Joseph R & Judith P Hlubucek -v- Arthur & Elizabeth Sinodinos
[2007] ACTRTT 12
•26 April 2007
Joseph R & Judith P Hlubucek -v- Arthur & Elizabeth Sinodinos ACTRTT12 [2007]
Arthur & Elizabeth Sinodinos -v- Dr & Mrs Hlubucek
CATCHWORDS
End of lease – Compensation to lessor - “Fair wear and tear”
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Sections 29, 30, 31(a) and 38
Clauses 63 and 64 Standard Residential Terms
CASE LAW
CASE REFERENCE NUMBER: RT 88 of 2007
Joseph R & Judith P Hlubucek -v- Arthur & Elizabeth Sinodinos
RE: Premises at 14 Kareelah Vista, O’Malley, ACT 2606
CASE REFERENCE NUMBER: RT 159 of 2007
Arthur & Elizabeth Sinodinos -v- Dr & Mrs Hlubucek
RE: Premises at 14 Kareelah Vista, O’Malley, ACT 2606
DECISION
ORDERS
1That the tenants pay $500 to the lessors as compensation for the damage to the garage door to be deducted from the bond and released to the lessors on production to the Tribunal by the lessors of a receipt or receipts for the cost of the replacement or repair of the garage door.
2That the tenants pay to the lessors the sum of $50 for the cost of the replacement or repair of both controllers to be deducted from the bond and released to the lessors on production to the Tribunal by the lessors of a receipt or receipts for the cost of the replacement or repair of both controllers.
3That the tenants pay the sum of $136.75 being for gas consumed on the premises to be deducted from the bond and paid to the lessors.
4That the tenants to pay compensation to the lessors in the sum of $363.00 for the removal of the satellite dish and associated wiring on production to the Tribunal by the lessors of a receipt or receipts for the cost of the removal of the dish and associated wiring.
5That the Office of rental Bonds is to release the balance of the bond in accordance with this Order.
i.The lessors are to produce the receipts referred to in Orders 1-4 above to the Tribunal within 21 days.
ii.If no receipts are so produced, the Tribunal Registry is to notify the Office of Rental Bonds to release the full balance of the bond to the tenants.
iii.If receipts are produced for a lesser amount than set out in Orders 1-4 above, the Tribunal Registry is to notify the Office of Rental Bonds to release an amount representing the total of the receipts so produced to the lessors and to release the remaining balance of the bond to the tenants.
6That the balance of the lessors’ claim is dismissed.
Member: Jennifer David
Date: 26 April 2007STATEMENT OF REASONS
BACKGROUND
1. Being in the nature of cross-actions, these matters were joined at the hearing on 13 March 2007.
2. The four-year, fixed term tenancy of the premises at 14 Kareelah Vista, O’Malley in the ACT having ended; the Final Inspection took place on 11 December 2006. The lessors advised the tenants by letter dated 21 December 2006 that they intended to deduct from the bond the cost of repairs and replacement of items they considered beyond fair wear and tear. The tenants having objected to this on the basis that the Final Inspection had indicated there were no problems and the tenants had spent considerable sums estimated to be approximately $$2,000 preparing the premises for the lessors’ return. Subsequently the lessors brought proceedings in the Tribunal seeking a total of $2,535.25 compensation from the tenants under section 31(a) of the Residential Tenancies Act 1997 (the Act) as follows:
(a)$1430 replacement cost of garage panel lift door
(b)$352 cost of dry cleaning 4 pairs of window drapes
(c)$144 replacement cost of 2 remote controls for garage door
(d)$140 cost for locksmith to open deadlock on garage rear door and re-key the lock
(e)$150 for carpet stain cleaning
(f)$136.75 charge for gas consumption
(g)$18.50 replacement of spare filter for central vacuum cleaning system
(h)$20 replacement of 4 sink plugs
(i)$20 replacement of 1 of a pair of silk rope tie-backs for drapes
(j)$20 replacement of front door mat
(k)$104 lodgement fee.
