James White v Peter Koller
[2007] ACTRTT 27
•28 November 2007
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:JAMES WHITE –v- PETER KOLLER [2007] ACTRTT 27
RT 437of 2007
Catchwords: Abandonment by tenant during fixed term – Bond dispute.
Legislation:Residential Tenancies Act 1997 (ACT)
Sections 61 and 62
Section 38
Clause 84 Standard Residential Terms
Tribunal:Ms J.A. David , Member
Date: 28th November 2007
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 437 of 2007
RE: JAMES WHITE
(Applicant/Tenant)
AND: PETER KOLLER
(Respondent/Lessor)
DECISION
Tribunal : Ms J.A. David, Member
Date : 5 September 2007
Decision : 28 November 2007
That the tenant is to pay the lessor the sum of $53.57 being unpaid rent.
That the lessor is to pay the tenant the sum of $70.00, being compensation for initial carpet cleaning.
That, taking into account the rent arrears of $53.57, minus compensation of $70.00, the total amount owed by the lessor to the tenant is $16.43.
That the Office of Rental Bonds is directed to release $560.00 to the tenant forthwith.
…………………………….
J.A. David
Member
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 437 of 2007
RE: JAMES WHITE
(Applicant/Tenant)
AND: PETER KOLLER
(Respondent/Lessor)
REASONS FOR DECISION
28 November 2007 Ms. J.A. David, Member
Re: Premises at 29B Edkins Street, Downer ACT
BACKGROUND
The parties entered into a further residential tenancies agreement in relation to the premises at 29B Edkins Street, Downer in the Australian Capital Territory for a further fixed term of 6 months from 5 January 2007 to 30 June 2007. The tenant had occupied the premises from 7 July 2006 under a previous tenancy agreement. The bond of $560 had been lodged with the Office of Rental Bonds.
On 19 April 2006 the tenant forwarded to the lessor a Notice of Intention to break the lease in the following terms:
“I would like to move out as soon as possible (as soon as another tenant can move in) and would like you to start the reletting process. I wish for this process to be as smooth as possible as would like to cooperate with you to make this happen.”
In fact, the tenant moved out on 6 May 2007. The Final Inspection was carried out that day.
By letter dated 14 May 2007 the Lessor’s Property Manager, after noting the tenant’s written advice of his intention to vacate on 13 May 2007, and “waiving” the re-letting fee and advertising costs and final inspection fee, requested the tenant to pay:
ØRent for three days in the sum of $53.57 for the three days until the premises were re-let, and
ØCompensation for damaged and lost furniture of $560.
Finally, the Property Managers requested the tenant to sign the release of the bond in full to the lessor.
The tenant lodged the claim seeking the bond in full on the basis, that the items of furniture that the lessor claimed were damaged or lost, were a teak wall unit, lounge chair and coffee table that were left in the premises at the commencement of the original tenancy on 7 July 2006. The tenant claimed that he had not had room for the furniture and he had organised by phone with the lessor’s Property Manager to have the furniture removed on the day he moved in (7 July 2006). The tenant said he advised the Property Manager that the furniture would be moved outside for collection on 7 July 2006. He had removed the furniture outside on that day. However, the furniture was not collected that day and was outside for several days. The tenant further said that the furniture had got “slightly ruined” even though he had covered it with plastic sheeting. At the hearing, the lessor’s Property Manager argued that the person with whom the tenant talked to on the phone did not have the authority to agree to remove the furniture.
At the hearing the tenant said the furniture was in very bad condition prior to being moved outside. The lounge chair had tears and stains “all over it”. The tenant estimated the chair would have been worth only $10. The tenant claimed the teak coffee table was “very dated (1980s era) and not of substantial value”. He also claimed the teak wall unit had “several screws missing and the backing peeling away from the unit”.
