Mayank Baluja & Ruschkar Agarnal -v- P Maslen - [2007] ACTRTT 18

Mayank Baluja & Ruschkar Agarnal -v- P Maslen ACTRTT18 [2007]

CATCHWORDS
Termination and possession - Lessor’s duty to provide habitable premises and to repair – Breach of duty by lessor – Abandonment of premises by tenant – Tenant’s failure to pay rent

LEGISLATION
Residential Tenancies Act 1997 (ACT)

Clause 96 Standard Residential Terms

CASE LAW

Summers v Salford Corporation [1943] AC 283
Lam v Lu (RTT90/008960)
NSW Associated Blue Metal Quarries v FCT (1956) 94 CLR 509

CASE REFERENCE NUMBER: RT 263 of 2007

RE: Premises at 5 Whitfield Place MONASH ACT 2904

DECISION

ORDERS

That the tenant is to pay the outstanding rental arrears of $2,194.30 for the period 1 April 2007 to 10 May 2007.
That the tenant is to pay compensation to the lessor for the cost of cleaning the premises after the tenant vacated; the cost of having the locks re-keyed at $197.00; and the cost of removing the tenant’s property of left on the premises
The lessors are to produce to the Tribunal receipts for the cost of cleaning and the cost of removing the tenant’s property left on the premises within 7 days of this date.
The Tribunal will make final orders for the amount of compensation to be paid by the tenant after the lessors have complied with Order 3 above.

Member: J. A. David
Date: 5 July 2007

STATEMENT OF REASONS

BACKGROUND

On 22 January 2007 the parties entered into a residential tenancies agreement in relation to premises at 5 Whitfield Place, Monash in the Australian Capital Territory for a fixed term of 12 months commencing on 22 January 2007 and ending on 31 January 2008. A bond of $1520 was lodged with the ACT Office of Rental Bonds on 22 January 2007.
On 28 February 2007 the tenant requested the lessors to undertake various repairs. Those repairs not having been undertaken, the tenant informed the lessors’ Property Manager on 29 March 2007 that he would stop paying rent. The tenant not having paid the rent due on 1 April 2007, on 19 April 2007 the Property Manager issued a Notice to Vacate under section 48 of the Residential Tenancies Act 1997 (the Act) on the grounds the tenant was in arrears of rent and had not remedied the situation after service of a Notice to Remedy. The Notice to Vacate required the tenant to vacate on or before 4 May 2007. The Notice also indicated that the tenant was in breach of the tenancy agreement by keeping a pet on the premises contrary to an endorsed clause in that agreement. The tenant vacated the premises on 10 May 2007.
Initially in the Application, the lessors sought a termination and possession order, however, the tenant having vacated the premises on 10 May 2007 at the hearing the lessors sought rental arrears of $2,194.30 for the period 1 April 2007 to 10 May 2007; the cost of cleaning the premises after the tenant vacated estimated at $145.00; the cost of having the locks re-keyed at $197.00; and the cost of removing the tenant’s property of left on the premises estimated at $197.00, amounting in total to $2,733.30 compensation.
In response the tenant alleged that the premises were uninhabitable and/or not reasonably clean, and/or not in a reasonable state of repair and/or not reasonably secure at the commencement of the tenancy contrary to the lessor’s obligation under Clause 54 (1) of the Standard Residential Tenancy Terms in Schedule 1 of the Act (Standard Terms). Also, the tenant alleged that the lessor had breached his duty to repair under Clauses 55, 57, 59 and 60 of the Standard Terms as urgent and non-urgent repairs requested by the tenant had not been undertaken or undertaken after much longer than the prescribed time from his request.
The tenant sought a rental reduction under section 71 of the Act to compensate for the above claimed breaches by the lessors of their obligations under the Act and Standard Terms or, in the alternative, he sought compensation for the alleged breaches.
At the hearing on 10 May 2007, after hearing the parties’ submissions and evidence, the Tribunal adjourned the matter to prepare a written determination of the issues raised and gave the lessors leave to relist the matter when the cost of end of lease cleaning and other expenses were finally ascertained.

