ENNA INVESTMENTS PTY LTD V MCNAMARA (Residential Tenancies)
[2016] ACAT 63
•16 June 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ENNA INVESTMENTS PTY LTD V MCNAMARA (Residential Tenancies) [2016] ACAT 63
RT 737/2015
Catchwords: RESIDENTIAL TENANCIES – breach of standard terms – failure to take reasonable care of the property – damage caused by pets – compensation –recovery of Tribunal filing fee
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Residential Tenancies Act 1997 ss 8, 10, 31, 36, 38, 76 Sch 1 ss 1, 2, 3, 52, 53, 54, 55, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 75, 77, 78, 79, 80, 81, 82, 83, 84, 89
Cases cited:Elvin v Meischke and Lee [2008] ACTRRT 18
Griffiths v Richards [2012] NSWCTTT 242
L J Hooker Belconnen v Richard Sempiol [2012] ACAT 20
Martins v Zhang [2014] ACAT 48
List of
Texts/Papers cited: A Anforth, P Christensen and S Bentworth, Residential Tenancies (6th ed, Federation Press, 2014)
Tribunal: Senior Member A Anforth
Date of Orders: 16 June 2016
Date of Reasons for Decision: 16 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 737/2015
BETWEEN:
ENNA INVESTMENTS PTY LTD
Applicant
AND:
JOSHUA MCNAMARA
Respondent
TRIBUNAL: Senior Member A Anforth
DATE:16 June 2016
ORDER
The respondent is ordered to pay the applicant the sum of $9188.54 by 20 October 2016. This sum is compensation to the applicant for the respondent’s breaches of the residential tenancy agreement, less the amount awarded to the respondent for the applicant’s breaches of the residential tenancy agreement and the bond retained by the applicant.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Summary
This matter is a tenancy dispute between the applicant/lessor and respondent/tenant concerning breach of a residential tenancy agreement between the parties for a fixed term from 8 May 2014 to 7 May 2015.
The respondent vacated the property on 7 May 2015, leaving it in a dirty condition with widespread damage due to the respondent’s two dogs being kept inside the premises, the activities of the respondent’s partner’s business, and storm damage caused by the respondent failing to close windows.
The applicant seeks $13,841.35 in damages from the respondent to pay for cleaning and repairs to the property, rental arrears, reimbursement for loss of rental income and the Tribunal fee.
The respondent has admitted liability for $1,265.54 of the applicant’s claim. The remainder of the applicant’s claim is in dispute, as is the respondent’s claim for the return of $234.46 of the bond.
The Tribunal finds that the respondent breached standard clauses 63 and 64 of the residential tenancy agreement and the additional clause about pets by not taking reasonable care of the property during the tenancy, and by not leaving it in substantially the same state as it had been at the beginning of the tenancy minus fair wear and tear.
The Tribunal finds that the applicant and its agent breached the respondent’s right to quiet enjoyment of the property in clauses 52 and 53 of the residential tenancy agreement by repeatedly attending and entering the premises without prior notice to or consent from the respondent.
Chronology of Facts
On 5 May 2014, the applicant and respondent entered a residential tenancy agreement for the premises in Fisher in the Australian Capital Territory (‘the property’). The unit was adjacent to a second unit owned by the applicant. The units shared a common entrance area and common back yard.
The agreement contained the standard terms set out in the Residential Tenancy Act 1997 (RT Act) and some additional terms agreed in writing between the parties. Standard terms included the duration of the tenancy for 12 months, from 8 May 2014 until 7 May 2015, and rent of $375.00 per week. Additional terms included the tenant being permitted to keep one dog on the premises, and the tenant accepting responsibility for any damage to the premises caused by smoking – smoking only being permitted outside the unit.
The applicant lessor is a property investment company. The directors are Mr Ross Vernon Hodgkinson and his wife Ms Anne Caldwell.
The respondent was the applicant’s tenant. He resided at the property with his partner, Ms Tiana Hockey, and their two dogs. Ms Hockey conducted most communication with the real estate agents for the property on behalf of the respondent.
The property management agency for the applicant at the commencement of the tenancy was Maria Selleck Properties. The property manager was called Sonya (surname unknown).
The incoming condition report is dated 8 May 2014. It notes the premises as having been freshly painted grey, and having brand new grey speckled carpet. Minor wear and tear is noted on some locations in the property such as scuff marks on walls, discoloured grout in the kitchen and laundry, and cracks in the ensuite tiles.
On 18 June 2014, the first inspection of the property occurred. The report contains a comment that the property was well maintained. Following this inspection of the property, Sonya gave permission for the tenants to have a second dog on the premises.
In early August 2014, Ms Hockey used Facebook to advertise her hair and beauty business, Teezed Hair, as operating from the address of the property. On 4 September 2014, the business’ Facebook page advised clients that Ms Hockey was thinking about going mobile and asked for feedback. Ms Hockey deleted these advertisement posts at some point after the tenancy had ended.
On 22 September 2014, the property management agency of the unit changed to Manage Me Properties; Ms Amy Taylor was the new property manager.
On 9 October 2014, Ms Taylor conducted a ‘Meet and Greet’ inspection of the property.
On 11 October 2014, the tenants notified the lessor’s agent that four sets of curtain rods had fallen off and that a corner cupboard in the kitchen needed repairing. These items had been noted on the first inspection report. These repairs were carried out on 28 October 2014.
In November 2014, Ms Taylor noticed a ‘strong smell while inside the unit’ assessing mould in the ensuite. Ms Hockey denied smoking inside the unit.
On 13 November 2014, Ms Hockey notified Ms Taylor that a swarm of bees was inside the unit, having gained entry through cracks in the wall around the windows. Ms Taylor engaged Pest Control, who attended that afternoon.
On 18 November 2014, the applicant notified Ms Taylor that the gardener for the property had reported dog faeces, patchy lawn and smoke butts in the yard. Ms Taylor wrote to the tenant to request these issues be rectified.
On 26 November 2014, Ms Hockey emailed Ms Taylor denying that she smoked inside the unit and expressing her intention to remove the butts from outside.
On 9 December 2014, Ms Taylor sent a follow up email to the tenant advising that she had done a ‘drive-by’ inspection. Ms Taylor noted that the outside areas were free of dog faeces and smoke butts, but that some smell was still noticeable and that the lawn needed watering. She also noted that the dog(s) barked at her from inside the unit when she checked the stairwell fire hydrant, and reminded the tenant that the pets were to remain outside.
On 4 February 2015, the tenant requested permission to install a gate to the common area entrance which leads to the backyard in order to restrain the dogs. The fence which the tenant had initially put up across part of the back yard was insufficient to keep the dogs within it. Chaining the dogs up during the day to restrain them while the tenant and Ms Hockey were at work was not viable as the dogs barked and disturbed the neighbours. Permission to install the gate was denied. After this, the tenant and Ms Hockey began keeping their dogs inside the unit.
On 19 February 2015, during an inspection of the neighbouring property, Ms Taylor heard dogs barking from inside the unit and ‘saw cigarette butts scattered throughout the common area, particularly in the front area.’ Ms Taylor emailed Ms Hockey on 24 February 2015 to remind the tenants to keep their pets outside and to dispose of smoke butts in bins rather than the garden.
On 27 February 2015, Ms Taylor conducted a routine inspection of the property. The inspection report states that the property was not in a satisfactory condition due to the condition of the kitchen, carpets and garden. The tenant was sent a notice of re-inspection for 2 March 2015, and a notice to remedy setting out items to be addressed.
At the inspection, the tenant informed Ms Taylor of his intention to vacate the premises at the expiry of the tenancy agreement.
On 9 March 2015, Ms Hockey emailed Ms Taylor in response to the notice to remedy. The email stated that the tenant was ‘more than happy to get the carpets cleaned’ but requested several weeks extension of the re-inspection so he could organise the carpet cleaning. By email on 10 March 2015, the re-inspection was organised for 20 March 2015.
