Girmez v Lovell (Residential Tenancies)
[2024] ACAT 47
•2 July 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GIRMEZ & ANOR v LOVELL (Residential Tenancies) [2024] ACAT 47
RT 1011/2023
Catchwords: RESIDENTIAL TENANCIES – lessor claim against bond –lessor’s obligation to make out loss – quotes for repairs not supported by evidence –– parties obligations under section 30A of the Residential Tenancies Act 1997 – lessor raised issues after inspection – final inspection report not initiated by lessor – tenant disadvantaged – lessor precluded from making claim
Legislation cited: Residential Tenancies Act 1997 s 30A
Cases cited:Moffat & Anor v Rezo & Anor [2023] ACAT 62
Morton v Tetteh-Achim [2022] ACAT 96
Tribunal:Senior Member R Arthur
Date of Orders: 2 July 2024
Date of Reasons for Decision: 2 July 2024
Date of Publication: 9 July 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 1011/2023
BETWEEN:
ERCAN GIRMEZ
First Applicant/Lessor
NATALIE GIRMEZ
Second Applicant/Lessor
AND:
ELIZA LOVELL
Respondent/Tenant
TRIBUNAL:Senior Member R Arthur
DATE:2 July 2024
ORDER
The Tribunal orders that:
ACT Rental Bonds on behalf of the Territory is directed to release the disputed sum of $1,670 to the tenant.
The counterclaim is dismissed.
………………………………..
Senior Member R Arthur
REASONS FOR DECISION
This matter is the result of a rental bond referral to the tribunal. In this matter, the applicants are the lessor, and the respondent was the tenant. The bond was $2,500, of which $830 was given to the applicants after it had been agreed by the respondent.
At the hearing, the applicants, Mr and Ms Girmez, represented themselves, and the respondent, Ms Lovell, was represented by Ms Pham of the Legal Aid office.
The claims
The applicants have claimed for the balance of the bond plus an additional amount to a total of $6,904.13. The amounts claimed for were:
(a)Floor treatment $1,980
(b)Entertainment unit partial replacement $1,155
(c)Replacement of bathroom vanity unit panels $1,500
(d)Plumbing costs $385
(toilet seat, leaking vanity, fix buttons)
(e)Cleaning ($450 initial and $720 extra) $1,170
(f)Replacement tile $50.40
(g)Painting $330
(h)Bunnings expenses $333.73
Total $6,904.13
The respondent cross-claimed, seeking an amount of $722.45 consisting of $222.45 for storage fees and $500 for non-economic loss due to inconvenience caused by relocating her belongings into storage and temporarily residing with a friend.
Background and events
The lease commenced on 6 August 2022 and expired on 5 August 2023. The applicants purchased the unit from its then owner in 2023, after doing a purchase inspection of the unit in about February. They completed the purchase shortly prior to the expiry of the lease. They did not conduct a pre-settlement inspection of the premises.
After the applicants had completed the purchase of the unit, they contacted the respondent to give her notice to vacate the premises. The notice given was informal and did not comply with the statutory procedure. That issue will be considered further below.
After some negotiation, it was agreed that Ms Lovell would vacate the premises on 11 September 2023. A few days previously, the applicants sent Ms Lovell a copy of the entry condition report, which they had been given when they completed the purchase.
During that day, a time was arranged for an inspection to take place at the premises at 4:30 pm. Mr Girmez attended. The inspection was relatively brief and non-specific. Mr Girmez and Ms Lovell walked through the unit for some minutes. The evidence as to what occurred was somewhat brief, perhaps reflecting the time taken for the inspection. I will deal with that later. For the moment, it is enough to say that none of the issues later raised were the subject of discussion between Mr Girmez and Ms Lovell. Under cross-examination, Mr Girmez said that he did not raise any concerns about the state of the floor and did not comment on the smell because he did not want to embarrass her. He said that he had not seen any leak in the bathroom because he had not looked at that part of the bathroom.
