement in our letterbox as requested by Bradley Freer for him to collect and lodge. Bradley Freer had advised us he would supply us with a copy. We never received a copy of the lease, we noted that it remained there for at least the next week before he collected it."
Defence: I collected the lease from the letterbox within two days, and a copy of the lease was sent within a couple of days.
Page 3 Paragraph 5
Claim: "On 26 May 2005 I called Bradley Freer and advised him that we had to terminate the lease.... date for vacation"
Defence: I received a phone call from Daniel MacDougall discussing payment of rent however the notice to vacate was not given. This statement is false and misleading.
Page 4, Paragraph 1
Claim: "On 6 June 2005, I called Bradley Freer with the final dates for vacating the flat, 3 July 2005 being the chosen day to hand back the keys, conduct final inspection. Bradley Freer indicated that he had new tenants (friends of the residents in 24A Hovea Street). Bradley Freer advised us that we should not concern ourselves about the lease. I followed up this conversation with a letter sent registered post.""
Defence: Yes I did receive a call on 6 June 2005 regarding terminating the lease. However it was not until 20 June I received a letter from Daniel MacDougall advising of the date to vacate which was 3 July. The rest of the discussion above is false and misleading.
Page 4 Paragraph 2
Claim: "On July 3 2005.. ..had been resolved"
Defence: On 3 July, I received a phone call from Daniel MacDougall inviting me to a final inspection and handing over of the keys that day. I advised I would be at the property within one hour. All other statements above are false and misleading.
Page 4 Paragraph 4
Claim: "Bradley Freer arrived....comply with his request"
Defence: When I arrived at the flat at 24 Hovea Street, I found a huge pile of rubbish in the yard. The house, windows and blinds were filthy, items in the sink, mould in the bathroom, ripped shower curtain, the carpet was putrid, and there were smoke stains on walls and ceiling. At this point I confronted Daniel MacDougall about the rubbish and the state of the property. He said he was unable to clean the property as he was leaving the country the following morning and didn't have enough time. He then told me that he was leaving shortly but would be returning to collect some things in an hour or so. At this point, I made it clear to him of his obligations to clean the property before vacating as it was in a filthy state. Daniel MacDougall offered to pay me a sum of $150 to remove the huge pile of rubbish in the yard. I accepted and drive him to collect the payment at a nearby automatic teller machine. I gave him a receipt to this effect and he then handed back the keys. At this point, we still had to resolve the condition of the state of the flat and grounds of the property. Daniel assured me he would do whatever it took to return the property to the condition in which he had rented it, ready for an 8am inspection the following morning 4/7/05. Unfortunately, Daniel did not attend the inspection and the property and grounds had not been cleaned as expected and discussed. I found myself in a grave predicament with a tenant who had vacated prematurely and a property that was unrentable. All statements regarding the police are false and misleading,
Page 5 Paragraph 1
Claim: "After that had been...comments about the carpet"
Defence: This is false and misleading as the conversation did not occur.
Page 5 Paragraph 4
Claim: "I also advised him...found new tenants"
Defence: This is false and misleading as the conversation did not occur.
Page 5 Paragraph 6
Claim "On 13 July 2005.. .further rental payments"
Defence: I did not communicate any information to Daniel MacDougall about the level of interest in the property from the open inspection. Also, I did not indicate to Daniel that I would not be perusing any further rental payments. This is false and misleading.
Page 5 Paragraph 7
Claim "I then asked about...to undertake repairs"
Defence: At no point did I advise that I had had an independent inspection completed. Also, I did not claim I intended to claim the entire bond. This is false and misleading.
Page 6 Paragraph 6
Claim "I advised him that it was.. .six and a half thousand dollars compensation"
Defence: At no point in time have I taken anyone to the Small Claims Tribunal and been awarded $6,500 in compensation and I do not own a property in Lyons. These comments are false and misleading.
In closing, these are the facts:
• Daniel MacDougall rang me on 26/5/05 to advise that he would be possibly moving overseas and may have to terminate the lease prematurely.