3. The lessors stated both in their Statement of Particulars and at the hearing that the above were not the only damage or missing items noted at the end of the tenancy: they had accepted as “normal wear and tear” a number of items including “oil stains on garage floor”, “black marks on terracotta flower pots”, a “large chunk off one flower pot”, 8 hooks “stuck with adhesive to gyprock walls”, “multiple cuts on white ceramic sink in kitchen … used as a chopping board”, “deep scratches on white ensuite bathroom vanity top”, and one “panel detached from three-panel glass shower screen”.
4. The tenants lodged a claim (RT 07/159) against the lessors which was in effect a defence to the lessors’ proceedings. The two matters were ordered to be joined at the hearing. The tenants requested an order that the balance of the bond be returned to them. They submitted that the lessors’ then Property Manager has indicated at the Final Inspection there were no problems and that she was “more than satisfied” with the condition of the premises.
5. At the hearing on 13 March 2007 the Tribunal ordered subpoenas to be issued for the former Property Managers, Blackshaw Real Estate Pty Limited, to attend the hearing to give evidence and to produce the Agency’s file and all documents relating to the tenancy in their possession. Ms Sharon Klugston and Mr Lou Seminara from Peter Blackshaw Real Estate Pty Limited attended the hearing, gave evidence and produced the relevant file and documents. Mr Seminara had conducted two of the routine inspection s of the premises and gave evidence that the condition of the premises was “excellent”; that the tenants had a maid or cleaning lady who kept the premises immaculately. Mr Seminara also stated that the tenants had walls repainted that the end of the tenancy.
6. The Tribunal reserved its decision. The lessors having requested the tenants to either remove or pay for the removal of the Foxtail/Broadband connection installed by the tenants in the premises without the permission of the lessors, at the request of the lessors who found the installation aesthetically unappealing, the Tribunal ordered the lessors to lodge two quotes for the removal of installation as the tenants were no longer in possession of the premises. The Tribunal also gave leave to each party to make further written submissions in relation to the quotes so lodged.
7. Subsequently the lessors lodged a quote from CanBuild Total Solutions Pty Limited dated 22 March 2007 for a total cost of $363.00 to remove the satellite dish and all wiring to the dish. The lessors also made written submissions dated 27 March 2007 which did not relate to the above quote. These latter submissions could not be considered by the Tribunal: by Order in Chambers they were ordered to be returned to the lessors. The tenants did not lodge further written submissions.
Documentary Evidence
8. The lessors submitted the following documentary evidence:
(a)Statement of Particulars in RT 88/07
(b)Letter dated 21 December 2006 from the lessors to the tenants
(c)Eight photographs of premises taken at end of tenancy
(d)Registrar-General’s Office Notice that $2304.5 of the bond remains in dispute
(e)Lessor’ undated Response to Tenants’ Statement of Particulars
9. The tenants submitted the following documentary evidence:
(a)Statement of Particulars in RT159/07
(b)Residential Tenancy Agreement dated 23 December 2004
(c)Tenant rust Ledger Report for Sinodinos from 23 November 2004 to 13 December 2006
(d)Letter from Blackshaw Real Estate Pty ltd to Arthur Sinodinos dated 6 November 2006
(e)Inventory and Condition Report dated 24 November 2005
(f)Inspection Report dated 22 August 2006
(g)Tax Invoice from KB Home Maintenance dated 8 December 2006
(h)Receipt for $880 dated 9 December 2006 stated to be for “repair work on”
(i)Receipt from A Cut Above Cleaning and Home Care dated 9 December 2006
(j)Receipt from Excel Dry for carpet and window cleaning dated 9 December 2006.
Findings and Reasoning
Applicable Law
10. Clauses63, 64 and 65 of the Standard Residential Tenancy Terms (Standard Terms) in the Schedule to the Act provides:
63 During the tenancy, the tenant must—
(a) not intentionally or negligently damage the premises or permit such damage; and
(b) notify the lessor of any damage as soon as possible; and
(c) take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.
64 The tenant must leave the premises—
(a) in substantially the same state of cleanliness, removing all the tenant’s belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and
(b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.