At about the time that Ms Lovell left the premises, Mr Girmez phoned his wife, who at that time had been in another unit upstairs, which the applicants also owned. Ms Girmez arrived a matter of minutes after Ms Lovell had left, at about 4:40 pm. Mr Girmez then left, and Ms Girmez then commenced to undertake a thorough inspection over a period of a few hours on that day and on subsequent days.
Evidence of loss
At the hearing, the applicants sought to demonstrate their loss through a comparison of the state of the premises as indicated in the entry condition report with photographs that they had taken after re-taking possession of the premises. They produced quotes indicating the cost of the work which they said had to be done. They gave evidence as to what various contractors – who came to quote for the repair or restoration works – had said about what needed to be done and about the smell in the unit. They also gave evidence about what the cleaner had seen and reported to them. Most of this evidence was given by Ms Girmez, as it appears that Mr Girmez had little involvement after the inspection he attended.
There were many photographs produced, some with the same orientation as in the entry report photographs, but many not. That said, what the photos depicted was not always easy to see, and often only understandable after some guesswork. I gave the applicants an opportunity after the hearing to provide further photographs. In particular, the applicants were invited to provide parts of photographs zoomed in, so as to illustrate particular points more clearly.[1] Unfortunately, they did not assist me to understand better what I had not been able to see before. That said, there were some photographs from which I could gain a good impression of what was being conveyed. Taking everything into account, however, I did not find the photographic evidence to be helpful to the applicants’ case.
[1] Orders of 24 January 2024
The evidence otherwise came from the applicants themselves. There was, therefore, no evidence from a person with some expertise in matters being asserted, as there were no witness statements provided, and the quotes gave no indication of the actual extent of damage and its probable cause or the need for the item to be repaired or replaced in the manner for which the quote was given. I accept that the applicants were reporting as best they could what they had been told, but I was left with no objective evidence on which I could draw any reliable inferences to make the findings of fact required. Although the Tribunal is not bound by the rules of evidence, such that hearsay material may be accepted, the Tribunal is bound to accord procedural fairness. In my view, the respondent would be unacceptably disadvantaged by the inability to cross-examine the necessary people, not having seen for herself the asserted damage.
These concerns arose in the following ways.
Floor treatment
The generally light-coloured oak flooring had naturally occurring knots and stains. The photos show the stains as dark, varying in shape and colour intensity. Ms Lovell kept a Labrador dog (she was permitted to do so) in the premises. The applicants asserted that the floor had been stained by faeces and urine from the dog in various places.
There were photographs of flooring showing the stains, often with the pet stains identified as such by arrows or circles. While the effect may be different in a viewing of the actual floor, I found it difficult to discern from the photographs the features of the stains which made the difference between natural stains and pet stains obvious. I was left with the impression that, at least in most cases, an observer would not see any difference if it was not pointed out to them. The intensity of the smell is referred to by the applicants, who reported that “everyone” had commented upon it. In the course of evidence , Mr Girmez was asked why he had not raised the smell at the time of inspection. He responded that he had not wanted to embarrass Ms Lovell. For her part, Ms Lovell said she had she had been conscious of a “cat” smell. It would seem, from the fact that there was a cat flap in the door leading to the balcony, that there had been cats in the unit at some time. Mr Girmez said that he had not raised any concerns about the floor itself.
The treatment proposed was “buffing”. Mr Girmez said that the effect of buffing would be to remove the pet stains, remove the sun damage in the area near the sliding glass door, and to smooth out general wear and tear on the floor. It appears that it was proposed to buff the whole of the floor. In the absence of any explanation as to whether that was necessary, but even if it was, my impression is that this would significantly enhance the condition of the floor well beyond remedying any visual effect of the pet stains. There was also to be a coating of a substance with the brand-name “Bona”. Mr Girmez said that this would block out the smell. Whether this could be used where necessary, or had to be a uniform coating throughout, was not explained.
As the party raising the issue, it is for the applicants to prove both the damage and the cost of repairing it. I did not have enough reliable information to make the necessary findings, a deficiency exacerbated by the disadvantage to the tenant.
