JF Hartley Family Trust v Torres
[2014] QCAT 641
•25 November 2014
| CITATION: | JF Hartley Family Trust v Torres [2014] QCAT 641 |
| PARTIES: | JF Hartley Family Trust (Applicant) |
| v | |
| Shareena Torres (Respondent) |
| APPLICATION NUMBER: | MCDT226/14 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 21 October 2014 |
| HEARD AT: | Coolangatta |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 25 November 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the claim is dismissed. |
| CATCHWORDS: | Minor civil dispute – residential tenancy matter – bond dispute – claim for compensation above the bond – claim for rent arrears, cleaning, relet fee and advertising – whether tenant required to pay rent arrears when issued Form 12 Notice to leave – appropriate order made to resolve the dispute Residential Tenancies and Rooming Accommodation Act 2008 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mrs Leonira Hartley |
| RESPONDENT: | Ms Shareena Torres |
REASONS FOR DECISION
The J.F. Hartley Family Trust manages a unit at 96 Galleon Way at Currumbin Waters and they commenced proceedings against the previous tenant for rent arrears, and other costs. Their claim is for $3197.40.
Ms Torres was the tenant who signed a fixed term Residential Tenancy Agreement for the property at Currumbin Waters. The agreement commenced on 18 April 2014 and ended on 16 July 2014.[1] The rent was $350.00 per week.
[1]Attached to original claim.
At the conclusion of the hearing, the applicant was granted leave to file further evidence relating to the start date of the new tenancy. The applicant has filed that evidence and it has been considered.
Applicant Lessor’s evidence
Mrs Hartley claims the sum of $2150.00 for rent arrears, $495.00 cleaning costs, $385.00 for a relet fee, $66.00 advertising costs and the filing fee of $101.40. Copies of receipts were attached to the original claim. She said that the tenant fell behind in her rent. The tenant was issued with a Form 11 Notice to Remedy Breach[2] regarding rent arrears on 9 May 2014 alleging 15 days rent arrears, giving the tenant until 16 May 2014 to remedy the breach.
[2]Attached to original claim.
Mrs Hartley said that the tenant did not pay the rent arrears and on 17 May 2014 a Form 12 Notice to Leave[3] was served on the tenant. The tenant was given until 23 May 2014 to vacate the property. She claims that the tenant vacated the property on 23 May 2014 and that she found the keys at the property on that date.
[3]Attached to original claim.
Mrs Hartley alleged that the tenant had paid rent up until 24 April 2014 as at the date she vacated.
Mrs Hartley said since she had filed the claim that she had received the Bond of $1,400.00 from the RTA, so the claim was reduced to $1,797.40. Mrs Hartley claimed that this was a break lease situation. She said the calculation of rent arrears was up to the time a new tenant was found which was 6 June 2014.
Mrs Hartley provided a bundle of photos[4] to the tribunal regarding the condition of the property at exit. The Exit Condition Report dated 26 May 2014 was attached to the original claim.
[4]Exhibit 2.
The parties attended mediation with the Residential Tenancies Authority, agreement was not reached and a Notice of unresolved Dispute was issued on 9 September 2014.[5]
[5]Exhibit 1.
Respondent Tenant’s evidence
Ms Torres said that she had been living in the property for 2 years, since 2012. She said that she did not want to leave her home when she was threatened with eviction. She said she went to court before where it was dismissed because the Notices were wrong.
Ms Torres disputed the additional costs relating to the cleaning, relet fees and advertising costs. She said that she thought her bond would only be required to pay rent up to and including the date she moved out. She said she vacated on 20 May 2014 and left the keys in the letterbox.
Ms Torres claimed that she did not want to move out of the property and that she wanted to give the Lessor the outstanding money for the rent arrears rather than move out. She acknowledged she did not pay the rent arrears pursuant to the Form 11 Notice, but that when she offered to pay the arrears later, the Lessor said it was too late and the Owner wanted her to leave. She said she tried to telephone the owner as the owner had been compassionate in the past and allowed the tenant to catch up on rent before when she fell behind.
Ms Torres said that she lived in the unit with her daughter and that she had recently been diagnosed with breast cancer, had been very sick and had difficulties meeting her financial obligations on time. She said she had stopped working for a while, as she was too sick to work for a period of time.
Ms Torres said she was so sick, and had to move so quickly that her children had to find alternative accommodation for her. She said she was living in a small one bedroom flat and most of her possessions were in storage.
Ms Torres said she left the property in a clean state. She said that she objected to the invoice relating to the Bond Clean as it was not genuine and was issued by a Bob Cat and Landscaping business that was owned by the owners of the property.
Ms Torres claimed that she was served with a Form 11 Notice to remedy Breach that was issued on 28 April that gave her until the 5 June 2014[6] to leave, she said she thought she had more time. A copy of the Notice was provided to the tribunal. Mrs Hartley said that Notice was incorrect and obviously contained a typographic error, in that it was issued with the wrong date. Mrs Hartley said that she had to reissue another Notice to remedy Breach on 29 May 2014 to correct the previous incorrect Notice.
[6]Exhibit 3.
Legislation
The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.[7]
[7]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 11.
A minor civil application for a claim for a tenancy matter — a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter.[8]
[8]Ibid s 12(4)(f).
In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.[9] The tribunal may make an order requiring a party to the proceeding to pay a stated amount to a stated person.[10]
[9]Ibid s 13(1).
[10]Ibid s 13(2)(a)(i).
The tribunal can hear and determine general disputes between lessors and tenants.[11] If there is a dispute between the lessor and tenant about an agreement, either party may apply to a tribunal for an order. The tribunal may make any order it considers appropriate to resolve the dispute.[12]
[11]Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) s 429.