65 The lessor must not require the tenant to make alterations, improvements or renovations to the premises.
11.Section 31 of the Act provides:
31. A lessor is entitled to deduct from the bond paid ...any of the following:
(a) the cost of repairs to, or the restoration of the premises or goods leased with the premises as a result of damage(other then fair wear and tear) caused by the tenant;
12.Section 38 of the Act provides:
A person who, apart from this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, where the loss, or part of the loss, to be compensated could have been reasonable avoided.
13. Sections 29 and 30 of the Act make provision for an Inventory and Condition Report of the premises and further provides for the evidentiary value of that Report at the commencement of the tenancy. In so far as the sections are relevant to this matter, as the Report that was delivered to the tenants by the then Property Managers was not signed by either party to the tenancy agreement, section 30 (2) provides that “a statement in the Inventory and Condition Report about the state of repair or general condition of the premises, and of any goods leased with t he premises, is evidence of that state of repair or general condition on the day the tenant was given the report”.
14.An inspection report of a Final Inspection that was attended by both the lessors and the tenants, agreed to by both, is accepted by the Tribunal as evidence of the condition of the premises at the end of the tenancy. However, in this matter there was no such Final Inspection Report. There were photographs of the premises at the commencement of and termination of the tenancy. The Tribunal has accepted that a there must be finality about the condition of the premises at the end of the tenancy. See for instance Yandle v Katsoulis [1999] ACTRTT 1 and Young v Forsyth [2003] ACTRTT. A lessor cannot add additional items after the Final Inspection that the lessor discovers need repairing, cleaning or restoring unless such further discovered items would not have been visible at the time of the final inspection. Even in those later circumstances, there has to be a finite limit to the time in which a lessor can discover such a need and add an item to the list. Once the tenants have vacated the premises they have no control over what happens in and to the premises and should not continue to be held responsible for matters that could have occurred after they vacated the premises.
15.Sections 100 and 102 (1)(b) of the Act provide that “the parties to a hearing shall bear their own costs unless the tribunal, if it considers that a party to an application caused unreasonable delay or obstruction before or during the hearing of the application, require the party to pay the reasonable costs of the other party arising from the hearing”.
Applying the Law to the Individual Items Claimed
(a) Replacement cost of garage panel lift door
16.The lessors’ evidence was that the bottom panel of one of the garage doors was dented, a fact that was not discovered until the day after the Final Inspection as that garage door had been open during the Inspection on 11 December 2006. The lessor Mrs Hlubucek said that when she showed the damage to the door to the tenant Mrs Sinodinos on 12 December 2006, the tenant had said she was not aware of the damage and that the removalists must have caused it.
17.The lessors filed two photographs of the damage to the door with their Application. The copy of the unsigned Condition Report dated 24 November 2004 produced under subpoena by the former Property Manager’s representative, did not indicate the condition of the garage doors at the commencement of the tenancy nor at the Final Inspection.
18.The lessors submitted that the bottom panel could not be replaced the design of the panels was changed around 2000 and a matching replacement panel is no longer available. On 18 December 2006 ACT.Doorland quoted $1430.00 for the removal and the replacement cost of the whole door. The lessor Mrs Hlubucek said the representative from ACT.Doorland has informed her that the door had been “damaged for a little while”. The lessors have yet to replace the garage door.
19.The tenants’ evidence was that the garage door was still in working order. There had been one occasion on which there may have been a “knocking” on the garage door by the tow bar of their vehicle when the door did not open quickly enough as their car was driven out of the garage. The tenants offered $500 towards the replacement cost of the door on the ground the door was approximately 15-20 years old.
20.The representative of the former Property Managers, Ms Sharon Klugston said she had attended the final Inspection and has ticked off and made notes on the original Condition Report concerning the state of the premises. She produced a copy of the Condition Report as marked at the Final Inspection. There was no note concerning the condition of the garage door as it had been open during the Inspection. Ms Klugston said the garage door is still in working order.
21.Having carefully considered the evidence of both the lessors and the tenants, the Tribunal finds that on the balance of probabilities the garage door was damaged by the tenants or their removalists during the tenancy.
22.Taking into account the age of the garage door and the fact that it is still in working order, the Tribunal is of the opinion that the tenants’ offer of $500 towards the replacement cost of the whole garage door is fair and reasonable and orders that that amount be deducted from the bond and released to the lessors on production to the Tribunal by the lessors of a receipt or receipts for the cost of the replacement or repair of the garage door.