• On 20/6/05 I received a letter from Daniel MacDougall with notice to vacate on 3 July 2005.
• On 3/7/05 after my assessment of the property and its grounds, I was horrified at the way someone would leave a rental property in such a stage with the landlord to bear all costs to return it to a neat and tidy state. On this day of receiving the keys, under no circumstances did I give any indication nor say that the property had passed its condition report.
• Cleaned up property from 4th to 8th July including general cleaning up & repainting, addition of new carpet and blinds.
• Advertised property to rent in Saturday's paper on 9th July
• Re-advertised property for rent on 16th July
• Signed new lease on 25th July
The costs associated with delivering the property to its current state totaled $4,044.39 (see receipts attached). I would like to recover $500 of this cost, and believe this is a reasonable request considering the cleaning that was required in order to return the property to an acceptable rental condition. In no way would I expect any ex-tenant to bear the costs of any renovations undertaken by myself.
In addition to this, I would like to claim the loss of rent from 5th July until the start of the new tenant's lease on 25th July at $471.40 (20 days @ $23.57 per day). See old and new leases attached.
15. The Tribunal accepted the last two paragraphs of the landlords statement as a counter claim for compensation for cleaning and repairs and for compensation pursuant to section 62 Residential Tenancies Act 1997 for abandonment of the lease by the tenants.
16. Attached to this statement was:
(a)an invoice from MBA Group Training for $535.28
(b)a receipt from Bob Walker Carpets to ACE for “carpet and vinyl” for $1200.00
(c)a hand written receipt allegedly from Clayton Grant, painter for $1500.00
(d)a invoice from ACE Contractors to Mr Freer for $880.00 for cleaning windows, blinds, curtains, kitchen, toilet, laundry, adds in the Canberra Times, attending the premises for inspections. The invoice did not dissect the above.
(e)a receipt from Spotlight for$273.65 for curtain rods, tracks and accessories.
(f)a copy of the lease for 21 July 2005 with the new tenants Cassandra Phemer and Malcolm Hatch for a rent of $530.80 per month
(g)a copy of the lease with the present the present applicants, dated 13 February 2005 at a rent of $165 per week for the a fixed term period of 1 year.
17. The latter was listed before the Tribunal on 18 August 2005. On that occasion the tenant appeared by telephone for New Zealand and there was no appearance of the landlord. The matter was adjourned to 22 September 2005 with orders for the parties to file and serve witness statements relied upon.
18. On 1 September 2005 the tenants sought and obtained the issue of a summons to give evidence from the Tribunal directed to Monica Beran.
19. On 19 September 2005 the Tribunal received a fax from Karen Freer on behalf of Brad Freer seeking an adjournment of the hearing scheduled for 22 September 2005 on the basis of ill health. The fax sought an adjournment until after 15 December 2005. A medical certificate was attached. The request was put t the tenant for comment. None was received. The Tribunal adjourned the proceedings to a date to be fixed in the second half of January 2006.
20. On 16 January 2006 the Tribunal received the following fax on behalf of the landlord:
To whom it may concern,
I refer to the above matter and the upcoming hearing scheduled for next Thursday 26 January.
Brad will not be in Canberra next week as we have follow up appointments with specialists in Sydney on Wednesday (refer previous letter of 16 Sept). These appointments have only been scheduled in the last few weeks.
In the interests of settling this case as soon as possible, we would like to advise that we do not intend on being present at the next hearing and would like to rely on the papers already presented to support our case and to settle this dispute.
We appreciate that the hearing for the dispute has already been delayed several times on our request, and in the interests of all parties would like this matter resolved as soon as possible.
At this point in time, I feel it is in Brad's best health interests for the matter to be sorted with as little stress as possible.
We will await your advice in writing on the outcome of this case.
Thank you for your time.
21. On 25 January 2006 the tenant faxed the following to the Tribunal:
Comments on Counter Claim, Dated 16 August 2005
The Following are intended to highlight some of the inconsistencies I've found with Mr Freer's counterclaim.
