Globe Net Realty v Harper - [2014] QCAT 239

CITATION:

Globe Net Realty v Harper [2014] QCAT 239

PARTIES:	Globe Net Realty (Applicant)
v
Carly Harper Sam Harper (Respondents)

APPLICATION NUMBER:

MCDT024-14, MCDT029-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

4 April 2014

HEARD AT:

Sandgate

DECISION OF:

Member Favell

DELIVERED ON:

14 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The RTA pay to Globe Net Realty the sum of $73.75 and to Carly Harper and Sam Harper the sum of $1,906.25 from the bond held by it in respect of premises at 20 Pituri Street, Bracken Ridge QLD 4017 (Rental Bond Number 5044022-5).

CATCHWORDS:

Minor civil dispute – residential tenancy agreement – where notice of intention to leave given and premises vacated – where claim for rent arrears – where claim for rent arrears, break lease fee and advertisement cost, water usage and cleaning and repairs – whether tenants responsible for cleaning and repairs – where premises were returned in the same condition, fair wear and tear accepted – whether there was an obligation to pay break lease fee and advertisement costs and rent until the premises had been re-rented.

APPEARANCES and REPRESENTATION:

APPLICANT:

Jasmine Woodraft and Gemma Wood

RESPONDENT:

Carly Harper and Sam Harper

REASONS FOR DECISION

In Sandgate Claim T25/14, the applicant Globe Net Realty seeks an order that the tenants Carly Harper and Sam Harper release their full bond and make payment for the charges owed above and the bond. The sum claimed is $2,837.75.
The application is made pursuant to section 137 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The applicant claims rent arrears of $980, a break lease fee and advertising fee of $639, water usage of $73.75 and cleaning and repairs of $1,145.
The bond held by the RTA is $1,960 and the bond number is 5044022-5.
In application T29/14, Carly Harper and Sam Harper, pursuant to section 429 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) seek to have an order refunding the full bond to them.
The applicant Globe Net Realty gave their reasons for seeking the order as:
Tenants have vacated the property by a break lease. We received the initial letter of notice to leave 8 Jan 14, followed by a notice to remedy breach on 9 Jan 14, this was then followed with a Form 13 notice of intention to leave on 15 Jan 14. All relevant documents, correspondence and quotes/invoices have been provided. We are requesting monies for the following items: break lease fee (one week’s rent + GST) $539; advertising fee $100; rent (up until a new tenant was secured 10 February 14 $980; and water usage charges $73.75. The property was not cleaned and/or left in its original condition as per the entry condition report and received invoices for the following items: cleaning $220; repairs (backstairs, wooden floors, chipped paint on walls) $925. All relevant documents, correspondence and quotes/invoices have been provided. We have received all correspondence, notices issued, quotes/invoices received from the tenants and creditors where applicable. Entry and exit condition reports have been included along with photos. We feel we have acted professional in all areas of the tenancy. To this date no payments have been received following the tenant’s rent paid up until 27 January 14.
The Harpers were tenants under a fixed term agreement which was to start on 24 September 2013 and end on 24 March 2014. The property was at 20 Pituri Street, Bracken Ridge. The rent per week was $490 and the rental bond was $1,960.
Pursuant to item 12 of the Tenancy Agreement, the tenant was obliged to pay for water usage and pursuant to item 14 it was to be paid direct to Globe Net Realty as per invoice.
In the special terms, the following appeared:
water charges – will be invoiced for all water used per quarter. Upon vacating an average of water bills previously invoiced would be calculated, an invoice to cover any due/future water invoices for the period of occupancy. Invoices are to be paid either by the tenant prior to bond release or to be deducted from bond monies. The carpets have been professionally cleaned at the start of the tenancy and the tenants must ensure to have them professionally cleaned upon vacating the property and provide the receipt for the same. Carpets are to be replaced if damaged from pets (approved pets alone)…
In annexure A to the tenancy agreement, the following appeared:
1. The tenants acknowledge and agree to supply two weeks written notice prior to vacating the premises. In the event that the full two weeks has not been given, the shortfall will be deducted in lieu from the tenant’s rental bond.