(b) Cost of dry cleaning 4 pairs of window drapes
23.The lessors stated in their Statement of Particulars that there were deep creases in 4 pairs of lined drapes caused by the tenants having the drapes permanently tied back to hooks stuck to the walls. This also resulted in the opening edges of the drapes not hanging straight. At the hearing the lessor Mrs Hlubucek stated that the drapes won’t close properly because the opening edges are stretched. The creases have not dropped out over time. The lessors claimed the amount of dry cleaning the most affected drapes. The drapes have not yet been dry cleaned.
24.The tenants said that the drapes were only tied back some of the time. For instance, the drapes in the dining room were tied back when the screen door was opened to prevent the sheer curtains catching on the door locks.
25.Ms Klugston gave evidence that the drapes were creased at the Final Inspection but that she considered it was most probable “fair wear and tear”. Ms Klugston said dry cleaners had stated the creases would most probably drop out. The Inventory and Condition Report listed the curtains at each window but made no comment on their condition. The Final Inspection “ticks” and remarks on that report did not make any comment on the condition of the drapes.
26.Having carefully considered the evidence of both the lessors and the tenants, the Tribunal finds that the creases in the drapes were within the “fair wear and tear” exception in Clause 64(b) of the Standard Terms for which the lessors are not entitled to compensation. As a result, the Tribunal dismisses this part of the lessors’ claim.
(c) Cost of replacing 2 remote controls for garage door
27.In their Statement of Particulars the lessors stated that two remote controllers to the garage doors were returned by the tenants with the cover to the battery compartments missing and part of the plastic casings broken. A photograph with the Application showed the two controllers without the battery coverings and with damage to the plastic casing of one. At the hearing the lessors confirmed that the damage was to one casing. The lessor Mrs Hlubucek said that both remote controllers were 15 years old, not broken and working at the commencement of the tenancy. The lessors had obtained a quote from ACT.Doorland Pty Ltd of $$144 to replace both controllers.
28.The tenants stated that both remote controllers were in the same condition as at the beginning of the tenancy when handed back. Ms Klugston stated that the batteries were inside the controllers at the Final Inspection but the panels at the back were broken. The controllers were both still working.
29.There was no note made on the Inventory and Condition Report at the Final Inspection. The Report listed “each door has a remote control door opener” without any comment on their condition.
30.Given the age of the controllers and the fact that they were still working at the Final Inspection, the Tribunal is of the opinion that the loss of the cover to the battery compartments and the damage to the plastic casing of one of them is not fair wear and tear, but that the tenants should not have to pay compensation of the full replacement cost. The Tribunal orders that the amount of $50 be deducted from the bond and released to the lessors on production to the Tribunal by the lessors of a receipt or receipts for the cost of the replacement or repair of both controllers.
(d) Cost for locksmith to open deadlock on garage rear door and re-key the lock
31.In their Statement of Particulars the lessors stated that door at the rear of the garage was locked at the Final Inspection and the existing key did not open the lock. As a result, the lessors claimed $140.00 being the cost they incurred for Canberra Locksmiths to open the deadlock and re-key the combination.
32.The tenants stated the damage could not have been caused by them as they had never used this door. Ms Klugston said she did not notice the rear door not opening at the Final Inspection. She thought the lock could have “seized” through not being used. The Final Inspection notes on the Condition and Inventory Report did not contain any note about the condition of this door lock.
33.Having carefully considered the evidence of both the lessors and the tenants, the Tribunal finds that the damage to the rear door lock was not caused by the tenants and dismisses this part of the lessors’ claim.
(e) Cost of cleaning carpets
34.The lessors claimed $150 being the cost of cleaning four areas of carpet where there had been mats placed on the carpets which apparently the tenants’ carpet cleaners had not removed prior to steam cleaning all the carpets. The lessors submitted that the marks were “dark” however, photographs attached to the Application showed two areas of carpet with “light” rectangular-outlined marks. The tenants submitted that there were no stains on the carpets and that the carpets had been steam cleaned prior to handover. Ms Klugston stated she did not remember seeing any stains on the carpets which has just been cleaned prior to the Final Inspection.