Counter Claim Page 1
Page 1 paragraph 2 line 11
The condition report from 1999 does show that the blind was rusted in the dining room (attachment II). It also indicates a number of other faults some are specified others are not.
Counter Claim Page 1
Page 2 paragraph 3 line 2
Mr Freer states that his inspection was compatible with the 1999 report and indicates that the carpet and blinds were in good order but this appears to contradict the 1999 report which clearly shows faults.Counter Claim Page 2
Page 3 paragraph 1 line 4
The invoices supplied by Mr Freer are not specific about work undertaken: some appear to be in his own handwriting and one is from his own company -Ace contractors.
Counter Claim Page 2
Page 3 Paragraph 5
Mr Freer admits a discussion did take place on 26/5/05 solely to discuss rent yet he contradicts himself on page 4 of his own statement as he admits that I indicated that we were moving overseas.
Counter Claim Page 2
Page 4 Paragraph 1
Mr Freer may not have "collected" the letter until the 20th of June yet the registered post paperwork supplied (attachment Vb) shows it was definitely sent on the 6th June.Counter Claim Page 3 Page 4 Paragraph 4
Mr Freer claims that "I advised him I was leaving shortly and would be returning in an hour or so to collect some belongings" and continue cleaning ready for an Sam inspection on 4/7/05. He then states that he collected the keys to the flat. If this was the case how could I access my belongings or continue cleaning if I didn't have a key. I think it's also clear that I couldn't agree to attend an inspection on 4/7/05 as I was leaving the country that morning. It also seems strange that Mr Freer should insist that the matter of the rubbish be resolved yet was willing to leave the alleged state of the premises unaddressed.
Counter Claim Page 4
Page 5 Paragraph 7
Mr Freer states that "he did not claim he intended to claim the entire bond" yet he did put in a unilateral claim with the Bond Board on 15/7/05 for the entire bond 2 days after this conversation.Counter Claim Page 4
2nd last Paragraph
Mr Freer wants to recover $500 of cost to return property to an acceptable rental condition whereas he has in fact exceeded the original condition, total refurbish, to the extent where he was able to successfully increase the rent from $165 to $245 per week.
Counter Claim Page 4
Last Paragraph
Mr Freer wants to claim loss of rent even though he took this opportunity to undertake complete refurbishment and increase the rent considerably. He has not tried to mitigate the situation. Part of this claim does not take into consideration that we had paid rent beyond the date of vacating.Attachments to Counter claim
Attachment 1
Invoice MBA Group Training
Invoice does not show what or where work was undertaken and reference to Hovea street is handwritten in what appears to be Mr Freer's handwriting.Attachment 2
Invoice No. 041890
Does not show goods supplied to 24 Hovea Street.Invoice Clayton Grant
Handwritten, again appears to be Mr Freer's handwriting and does not specify where services were supplied.
Attachment 3
Invoice Ace Contractors
An invoice from Mr Freer's company to himself as Landlord. Mr Freer claims 2 days wages supposedly to clean windows, bathroom, toilet, laundry, kitchen, advertising and attend inspections.
Did this cleaning occur before or after all the other work was completed?
Attachment 4
Invoice Spotlight
No attempt was made to mitigate the situation by cleaning or repairing the existing blinds.
22. The matter was listed before the Tribunal on 25 January 2006. The tenant appeared by phone. There was no attendance of the landlord. The tenant was advised of the terms of the landlords letter of 16 January 2006. The tenant had nothing further to add.
23. The matter was adjourned for a written decision.
Findings of fact:
24. By reason of the fact that the landlord did not personally appear before the Tribunal or have any representative appear on his behalf, and the tenants appeared only by telephone, the Tribunal has been deprived of any real opportunity to assess the credibility of the parties or to witness the cross examination of the parties.