Bathroom vanity unit
There was a photo of a side panel of the bathroom vanity unit which showed swelling of the timber at the bottom of the panel over a height of perhaps four to five cm. It was said that this had been the result of water penetrating the timber. The source of the water was unclear (though the plumber’s invoice refers to a “leaking vanity”). Ms Girmez referred to it as “long-standing”, which may have been the case, but it was not pointed out at the inspection nor observed by Mr Girmez.
It is clear from the photographs that the panel, which was one to two mm off the floor, did not have protective coating on its underside, with the result that water would have been easily able to penetrate the timber. There may be circumstances in which the use of unprotected timber is appropriate and water damage may be legitimately regarded as the fault of the tenant but, in my view, the use of unprotected timber in a bathroom where the presence of water on the floor is to be expected from time to time from ordinary use, the effect of water on timber is to be regarded as ordinary wear and tear, not a responsibility of the tenant.
The quote was for three panels. Mr Girmez said that the assessor had told him that the front two panels were affected also, the visibility of which was obscured by the side panel. There was no means of verifying this.
Entertainment unit
There were photographs which showed some pale marks on the top surface of the unit which were not evident in the entry condition report photos. Whether that was a function of the latter photos being taken from some distance is a possibility. Mr Girmez said that he had seen the marks but thought that they would just wipe away.
The quote was for the replacement of the entire top of the unit. There was no explanation as to why this was necessary, as opposed to some cheaper method, for example sanding or polishing the surface. As with the previous items, it is for the lessor to make out its loss. On the information provided, I was unable to be satisfied as to the amount of loss.
Plumbing
A tenant is not required to repair every item that breaks down, unless it is the fault of the tenant. In this case, Ms Lovell pointed to emails in which she had notified the problems with the toilet seat to the agent, without response. There was nothing to suggest that she was at fault. Likewise, she was aware that the flush buttons were a bit sticky but functioned nonetheless. It is difficult to see how she could be responsible for that.
The evidence suggested that the source of the leak was not known though it was obviously discoverable by a plumber. While basic repairs such as replacing tap washers are expected of a tenant, this was clearly a lessor's responsibility.
Bunnings expenses - Kitchen tap spout and garden materials
The condition entry report photo has a dish cloth covering the top and rear sections of the U-shaped spout. The visible front section is free of defects, though the entry report notes that enamel is chipped. The photo taken following the end of the lease shows enamel chipped on the front but also on the top and rear sections of the spout, the latter being the damage referred to in the entry report. Whether this damage is caused by contact with hard kitchenware or the peeling of the enamel cannot be determined from the photographs, but the fact that it is consistent over the whole spout suggests that it is an incident of ordinary usage, and certainly Ms Lovell is not responsible for the majority of it. I see this as ordinary wear and tear for which tenants are not responsible.
Nothing was said about the balcony pot plants during the inspection. What was said came later as reports from the cleaner.
End of lease inspection and condition report
Section 30A Residential Tenancies Act 1997 (RT Act) provides:
(1) A lessor must, together with the tenant, carry out an inspection of the premises at the end of the residential tenancy agreement.
(2) The lessor must, together with the tenant, complete and sign a condition report based on the inspection.
(3) However, a party may complete and sign the condition report in the absence of the other party if the party has given the other party a reasonable opportunity to be present when the report is completed and signed.
While both subsections (1) and (2) place mandatory obligations on the lessor, they cannot be carried out without the co-operation of the tenant. That suggests, however, that it is the obligation of the lessor to commence the process. In this case, that was done when arrangements were made with the tenant for the inspection to take place at 4:30 pm.
The parties thereafter cooperated in carrying out the inspection, albeit briefly as noted earlier. They walked through the premises. No photos were taken. Ms Lovell said that Mr Girmez seemed satisfied with the condition of the property but commented on the lack of cleanliness in places. She said that she accepted that she had not done a proper job and agreed to pay for professional cleaning. There was some discussion about the removal of wall stickers. Ms Lovell said that at the time she thought that she was not expected to do anything further.