35.Taking all the evidence into account the Tribunal finds that the marks on the carpets are within the exception in Clause 64(b) of the Standard Terms for which the lessors are not entitled to compensation. As a result, the Tribunal dismisses this part of the lessors’ claim.
(f) Gas Consumption Charge
36.The lessors claimed the sum of $136.75 for consumption by the tenants of gas supplied by ActewAGL. A receipt for that amount was attached to the Application. The tenants having agreed to pay this account, the Tribunal orders that the amount of $136.75 be deducted from the bond and paid to the lessors.
(g) Replacement cost for spare filter for central vacuum cleaning system
37.The lessors claimed the sum of $18.50 for the replacement of the spare filter for the central vacuum cleaning system they stated was left in the garage at the commencement of the tenancy. The lessor Mrs Hlubucek said that the item was not noted as missing at the Final Inspection. The former Property Manager, Ms Klugston said that the loss of the spare filter was not picked up on the Final Inspection as it was not on the Condition and Inventory Report.
38.The item not being listed in the Condition and Inventory Report and the tenants not being aware of the spare filter, the Tribunal finds on the balance of probabilities that the tenants were not responsible for the loss of the spare filter and dismisses this part of the lessors’ claim.
(h) Cost of replacement of 4 sink plugs
39.The lessors claimed the sum of $18.50 for the replacement of four sink plugs they said were missing at the end of the tenancy though the loss was not picked up at the Final Inspection. Ms Klugston confirmed that the lack of the plugs was not noticed at the Final Inspection. The tenants stated the plugs must have “gone missing”. The plugs were not listed on the Condition and Inventory Report nor noted on the Final Inspection notes thereon. The Condition and Inventory Report did state on the first page that “unless otherwise stated the property is in a good clean condition and intact through out”.
40.Again, as stated above, the Tribunal has accepted that a there must be finality about the condition of the premises at the end of the tenancy. See for instance Yandle v Katsoulis [1999] ACTRTT 1 and Young v Forsyth [2003] ACTRTT. A lessor cannot add additional items after the Final Inspection that the lessor discovers need repairing, cleaning or restoring unless such further discovered items would not have been visible at the time of the final inspection.
41.Having carefully considered the evidence of both the lessors and the tenants, the Tribunal finds that on the balance of probabilities there were four sink plugs at the commencement of the tenancy. However, the cost of replacing the four sink plugs is not a cost for which the tenants are liable and the Tribunal dismisses this part of the lessors’ claim.
(i) Cost of replacement of 1 of a pair of silk rope tie-backs for drapes
42.The lessors claimed $20 for the cost of replacement of a pair of silk rope tie-backs for drapes on the basis one of the tiebacks in the family room was missing at the end of the tenancy. The lessors said that this was not noticed at the Final Inspection. The tenants said they “did not know” about the tie-back being missing. Ms Klugston did not give evidence on this point. The Condition and Inventory Report did not mention tie-backs to curtains and there was no note of the missing tie-back in the notes from the Final Inspection on that Report. The Condition and Inventory Report did state on the first page that “unless otherwise stated the property is in a good clean condition and intact through out”.
43.Again, as stated above, the Tribunal has accepted that a there must be finality about the condition of the premises at the end of the tenancy. See for instance Yandle v Katsoulis [1999] ACTRTT 1 and Young v Forsyth [2003] ACTRTT. A lessor cannot add additional items after the Final Inspection that the lessor discovers need repairing, cleaning or restoring unless such further discovered items would not have been visible at the time of the final inspection.
44.The Tribunal finds that on the balance of probabilities there was a pair of tie-backs at the commencement of the tenancy. A missing tie-back for a drape would have been visible at the Final Inspection and was not mentioned at that Inspection. Therefore the Tribunal finds that the cost of replacing the missing tie-back is not a cost for which the tenants are liable and dismisses this part of the lessors’ claim.