On 10 March 2015, Ms Taylor emailed the tenant about a gathering of people on the property which had been reported to her by a neighbour. The email reminded the tenant that in accordance with section 70 of the agreement tenants must not use the property for illegal purposes or disturb their neighbours. Ms Taylor had been informed that there were many dogs in attendance, cars obstructing the driveway, and people had approached the neighbours. Ms Hockey explained that the tenant’s car had broken down, and the obstruction was caused by the attending mechanic’s vehicle, which had to be parked as close as possible to the tenant’s car.
On 17 March 2015, the tenant requested an extension for the re-inspection as he had not been able to afford carpet cleaning. An extension was granted until 27 March 2015. On 20 March 2015, the tenant emailed Ms Taylor to confirm that Stain Busters carpet cleaners had been booked for 31 March 2015.
On 24 March 2015, Ms Taylor emailed the tenant to inform him that in light of their intention to vacate, the lessor had agreed for the carpet to be cleaned at the end of the lease. Ms Taylor expressed concern about the state of the carpet, which had been new at the start of the tenancy, and reminded the tenant of his obligation to provide 21 days written notice to vacate the premises. On 26 March 2016 Ms Taylor emailed the tenant the link to the notice form on her agency’s website.
On 24 March 2015, Ms Hockey responded to Ms Taylor’s emails to (1) confirm the tenant’s intention to vacate the property on 7 May 2015; (2) confirm that carpet cleaners had been booked for 31 March 2015; and (3) give permission for the lessor to enter the premises on 31 March 2015 after 5:30pm to measure a couple of areas in the unit.
On 1 April 2015, the unit was professionally steam cleaned by VeryDirtyCarpets.com.
On 1 April 2015, the tenant moved out of the property. The tenant continued to pay rent until giving vacant possession on 7 May 2015.
On 7 April 2015, the applicant purchased new curtains for the property.
On 9 April 2015, the lessor and Ms Taylor visited the property and took photographs. The tenant did not consent to this visit.
On 13 April 2015, the tenant submitted a notice to vacate.
On 14 April 2015, Ms Taylor emailed the tenant to (1) express concern that he had not provided his new residential address; (2) request that items left outside in the common areas be removed as soon as possible; and (3) note that the windows had been left open during recent storms despite several previous requests to close them to secure the property, and that during her attendance the week before (week of 7 April 2015) she had closed the windows. It is uncertain whether the attendance in question was on 31 March 2015, for which the tenant gave permission, and thus the reference to ‘last week’ is imprecise; or another occasion.
On 14 April 2015, Ms Taylor sent a separate email to Ms Hockey on behalf of the tenant requesting rubbish generally and all fencing in the yard be removed, damaged flyscreens replaced, curtains laundered, and professional cleaning undertaken prior to the final inspection.
On 14 April 2015, the applicant obtained a quote for the installation of a kitchen in the property.
On 22 April 2015, Ms Taylor emailed the tenant to inform him of the final inspections date and time, scheduled for 7 May 2015.
On 1 May 2015, the lessor purchased stain primer and paint for the property.
On 6 May 2015, the tenant claim to have conducted a final clean of the property.
On 7 May 2015, Ms Taylor and the respondent conducted the final inspection of the unit. The outgoing condition report states that the property was not in satisfactory condition and that there was a “pungent smell present throughout the property… consistent with dog urine/faeces”. With the exception of the garage doors/walls, all items are described as dirty, broken or scratched. In her statement, Ms Taylor observed at [15] that:
Every part of the unit was very dirty. The tenants have made no effort to clean anything. The smell inside the unit made it unbearable to stay inside, it made my nose run and my eyes water… Overall my observations were that the tenants did not upkeep the property to an appropriate condition throughout the lease.
On 10 May 2015, Bebrite cleaning company cleaned the unit at a cost of $450.00.
On 15 May 2015, the lessor purchased paint and materials for the unit. Further materials were purchased on 1 June 2015.
On 16 and 27 May 2015, the lessor entered the property. Photographs were taken of the condition of the unit. There is uncertainty as to which of the photographs relied on by the applicant were taken before the tenant vacated the property (on 9 April 2015), which were taken at the final inspection on 7 May 2015, and which were taken later in May.
On 18 May 2015, Mr Robert Taylor (no relation to Ms Amy Taylor), plumber, attended the premises and cleared the blocked basin and drains. His invoice is dated 19 June 2015.
On 19 May 2015, the lessor arranged for Complete Surface Cleaning Pty Ltd to clean and deodorise the carpets.
On 22 May 2015, Ms Taylor contacted the ACT Bonds Office to have the bond of $1500.00 paid to the lessor. Attempts had been made to contact the tenant to no avail. The bond was released to the landlord on 3 August 2015.
On 4 June 2015, Ms Hockey emailed Ms Taylor to request particulars of why the bond had been released to the lessor. Ms Taylor replied by email on 5 June 2015; her email included particulars of damage and repairs which were necessary to return the unit to a satisfactory condition, including locksmith expenses to change the locks, and rental arrears of $53.55.
On 9 June 2015, Ms Taylor was informed that someone other than an authorised tradesman was accessing the unit. She contacted the tenant and his partner; Ms Hockey responded claiming to have vacated the premises the night before the final inspection, 6 May 2015, and to have left their keys in the kitchen of the unit.
On 10 June 2015, Ms Taylor wrote to the tenant to request the return of five missing keys to the unit.
On 10 June 2015, the lessor purchased two new vanity units for the bathroom and ensuite and had them installed by Dave King Plumbing and Gasfitting Service.
On 15 June 2015 the lessor received an invoice for $4,190.00 for paintworks carried out throughout the property.
On 23 June 2015, new carpet and underlay were installed in the unit. The lessor had personally removed the other carpet earlier that month.
On 26 June 2015, the locks on the property were changed for $210.00.
On 29 June 2015, the windows of the property were professionally cleaned.
On 15 July 2015, new flyscreens were supplied for the front and rear sliding doors.
The application
On 28 July 2015, Ms Taylor filed an application with the Tribunal for resolution of a dispute under the RT Act.
On 8 August 2015, Mr Hodgkinson signed a general power of attorney giving Ms Amy Taylor the power to represent him in this matter.
The matter came before the Tribunal on 31 August 2015, 1 December 2015, 18 December 2015, 12 February 2016 and 4 March 2016.
At the hearing on 31 August 2015, Mr Hodgkinson appeared for the applicant, pursuant to an authority to act for a corporation. From 23 September 2015, Mr Chris Donoghue of Donoghue & Co. solicitors appeared for the applicant. Ms Vanessa Faulder, Tenant’s Union ACT, appeared for the tenant at all hearings.
On 31 August 2015, the Tribunal made the following orders relisting the matter for 10 November 2015, and for:
(a)the applicant to file an amended statement of claim setting out the orders sought, as well as a written statement and any other evidence to be relied upon; and
(b)the tenant to file a response to the applicant’s amended claim, as well as a written timeline of events and any other evidence to be relied upon.
On 23 September 2015, the Tribunal’s orders of 31 August 2015 were varied to amend dates to reflect the new hearing date of 1 December 2015.
On 13 October 2015, the applicant submitted an amended statement of claim in accordance with the Tribunal direction of 31 August 2015. The applicant claimed $9,093.35 (damages and rental arrears, less bond retained) plus $135.00 for the tribunal fee.
On 30 November 2015, the applicant sought leave to further amend the claim to bring the total damages claimed to $12,843.35, plus the tribunal fee. The amendments to the claim were to:
(a)claim for $3,750.00 for loss of income from the property being untenanted from 8 May 2015 to 16 July 2015 (ten weeks at $375.00 per week); and
(b)correct the tribunal fee claimed from $135.00 to $998.00 being the amount actually paid.