[12]Ibid s 429(1).
The tribunal must not make any order for compensation in favour of a lessor, without regard to particular matters. Those matters include the rent required to be paid but not paid for the period starting when the agreement is terminated because of the tenant's action and ending, when the period fixed as the term of the tenancy ends; or if the premises are relet before the end of the period when the premises are relet.[13]
[13]Ibid s 421 (1).
The tribunal may order a tenant to pay advertising expenses incurred by the lessor for reletting the premises and any other expenses incurred by the lessor for work carried out by the lessor for reletting the premises.[14]
[14]Ibid s 421(1)(b).
A lessor must meet their obligation to mitigate loss or expense to the tenant.[15]
[15]Ibid s 421(1)(d).
The lessor or tenant under a residential tenancy agreement may apply to the tribunal about an issue only if the applicant has first made a dispute resolution request about the issue and the conciliation process has ended without a conciliated resolution having been reached.[16]
[16]Ibid s 416.
A Lessor may serve on a tenant a Notice to leave because of failure to remedy breach; however, the lessor must only issue such Notice if the Lessor reasonably believes the tenant has not remedied the breach during the relevant period.
A Lessor who produces terms of a tenancy agreement in writing must on or before the day the tenant occupies the premises under the agreement prepare, in the approved form, a condition report for the premises and any inclusions; and sign the report; and give a copy of the report to the tenant.[17]
[17]Ibid s 65.
A Lessor and tenants must complete a Condition report at end of tenancy. The tenant must prepare, in the approved form, a condition report for the premises and any inclusions; and sign the report; and as soon as practicable after the agreement ends, give a copy of the report to the lessor. The lessor must, within three business days after receiving the copy of the report sign the copy; and send it to the tenant if the tenant has provided a forwarding address.[18]
[18]Ibid s 66.
Findings
I find that the tenant ledger[19] shows that the rent was paid up to 24 April 2014 when the bond was released. I find that the Bond of $1,400.00 has been applied to the rent arrears bringing rent paid up to 23 May 2014. The Lessor alleges that the tenant vacated on 25 May 2014 and left the keys in the letterbox.
[19]Attached to original claim.
I find that the Lessor gave the tenant notice to vacate the property by 25 May 2014, and that she did so. I find that the tenant did not want to leave the property and it was not disputed by the Lessor that the tenant had been struggling with cancer and serious debilitating medical treatments. The tenant moved out as requested. I do not find that she must pay rent up to the date a new tenant was found. The tenant said she wanted to pay the arrears and stay in the property. I accept the Lessor was given instructions by the owner to enforce the Notice to leave and on that advice the tenant vacated.
I find that the tenant was forced to leave her home when she did not want to, and while unwell and receiving medical treatment. While I accept that the owner is entitled to force the issue of vacant possession, the tenant had a fixed term lease in place, and I find it was insensitive to force such a situation given the tenants personal health circumstances. I find that she owes rent up to the date of the Form 12 Notice to leave or the date she vacated the property, which ever was the earliest. The lessor alleges the date of vacate was 25 May, the tenant alleges 20 May. I cannot make any findings of fact as to the actual date the tenant vacated other than to confirm the keys were located by the Lessor in the letter box on 25 May 2014.
I find that the rent was paid up to 23 May when the Bond was released. I do not intend on making an order that the tenant pay a further payment of 2 days rent, in the circumstances the Lessor demanded the tenant leave, she did so and was put to costs and expenses in leaving the property before her lease was due to end.
I take into account Ms Torres evidence that she had to move in a hurry, was unwell, is currently living in unsuitable accommodation and put to the expense of storing her possessions. I find that the bond will be deemed as full and final payment of all rent arrears owing up to the date the tenant vacated the property.
The Lessor did not provide to the tribunal a copy of the Entry condition report and I cannot make any findings that the property was clean and tidy when the tenant moved into the premises in 2012. An Exit Condition report was provided indicating that the property was not clean and the gardens not done after the tenant vacated. From the photos I find that the tenant did not thoroughly clean the property before she left, although I understand her medical condition, she did the best she could in the circumstances.
I have considered the content of the Invoice from Holmesy’s Bobcat and Landscaping for cleaning costs in the sum of $495.00. The lease agreement does indicate that the owner of the unit has a surname “Holmes” and it is coincidental the invoice for cleaning is from a company bearing the same name.
I find that when determining the issue of compensation a Lessor or Owner should only be reimbursed for those funds spent in bringing the property up to the requisite standard for the property to be relet. The photos do indicate that some cleaning was required. The invoice and evidence suggests that the owner himself did the cleaning and that the owner did not pay for a professional Bond Clean. In the circumstances, for the reasons that there is an absence of an entry condition report, there was no evidence that the owner was put to expense in cleaning the property, no evidence that the Owner was out of pocket or paid for cleaning, I refuse the claim for the cost of the bond clean. I am not persuaded the cleaning costs are fair and reasonable based on the evidence provided and in all the circumstances.
The Lessor’s claim for payment of a break lease fee and advertising costs in my view is without merit. The lease was due to end in any event in July 2014. The tenant vacated a few weeks earlier in late May 2014. Had the lease not been renewed or the tenant filed a notice of intention to leave, the owner would have been required to expend funds with the Agent in finding a new tenant in July 2014 in any event. In the circumstances, I am not persuaded that Ms Torres should pay a relet fee and advertising costs.
The decision I have reached for the reasons given, and the orders I propose to make to give effect to that decision, is as follows:
1. The claim is dismissed.
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