(j) Cost of replacement of front door mat
45.The lessors claimed $20 for the cost of replacement of a front door mat which they said was missing at the end of the tenancy. The lessors said that this was not noticed at the Final Inspection. The tenants said they “did not know” about the front mat being missing. Ms Klugston did not give evidence on this point. The Condition and Inventory Report did not mention a front-door mat and there was no note of the missing mat in the notes from the Final Inspection on that Report.
46.Again, as stated above, the Tribunal has accepted that a there must be finality about the condition of the premises at the end of the tenancy. See for instance Yandle v Katsoulis [1999] ACTRTT 1 and Young v Forsyth [2003] ACTRTT. A lessor cannot add additional items after the Final Inspection that the lessor discovers need repairing, cleaning or restoring unless such further discovered items would not have been visible at the time of the final inspection.
47.The Tribunal finds that on the balance of probabilities there was a front door mat at the commencement of the tenancy. A missing front door mat would have been visible at the Final Inspection and was not mentioned at that Inspection. Therefore, the Tribunal finds that the cost of replacing the missing front door mat is not a cost for which the tenants are liable and dismisses this part of the lessors’ claim.
(k) Application fee
48.The lessors requested the Tribunal exercise its power under section and order the tenants to pay the Application lodgement fee of $104.
49.The applicable law is : Sections 100 and 102 (1)(b) of the Act that provide “the parties to a hearing shall bear their own costs unless the tribunal, if it considers that a party to an application caused unreasonable delay or obstruction before or during the hearing of the application, require the party to pay the reasonable costs of the other party arising from the hearing”.
50.Taking into account all the circumstances of this matter, the Tribunal is not of the opinion that the tenants caused unreasonable delay or obstruction before or during the hearing of the Application and dismisses this part of the lessors’ claim.
(l) Other
51.At the hearing the lessors raised the issue that the tenants had installed a Foxtel/broadband internet connection to the premises without first obtaining the lessors’ permission. The lessor Mrs Hlubucek said the dish was unsightly. The tenants agreed that they had not sought the lessors’ permission for the installation.
52.As there was no evidence of the cost of removal the Tribunal ordered the lessors (the tenants being unable to access the premises) to lodge three quotes for removing the connection and associated dish and wires. The lessors lodged a quote from CanBuild Total Solutions Pty Ltd dat4ed 22 March 2007 stating the total price for removing the satellite dish and all wiring to the dish would be $363.00. The lessors also sought a quote from Foxtel digital but stated they did not receive a quote.
53.In the circumstances the Tribunal orders the tenants to pay compensation to the lessors in the sum of $363.00 for the removal of the satellite dish and associated wiring on production to the Tribunal by the lessors of a receipt or receipts for the cost of the removal of the dish and associated wiring.
ORDERS
1That the tenants pay $500 to the lessors as compensation for the damage to the garage door to be deducted from the bond and released to the lessors on production to the Tribunal by the lessors of a receipt or receipts for the cost of the replacement or repair of the garage door.
2That the tenants pay to the lessors the sum of $50 for the cost of the replacement or repair of both controllers to be deducted from the bond and released to the lessors on production to the Tribunal by the lessors of a receipt or receipts for the cost of the replacement or repair of both controllers.
3That the tenants pay the sum of $136.75 being for gas consumed on the premises to be deducted from the bond and paid to the lessors.
4That the tenants to pay compensation to the lessors in the sum of $363.00 for the removal of the satellite dish and associated wiring on production to the Tribunal by the lessors of a receipt or receipts for the cost of the removal of the dish and associated wiring.
5That the Office of Rental Bonds is to release the balance of the bond in accordance with this Order.
i.The lessors are to produce the receipts referred to in Orders 1-4 above to the Tribunal within 21 days.
ii.If no receipts are so produced, the Tribunal Registry is to notify the Office of Rental Bonds to release the full balance of the bond to the tenants.
iii.If receipts are produced for a lesser amount than set out in Orders 1-4 above, the Tribunal Registry is to notify the Office of Rental Bonds to release an amount representing the total of the receipts so produced to the lessors and to release the remaining balance of the bond to the tenants.
6 That the balance of the lessors’ claim is dismissed.
Jennifer David
Member
26 April 2007
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