L J Hooker Belconnen and Richard Sempiol; (Residential Tenancies)
[2012] ACAT 20
•1 March 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
L J HOOKER BELCONNEN & RICHARD SEMPIOL
(Residential Tenancies) [2012] ACAT 20
RT 12/14
Catchwords: RESIDENTIAL TENANCIES – tenant’s obligations – tenancy dispute - deductions from rental bond – lessor’s duty to mitigate loss.
List of legislation: Residential Tenancies Act 1997, ss 31, 35 and 38
Tribunal: Ms J. Lennard, Senior Member
Date of Orders: 1 March 2012
Date of Reasons for Decision: 18 April 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 12/14
BETWEEN:
L J HOOKER BELCONNEN
Applicant
AND:
RICHARD SEMPIOL
Respondent
TRIBUNAL: Ms J. Lennard, Senior Member
DATE: 1 March 2012
ORDER
The Tribunal orders in respect of premises at 4/15 Coranderrk Street Glebe Park City ACT 2601
The Office of Rental Bonds is directed to release the bond as follows;
To the Lessor $230.00
To the tenant $212.00
Total $442.00
Mr James Gralton
Registrar
for Ms Jann Lennard
Senior Member
ACT Civil & Administrative Tribunal
REASONS FOR DECISION
The parties had been in a residential tenancy agreement in relation to premises at 4/15 Coranderrk Street, Glebe, ACT, which had terminated and the tenant, Mr Sempiol, has vacated the premises.
A final inspection of the premises was conducted by the lessor’s agent on
12 December 2011. The report of that inspection noted, inter alia, that the premises were generally dusty, that the windows had not been cleaned, that the window tracks were dirty and uncleaned, that generally cupboards in the bathroom, bedrooms and kitchen had not been left clean on the inside, and that the kitchen needed cleaning to remove dirt and grease form the exhaust filter, the stove top, the oven and the benches as well as the walls and splashback tiles. The walls showed dirty marks and the carpet had brown marks at the entrance area to the unit. The lessor’s agent provided a copy of this report to the Tribunal. Photos taken at the final inspection were also provided.The lessor’s agent gave evidence that the tenant was present at the final inspection and that these matters were drawn to his attention. The tenant agreed that he was at the final inspection but denied that he walked around with the agent, or that these matters were drawn to his attention. To the extent of this conflict of evidence, the Tribunal prefers that of the lessor’s agent.
The lessor’s agent arranged for the unit to be cleaned by Luma Cleaning & Service. The lessor’s agent gave evidence that she arranged for only the necessary cleaning and not a thorough ‘end of lease’ clean. The invoice supplied for the work done by Luma Cleaning & Service reflects this. The invoice is for an amount of $230.00.
During the tenancy the tenant requested a second set of keys for his use. The agent agreed to this but required the tenant to organise a set of keys through the body corporate managers. The units have secure keys which cannot be simply duplicated. The body corporate managers register the keys and so are able to ‘track’ the keys. The tenant arranged for a second set of keys for the unit and paid an amount of $48 for them.
At the end of the tenancy the agent requested the return of both sets of keys but the tenant refused to return the second set unless the lessor reimbursed him the $48 he had paid for them. The lessor’s agent noted on the final inspection report tenant refuses to give all keys back will need to charge for locksmith to change locks. The lessor’s agent arranged for a locksmith the rekey the unit, at a cost of $212.00.
A bond of $1760 was paid and lodged at the commencement of the tenancy.
The lessor’s agent made a claim for a total of $442 from the bond. The tenant denies liability for any amount.
The relevant law
Section 31 of the Residential Tenancies Act 1997 (the Act):
A lessor is entitled to deduct from the bond paid under the residential tenancy agreement 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 than fair wear and tear) caused by the tenant;
(b)any rent owing and payable under the residential tenancy agreement at the time the agreement terminates or is terminated;
(c)the cost of replacing any fuel (such as gas, oil or wood) supplied to the premises by the lessor at the commencement or during the course of the tenancy;
(d)any reasonable amount (not greater than the costs incurred) for the cost of legal fees incurred by the lessor in assigning or transferring a tenant’s rights under a residential tenancy agreement;
(e)any amount expressed in a term of the agreement to be deductible by the lessor from the bond, if the term is endorsed by the ACAT under section 10.