2. If a tenant terminates or breaks their lease prior to the lease expiry date, they must sign an authorisation for the agent to find a new tenant and pay an administration fee equal to 1 weeks rent plus GST to the agent. The tenants are also responsible for the rent and upkeep of the property until a suitable tenant is found to take over the premises.
Clause 17 of the agreement, a reflection of sections 164 and 166 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provided that if the premises were water efficient, the tenant must pay an amount for water consumption.
At the hearing, the applicant Globe Net Realty produced an office copy of an entry condition report which was signed on behalf of the management and dated Tuesday 24.9.13. It had typed comments under the heading lessor/agent but no comments under the heading ‘tenants.’ The respondents, the tenants, provided an entry condition report with all of the comments under the lessor/agent column as identical to that produced by the agent but with handwritten comments under the column ‘tenants.’ That copy, however, was not signed by the agent and it did not have the date on the front page under the words ‘the tenants have initially received a copy of this report on.’ Clearly, they did have a copy of the entry condition report because they have been able to produce an identical one without the date filled in. No satisfactory explanation has been given as to why the copy produced by Globe Net Realty has later additions when compared with the one provided by the tenants.
In an email of 21 November 2013, from the property manager Bertina Smith, there is an apology addressed to the tenants for the loss of their entry condition report which Ms Smith said ‘they apparently handed back to reception at the beginning of the lease.’ The email asks them to complete another entry condition report at their earliest convenience and acknowledges the tenants’ concerns regarding the ‘uncleanliness of certain areas of the house (for eg drawers unwiped, some scratches on the timber floor on the first day you moved in)’ It said ‘please return the report complete with your concerns and I will confirm it with my initials since I noticed it also (with Gemma) on my first few weeks on the job.’
On 7 January 2014, Carly Harper faxed a notice addressed ‘to whom it may concern’ which said:
Sam and Carly Harper will be moving out of 20 Pituri Street, Bracken Ridge. We will have the keys back to you by Monday 27 January 2014. Please have the house advertised as soon as possible. Please contact me… to arrange any viewings whilst we are still living in the property.
By an email on 8 January 2014, the tenants advised of the reasons they were moving out of the property as follows:
We signed a lease agreement stating we had air conditioning that we use between the hours of 9-10pm to 6-6.30am Monday to Sunday. Sam works 6am-10pm Monday to Sunday and I work 7am-6.30pm spending most nights at my parents. Sam has a heart condition which means he has to be in a cool environment. I am 7 months pregnant and in my uncomfortable stage. Our air-con has now not been working since Saturday 4 January 2014. We were advised the owners were well aware of the problem when we had the air-con people come out not long ago after we moved in. They were advised that the part would need replacing before summer as the air-con unit would not cope. We have no fans in the property – the roof has foil on it where it keeps the cool air in when the air-con is running but when it is not, it traps the hot air in. Our property was sitting at 41 degrees on Saturday night upstairs in our bedroom at 9.30pm. We have not been offered fans or anything at all. I have had to pay for accommodation for Sam and I since Saturday night due to the property being unliveable. We have found that our backdoor downstairs (near the laundry) has been found unlocked on 3 occasions as we don’t use this door it is always locked… So as you can see all of these things are not very nice considering we have never complained about a thing until now. We pay $490 a week rent on a property we are not living at. If the owners had ordered the part required for the air-con when they were told three months ago we would still be able to live in the property. I am asking that we pay $490 plus GST and pay rent up until the date we have put in writing that we are vacating and we move into a more suitable property that will cover our needs. If we wanted to live in a property with no air-con or fans or privacy, we would live in a townhouse and pay $250 per week.
A notice to remedy breach dated 7.1.14 was given. The breach referred to was as follows, ‘Air condition not in working order. Pest control not done and light under garage not working.’