The tenant had paid rent until 11 May 2007 and sought a refund of rent to the 6 July 2007, the day he moved out being 6 days at $20 per day on the basis that the Property Manager had caused unnecessary delays in renting the property. The tenant submitted that he had “gone to exhaustive lengths” to find a replacement tenant. He had interviewed 5 prospective tenants and provided information to the Property Managers on all of the interviewees. A new tenancy agreement was signed on 14 May 2007 for a 12 month term to commence on 14 May 2007. The tenant claimed that, as one of the prospective tenants he interviewed had said he would be able to move in on 5 May 2007, he should not have to pay rent until 14 May 2007, but should be refunded the rent he had paid in advance from 6 to 11 May 2007. The Property Managers advised that the lessor was not claiming rent for the balance of the period the property had been vacant; from: 11 – 13 May 2007.
The tenant sought compensation of $6 for copying a key to the premises. He withdrew this claim at the hearing. The tenant sought compensation of $70 being the cost of cleaning the premises when he initially moved in. He also sought the Application fee, however, as this was waived by the Tribunal, this part of his claim was withdrawn at the hearing.
The matter was heard and determined on 5 September 2007. There was no appearance by the lessor. The following is the Tribunal’s determination:
“1. That the tenant is to pay the lessor the sum of $53.57 being unpaid rent.
2.That the lessor is to pay the tenant the sum of $70.00 being compensation for initial carpet cleaning.
3.That taking into account the rent arrears of $53.57, minus compensation of $70.00, the total amount owed by the lessor to the tenant is $16.43.
4That the Office of Rental Bonds is directed to release $560.00 to the tenant forthwith.”
The tenant requested this Statement of Reasons on 5 September 2007. The Tribunal apologises for the time taken to provide them.
Documentary Evidence
The tenant submitted the following documentary evidence:
· Statement of Particulars
· Residential tenancy agreement
· Letter to tenant from Lita McKell & Associates Realty dated 2 April 2007 advising rent to increase
· Letter to tenant from Lita McKell & Associates Realty dated 14 May 2007 containing the claim for compensation
· Chronology of Communications
· Emails between tenant and the new tenant concerning length of next lease
· Inventory and Condition Report
· Undated letter to tenant from Registrar-Generals Office, Office of Regulatory Services
· Receipt for carpet cleaning
The lessors did not submit documentary evidence.
FINDINGS AND REASONING
Applicable Law
Section 62 of the Act provides:
62 Abandonment during fixed term
(1) If a tenant abandons premises before the end of a fixed term agreement, the former lessor may apply to the tribunal for the following compensation:
(a) compensation for the loss of the rent that the former lessor would have received had the agreement continued to the end of its term;
(b) compensation for the reasonable costs of advertising the premises for lease and of giving a right to occupy the premises to another person.
(2) On application, the tribunal may award compensation of the kind mentioned in subsection (1) (a) and (b).
(3) The amount of compensation the tribunal may award—
(a) under subsection (1) (a) must not exceed an amount equal to 25 weeks rent; and
(b) under subsection (1) (b) must not exceed an amount equal to 1 week’s rent.(4) In deciding the amount of compensation that may be awarded under subsection (2) in relation to costs, the tribunal must have regard to when, apart from the abandonment of the premises —
(a) the agreement would have ended; and
b) the lessor would have incurred the costs mentioned in subsection (1) (b).
Overpayment of rent
The lessor is claiming compensation of $53.57 under section 62 (1)(a) representing the loss of rent for the premises for three days from the day after the rent was paid to: that is from 11 May 2007 to 13 May 2007 inclusive.
Whilst the Tribunal was sympathetic to the tenant’s arguments that:
Ø He had given written notice to vacate by letter dated 19 April 2007, posted to the Property Managers on 20 April 2007.
Ø He had gone to “exhaustive lengths” including interviewing 5 prospective tenants and giving information to the Property managers of all of the tenants. The information was forwarded from as early as 24 April 2007.
Ø One of the prospective tenants interviewed was willing to take over the lease and one was willing to move in on 5 May 2007. The tenant argued that the lessor could thus have rented the premises from 5 May 2007.
Ø The tenant therefore argued that the Property Manager could have relet the premises earlier that 14 may 2007 and thus have carried out the lessor’s duty to mitigate under section 38 of the Residential Tenancies Act 1997.