Section 35 of the Act provides that where the lessor and tenant are not able to agree about the release and distribution of the Bond money, the dispute is to be referred to ACAT and dealt with as a tenancy dispute. Tenancy dispute is defined in section 72 of the Act as a dispute that is between the parties to a residential tenancy agreement; and is about, arises from, or relates to, the agreement. A tenancy dispute includes an application for compensation under this Act.
The lessor claims the amount of $442 being the cost of cleaning $230 and the cost of rekeying being $212. The Office of Regulatory Services has in accordance with section 35 referred the dispute to the ACAT and the ACAT heard the matter as a tenancy dispute.
Mr Sempiol argued that ACAT should dismiss the application because a literal interpretation of section 31 precludes an application for costs of cleaning from the Bond. While it is true that the Act does not specifically state costs of cleaning as covered by the bond, the ACAT notes that 90% of bond claims relate to cleaning. The Tribunal takes the view that the cost of cleaning is an allowable and appropriate deduction form Bond moneys: cleaning of premises may be necessary to restore the premises to a reasonably clean condition. The words of the section should be read broadly and in accordance with the mischief the section was intended to meet. Leaving rented premises in an unclean condition is damage in a contractual sense.
Damage is any loss or injury suffered by one party as a result of the conduct of the other. The residential tenancy agreement requires the tenant during the tenancy to 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 (clause 63), and, to leave the premises in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted (clause 64). A failure by the tenant to comply with these contractual obligations will result in damage to the lessor. That damage may be recovered by a claim against the bond moneys.
Further, the matter once referred to ACAT is to be dealt with as a tenancy dispute and an assessment of compensation to be paid for damage caused by a breach of the tenancy agreement, falls within the tenancy dispute.
Mr Sempiol argued in relation to the costs of cleaning that the premises were in a reasonable state of cleanliness and in substantially the same condition as at the commencement of the tenancy. He submitted that the small amount of cleaning required meant that the premises were only a little bit dirty and therefore he had not breached his obligations. A comparison of the original inventory or check in report with the final inspection report, taken with the photos and oral evidence of the parties, reveals a unit which was not reasonably clean and not substantially in the same state at the end of the tenancy as it had been at the beginning of the tenancy. Reasonably and substantially are terms of relativity. The Tribunal takes the view that the premises should be delivered back to the lessor in a condition which would allow a new tenant to move in without further cleaning. This unit needed cleaning in the important areas of the kitchen, bathroom and laundry, and, marks were cleaned from the carpet in the entrance area. The lessor is entitled to be compensated for the reasonable cost of cleaning.
The lessor has an obligation to ensure that at the start of the tenancy the premises are reasonably secure (clause 54). This would include identifying the number of keys which exist for the premises and ensuring that they are gathered into the control of the lessor. Premises are not reasonably secure in circumstances where keys to the premises remain in the control of former tenants.
The lessor requested the second set of keys from the tenant but refused to pay for them, arguing that they ‘didn’t want them’. The lessor had two possible methods available to ensure the security of the premises: pay the $48 demanded by Mr Sempiol or rekey the unit at a cost of $212.
Section 38 of the Act imposes a general duty to mitigate damage, and provides that 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, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
While the demand of the tenant for payment may have been viewed by the agent as unreasonable and ridiculous, the payment of the $48 in return for the delivery of the second set of keys was the least cost option. Taking the decision to rekey the unit is clearly not mitigating the damage or loss of the lessor.
………………………………..
Ms J Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | RT 12/0014 |
PARTIES, APPLICANT: | LJ Hooker Belconnen |
PARTIES, RESPONDENT: | Richard Sempiol |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | Ms J. Lennard |
DATES OF HEARING: | 1 March 2012 |
PLACE OF HEARING: | Canberra, ACAT |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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