25. The principle factual issue in dispute is whether the landlord orally agree to release the tenants from the balance of the lease. Not without some reservation the Tribunal finds that the landlord did give that oral consent. The main factor influencing this conclusion by the Tribunal is the fact that immediately following the vacation of the premises by the tenants the landlord undertook extensive renovations of the premises with a commensurate increase in future rentals. It is likely that the landlord had these plans on foot some time before the date the tenants actually vacated. It is unlikely that the renovations could have been carried out with tenants in occupation and so it seems to the Tribunal that it would have suited the landlords purposes to have a period of vacant possession.
26. The premises are conveniently situation to the ANU and it is a matter of common general knowledge in the real estate industry in Canberra that premises near either of the university campuses are in great demand. This is evidenced by the fact that a new tenant was in possession immediately following the completion of the renovations albeit at an increased rent.
27. If the Tribunal’s inferences and findings of fact above are based on any misunderstanding of the chronology, then it could be only a matter of days. In so far as the landlord did not see fit to give evidence in person or by phone, or to have a representative attend on his behalf to disabuse the Tribunal of any such factual errors, the landlord is the architect of his own fate.
28. The second issue of fact in dispute concerns the state of the premises at the time the tenants vacated. The landlord asserts the premises were filthy, the tenants deny this.
29. The first problem which confronts the landlord is the fact that there was no condition report prepared at the commencement of the lease in February 2005. Section 29 and prescribed terms 21-23 of the Residential Tenancies Act 1997 requires the landlord to produce the report and provide a copy to the tenants for comments. It is not to the point that a condition report was prepared at the time of the first lease in 1999. The new lease entered by the tenants in February 2005 is a separate and distinct lease to the earlier 12 months lease which commenced in 1999. It is necessary to comply with section 29 at the commencement of each new lease. It is also self evidently the case that the state of the premises in 1999 says nothing concerning the state of the premises in February 2005.
30. The landlord’s failure to comply with section 29 has deprived the Tribunal of the main evidential instrument the Act intended to assist in disputes such as the present (section 30). The Tribunal has indicated on other occasions that in these circumstances, and having regard to the terms of section 30(3), the Tribunal will place greater weight on the evidence of the tenants concerning the state of the premises at the commencement of the lease (Calabria v Fletcher 2001 ACTRTT 3; Rodopoulos v Leu 2002 ACTRTT 9).
31. On the other hand the tenants seek to set up a comparison between the state of the premises at the commencement of the first lease in 1999 and the state of the premises when they vacated in July 2005. Prescribed term 64 of the Act requires that the tenant return the premises at the end of the lease “in substantially the same condition as the premises were at the commencement of the (lease), fair wear and tear excepted”. Thus the comparison required is not the comparison between the condition of the flat in 1999 and July 2005, but rather a comparison of state of the premises as at the start and end of the present lease, namely between the 13 February 2005 and 4 July 2005.
32. There is almost no evidence from the parties on this proper comparison. There are no photographs or independent reports of cleaners or relevant trades person tendered by the landlord. It seems the landlord undertook the cleaning himself through his business “ACE Contractors” and rendered himself an invoice in the sum of $880.00. The other invoices tendered by the landlord relate to matters of capital improvement associated with the renovation for which the landlord has made no claim e.g. new carpet and vinyl, painting, new curtains and curtain fixtures etc. Because the landlord has made no claim for these items it is not necessary for the Tribunal to address those items.
33. The cleaning invoice is for $880.00 from the landlord’s own business. It does not given any indication of the nature or extent of the work undertaken. It could not be for rubbish removal as the tenants have paid $150.00 separately for this. The cleaning costs could not be for carpets as the existing old carpets were removed during the renovation. The cleaning costs could not have been for the walls or ceilings as these were repainted during the renovations and so would have been dealt within during the removal of the existing paint as part of the repainting process.
34. It is possible to speculate that the cleaning might have been for the wet areas or cupboards etc. But even then the Tribunal does not know whether these areas were also replaced as part of the renovation.
