Eisenberg v Klekner

[2006] ACTRTT 22

Eisenberg v Klekner [2006] ACTRTT 22 (8 November 2006)

CATCHWORDS
Refund of rent paid in advance dispute - Estoppel

LEGISLATION
Residential Tenancies Act 1997 (ACT)

Sections 36(g), 38, 56, 

Clauses64 Standard Residential Terms

CASE LAW

Case Reference Number:   RT 06/2281

Re: Premises at 19/41 Leahy Close, Narrabundah, ACT 2604

Decision

1. Application dismissed.

Member:  J. A. David
Date: 8 November 2006

IN THE RESIDENTIAL     )  RT2281 of 2006

TENANCIES TRIBUNAL  )
OF THE AUSTRALIAN     )
CAPITAL TERRITORY    )

APPLICANT:  Andra Eisenberg

(Tenant)

RESPONDENTS:  Mr L Klekner

(Lessor)  

STATEMENT OF REASONS

BACKGROUND

1    The parties entered into a residential tenancies agreement in relation to premises at 19/41 Leahy Close, Narrabundah in the Australian Capital Territory.  The tenancy was for a fixed term tenancy that converted to a periodic tenancy from month to month thereafter.  The lessor gave the tenant a Notice to Vacate on 22 May 2006.  As the tenant was away when the notice was issued, the tenancy was extended by agreement to 17 July 2006.  The tenant had paid rent until 12 July 2006.

2    The tenant obtained alternative accommodation from 7 July 2006 and moved her possessions out of the premises on 7 July 2006 handing the keys to the lessor’s real estate agent that day.  In her Application the tenant stated that she obtained the lessor’s agreement to refund the rent paid in advance for the period from 7 to 12 July 2005 which she stated was $207.  The tenant stated that she had sought the refund from the real estate agents on a number of occasions since without any refund being made. The tenant stated that at first the real estate agent stated the lessor would make the refund but that in September she was informed by the real estate agent that the lessor did not recollect such an agreement and that the lessor would not refund the money as he had to clean the flat so the tenant should show “give and take” and forfeit the prepaid rent.  The tenant replied the lessor’s return of the bond was a “legal acknowledgement” that there was no further money owing to the lessor.

3    At the hearing on 26 October 2006 a representative of the real estate agency stated that, whilst the tenant did move her belongings out on 7 July 2006, final inspection of the premises found that they were not in a satisfactory condition.  The tenant undertook to further clean the premises and the keys were returned to her for that purpose.  The tenant undertook the cleaning and another inspection took place on 13 July 2006 at which the premises were found still not to be in a satisfactory condition.  The tenant then undertook more cleaning and the keys to the premises were finally returned to the real estate agent on 20 July 2006.  Thereafter the lessor returned the bond in full to the tenant but refused to refund the pre-paid rent on the basis the property was not finally handed back until 20 July 2006. 

4    The Tribunal dismissed the tenant’s application on 26 October 2006.  The tenant has since requested the following statement of reasons.

Applicants’ Evidence

5    The Applicant did submitted the following documentary evidence:

·      Copy of two emails dated 11 September 2006 between the tenant and the real estate agent. 

Respondents’ Evidence

6    The Respondent did not submit any documentary evidence.

FINDINGS AND REASONING

Applicable Law

7    Clause 64 of the Standard Residential Terms, Schedule 1 of the Residential Tenancies Act 1997 (the Standard Terms) applies to the circumstances.   In essence it provides that a tenant must leave the premises in substantially the same state of cleanliness and condition as they were at the commencement of the tenancy, fair wear and tear excepted.  There was no evidence tendered at the hearing relating to whether the cleanliness and/or condition of the premises did or did not satisfy the standard laid down in Clause 64.

8 Section 36(g) of the Residential Tenancies Act 1997 (the Act) provides that a residential tenancy agreement terminates (inter alia) when the tenant vacates the premises in accordance with an agreement in writing to terminate the tenancy agreement. 

9    No evidence was tendered that there was a written agreement between the tenant and lessor; only the tenant’s email dated 11 September 2006 referring to an agreement.   At the hearing the lessor did not deny that there was an agreement for the tenant to vacate on 7 July 2006.   So the Tribunal finds that there was such an agreement.

10    Problems arose because the tenant did not vacate the premises on 7 July 2006.  She continued to clean the premises until finally returning the keys to the real estate agents on 20 July 2006.  Thus the tenant remained in possession of the premises up to 20 July 2006.  As a result the tenancy did not terminate until 20 July 2006; therefore the lessor is entitled to rent for the premises up to 20 July 2006.

11    Whilst the Tribunal acknowledges the argument, that the release of the bond in full by the lessor is a “legal acknowledgement” that there was no further money owing by the tenant, is innovative there is no legislative or case law to support the argument that the release of the full rental bond by a lessor operates as an estoppel in the circumstances of this dispute.  The Tribunal notes that the tenant, a lawyer, did not submit any precedent material. 

12    As the lessor’s real estate agent said in the email of 11 September 2006: the lessor would not refund the money as he had to clean the flat so the tenant should show “give and take” and forfeit the prepaid rent.  This is a more probable reason for the lessor returning the bond in full – a “give and take” since he was entitled to a further 8 days rent.   Also, the lessor has fulfilled his duty to mitigate under section 38 of the Act since he forwent the additional 8 days rent

13    In the circumstances the Tribunal determined to dismiss the tenant’s application. 

ORDERS

1.   Application dismissed.

Jennifer David

Member