On 1 December 2015, the matter was adjourned for hearing on 18 December 2015. The applicant was ordered to advise the Tribunal and the tenant of the relevance of the applicant’s landlord insurance.
At the hearings on 18 December 2015 and 12 February 2016 evidence was given by the parties and their witnesses who were cross examined. The content of this evidence and the relevant exhibits are addressed below. The matter was then adjourned part heard.
At the hearing on 4 March 2016 further oral evidence was taken together with submissions. The content of this evidence and the relevant exhibits are addressed below. The Tribunal adjourned the matter for further submissions from both parties, after which a written decision would be made.
The claims
The applicant’s claim, as amended, totals $13,841.35. The particulars of the applicant’s claim are:
(a)Curtain replacement $436.00
(b)End of lease cleaning $450.00
(c)Carpet cleaning $187.00
(d)Purchase of vanity unit and toilet suite $1,000.00
(e)Painting and repair of surfaces $4,190.00
(f)Paint and sealer supplies $1,043.80
(g)Carpet replacement $2,243.00
(h)Clear blocked drain $132.00
(i)Lock replacement $210.00
(j)Window cleaning $79.00
(k)Replacement of flyscreens $209.00
(l)Applicant labour to paint and clear rubbish $360.00
(m)Arrears of rent $53.55
(n)Loss of rent $3,750.00
(o)Tribunal application fee $998.00
(p)Subtotal $15,341.35
Minus bond retained -$1,500.00
Total $13,841.35
The tenant disputed the majority of the applicant’s claims but admits responsibility for $1,265.54. This amount consists of:
(a)Curtain replacement (part of 70(a) above) $39.99
(b)End of lease cleaning (see 70(b)) $450.00
(c)Two wooden doors (part of 70(e)) $512.00
(d)Lock replacement (see 70(i)) $210.00
(e)Rent arrears (see 70(m)) $53.55
Total $1,265.54
The tenant seeks $234.46 to be refunded from the bond of $1500 which the applicant had taken possession of.
Jurisdiction
The ACT Civil and Administrative Tribunal is a statutory body with exclusive jurisdiction to hear and decide any matter arising from residential tenancy agreements under the RT Act.[1]
[1] Section 76 of that Act
The present matter concerns claims by each party for damages for breach by the other party of the tenancy agreement between them, which is of the standard form prescribed by the RT Act.
The matter does not exceed $25,000.00, the maximum amount for which it has jurisdiction under section 76(2)(a) of the RT Act.
The Tribunal has jurisdiction in this matter.
Legislation
The Residential Tenancies Act 1997
The RT Act governs residential tenancy and occupancy agreements in the ACT. Key terms relevant to this matter are set out below.
Section 8 requires residential tenancy agreements to contain the standard terms set out in Schedule 1 of the Act. A residential tenancy agreement may contain other terms which are consistent with the standard terms, or inconsistent terms which have been endorsed by the Tribunal under section 10 (section 8(1)(c)).
Under section 31, the lessor is entitled to deduct from the bond paid any of the following:
(a)the cost of repairs to, or the restoration of the premises or goods leased with the premises as a result of damage (other than fair wear and tear) caused by the tenant; and
(b)any rent owing and payable under the residential tenancy agreement at the time the agreement terminates or is terminated.
Section 36 provides that a residential tenancy agreement can only be terminated in certain circumstances, including at the end of a fixed term agreement, if the tenant vacates the premises on or after the end of the agreement.
Both parties have a duty to mitigate their losses under section 38, which provides that a person who would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
Schedule 1 of the RT Act sets out the standard terms contained in residential tenancy agreements.
Clause 1 states that the tenancy agreement is made under the RT Act.
By signing the agreement, the parties agree to be bound by its terms (clause 2) and cannot contract out of it except as provided for by the RT Act (clause 3).
Clauses 52 and 53 set out what is known in common law as the tenant’s right of quiet enjoyment:
Clause 52: the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
Clause 53: unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.
During the tenancy the tenant must take reasonable care of the premises and their contents.[2] The tenant must leave the premises in substantially the same state of cleanliness and condition as the premises were in at the commencement of the tenancy, fair wear and tear excepted.[3]
[2] Section 63
[3] Section 64
Under clause 54, at the start of the tenancy the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are: fit for habitation, reasonably clean, in a reasonable state of repair, and reasonably secure.
Clause 55(1) 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. However, the lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.[4]
[4] Clause 55(3)
Clauses 63 to 73 concern the obligations of the tenant to look after the premises.
Clause 63 provides that the tenant must take reasonable care of the premises and keep the premises reasonably clean. During the tenancy, the tenant must:
(a)not intentionally or negligently damage the premises or permit such damage;
(b)notify the lessor of any damage as soon as possible; and
(c)take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.
Under clause 64, the tenant must leave the premises:
(a)in substantially the same state of cleanliness, removing all the tenant’s belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and
(b)in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.
Clause 67 provides that the tenant must not make any additions or alterations to the premises without the written consent of the lessor. This includes adding any fixtures or fittings to the premises.[5]
[5] Clause 68(1)
Clauses 69 and 70 concern illegal uses of the premises.
Unless otherwise agreed in writing, the tenant must only use the premises for residential purposes.[6]
[6] Clause 69
Under clause 70, the tenant must not:
(a)use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessor’s interest in the premises; or
(b)cause or permit nuisance; or
(c)interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.
The tenant may be responsible for damage or breach of tenancy agreement by their visitors or guests.[7]
[7] Clause 73
Under clause 75(1), the lessor cannot enter the premises except as provided in the tenancy agreement. Clause 75(2) provides an exception to this: the tenant may permit access by the lessor.
Access in accordance with the tenancy agreement is governed by clauses 77 to 82.
In relation to routine inspections, the lessor may inspect the premises twice in each period of 12 months following the commencement of the tenancy.[8] In addition to those inspections, the lessor may inspect the premises within one month of the tenancy commencing and in the last month of the tenancy.[9]
[8] Clause 77
[9] Clause 78
Under clause 79, the lessor must give the tenant one week of written notice of an inspection. The inspection must take place at a time agreed between the parties with reasonable regard to work and other commitments of each.
The lessor may access the premises for the purpose of making or inspecting repairs at a reasonable time, on giving the tenant one week notice.[10]
[10] Clause 82(1)
Further clauses relate to termination of the tenancy agreement.
Notice to vacate must be given in writing, in the form required by the RT Act, and must include the address of the premises, the grounds on which the notice is given (including particulars), and the date on which the premises will be vacated and the tenancy ended. These conditions apply to lessors under clause 83, and tenants under clause 84.
Under clause 89(1), the tenant may give notice to terminate a fixed term tenancy at or after the end of the tenancy by giving three weeks notice of the date when the tenant intends to vacate the premises. Clause 89(2) states that the tenancy ends on the date specified by the tenant.
Additional terms
Two additional terms were included in the tenancy agreement.
The first additional stated that pets were permitted on the premises, and identified the pets permitted as “one dog”. It contained text stating that ‘Term endorsement to be part of Tenancy Agreement’. The term stated that:
As tenants with pets at the premises, we agree that where applicable, we will make all efforts to keep the pet outside (unless otherwise approved as stated on the front page of our tenancy agreement).
We agree that should our pet damage the above noted rental property either internally or externally, that we will remedy all issues immediately back to the condition as per our Inventory and Condition Report…We accept that any future additional pets are to be approved by the lessor before moving into the property, and the lessor has the right to decline additional pets.
