Hew v Law
[2012] QCAT 520
•22 October 2012
| CITATION: | Hew v Law and Anor [2012] QCAT 520 |
| PARTIES: | Catherine Hew (Applicant) |
| v | |
| Suzanne Law David Mitchelson (Respondents) |
| APPLICATION NUMBER: | MCDT993-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 27 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kate Buxton, Adjudicator |
| DELIVERED ON: | 22 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondents pay to the lessor the sum of $789.00 in final compensation by 2 November 2012. |
| CATCHWORDS: | Post tenancy compensation – whether lessor or tenant in breach at vacation date – allegations of damage – evidentiary burden |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | In person |
REASONS FOR DECISION
This is an application for post tenancy compensation.
Having originally filed an application for a termination order on 21 May 2012, and previously obtained orders against the respondent tenants that they pay rent of $6,400 up to 16 July 2012, together with discharge of the rental bond in her favour in satisfaction of that claim, the Applicant lessor’s claim was reopened. This matter proceeded to an oral hearing before the tribunal on 27 August 2012, where each of the elements of the claim was re-heard.
During 2011 the lessor had been living in her apartment, which she described during the hearing as a penthouse apartment at Bulimba. Whilst living there, she had tried, unsuccessfully, to sell the property. She had plans to travel so decided to let the property out.
The tenants signed a fixed term tenancy for thirteen months from 10 December 2011 to 9 January 2013. They paid bond of $6,400 and moved in on or about 10 December 2011. No entry condition report was prepared by either party at that time.
On 21 May 2012 the lessor filed an urgent application seeking a termination order and applying for various amounts of compensation. It seems that, at the time, the tenants had indicated their intention to vacate the property prior to the end of the fixed term lease. Evidence was provided to the tribunal that the parties had attempted to conciliate through the RTA (Conciliation Number M248903) and that process had ended without resolution.
The lessor’s claim, including for loss of rent, came to $21,636.40 when filed. She then filed a “request for compensation” on 2 July 2012 amending the claim to at total of $31,400.00 (less the $6,400 bond already received), bringing the total claim to precisely $25,000.00.
The first issue to determine is how the tenancy came to an end. This will inform the claim for lost rent which is asserted by the lessor on the basis that the tenants vacated the property and stopped paying rent in breach of their fixed term lease.
When asked during the hearing why the tenants vacated the property before the expiration of their fixed term lease, the lessor posed a number of reasons. The tenants had a small puppy and the apartment was not really suitable for it. There had been a gas pipe leak which was being attended to under the builders warranty and a shade sail which required replacement. Despite having offered a rent reduction whilst these two issues were attended to, the tenants had delivered a notice of intention to leave.
The lessor did not put in place a managing agent whilst she was away. She spent part of the time in Antarctica and, it seems, there were difficulties in her receiving emails from the tenants whilst away. She says they did not use the email address she provided. Both parties agree that the tenants were able and did at times directly contact someone who performed handyman tasks in the absence of the lessor at her direction.
The information provided by the tenants as to why they vacated was quite different. They each stated that their dog had nothing to do with their decision to leave. Rather, they cited difficulties from the beginning of the tenancy with the property, including with the items mentioned by the lessor. They gave examples of the many times between December and April (24 in total) that at least one of them had to be at home, or were disturbed whilst at home, to deal with various problems with the unit or its inclusions. They gave evidence that the gas leak required a number of tradesman’s visits then significant cleaning up by them each time. They also asserted that lighting and hot water did not work for periods whilst the gas leak was attended to.
The tenants delivered a notice to remedy breach on 28 March 2012, listing as grounds the lessor’s failure to repair the sunshade and flood damage from the leak and giving seven days within which they required those repairs to be undertaken. They state, and I accept, that in circumstances where the lessor had been in breach since the beginning of the tenancy in December 2011 and where many requests had been made for repairs, seven days was a reasonable remedy period. A notice of intention to leave was the delivered on 4 April 2012 indicating that the tenants would leave on 18 April 2012.
What happened next is informative of the question for this tribunal, viz: was the lessor then in breach? The tenants did not move on the date indicated because the lessor asked them to stay longer. A protracted negotiation took place whereby the lessor offered to reduce the rent if the tenants remained. The tenants did not accept the offer but agreed not to move until 1 June 2012. By this time, the issues identified in the notice to remedy breach were still not rectified. The tenants then vacated on 1 June 2012.
The tenants did not bring an application to the tribunal for a termination as s 277 of the RTRA requires. However, this is presumably because the lessor had already filed an application for termination. The tenants have now long since vacated the property. The lessor’s application for termination now therefore does not need to be determined. However, for the purpose of determining the claims it is necessary to consider whether the lessor would have been entitled to such an order and to make orders which are appropriate in relation to the issue of rent, in order to resolve the dispute.[1]
[1] Residential Tenancies and Rooming Accommodation Act 2008, s 429.