Ø The lessor’s Property Managers had insisted on the new tenant signing a 12 month tenancy agreement, not just an agreement for the remainder of the tenant’s term until 30 June 2007. Again the tenant argued there had been a failure to carry out the lessor’s duty to mitigate under section 38 of the Residential Tenancies Act 1997..
In their letter dated 14 May 2007 to the tenant, the lessor’s Property Manager stated that the date of vacation had been advised as 13 May 2007. The tenant did not agree or disagree with this at the hearing. He merely stressed that he had requested to vacate and for the premises to be relet “as soon as possible”.
The Tribunal carefully considered the wording of section 62(1)(a) of the Act: that the lessor can apply for “compensation for the loss of the rent that the former lessor would have received had the agreement continued to the end of its term” and is of the opinion that the lessor was well within his rights when the Property Manager took time to “vet” the prospective tenants referred to them by the tenant and entered into a 12 months lease rather than a lease for the remainder of the “old” tenant’s term.
The Tribunal is also of the opinion that the lessor mitigated his losses under section 38 of the Act in that the Property Managers did act on the information re prospective tenants forwarded to them by the tenant, and re-let the property to one such prospect within 8 days of the tenant vacating and one day after the end of the tenant’s formal written notice date. In the Tribunal’s experience this is a very short time for re-letting to occur.
Therefore, the Tribunal determined that this part of the tenant’s claim should be dismissed. The Tribunal ordered accordingly.
Furniture
The lessor claimed $560 to replace furniture that was on the premises at the commencement of the original tenancy in July 2006. Taking into account the evidence presented by the tenant (referred to in paragraphs 5 and 6) on the balance of probabilities, the tribunal found that the furniture did not form part of the leased premises and, even if it did, it was of very little value. The lessor should have collected the furniture, as agreed between the tenant and the lessor’s Property Managers by phone. Therefore, the tribunal found in favour of the tenant in relation to this part of the lessor’s claim set out in the Property Managers letter dated 14 May 2007.
Overpayment of bond
The tenant claimed that the bond should have been $500, not the $560 agreed to in the tenancy agreement, on the basis that the rent had been calculated at $125 per week with an additional amount of $15 per week charged for electricity. Whilst the rent of $140 per week may have been so calculated, the rent agreed to in the tenancy agreement between the lessor and the tenant is $140. As such, the bond was correctly calculated at $560. The bond was lodged with the Office of Rental Bonds as required by the Act. As a result, this part of the tenant’s claim was dismissed.
Copy of Key
This part of the tenant’s claim was withdrawn at the hearing.
Initial Cleaning Cost
The tenant gave evidence that he paid $70 to ACT Upholstery & Carpet Cleaning to cleaning the carpets in the premises at the commencement of the original tenancy. He stated that the premises were not clean at the commencement and he had to clean the premises to render them habitable. The Inventory and Condition Report dated 7 June 2006 substantiated the tenant’s evidence that the property was in a dirty condition at the commencement of the tenancy..
The Lessor had an obligation to provide premises in a reasonably clean and tidy condition and reasonably habitable at the commencement of the tenancy. The lessor did not fulfil that obligation and the tenant is entitled to recover the cost of cleaning the carpets from the lessor. The tenant absorbed the other cleaning costs in mitigation as required by section 38 of the Act. As a result the Tribunal ordered the lessor to pay compensation to the tenant in the sum of $70 for the cost of cleaning.
Application fee
As stated above, the tenant withdrew this part of his claim as the fee was waived.
ORDERS
1.That the tenant is to pay the lessor the sum of $53.57 being unpaid rent.
2.That the lessor is to pay the tenant the sum of $70.00 being compensation for initial carpet cleaning.
3.That taking into account the rent arrears of $53.57, minus compensation of $70.00, the total amount owed by the lessor to the tenant is $16.43.
4That the Office of Rental Bonds is directed to release $560.00 to the tenant forthwith.
Jennifer David
Member
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