The second additional term was the ‘Smoking Policy’ of the premises. It contained text including:
We highly recommend you [the tenants] refrain from doing so [smoking]. This is a breach of your agreement and can lead to eviction…
If you are a smoker or have any visitors/guests who smoke, we request you refrain from smoking inside the property. If it is found that you are/have, or your visitors are/have, smoked inside the property you will be held responsible for any damaged caused to the property inside or out…You will also be responsible for cleaning any evidence of smoking on the outside of the property, i.e. cigarette butts on the ground/ in the gardens.
The tenant and property manager signed both additional terms on 5 May 2014.
Legislation
ACT Civil and Administrative Tribunal Act 2008
The applicant has claimed for recovery of the Tribunal application fee.
Section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) states that “the parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.”
Section 48(2) provides that if the Tribunal decides in favour of the applicant, the Tribunal may order the respondent to pay the applicant (a) the filing fee, and (b) any other fee incurred by the applicant that the Tribunal considers necessary for the application.
Consideration of Issues
The applicant claims that the tenant breached the tenancy agreement by keeping two dogs inside the premises, by failing to take reasonable care of the property, and by failing to leave it in substantially the same state of cleanliness and overall condition as it was at the commencement of the tenancy.
The applicant’s claim for $13,841.35 reflects the costs of cleaning and repairs to the property after the tenancy ended, rental arrears, and reimbursement for loss of rental income and the Tribunal fee.
There are numerous disputed claims of damage and contradictory evidence before the Tribunal. The matter is complicated by there being uncertainty as to the dates of some of the photographic evidence, as well as by the applicant having taken the opportunity to renovate the property while repairing damage caused by the tenant.
The applicant’s claim is founded primarily upon clauses 63 and 64 of the residential tenancy agreement between the parties, which oblige the tenant to take reasonable care of the premises and leave the premises in substantially the same condition as they were in at the start of the tenancy.
Key evidence relied upon by the applicant include the statement of Mr Hodgkinson dated 13 October 2015,[11] the statement of Ms Amy Taylor dated 14 October 2015[12] and the condition reports from the incoming, mid-term and final inspections (including photographic evidence). The applicant has submitted invoices for all repairs claimed, and also a response to the tenant’s submissions in April 2016.
[11] Exhibit 30
[12] Exhibit 31
The tenant relies primarily upon his statement[13], his submission of 8 April 2016, the statement of Ms Tiana Hockey[14], the statement of Ms Felicity McNamara[15], and photographic evidence from the incoming condition report as well as that submitted by the applicant.
[13] Exhibit 33
[14] Exhibit 34
[15] Exhibit 35
The Tribunal will first address the issue of whether the tenant has breached the residential tenancy agreement between the parties. Second, the Tribunal will determine the damages, if any, to be awarded to the applicant following from each particular of the breach.
Applicant’s claim for breaches of the residential tenancy agreement
Breach: Property Maintenance
Under clauses 63 and 64 of the tenancy agreement, the tenant was required to take reasonable care of the property (with allowance provided for the incidents of daily life), and to return the property to the lessor at the end of the tenancy in substantially the same condition as it was in at the commencement of the tenancy.
While ‘reasonably’ and ‘substantially’ can be subjective terms, the Tribunal takes the view that the premises should be delivered back to the lessor in a condition which would allow a new tenant to move in without further cleaning.[16]
[16] See L J Hooker Belconnen v Richard Sempiol [2012] ACAT 20
Comparison of the incoming condition report with the report of the inspection in February 2015 and the outgoing condition report of 7 May 2015, taken with photos and the submissions of the parties, establishes that at the end of the tenancy the property was not reasonably clean and not substantially in the same state as it had been at the beginning of the tenancy after allowing for fair wear and tear.
The Tribunal finds that the respondent left the property in a dirty condition, having removed most of his possessions but not cleaned thoroughly. The Tribunal is satisfied that the carpet, some curtains, and walls had been significantly damaged by the tenant and needed repair before the property could be re-tenanted.
The onus is on the applicant to establish a credible cause for any damage, as it is insufficient to argue that the tenant must have caused the damage simply because they had possession of the property.[17]
[17] see Anforth, Christensen and Bentwood, Residential Tenancies pages 129-130
On the evidence presented, both written and oral submissions, the Tribunal is satisfied that the primary cause of the dirtiness and damage to the property was that the tenant kept his two dogs inside the unit while he and his partner were at work, meaning they had to urinate and excrete inside during the day, and failed to clean up after them properly or to repair fittings (doors, curtains) they damaged.
The tenant admitted that the two dogs were kept inside the unit from February 2015 as they could not be contained in the yard outside, and that they urinated inside the unit.[18]
[18] Transcript of Proceedings 18 December 2015 page 79 and see also Ms Hockey’s oral evidence in Transcript of Proceedings 12 February 2016 page 133
A secondary cause is established from Ms Taylor’s evidence, namely that the tenant failed to secure windows on multiple occasions, which resulted in rain coming inside onto the carpet.
The Tribunal finds that the tenant breached clauses 63 and 64 of the tenancy agreement.
Breach: Use of Premises for Commercial Purposes
The applicant also claims that the tenant breached the tenancy agreement by permitting the property to be used for commercial purposes without the lessor’s consent. This breach caused damage to the property in the form of nail polish stains on the carpet in bedroom 2, a blocked drain in the bathroom, and dye stains on the bathroom vanity.
The Tribunal finds that Ms Hockey conducted her business ‘Teezed Hair’ from the property during mid 2014. Evidence of this includes advertisements for the business’ services and address on Facebook,[19] and oral evidence of the respondent and Ms Hockey.[20] This evidence indicates that the business services conducted at the property included hair cutting and colouring, spray tanning, and nail polish.
[19] Exhibit 40
[20] Transcript of Proceedings 18 December 2015 page 86; Transcript of Proceedings 12 February 2016 page 134; Transcript of Proceedings 4 March 2016 pages 161-172 and 194-195
Due to the absence of clear evidence, and Ms Hockey’s inconsistent testimony, the Tribunal is unable to establish precise dates, however finds the property was used for commercial purposes from at least July to September 2014 inclusive.
Using residential premises for commercial purposes without written permission from the lessor constitutes a breach of clause 69 of the tenancy agreement.
While Ms Hockey is not party to the tenancy agreement, the tenant is responsible for damage or breach of the tenancy agreement by other persons on the property under clause 73 of the tenancy agreement. The tenant is therefore responsible for Ms Hockey’s breach of clause 69.
Breach
Additional Terms
One of the additional terms to the tenancy agreement was that the tenant could keep one dog on the property, and would ‘make all efforts to keep the pet[s] outside’.
The tenant admits keeping two dogs on the premises from mid 2014, however obtained consent from the property agent, on behalf of the lessor, to do so. This breach therefore only relates to the tenant keeping the pets inside.
The Tribunal notes mitigating factors for this breach, however, in that the respondent’s dogs had escaped through the temporary barriers which had been erected, that they had created noise disturbance when chained up, and that the respondent had been denied permission by the applicant to construct a more robust structure to contain the dogs in the outside area.
The applicant has also asserted that the tenant is responsible for damage caused by Ms Hockey and other guests smoking inside the property. No direct evidence has been submitted which proves Ms Hockey and others smoked inside the property; the butts found were all outside. This claim is not proven.
Applicant’s Claim for Damages
The applicant has established that the tenant breached clauses 63 and 64 of the tenancy agreement, as well as the additional term relating to pets. Each aspect of the applicant’s claim for damages will now be addressed.
Curtain Replacement
The applicant claims $436.00 in damages for the cost of replacement curtains. Of this amount, the tenant has admitted liability for $39.99, leaving $396.01 in dispute.
The applicant claims that the curtains were clean and in brand new condition at the start of the tenancy, but that the tenant vacated the property leaving the curtains dirty and smelly, with extensive damage in the form of rips and pulls to the fabric.