The entry condition report under the column lessor/agent has ticks beside the air-conditioning to indicate that there was a 1 ducted air-conditioning in the bedroom and the lounge room. On the entry condition report provided by the tenants, the comments under the tenants column has the air-conditioning as not working with dirt and dust around the vent in the lounge room and in the bedroom and the notation ‘does not work/fingerprints on it.’ The same notations were made in respect of bedroom 2 and 3.
A notice of intention to leave in Form 13 was given by the tenants on 15 January 2014 notifying that they intended to give up vacant possession by midnight on 27.1.14. The notice was issued with grounds, the grounds being, ‘did not complete work as per the notice to remedy breach.’
On 10 January 2014, Globe Net Realty acknowledged the intention of notice to leave and said that the rent was currently paid up until 27.1.14. It also said:
As you are breaking your current lease, you will be charged a break lease let fee [1 week’s rent + GST $539 and an advertising fee $100]. Rent will be incurred and payable up until a new tenant is located. If a new tenant is not found before your vacate date, you will need to ensure the property is cleaned prior to the commencement of a new tenant. Your bond will also not be dispersed until a new tenant is located.
I am unable to find any mention to an advertising fee in the tenancy agreement.
Globe Net Realty provided the Tribunal with a document entitled ‘Agreement to terminate fixed term tenancy’ signed on its behalf and dated 10.1.14. It provided that the tenant would pay the lessor’s reasonable costs of break lease let fee + GST (one week’s rent + GST) and advertising fee $100 when the agent finds a replacement tenant who enters into a valid/enforceable residential tenancy agreement. The agreement was not signed by the tenants.
Globe Net Realty on 6 January 2014 issued a maintenance order for the air-conditioning to be fixed. On 7 January 2014, an air-conditioning mechanic attended at the property and found that a capacitor in the indoor unit had melted. He ordered a replacement part which arrived on 13 January 2014 and on 16 January it was installed but the system would still not start up and run properly.
An exit report initialled by the lessor/agent has been provided. It has typed comments under the tenant’s column but nothing under the lessor/agent column.
In an email dated 28 January 2014, Gemma Wood indicated that she had conducted an exit report and provided a list of things that would need to be rectified within 24 hours. Those were:
1.Internal stairs – walls either side dirty;
2.Lounge room – walls dirty, paint peeled under TV point, ceiling around air conditioning vent dusty, multiple scratches on floor, window and glass door tracks dirty;
3.Family room (downstairs) – walls dirty, multiple dents in wall under window, window track dirty;
4.Kitchen – window tracks dirty, inside corner covered dirty, crumbs in top large drawer, pantry shelves dirty;
5.Dining room – wall dirty, window tracks dirty;
6.Main bedroom – large patch missing on chocolate feature wall, few other marks on walls, window tracks dirty, dog paws scratches on timber floors, 1 x deep scratch on floor near window, inside drawers on right side of mirrored wardrobe dirty, inside wardrobe on right hand side large paint flake;
7.Bedroom 2 – window tracks dirty, mirror doors dirty;
8.Bedroom 3 – marks and scratches on walls, window tracks dirty, paint pulled off window frame, multiple scratches on floor, mirror doors dirty;
9.Bathroom – window tracks and screen dirty, bath dirty, exhaust fan dirty;
10.Laundry – multiple marks on walls, window tracks dirty, back screen door dirty, inside cupboards dirty;
11.Downstairs bathroom – exhaust fan dirty;
12.Outside stairs – 2 x stair corners have been chewed by dogs and needs replacing, scratch marks over all stairs from dogs;
13.Backyard – large dirt patches in turfed area, lining under bark has been pulled up in all garden beds, dried dog poo throughout the backyard;
14.Playhouse – floor and screens needs cleaning;
15.Front yard – grass in front of brick fence ruined from continual parking.
A quote has been provided to sand the timber floors coarse medium and fine and then apply three coats of polyurethane gloss finish for $1,973.40. That quote was from Brisbane’s Finest Floors. A second quote from JML Flooring was in the sum of $1,870. A quote from MJA Property Maintenance for patching, sanding, sealing and painting various areas and replacing steps and fixing dents is for $656. A later quote just to replace two steps was for $394. There was another quote from JB Hargrave to replace the two stairs and to patch and repaint various walls was for $1,166. A quote was provided for a fix up and exit clean, $100.