The tenants delivered a notice requiring the lessor to remedy on-going breaches within a reasonable time. Where a notice to leave was then delivered by the tenants to vacate after 14 days, the tenants would, had they applied, have been entitled to a termination order. I find that it was the lessor, not the tenants, who were in breach at the time the application for the termination order was filed on 21 May 2012. The lessor’s claim for rent after the date of vacation ought therefore be dismissed on the basis that the tenants were entitled to leave as they did.
Having received the benefit of an order for outstanding rent of $6,400 and payment of the bond following an earlier hearing which took place without notice to the tenants, this must be now be reconciled in the final order. The parties agreed, during the hearing, that rent of one week and one day, totalling $1,829.00 was payable by the tenants to the lessor. This will also be reflected in the final orders.
The remaining issues relate to damage, beyond fair wear and tear, said to have been undertaken by the tenants during the course of the tenancy.
The lessor relied upon statements from her marketing and letting agents in relation to the condition of the property at the beginning of the tenancy (exhibits 2 and 3). She also provided bundles of “before” and “after” photos. These statements and photos provided a good idea of what the property looked like when being marketed for sale but not of how the property looked after the lessor had moved her possessions out immediately prior to the tenancy. No entry condition report was prepared. This is most unfortunate as it would have provided the lessor with much needed evidence of the condition of the property at the start of the tenancy.
On the basis of the evidence available at the hearing I make the following findings in relation to the lessors compensations claims:
a.Flooring: Some scratching to the flooring was admitted by the tenants having caused scratching in the living area by moving boxes across it. The lessor claimed the full cost of $6,186.40 for repairs (plus $250 for touching up and $1,500 for a weeks lost rent, see exhibit 8). The tenants offered during the hearing to pay $4,000 which they considered was a reasonable contribution to the flooring repairs, having accelerated the inevitable need to repolish the floors at some stage in the future. This is the proper measure of loss and the sum of $4,000 is reasonable to compensate the lessor. The full amount would create a windfall for the lessor who would receive the cost of new floors throughout the apartment when the tenants were only responsible for damaging part of them and where the property was able to be relet without the floors being repaired. Allowed $4,000.
b.Cleaning: The lessor claimed $400 for cleaning undertaken upon vacate. The tenants refuted any obligation to pay this sum as they themselves had to engage cleaners when they moved in. They claimed that they had to undertake additional cleaning on the various occasions when tradesmen entered the property, and claimed that the left the property clean enough. I prefer the tenants' evidence on this point, particularly in regard to the condition of the property upon entry, and therefore do not allow this claim.
c.Carpet Cleaning: not disputed by the tenants. Allowed $110.
d.Carpet Replacement: The lessor claimed that the carpet in the master bedroom required replacement because the tenants allowed the shower to flood. The tenants' version, which is inherently more likely, is that the shower drain was ineffective, an issue which they raised with the lessor on 16 December 2011. Water moved across the bathroom floor on to the carpets. The premises and inclusions are the responsibility of the lessor. No allowance can be made for this element of the claim. The lessor also claimed that the carpets in the media room smelt of dog and required replacement. The quote from “Carpet by Design” (attached to exhibit 8 and dated 25 June 2012) supports the fact that this smell cannot be eliminated. I do not accept the evidence of the tenants that they were with their dog all the time and could not therefore be the source of this odour. No other animal has been present in the apartment. The tenants ought to pay to replace the carpet in the media room at a cost of $1,250. Allowed $1,250.
e.Other claims: Exhibit 8 contains a raft of other claims, including, and ranging from, a missing milk jug to leather stools requiring repair, and from the marble on the kitchen bench requiring re-polishing to a dented garage door. The lessor has not discharged her evidential burden in relation to any of her additional claims. She had inadequate evidence of the condition of these items at the beginning of the tenancy. Further, this tribunal must make an allowance for fair wear and tear. Tenants are permitted to use items and inclusions and this is what has occurred in this matter. No further allowances are made for the matters listed in exhibit 8 and identified in the lessor’s request for compensation. Each of those further claims is dismissed.
The amounts allowed are:
a.Rent $1,829.00
b.Floor Repairs: $4,000.00
c.Carpet Cleaning: $ 110.00
d.Carpet Replacement $1,250.00
e.Total: $7,189.00
f.Less Bond $6,400.00 – (received by lessor)
g.Owing $ 789.00
The lessor has already received the bond, therefore the tenants are to pay the sum of $789.00 in final compensation.
Order
The Respondents pay to the lessor the sum of $789 in final compensation by 2 November 2012.
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