The tenant denies damaging the curtains. The tenant says he was unable to remove most of the curtains to clean them due to the construction of the curtain rods and brackets. The tenant states that while there is a pull in one curtain and damage to one of the lace curtains, this constitutes fair wear and tear, and the other curtains appear fine.
At paragraph 29 of his submissions in April 2016, the tenant states that “at best from the photographic evidence provided by the applicant, there are four curtains that are damaged.”
The incoming condition report dated 8 May 2014 noted the living room, dining area, and two bedrooms had brand new yellow fabric curtains. The two bedrooms also had an inner lace curtain each. The kitchen had an existing white blind described as having a loose cord attachment, old stains and dirty marks, and frayed edges.
The outgoing condition report dated 7 May 2015 describes all curtains as being broken and dirty, those in the living area described as having holes and smelling disgusting.
The applicant’s photographic evidence (photos 56-63) indicates the curtains in the living and dining areas have some stains and pulls. There does not appear to be rips or significant marking, as claimed by the applicant.
The pictures taken by Ms Taylor at the final inspection indicate that the lace curtain of one bedroom was badly stained (photo 17) and show the pulls in the dining area curtains (photo 27).
On the evidence before it, the Tribunal finds that the tenant failed to take reasonable care of four of the curtains during the tenancy, did not clean them, and did not leave them in substantially the same condition as they were in at the start of the tenancy.
The four damaged curtains were located in the main bedroom and living area and include the lace curtain for which the tenant has admitted liability. The kitchen blind appears to have been in poor condition upon commencement of the tenancy and the tenants are not liable for the cost of its replacement. There is insufficient evidence to indicate that the other curtains were damaged beyond normal wear and tear.
The applicant purchased ten sets of two block-out jacquard curtains to replace the original curtains – twenty curtains in total to allow for multiple drops per window.
The applicant purchased the curtains on 7 April 2015, before the tenancy ended, in anticipation of replacing the curtains “because we had previously seen that the curtains were either missing or damaged from the outside”.[21] This is consistent with the tenant giving permission for the applicant to attend the property on 31 March 2015.
[21] Mr Hodgkinson’s oral evidence, Transcript of Proceedings 12 February 2016 page 124
The tenant asserts that the replacement curtains purchased by the applicant were of higher quality and number than what had furnished the property during the tenancy.
The invoice provided to the Tribunal by the applicant indicates that the replacement curtains cost $41.96 for each set of two curtains. This is a reasonable cost, particularly given the tenant is willing to pay $39.99 for one curtain. However, it is unreasonable to expect the tenant to pay for twenty curtains when only four needed to be replaced.
Given that four curtains were needed, the Tribunal grants the applicant $167.84 in compensation for damaged curtains, minus the $39.99 admitted by the respondent which will be applied separately; this totals $127.85.
Carpet cleaning and replacement
The applicant claims $187.00 for carpet cleaning and $2,243.00 for replacement of the carpet and underlay. Invoices for both amounts have been provided to the Tribunal.
The carpet was new at the start of the tenancy; the invoice for its installation is dated 26 February 2014. The applicant has provided photographs from the final inspection on 7 May 2015, and during repair works in June 2015, which clearly show extensive stains on the carpet, the underlay, and the concrete floor beneath the carpet.
Ms Taylor, the property manager, first expressed concern for the state of the carpet at the inspection in late February 2015.
The Tribunal finds that the damage to the carpet was caused by the tenant (1) keeping the two dogs inside the unit and permitting them to urinate and defacate inside without cleaning up after them properly, (2) failing to secure windows, which resulted in storm damage, and (3) not cleaning or repairing marks caused by Ms Hockey’s beauty business.
The tenant disputes the applicant’s claim to recover costs for repairs to the carpet on the basis that the carpet in the lounge room, hallway and two bedrooms had been professionally steam cleaned on 1 April 2015.
The Tribunal accepts that the carpets were professionally steam cleaned on 1 April 2015. This is established by an invoice, photographs of the steam cleaned hallway attached to Ms Hockey’s statement, and a statement by Ms Felicity McNamara, the tenant’s mother, who was present when the steam cleaning occurred.
It is clear, however, that the steam cleaning arranged by the tenant did not remove the stains in the carpet. Marks are visible in Ms Hockey’s April photographs, taken after the clean, which are consistent with the pictures attached to the outgoing inspection report, as well as those taken by the applicant in June 2015.
The Tribunal finds that it was necessary for the applicant to replace the carpet after steam cleaning had failed to remove the stains and smell. The damage to the carpets, which were brand new at the start of the tenancy, exceeded fair wear and tear and was to such an extent that replacement was necessary. The tenant is therefore liable to compensate the applicant for the cost of replacing the carpet.
The tenant asserts that it is unreasonable for the applicant to claim damages for the second carpet cleaning as well as the carpet replacement.
The Tribunal finds that it was reasonable for the applicant to first attempt to repair the carpet with steam cleaning before resorting to replacing the carpet, which is the more drastic and expensive option.
The applicant’s evidence indicates that the cost of the original carpet in February 2014 was $2,475.00. The replacement carpet in June 2015 cost $2243.00. This is a reasonable cost, particularly given the replacement cost is less than the original.
The Tribunal will not reduce the award based on depreciation of the carpet. The original carpet was brand new at the start of the tenancy; there was no time for the carpet to lose value prior to being damaged by the tenant. There was also the labour cost of laying the original carpet and the labour costs of taking up and laying the replacement carpet which more than balance 12 months of depreciation.
The Tribunal grants the applicant’s claims for $187.00 and $2,243.00, a total of $2,430.00, to clean and then replace the carpet.
Painting and materials
The applicant claims $4,190.00 for painting and repair of surfaces, and $1,043.80 for paint and sealer supplies, a total of $5,233.00.
The applicant claims that the unit was refurbished prior to the tenancy commencing, including new carpet, bathroom appliances and fresh paint throughout the unit. At the end of the tenancy, the applicant claims that the unit smelt putrid of dog urine and faeces which permeated everything in the unit, including the flooring, walls and cupboards. There was paint damage from the dogs scratching walls and doors, and from pictures hooks being pulled off the walls.[22]
[22] Statement dated 13 October 2015 at [15]
The applicant has provided photographs of chips and scratches on the walls of living and sleeping areas, as well as a statement recording professional advice that the smell of urine and ammonia caused by the dogs excreting inside was likely to have permeated the wall paint, which would need to be repaired by repainting.
The applicant supplied the painting materials himself and undertook some preparatory work in order to reduce the costs of repainting the unit. The costs claimed include the costs of repairing, sanding, undercoats and painting of the entire unit as well as repairing doors.
The tenant denies responsibility for the painting costs on the basis that the walls were in substantially the same condition at the end of the tenancy as at the start. The tenant asserts that the incoming condition report recorded several damaged hooks and chips in the walls, and that the lessor’s end-of-lease photographs show only the pre-existing damage and some minor scuff marks which could be removed by cleaning and only constitute fair wear and tear.
The tenant further contends that there is no evidence to support re-painting the unit on the basis that the smell of urine and chemicals had permeated the walls.
The incoming condition report notes most walls as being freshly painted, with some marks on doors and the ceiling in the kitchen. It also notes that picture hooks had been painted over, and a few chips in the plaster at the bottom of walls in the living room. The Tribunal accepts this report as fact.
The Tribunal also notes photographs attached to the incoming condition report which show numerous paint chips in the window frames.[23]
[23] See photographs 35 and 36 of Exhibit 22
The outgoing report notes the walls in every room have many scuff marks and are dirty, which in Ms Taylor’s professional opinion was higher than fair wear and tear.
The photographic evidence from the final inspection shows several new chips in the walls, such as those from painting hooks falling off, as well as scuff marks and handprints.