A calculation for the water has been provided in the sum of $73.75.
A quote from MNA Milatano to carry out a full internal clean, clean up dog droppings, patch and paint bedroom one feature wall, touch up paint missing off walls and architraves in bedroom 3, and sand and seal scratches in timber floor in the living area, bedroom 1 and bedroom 3 to prevent further damage until floors can be repolished, was obtained in the sum of $760.
During the hearing, the Harpers indicated that they would pay for the water charges however they dispute that they should be responsible for pre-existing damages.
I have compared the exit condition report provided by Globe Net Realty with the entry condition report provided by the Harpers. That report indicates that on entry the premises were dirty, there were paint chips, there were marks, the exhaust fans were dirty, the air-conditioning was not working, there were scratches on the floors, walls were badly marked, the gardens were ‘dead,’ and generally there was damage done to handrails and the staircase. I have not set out the full descriptions provided by the entry condition report but I accept it as being a reflection of the condition of the premises at the time the Harpers took up residence.
I am not satisfied that the respondents should be responsible for the clean-up, the painting, or the sanding of the floors. I am not satisfied that the Harpers caused the damage claimed or that the house was returned in a condition worse than when they entered the property.
I note the maintenance request forms filled out by the Harpers and their long list of things which were required to be done dated 10 December 2013. In particular I note the complaint about the air-conditioning at that time.
I have also noted the exit condition report which was filled in by the tenants and the additional comment ‘the property was not clean or pest-controlled before we moved in.’
I have also done a comparison of the photographs provided by Globe Net Realty and those provided by the tenants and I note pre-existing scratching and damage on photographs that are date-stamped in September 2013.
The Residential Tenancies and Rooming Accommodation Act 2008 (Qld) sets out the ways in which a residential tenancies agreement ends. An agreement ends if the tenant gives a notice of intention to leave and hands over vacant possession on or after the handover day.
Clause 36 of the residential tenancy agreement provided for when the agreement ends. It is a reflection of s 277.
This tenancy ended on the giving of the notice of intention to leave and the handing over of vacant possession of the premises.
Clause 7 of the Tenancy Agreement does not apply because although the agreement was a fixed term agreement the tenant terminated it before the term ended in a way that is permitted under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
The notice of intention to leave relied on, was that of 15 January 2014.
I was told during the hearing that the tenants moved out on 27 January 2014. At some stage, an advertisement for a tenant was placed online. I was told that a new tenant was secured on 10 February 2014. The Harpers rent was paid up until 27 January 2014.
Because Clause 7 does not apply, there is no obligation on the tenant to pay reasonable costs incurred by the lessor in re-letting the premises. Clause 6 which provides for the continuation of the fixed term agreement (a reflection of s 70) does not apply even though the agreement is a fixed term agreement because a notice of intention to leave was given.
There is no term of the agreement in the circumstances which apply here which imposes an obligation on the tenants to pay any costs of re-renting the property. Nor is there any relevant continuing obligation to pay rent after the property has been vacated until it has been re-rented.
The Tribunal has been provided with the tenant balance which makes the statement that the tenants were paid to 27 January 2014 and that there was $980 owing due to vacating on 10.2.14. I am not satisfied that that was the date of vacation and it would seem that that is more likely the date on which the new tenants arrived. As I have earlier said, there is no obligation in this agreement to pay such rent.
For the reasons I have given, the application by Globe Net Realty is dismissed apart from the claim for water charges in the sum of $73.75. That amount should be taken from the bond which leaves $1,906.25 to be paid to Carly Harper and Sam Harper.
The order will be:
The RTA pay to Globe Net Realty the sum of $73.75 and to Carly Harper and Sam Harper the sum of $1,906.25 from the bond held by it in respect of premises at 20 Pituri Street, Bracken Ridge QLD 4017 (Rental Bond Number 5044022-5).