What the parties did meets their respective obligations under section 30A (1) of the RT Act. It was then the responsibility of the lessor to initiate the preparation of the condition report. That was not done. The lessor did not initiate the process nor seek the cooperation of the tenant, in the form of a reminder to the tenant. What did happen was that, shortly after the inspection, Ms Lovell was given the $450 invoice for cleaning of the premises, the $50.40 invoice for replacement of a tile, and the $330 invoice for painting of the bedroom where the wall stickers were, and she agreed to pay for each of these items. She then lodged a bond release form with the Office of Rental Bonds consenting for the sum of $830 to be released to the lessors and the remaining amount released to her. After notification by the applicants that they disputed release of the remainder of the bond to Ms Lovell, the Board paid the sum of $830 to the applicants, retaining the balance. The Office then referred the matter to the Tribunal.
After providing those invoices the applicants then, over a period of time, informed Ms Lovell of each further defect as Ms Girmez came across it. Thus, there was a written record of the condition of the premises, but it was not a record of the condition of the premises as inspected by Mr Girmez and Ms Lovell. It is that inspection which is referred to in subsection (2) on its proper construction.
Although there is nothing in the evidence as to reference during the inspection to a broken tile, Ms Lovell has accepted responsibility for it. Otherwise, the matters that were raised in the inspection are reflected in the invoices that were forwarded to Ms Lovell. Accordingly, although no condition report based on the inspection undertaken existed, the parties have acted as if it did.
Section 30A is an unusual provision as the Tribunal has previously noted.[2] In particular, it does not provide for the consequences if no end of lease inspection is undertaken or if no report is prepared. In my view, however, it does make clear that if there is an inspection between the lessor (which includes one of several joint lessors, or an agent of the lessor) and the tenant (which includes one of several common tenants, or an agent of the tenant) then it is only that inspection that a condition report can be “based on” under subsection (2). The Tribunal in Morton v Tettem-Achim[3], noted above, came to the same conclusion[4], by reference to the purpose of the provision.
[2] See Morton v Tettem-Achim [2022] ACAT 96 at [20]–[24], Moffat & Anor v Rezo & Anor [2023] ACAT 62 at [21]–[41]
[3] [2022] ACAT 96
[4] Morton v Tettem-Achim [2022] ACAT 96 at [21]–[23]
The effect of this is that it is essential for the lessor to conduct a thorough inspection in the presence of tenant so as to identify all items requiring attention, giving the tenant a proper opportunity to observe them and to respond. Items discovered and raised after this event could only be claimed in exceptional circumstances, such as that of a hidden defect only discoverable when an appliance was operated. The rationale behind section 30A, reflected in the Explanatory Statement referred to in the cases noted above, is that it is the responsibility of each party to look after their own interests at the end of lease inspection – a failure to do so will result in the loss of the ability to promote those interests.
In my view, the failure of the applicants to identify the items now being claimed at the initial inspection means that they cannot now be claimed. I make this finding in addition to, and independently of, my findings in relation to particular items.
Counterclaim
The RT Act requires notice of termination to be given to a tenant, the length of which varies according to the circumstances. The applicants did not give the required notice either in its form or in the period of time appropriate to the circumstances. Nonetheless, it was a reasonable period of time in which Ms Lovell could arrange her affairs. While the applicants were unaware of the requirements, they did not act without some concern for Ms Lovell’s situation and the arrangements appear to have been overall amicable. I do not think compensation is called for.
Orders
In light of the above, the orders of the Tribunal are:
(a)ACT Rental Bonds on behalf of the Territory is directed to release the disputed sum of $1,670 to the tenant.
(b)The counterclaim is dismissed.
I should record that I found both Mr and Ms Girmez to be reliable witnesses, and that they went to a great deal of effort to provide the Tribunal with evidence to support their case. I make no criticism of them. Unfortunately, they were not familiar with the provisions of the RT Act and the general law as they affected their rights and obligations, and consequently were unfamiliar with the necessary processes to be undertaken in the circumstances of this case. That has counted against them.
………………………………..
Senior Member R Arthur
| Date of hearing: | 24 January 2024 |
| Applicants: | In person |
| Respondent: | Ms Pham, authorised representative |
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