The Tribunal finds that these issues constitute fair wear and tear, and are such that could be repaired without repainting the entire unit. There is no evidence that such minor repairs – including washing handprints off the walls – were attempted by either party. However, the tenant has breached section 64(a) of the tenancy agreement as the walls were newly painted and clean at the start of the tenancy but were not substantially in that state of cleanliness at the end of the tenancy.
The Tribunal also finds that the tenant is responsible for significant damage caused to the bathroom door and doorframe. Both were severely scratched and the door had a hole – this is established from photographic evidence, the applicant’s evidence, and the tenant’s admission. This damage is sufficient to breach the tenant’s duties to maintain the property under the tenancy agreement, rendering the tenant liable to compensate the applicant.
In addition, the Tribunal finds that the damage and smell caused by the dogs excreting inside the unit permeated the walls, making it necessary for the lessor to seal and repaint the walls.
The tenant has admitted liability to replace two doors and requests this be deducted from the applicant’s claim for painting materials. This request is not granted as the invoice for painting[24] indicates that the painter painted the doors but did not replace them.
[24] Attachment T to the applicant’s statement, October 2015
The fact that the lessor painted the unit in a different colour to the original does not mean the applicant’s claim for damages fails, as the unit was returned to substantially the same condition as before the tenancy, when the walls had also been freshly painted. The colour of paint is immaterial as aesthetic improvement is a subjective matter; the issue concerns the quality of paint and painting.
Correspondence between the painter and the applicant indicates that three coats of paint and a top coat were necessary to repair the damage and cover the original paint, which was ‘almost yellow’. The tenant interprets this as the original paint having turned yellow with age. However, this does not correspond with the condition reports (‘freshly painted grey’), the applicant’s statement, or the photographic evidence, which shows the walls to be a neutral colour like pale grey.
The key issue is whether the tenant is liable to reimburse the applicant for the cost of repainting the entire unit. The photographic evidence and statements of claim indicate that the damage to walls occurred in the living, dining and two sleeping areas of the unit; the bathroom, ensuite and laundry walls were not affected. In relation to the wet rooms, submissions from the tenant and Ms Taylor have established that mould behind and on the tiles in the wet rooms existed at the start of the tenancy and was not remedied by the applicant. This is not the tenant’s responsibility.
Therefore, out of seven main rooms, the tenant damaged walls in four rooms (living room, dining room, bedroom 1, and bedroom 2), as well as the hallway.
As the painting invoice does not break down costs by individual rooms or areas, the Tribunal divided the total cost of painting ($5,233.00) by eight to calculate that each area cost approximately $654.13 to paint. The cost of repainting five areas therefore cost $3,270.65.
The applicant is awarded $3,270.65 to cover the costs of re-painting the unit.
Plumbing Costs
The applicant claims the tenant vacated the premises leaving the ensuite drains blocked. There is ample photographic evidence that establishes this claim as fact; this evidence is supported by notes on the plumber’s invoice, and by Ms Hockey’s oral evidence on 4 March 2016.[25]
[25] Transcript of Proceedings 4 March 2016 page 204-5
The Tribunal notes the tenant’s claim that the lessor failed to address his reports of blocked drains during the tenancy. There is no evidence to support his claim that such reports were made – for instance, there is no entry on the property manager’s log of contact with the tenant (attached to the original application).
The parties devoted much time during hearings and submissions to debating the cause of the blockage. From the evidence submitted, the Tribunal finds that Ms Hockey’s business activities caused blockages in the ensuite drains, which the tenant failed to remedy during the tenancy.
The Tribunal awards the applicant the amount of $132.00 claimed for the cost of engaging a plumber to unblock the drains.
Purchase of Vanity Unit and Toilet Suite
The applicant claims that the bathroom and ensuite facilities were in very good condition at the start of the tenancy, but that the tenant vacated the premises leaving the basin, vanity and toilet cisterns very dirty, scratched and stained, and the ensuite drain blocked.
The applicant asserts that Ms Hockey’s business activities, which included hair dye, manicures and spray tanning, caused the staining and drain blockages.
After the tenancy, the applicant replaced the vanity units in the bathroom and ensuite, as well as the toilets, for $1,000.00.
The tenant contends that while the bathroom units were not properly cleaned, there was no damage which would make it necessary to replace them.
The Tribunal observes that the incoming condition report noted some staining inside the toilet bowls. This was confirmed by the statement of Ms Felicity McNamara, who also noted that the vanities were not completely clean at the start of the tenancy.
It is evident from the outgoing condition report and attached photographs that the vanity units and toilet were not thoroughly cleaned at the end of the tenancy.
The photographs also show that there was some minor damage to the vanity unit in the ensuite. Photographs 5 to 11 and 13 clearly show cracks in the paint around the glass panels in the doors, and on door of the vanity – although these are not mentioned in the outgoing condition report. Based on the photographs, the Tribunal finds that the cracks and scratches are not such as would reduce the functionality of the vanity unit.
The applicant’s claim for reimbursement of the costs of new vanity units and a toilet also rest on other claims of damage in the bathroom and ensuite, namely mould and water damage.
The Tribunal finds there was ongoing problem with mould in the wet areas of the property which existed before the start of the tenancy, for which the tenant is not responsible. This finding is based on photographic evidence from the start and end of the tenancy, as well as statements from Ms Taylor, Ms McNamara, Ms Hockey and the tenant. The tenant claims the mould emanated from behind the tiles in the laundry and shower. While the outgoing report and photographs show there is some new surface mould in those areas, the tenant has admitted liability for cleaning costs.
The applicant’s claim of water damage to the ensuite vanity is not borne out by photographic evidence. There does not appear to be water stains in or on the vanity unit; the only potential indication is cracked paint around the glass in the vanity doors. This is not sufficient to establish the claim of water damage.
The applicant also claims that the ensuite toilet bowl was irreparably stained. This is not established. The incoming condition report noted that the toilet bowl had some stains around the water line at the start of the tenancy – a condition also noted at the end of the tenancy. Additionally, the outgoing condition photographs do not bear out the applicant’s claim of black stains inside the toilet bowl.
Overall, the Tribunal finds that the tenant did not reasonably clean and maintain the ensuite/bathroom units as required under the tenancy agreement. The respondent has accepted liability for end of lease cleaning costs, including this.
While the bathroom vanity units and toilet were left unclean, the Tribunal finds that they were not damaged beyond what cleaning could remedy; their functionality was not impaired. Their replacement therefore constitutes an improvement to the property for which the applicant must bear the cost.
Window Cleaning
As discussed, the applicant has established that the respondent did not leave the premises in a clean condition akin to that at the commencement of the tenancy; this breaches clause 64(a) of the tenancy agreement.
The applicant has submitted photographic evidence which satisfies the Tribunal that the tenant left the windows in a dirty condition and they needed to be cleaned after the tenancy terminated.
The applicant had the unit cleaned professionally for $450.00 once the tenants had vacated the property – a cost for which the tenant admits liability – and also engaged professional window cleaners at a cost of $79.00. The applicant seeks to recover the cost of the window cleaners.
The end of lease cleaning conducted by Bebrite on 10 May 2015 is described by the applicant to have been a thorough clean of the property, including the windows inside and outside (at paragraph 19 of the applicant’s statement).
It is unreasonable to require the tenant to pay for the windows to be cleaned a second time without providing proof that the windows were left in such a condition that the first cleaning, by Bebrite, was insufficient to return them to an acceptable condition.
The cost of additional window cleaning ($79.00) is not granted to the applicant.
Replacement of Flyscreens
The applicant claims $209.00 for the replacement of two flyscreen doors which were damaged during the tenancy.
The incoming condition report notes the sliding screen doors of the dining area and the living area to have ‘mesh intact’ and a new frame.
Photographs 25 and 26 of the outgoing condition report (Exhibit 43) show multiple holes in the flyscreen door of the kitchen. There is no evidence other than the applicant’s assertion that the lounge room door was damaged.
