Frank Catanzariti v Jia-Lin Lee
[2006] ACTRTT 23
•23 August 2006
Frank Catanzariti -v- Jia-Lin Lee ACTRTT23 [2006]
CATCHWORDS
ISSUES
Rent increase
Routine inspections
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Section 107
Clauses 35, 38, 79
CASES CITED
CASE REFERENCE NUMBER: RT 2215 of 2006
RE: Premises at 49/22 Archibald Street LYNEHAM ACT 2602
DECISION
ORDERS
That the lessor is granted access to the premises on Tuesday the 29th day of August, 2006, from 10:30am until 11:30am for the purposes of conducting an inspection in accordance with clause 77 of the standard residential terms.
That the rent is increased to $270.00 per week from 22nd day of May 2006. The tenant is to pay an amount of $172.80 to the lessor within 14days, being rent increase to 22nd day of September 2006.
Member: Jann Lennard
Date: 23 August 2006
STATEMENT OF REASONS
Reasons:
Frank Catanzariti is the owner of 49/22 Archibald Street Lyneham in the ACT.
On 22 February 2005 the lessor’s agent entered into a residential tenancy agreement with Jia-Jin Lee, the tenant.
Elders Real Estate, Dickson have at all times during the tenancy been the agent for Mr Catanzariti.
The residential tenancy agreement was for a fixed term of 6 months at a rent of $280.00 per week.
The Residential Tenancies Tribunal notes that the residential tenancy agreement contains 4 “Supplementary clauses’, two of which are inconsistent with the Standard Residential Terms, and a third of which mis-states the law as set out in s107 of the Residential Tenancies Act 1997.
On or about 12 July 2005 the tenants informed the agent in writing that they would vacate the premises at the expiration of the fixed term (21 August 2005) because the rent was ‘too much’ for them.
On 20 August 2005 the tenants wrote to the lessor giving three weeks’ notice of intention to vacate. This notice was acknowledged in writing on 22 August 2005. The lessor’s agent advertised the premises for rent.
Some negotiations took place between the parties and on 29 August 2005 the parties entered into a second residential tenancy agreement for a term of 6 months at a decreased weekly rent of $260.
On 26 September 2005 the lessor’s agent sent an invoice in the amount of $33 to the tenant for the cost of advertising the premises for rent after receipt of the tenant’s notice of intention to vacate. The tenant refused to pay this amount. The lessor’s agent threatened the tenant with legal action to recover the debt. The tenant expressed frustration at the heavy handed attempt of the lessor’s agent to recover this amount and the evidence before the Tribunal showed a confusing set of letters and invoices.
On 6 March 2006 the lessor’s agent wrote to the tenant advising that rent would be increased to $270 per week from 22 April 2006. The tenant has refused to pay the increased rental.
On 9 May 2006 and 5 June 2006 Elders Dickson wrote to the tenant to inform the tenant that a routine inspection would be carried out and setting out the date for those inspections.
The tenant gave uncontradicted evidence that:
i) In response to the letter of 9 May he waited at the premise on the specified date of 22 May but the agent failed to attend;
ii) In response to letter of 5 June the tenant contacted the agent and a date of 22 June was agreed upon. Once again the agent failed to attend to premises.
On 6 July 2006 the lessor’s agent wrote to the tenant advising of a proposed inspection on 14 July 2006. The tenant has refused access to the premises for this inspection.
The lessor made an application to the Residential Tenancies Tribunal for:
i) Arrears of rent arising from the failure by the tenant to pay the increased rental amount;
ii) Access for inspection; and
iii) $33 advertising costs.
Rental Arrears
The standard residential terms apply to increase of rent.
Clause 35 provides that the rent may not be increased at intervals of less than 12 months from either the beginning of the tenancy agreement for the first increase or, after that, from the date of the last increase.
Clause 38 provides that the lessor must give the tenant eight weeks written notice of intention to increase the rent and include in the notice the amount of the increase, and the date when it is proposed to increase the rent.
The date of commencement of this tenancy was February 2005, an increase from April 2006 falls within clause 35. The tenant argued that the 12 months should be measured from the date of the second written agreement, that is 22 August 2005. This interpretation of clause 35 would give rise to a situation that does not reflect the intention of the legislature and would defeat the purpose of the Act. Sections of legislation must be interpreted in the context of the Act as a whole and in a manner that accords with the purpose of the legislation. The purpose of the rent increase provisions is to balance the interests of lessors and tenants by allowing the lessor to increase then rent at regular intervals but protecting the tenant from arbitrary and frequent rises in rent. The tenant’ s interpretation of clause 35 would mean that a lessor could, by employing the device of requiring agreements whose fixed term was less than 12 months increase the rent at shorter time intervals than 12 months. This interpretation is contrary to the intention of the legislation. Clause 37 and sections 65 to 70 support this view.
Therefore the lessor is entitled to increase the rent after 12 months has passed from the time of the commencement of the tenancy.
The Notice of Rental increase sent by the lessor’s agent is defective because it fails to give the requisite eight weeks notice. Despite this defect being drawn to the agent’s attention, no corrective action was taken. The lessor’s agent’s apparent lack of understanding of the Residential Tenancies Act provisions in the fundamental area is surprising.
The Residential Tenancies Tribunal notes that the proposed increase of rent of $270, results in a rental rate that is nevertheless still less than the rent paid by the tenants in the first 6 months of the tenancy.
Taking into account all of the above factors the Tribunal orders that the rent shall increase to $270 per week from 22 May 2006. This order is made pursuant to s104 (l) of the Act.
Inspections
The standard residential terms apply to routine inspections of the premises.
Clause 79 provides that (1) the lessor must give 1 week written notice of an inspection; and (2) the inspection must take place at a time agreed between the parties with reasonable regard to the work or other commitments of both the tenant and the lessor (or their agent). [Emphasis added]
The letters sent by Elders Dickson in relation to inspections provide for a 3-hour time frame (9 am to 12pm) and ask permission to use keys to access the premises if the tenant is unable to be present. The tenant is invited to contact the agent to arrange another time if the one proposed is not suitable.
The Tribunal is of the opinion that this letter partially reflects the requirements of the Act. To require a tenant to be available for one half of a working day is not having reasonable regard to their commitments. Where an agent shows extreme disregard for the interests of the tenant, by failing to attend scheduled inspections this is not acceptable.
There is some force in the tenant’s argument that the pattern of conduct by the lessor’s agent amount to interference with the tenant’s quiet enjoyment of the premises. However, the lessor is entitled to conduct regular inspections and the interest of the lessor must be acknowledged. Therefore it is appropriate for the Tribunal to set a date and time for an inspection. The Tribunal recommends that Elders Dickson review their conduct in relation to the letters, arranging and keeping of appointments for inspections to ensure compliance with the legislation.
Advertising costs
The lessor is liable for these costs. They are a usual cost of finding a tenant. The tenant should not be asked to pay for a cost that was incurred either in the usual course of business or through a lack of clear communication between lessor and agent.
ORDERS
That the lessor is granted access to the premises on Tuesday the 29th day of August, 2006, from 10:30am until 11:30am for the purposes of conducting an inspection in accordance with clause 77 of the standard residential terms.
That the rent is increased to $270.00 per week from 22nd day of May 2006. The tenant is to pay an amount of $172.80 to the lessor within 14days, being rent increase to 22nd day of September 2006.
Jann Lennard
Member
19 November 2006
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