Hank Spier -v- Deborah Clark & Ross Clark

[2007] ACTRTT 15

Hank Spier -v- Deborah Clark & Ross Clark  ACTRTT15 [2007]

CATCHWORDS

ISSUES
Fixed term lease
Breach of lease by tenant

LEGISLATION
Residential Tenancies Act 1997 (ACT)
Section 107

CASES CITED

CASE REFERENCE NUMBER: RT 2175 of 2006

RE: Premises at 4 Waller Cres CAMPBELL ACT 2612

DECISION

ORDERS

1.That the tenant/s is to pay the lessor the sum of $15,546.42 being compensation for:

a.$300.00 for repairs;

b.$5371.42 for loss of rent;

c.$800.00 for costs of reletting;

d.$9075.00 for replacement of carpet.

2.That the Office of Rental Bonds is directed to release $3200.00 to the lessor forthwith.  Any amount received by the lessor is to be set off against the amounts awarded above. 

3.That the abovementioned amount is to be paid on or before 28 December 2006.

Member:      Jann Lennard
Date:            14 December 2006

REASONS FOR DECISION

1.   On 13 May 2006 the parties entered into a residential tenancy agreement for a fixed term of 18 months commencing 19 May 2006, at a weekly rental rate of $800.

2.   The Respondent tenants had previously rented other premises through the lessor’s agent, Homefinders Real Estate and were in dispute with their previous lessor in relation to damages to the premises and a consequent claim by the lessor upon the bond. There was some delay in the payment of the Bond for the premises subject of this application.

3.   On 3 July 2006 the lessor’s agent emailed the tenants and pointed out that the rent was in arrears.

4.   On 7 July the tenants gave written notice of intention to vacate the premises. The letter set out a number of issues on relation to the amenity of the premises. There was no evidence that the tenant had raised any of these issues previously and there was no notice to remedy from the tenants. The Residential Tenancies Tribunal had evidence that Deborah Clark had obtained employment in Melbourne and that this was the actual reason for the termination of the tenancy. In a letter dated 26 September the tenants conceded that they had breach the lease by terminating prior to the end of the fixed term.

5.   On 25 July 2006 the lessor lodged an application for the payment of rental arrears and the balance owing on the Bond.

6.   The RTT heard the matter on 4 August 2006. Ms Desiree Russell (Homefinders) represented the lessor and the tenants appeared in person.

7. The Residential Tenancies Tribunal found that the vacation by the tenants was what is commonly referred to as a ‘break lease’ and clause 84 of the standard residential terms and s107 of the Residential Tenancies Act 1997 apply.

8.   The tenancy terminated on 3 August 2006 upon vacation of the premises by the tenants. Rent was paid until 28 July 2006, thus the tenants were in arrears at the time of vacation.

9.   The Residential Tenancies Tribunal notes that the lessor’s agent acted promptly and appropriately in bringing the matter before the Tribunal. The Residential Tenancies Tribunal treats the application as an application for compensation under s107.

10.  The matter was adjourned to allow the lessors to ascertain the quantum of damages. The tenants were ordered to pay existing arrears and compensation for loss of rent until 28 August 2006, a total of $3200

11.  The matter was before the Tribunal again on 21 September 2006. The tenants had failed to comply with the order for payment of compensation for loss of rent. The lessors had obtained new tenants who would commence occupation of the premises on 28 October 2006, and the lessors made further submissions in relation to payment of compensation for damages to the premises. The matter was adjourned and parties were asked to make any further written submission within 7 days. Each party made further submissions.

12.  The Residential Tenancies Tribunal took into account the following factors:

a.   The tenants were not reliable witnesses and where there was a conflict of evidence the Residential Tenancies Tribunal referred the evidence of the lessors.

b.   The lessor had advertised the premises for $850 per week, an amount greater than that paid by the tenants. The lessor gave evidence that the premises had been advertised at $900 per week but this had been negotiated down by the parties prior to commence of the tenancy.

c.   The carpet was extensively stained with animal urine, which the tenants conceded was as a result of their puppy being indoors. The carpet was less than 2 years old and the stains were not removed by two sessions of professional cleaning. The lessors had replaced the carpet to ensure best chance of finding new tenants. Some reduction from replacement cost had to be made for the use the lessor had already had from the carpet.

d.   The tenants had caused damage to the bathroom floor.

13.  The Residential Tenancies Tribunal found that the tenants were liable to pay the lessor:

a.   $300 for general repairs;

b.   $5371.42 for loss of rent calculated to 14 October 2006; (s107)

c.   $800 for the cost of finding a new tenant; ( s107)

d.   $9075 for loss of carpet.

ORDERS

1.That the tenant/s is to pay the lessor the sum of $15,546.42 being compensation for:

a.$300.00 for repairs;

b.$5371.42 for loss of rent;

c.$800.00 for costs of reletting;

d.$9075.00 for replacement of carpet.

2.That the Office of Rental Bonds is directed to release $3200.00 to the lessor forthwith.  Any amount received by the lessor is to be set off against the amounts awarded above. 

3.      That the abovementioned amount is to be paid on or before 28 December 2006.

Jann Lennard
Member
29 May 2007