Under the tenancy agreement term for pets, the tenant agreed to “remedy all issues immediately back to the condition as per the Inventory and Condition Report.”
The number and size of the holes exceeds what would constitute fair wear and tear, even in a property containing pets.
The Tribunal finds that the damage was caused by the tenant’s dogs.
The Tribunal grants the applicant the cost of replacing the kitchen door, as this is the only screen door proven to have been damaged by the tenant’s dogs. Given the applicant claimed $209.00 for two doors, the Tribunal grants the applicant $104.50 as the cost of replacing the single kitchen screen door.
Lessor’s Labour
The applicant claims $360.00 for six hours of Mr Hodgkinson’s labour to clean and repair the property. In oral evidence on 18 December 2015, the applicant stated the actual hours worked were 25-30 hours.
The tenant disputes this claim on the basis that a lessor who undertakes work on their property should only be able to claim the costs of materials, not labour.
The Tribunal finds that the applicant is entitled to recover the costs of the lessor’s labour as this was undertaken to repair damage caused by the tenant.
The Tribunal accepts as fact that Mr Hodgkinson removed damaged curtains, removed the soiled carpet and underlay, removed rubbish, purchased paint and materials, and sealed the concrete floor. The Tribunal finds that these actions were reasonable and necessary given the poor condition in which the tenant left the property.
The Tribunal also notes that Mr Hodgkinson installed new vanity units and a toilet, for which the applicant has claimed but is not to be compensated, as discussed.
Given the amount of work undertaken, six hours at $60.00 per hour is a conservative claim for hours worked. The Tribunal therefore grants the applicant’s claim of $360.00 for labour.
Loss of Income
The applicant has claimed $3,750.00 for loss of rental income from 8 May 2015 to 16 July 2015 (ten weeks at $375.00 per week), while the applicant repaired the property after the tenancy.
The tenant has submitted evidence that the property was advertised for lease on 22 July 2015. Given that the property was not leased until October 2015, the tenant states in his submission of April 2016 that “there is a real question whether the property could have been relet prior to 15 July 2015 in any event.”
As noted by the Tribunal in Martins v Zhang [2014] ACAT 48 at [18], the Tribunal has previously made awards to compensate lessors:
for loss of potential rent because it was impossible to lease the premises due to smashed walls and doors, urine and faeces on carpets, and other appalling behaviour by tenants…These types of situations are fortunately rare and the lessor must be able to clearly show that rent has been lost before seeking compensation for it.
It is clear from the evidence before the Tribunal that the property was not in a fit condition to be re-leased at the end of the tenancy. In addition to general cleaning and minor repairs, the carpet needed to be replaced, and several rooms needed repainting.
The Tribunal notes that the applicant was aware of the condition of the property prior to the end of the tenancy, however, the lessor has no obligation to secure a new tenant prior to the date of vacant possession.[26]
[26] see Elvin v Meischke and Lee [2008] ACTRRT 18
The applicant must prove that rent was lost for the entire ten weeks claimed.
The main issue for the Tribunal to determine is the date on which the property was or could have reasonably been returned to a condition in which it could have been advertised for lease. This in turn depends on the degree of damage that needed to be repaired and whether the applicant acted promptly to mitigate losses.
The schedule of works on the property[27] indicates the following key works and completion dates:
(a)10 May 2015: cleaning
(b)8 June 2015: Painting complete
(c)16 June 2015: Plumber; bathroom vanities and toilets installed
(d)17 June 2015: carpet re-laid
(e)26 June 2015: locks replaced
(f)7 July 2015: curtains replaced
(g)15 July 2015: flyscreen doors replaced; rubbish removed.
[27] Exhibit 42
Other issues (e.g. tiling) and works for which the applicant has claimed unsuccessfully are not included here.
The Tribunal accepts that it took several weeks for the applicant to arrange cleaning and to obtain quotes for painting and carpet repairs after the tenant formally vacated the property on 7 May 2015. This is reasonable given the normal incidents of life and business schedules.
The Tribunal also accepts that the property could not have been advertised for lease prior to 17 June 2015, the day on which the major repair works on the unit (painting, plumbing, carpet replacement) were completed.
The Tribunal agrees with the tenant that the applicant could have undertaken secondary repairs (removed rubbish and replaced the locks, curtains and rods, and flyscreen doors) concurrently and within a shorter timeframe than occurred – essentially within the time taken to undertake the major works.
In particular, replacement of locks is an important issue which can be speedily remedied: locksmiths are usually readily available at several hours notice.
Under section 38 of the RT Act, the applicant must take reasonable steps to mitigate its losses; it is not entitled to compensation for losses which could have been avoided but failed to avoid due to unreasonable action, or inaction.
The Tribunal finds that the applicant could have completed the repair works by Friday 19 June 2015. Two extra days after the carpet was laid have been allowed for the completion of minor tasks and final cleaning which necessarily waited until the carpet was replaced. The applicant could then have pursued a new tenant. The market at the time was a buoyant one for lessors and they could reasonably have secured a tenant in a further two weeks.
From Friday 8 May 2015 to Friday 3 July 2015 is eight weeks. The amount of rental income lost by the applicant is therefore $3000.00, being eight weeks rent calculated at $375.00 per week. This sum is awarded to the applicant.
Tribunal Fee
Under section 48(2) of the ACAT Act, a successful applicant may recover the filing fee from the tenant.
The applicant claims $998.00 from the tenant to cover the cost of the Tribunal application. This is based on a claim for damages exceeding $10,000.00. The applicant asserts the amount awarded should reflect the amount charged for the original claim, regardless of whether the claim is granted in its entirety – unless the entire claim is meritless (see response to tenant’s submissions, April 2016).
The tenant asserts that if the Tribunal does not award the applicant damages over $10,000.00, only the commensurate fee of $280.00 can be awarded (unless the applicant’s claim is limited to $2,000.00 or less, where the fee is $136.00).
According to the Tribunal fee schedule, the fees for a corporation lodging an application for the resolution of a residential tenancy dispute are:
(a)Amount of dispute exceeds $10,000.00 $998.00
(b)Amount of dispute is between $2,001.00 to $10,000.00 $280.00
(c)Amount of dispute is less than $2,000.00 $136.00
The applicant will be awarded the cost of the fee for the amount of the successful claim, as this is the portion of the applicant’s claim which has merit.
This amount to be awarded will be dealt with in the ‘Findings’ section below, once the applicant’s award (not including the fee) has been calculated.
Respondent’s claim for breaches of the residential tenancy agreement by the applicant
It is well established in Australian case law that a lessor attending and loitering around a property without providing adequate notice to the tenants breaches the tenants’ right to quiet enjoyment of the premises enshrined in the standard terms of residential tenancy agreements.[28] In the ACT, the right of quiet enjoyment is set out in clauses 52 and 53 of the standard terms of the RT Act.
[28] See for example Griffiths v Richards [2012] NSWCTTT 242
Actions (or omissions) by the lessor and their agent can give rise to a breach of the right to quiet enjoyment of the property. In particular, the lessor and agent must seek consent from the tenant to enter the property outside of regular inspections[29], and must also provide prior notice of inspections, including those for the purpose of inspecting or conducting repairs.[30]
[29] RT Act clause 75
[30] RT Act clauses 79 and 82
There are several instances of behaviour by the applicant which breach clauses 52 and 53 of the RT Act, these are dealt with separately below.
14 April 2015
The applicant’s evidence indicates that tradesmen entered the premises to provide the applicant with a quote for installation of a new kitchen. In particular, the quote for installation is dated 14 April 2015; and in oral evidence on 12 February 2016 the applicant stated the tradesmen went to the unit twice before installation, one occasion being 14 April 2015. Installation occurred on 14 May 2015.