35. At the end of the day it is for the landlord to particularise his claim for cleaning. If the landlord intends to do the work himself then he is required to satisfy the Tribunal as to the nature of the work undertaken, the hours involved, the cost of materials used and the need for the work (the evidential burden). There is no evidence on these matters from the landlord. On the issue of the need for the cleaning, the landlord is only entitled to claim for costs which it was necessary to incur to return the premises to the condition in which it was let at the commencement of the lease. Thus if the landlord embarks on substantial renovations of the premises at the end of the lease then any failure to clean on the tenants part which is subsumed in, or overtaken or rendered unnecessary by the renovations is not recoverable by the landlord.
36. Section 38 of the Act requires the landlord to take reasonable steps to mitigate any losses flowing from a breach by the tenants. In circumstances where the landlord incurs cleaning costs but only then substantially renovates the premises with its attendant dust and mess, the Tribunal would need to be persuaded that the landlord had in fact mitigated his losses in carrying out the cleaning in the first place, as further cleaning would be required after the renovations..
37. In the present case the landlord has not satisfied the evidential burden concerning the nature and extent of cleaning actually undertaken. Further more the Tribunal is not persuaded that it was necessary for the landlord to incur any cleaning costs immediately prior to commencing substantial renovations. Accordingly the landlords claim for cleaning is dismissed.
Termination of the fixed term lease on 4 July 2005:
38. This then leaves only the landlords claim for lost rent arising from the tenants abandonment of the lease.
39. The short answer to this claim is this; even if the tenants did abandon the flat on 4 July 2005, the landlord suffered no loss and therefore has no claim to make. The landlord did not attempt to mitigate his losses by seeking a new tenant to take possession immediately after the present tenants vacated. Rather the landlord took the opportunity to renovate the premises and then put it back on the market at substantially increased rent. This in fact occurred within three weeks of the tenants vacating the premises. In no sense is this an endeavour by the landlord to mitigate his losses. The Tribunal adheres to what the present Member said in the modest treatment of the law on mitigation set out at [2.15.0] Residential Tenancies Law and practice in NSW 2003 edition Anforth, Thawley and Christensen; see also Loncur v Barkovic 1999 ACTRTT 9; Bernard v Blahova [2005] NSWCTTT 1.
40. The course of action adopted by the landlord is a business decision open to him, but it does not follow that the burden of the cost of that decision is to be visited on the tenants.
41. But if the findings above on the failure of the landlord to mitigation are wrong, then it becomes necessary to determine whether the tenants have in fact abandoned the premises.
42. Residential tenancy agreements can only be terminated in one of the methods set out in section 36 Residential Tenancies Act 1997:
36. Notwithstanding anything to the contrary in any law of the Territory, a residential tenancy agreement shall not terminate or be terminated other than in the following circumstances:
(a)where a fixed term agreement expires and the tenant vacates the premises on or after the expiration;
(b)if a tenant notifies the lessor in the form approved under section 133 (Approved forms—Minister) for a termination notice, and vacates the premises in accordance with the notice;
(c)where the tribunal terminates an agreement under division 4.3 or 4.4;
(d)where the tribunal makes a termination and possession order in relation to the premises that are the subject of the agreement under division 4.4 or 4.5;
(e)where the tenant abandons the premises that are the subject of the agreement;
(f)where a person takes action in accordance with section 64;
(g)where the tenant and lessor agree in writing to terminate the agreement and the tenant vacates the premises in accordance with the agreement to terminate;
(h)where the tenant and the lessor are the same person;
(j)where—
(i)a party to the agreement repudiates the agreement; and
(ii)the other party accepts the repudiation; and
(iii)the tenant vacates the premises
43. If a tenant purports to terminate a residential tenancy agreement during the fixed term in a manner not permitted by section 36, then the tenant has abandoned the premises and is liable to pay rent for the balance of the fixed term in accordance with section 62 or until a new tenant is found, which ever occurs first:
62(1) Where a tenant abandons premises before the expiration of a fixed term agreement, the former lessor may apply to the tribunal for the following compensation:
(a)compensation for the loss of the rent which 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 tribunal may award compensation of the kind referred to in subsection (1) (a) and (b).