There is no evidence that consent was sought from the tenant or prior notice provided. This constitutes a breach of the RT Act, specifically of clause 82(1).
9 April 2015
The applicant admits attending the property on 9 April 2015 and taking photographs. The tenant’s belongings can be seen in some of those photographs, indicating the tenant was still in possession of the premises.
The tenant’s evidence (in particular, Ms Hockey’s statement) is that consent was not sought or given for the lessor to enter the premises on 9 April 2015. The applicant has not submitted evidence that permission was sought on that occasion.
The Tribunal finds that the applicant attended and entered the property on 9 April 2015 without the tenant’s consent in breach of clauses 52 and 53 of the tenancy agreement.
November 2014
The tenant also asserts that the applicant attended the property in late 2014 without providing notice. The tenant stated (statement 12 November 2015, paragraph 6) that “on two occasions I saw the owners around the property [in the backyard]. I felt as if I was being watched. We were not told they were coming to the unit.”
The Tribunal finds this plausible as the lessor owned a neighbouring unit and could feasibly have taken the opportunity of checking on the tenant’s premises while visiting the other unit.
The lessor should have sought consent from the tenant to enter or inspect any area which is within the grounds of the leased property. This is the case even if that land is shared with another unit, as it remains private property for the residents of those two units, not a public area in which anyone can walk into.
The respondent’s evidence indicates that the lessor was not simply passing by the unit while remaining on public ground; the lessor had entered the backyard of the unit and was conducting a visual inspection.
The backyard and common entrance are areas that are private to the unit, it is not public ground, therefore the Tribunal finds the applicant breached clauses 52 and 53 of the agreement by not seeking consent from the tenant to enter and inspect that area in 2014.
The Tribunal also finds that in November 2015, Ms Taylor conducted a “drive by inspection”. This involved more than merely driving past the unit, as Ms Taylor states that she entered the property to check on the fire hydrant. Ms Taylor states that she gave verbal notice of the drive by to Ms Hockey.[31]
[31] Transcript of Proceedings 12 February 2015 page 106
At the hearing of 12 February 2016 it was questioned whether Ms Taylor’s actions constituted a breach of the tenant’s right to quiet enjoyment of the property, as the backyard of the unit is a common area shared by two units.
According to Ms Taylor’s written statement and oral evidence on 12 February 2016[32], Ms Taylor did not remain on public ground; she entered the backyard of the two units to inspect the condition of the yard, and also entered the unit building to inspect the common entrance and stairwell.
[32] Transcript of Proceedings 12 February 2015 pages 106-107
Ms Taylor’s assertion that she obtained verbal consent from the tenant prior to the inspection is not borne out by other evidence. The conversation is not recorded in Ms Taylor’s log of contact with the tenant, which is otherwise comprehensive, and both the log and the email trail between Ms Taylor and Ms Hockey indicates that Ms Taylor notified the tenant of the drive by inspection after it had occurred.
In his statement, the tenant stated that he felt that “Amy was harassing us for no reason.” In her statement, Ms Hockey stated that she felt threatened by Ms Taylor.
Ms Taylor’s actions constitute a breach of the tenant’s right to quiet enjoyment of the property under clauses 52 and 53 of the RT Act as notice was not given in accordance with clause 79, nor permission provided in accordance with clause 75. As Ms Taylor was the applicant’s agent, the applicant is responsible for this breach.
Respondent’s entitlement to damages for the applicant’s breach
Section 83(d) of the RT Act provides that the Tribunal may make orders requiring the payment of compensation for any loss caused by the breach of a residential tenancy agreement.
The tenant has not made submissions quantifying damages for the applicant’s breaches of the tenancy agreement. In quantifying compensation to the tenant for the applicant’s breaches of clauses 52 and 53, the Tribunal is therefore guided by other cases involving breach of the right to quiet enjoyment.
In particular, the Tribunal notes the case of Griffiths v Richards [2012] NSWCTTT 242, in which $1000.00 was awarded to compensate tenants for the lessor repeatedly entering their premises without notice and loitering around the property.
The Tribunal also notes the older case of Salmon v Cantrill [2006] NSWCTTT 325, which awarded $1000 for constant breaches of the tenants’ right to quiet enjoyment.
The matter before this Tribunal does not involve constant visits by the lessor to the premises, but does involve repeated instances of the lessor attending and entering the premises without notice or permission which caused distress to the tenant and his partner.
The Tribunal awards the tenant $1000.00 for non-economic loss for stress and inconvenience caused by the applicant and its agent attending and entering the property on at least four occasions without prior notice or permission, including one occasion on which the applicant took photographs of the property and the tenant’s possessions.
Respondent’s claim for partial reimbursement of the bond
The tenant seeks reimbursement of $235.46 as refund of the bond.
This claim is not granted as the tenant has not given details of what this amount represents or how it was calculated.
In addition, the applicant has established that the tenant breached the tenancy agreement by not leaving the property in a clean or a similar state to that at the commencement of the tenancy, for which the cost of rectification far exceeded the sum of the bond.
The Tribunal will give credit to the tenant for the bond in the final orders.
Findings
The Tribunal finds that the respondent breached the tenancy agreement by failing to take reasonable care of the property (clause 63), and failing to vacate the property in substantially the same condition as it was at the commencement of the tenancy (clause 64).
The respondent has admitted responsibility to compensate the applicant $1,265.54, comprising the cost of:
(a)Curtain replacement (part of 70(a) above) $39.99
(b)End of lease cleaning (see 70(b)) $450.00
(c)Two wooden doors (part of 70(e)) $512.00
(d)Lock replacement (see 70(i)) $210.00
(e)Rent arrears (see 70(m)) $53.55
Total $1,265.54
The Tribunal has granted the following, separate damages to the applicant:
(a)Curtain replacement $127.85
(b)Carpet cleaning and replacement $2,430.00
(c)Painting and materials $3,270.65
(d)Plumbing costs to clear blockages $132.00
(e)One flyscreen door $104.50
(f)Labour $360.00
(g)Loss of rental income $3000.00
Total $9425.00
The Tribunal has awarded $1000.00 to the respondent as compensation for the applicant’s breaches of the tenant’s right to quiet enjoyment set out in clauses 52 and 53 of the tenancy agreement.
The total amount awarded to the applicant is therefore $10690.52, being the total admitted by the respondent ($1,265.54), plus the amount awarded to the applicant by the Tribunal ($9425.00).
As the total amount for which the applicant has successfully claimed is above $10,000.00, the Tribunal fee which the applicant is entitled to recover from the respondent is $998.00 giving a total of $11688.54.
This brings the total amount of damages to be paid by the tenant to the applicant to $11688.54 minus the $1000 for breach of quiet enjoyment and minus the $1500 bond leaving $9188.54. The respondent is ordered to pay this amount to the applicant by 20 October 2016.
The Tribunal has given the tenant four months in which to pay the damages, rather than a shorter amount of time, having given consideration to indications of financial hardship currently facing the tenant. These indications include the tenant’s successful claim to have the Tribunal fee for transcripts of decisions waived on the basis of financial hardship, and correspondence between the tenant and Ms Taylor in March 2015 indicating that the tenant struggled to pay for cleaning fees during the tenancy.
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Senior Member A Anforth
HEARING DETAILS
FILE NUMBER: | RT 737/15 |
PARTIES, APPLICANT: | Enna Investments Pty Ltd |
PARTIES, RESPONDENT: | Joshua McNamara |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | Chris Donoghue, Donoghue & Co Solicitors |
SOLICITORS FOR RESPONDENT | Vanessa Faulder, Tenant’s Union ACT |
TRIBUNAL MEMBERS: | Senior Member A Anforth |
DATES OF HEARING: | 31 August 2015, 1 December 2015, 18 December 2015, 12 February 2016, 4 March 2016 |
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