(3) The amount of compensation the tribunal may award—
(a)under subsection (1) (a) shall not exceed an amount equal to 25 weeks rent; and
(b)under subsection (1) (b) shall not exceed an amount equal to 1 week’s rent.
(4) In determining the amount of compensation that may be awarded under subsection (2) in relation to costs, the tribunal shall have regard to when, but for the abandonment of the premises—
(a)the agreement would have expired; and
(b)the lessor would have incurred the costs referred to in subsection (1) (b).
44. The landlord has in fact made a claim for compensation pursuant to section 62 as part of his cross claim.
45. In the present case the tenants have not served any Notice of Termination alleging breach on the part of the landlord
46. The tenants have applied to the Tribunal to terminate the fixed term lease from February 2005-February 2006 as at 4 July 2005. The tenants do not clearly articulate the statutory basis for the application. However it seems that the tenants rely upon section 36(g), namely that oral agreement had been reached with the landlord for the vacation of the premises on 4 July 2005 (commonly known as a surrender of the lease at common law). If a surrender had been agreed then there is no abandonment.
47. It may also be that the tenants’ application is made pursuant to section 44, based on the hardship implicit in continuing to pay rent for the balance of fixed term. The possibility that the tenants application may be based on hardship can be simply disposed of. There was no evidence of any financial hardship or other hardship on the tenants part. Accordingly no finding in the tenants’ favour could be made on this basis.
48. This leaves only a purported termination by way of agreed surrender of the lease pursuant to section 36(g). This paragraph requires that the parties have agreed in writing to the surrender of the lease. Whilst there was a request in writing to this effect by the tenants, there was no consent to the request in writing by the landlord and therefore the terms of the section 36(g) are not strictly complied with.
49. The question then arises as to whether the landlord’s verbal assent to the written request for a surrender of lease is sufficient for the purposes of section 36(g).
50. The only potential basis in law known to the Tribunal by which the landlord’s oral assent to the surrender may suffice for the absence of a written consent required by section 36(g) is by operation of the doctrine of equitable estoppel or by reason of the alleged misleading and deceptive conduct on the part of the landlord (section 12 Fair Trading Act 1992).
51. It is trite law that leases at common law can be created and surrendered by operation of the doctrine of estoppel (Waltons Stores (Interstate) Ltd v Maher 1988 76 ALR 513; [2.3.5] Anforth, Thawley and Christensen). The issue in the present case is whether a landlord is estopped from denying assent to a surrender of the lease arising from a purely oral assent when section 36 provides that the assent must be in writing “notwithstanding any law of the Territory to the contrary”. In short the issue is whether an estoppel can be raised against the mandatory provisions of a statute. The answer would appear to be “no” (Minister for Immigration and Ethnic Affairs v Kurtovic 1990 932 ALR 93; Attorney General of NSW v Quinn 1990 93 ALR 1; Haoucher v Minister for Immigration and Ethnic Affairs 1990 93 ALR 51).
52. Any attempt to apply to section 12 Fair Trading Act 1992 will encounter the barrier raised by the opening words in section 36 “notwithstanding any law of the Territory to the contrary”. The Fair Trading Act is a law of the Territory and accordingly cannot over ride the effect of section 36 to create a surrender of a lease based on purely oral representations.
53. It would appear to the Tribunal that absent an agreement in writing between the parties, a tenant will not obtain the benefit of section 36(g) and will thus be found to have abandoned the premises. Compensation will then be payable to the landlord for the abandonment subject to the duty to mitigate.
54. For this reason the Tribunal finds no basis for granting the order sought by the tenants to declare or order that the fixed term tenancy terminated on 5 July 2005. The tenants application is dismissed.
55. However, in the present case the Tribunal finds as a fact that the landlord did not take reasonable steps to mitigate his losses and accordingly the quantum of his compensable losses is nil.
56. On the basis that the landlord has suffered no proven losses arising from any abandonment by the tenants, the landlords cross claim is dismissed in its entirety.
57. By reason of the above findings there is no basis for denying the tenant the return of their bond.
A. Anforth
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