Documentary Evidence

The tenant submitted the following documentary evidence:
·     Document entitled “Abbreviated correspondence”
·     Document entitled “Background”
·     Three Richard Luton Maintenance Repair Requests, one signed by the tenant and dated 18 February 2007
·     Photographs of the premises dated at the commencement of the tenancy
·     Photographs of the premises dated during the tenancy
·     ACT Policing Incident Number P519192 undated
·     Copy of emails between the tenant and Ms Irving of Richard Luton Properties from 2 March to 10 April 2007
The lessors submitted the following documentary evidence:
·Statement of Particulars
·     Tenant Trust Ledger Report dated 3 may 2007
·     Action and Conversation Diary dated 30 April 2007
·     Bond Lodgement Form
·     Residential tenancy Agreement dated 22 January 2007 with Explanatory Notes and endorsed no-pets clause attached
·     Notice to remedy dated 19 April 2007 based on a breach of the no-pets clause
·     Termination Notice dated 19 April 2007
·     Letter to tenant dated 19 April 2007concerning Final Inspection date and rental arrears
·     Tenant Status Reports as at 2 and 30 May 2007
·     Receipts/Quotations for cleaning ($360), Repairs ($720)
·     Letter to Richard Luton Properties, Manuka dated 3 May 2007 form Entire Home Property Maintenance
·     Inventory and Condition Report unsigned and undated
·     Inspection Report dated 22 February 2007with two Maintenance Repair Request forms attached
·     Photographs taken of the premises in January 2007 and 10 May 2007
·     Work Order dated 2 March 2007 with various notes of messages received from a representative of Entire Home & Property Maintenance
·     Signed Acknowledgement from tenant dated 21 January 2007

ISSUES IN DISPUTE

Initially the lessors sought a termination and possession order, however, as the tenant had vacated by the date of the hearing, the lessors sought rental arrears and end of lease expenses.

The tenant disputed whether there were any arrears on the basis that the lessors had breached their obligations under the lease and claimed compensation and/or a reduction in rent for the breaches. The issues were:

(a)Was the tenant liable for rental arrears from 1 April to 10 May 2007
(b)Had the lessors breached their obligations under the Act or tenancy agreement.
(c)If so, was the tenant entitled to a reduction in rent and/or compensation for any breach.
(d)If so, the quantum of that compensation and/or rental reduction.
(e)The balance owning by the tenant or by the lessors to the other party at the end of the lease.

APPLICABLE LAW

In relation to the lessors’ obligations at the commencement of the tenancy, Clauses 54, 55, 57, 59 and 60 are relevant. They are set out below.
In relation to the tenant’s obligations at the end of the tenancy, Clause 64 of the Standard Terms is applicable. :

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.

FINDINGS AND REASONING

Prior to considering each of the tenant’s claims, the following defects in the premises that the tenant stated were present at the commencement of the tenancy and in some cases throughout, are dealt with:
(i)     Serious electrical faults
(ii)   A fault in the alarm system
(iii)     Flyscreen in laundry window damaged
(iv)   Cold water tap in laundry was loose
(v)    Dirt between the shower and vanity
(vi)   Only two burners out of four were working on the cooktop
(vii)    Oven fan only worked intermittently
(viii) Lock to rear door could not be locked
(ix)   Rubbish piles in garden
(x)    Weeds throughout the bark mulch in the garden
(xi)   Dead plants
(xii)    Lawns not mowed
The tenant stated that at the first inspection on 22 February 2007 he handed to the Property Manager three Maintenance Repair Request forms requesting the following repairs:
(a)    Repair back door lock
(b)    Repair Cooktop knobs (wok and rear burner)
(c)    Repair and supply manual for oven – fan intermittently working
(d)    Examine dirt between shower and vanity
(e)    Tighten cold water tap (laundry tub)
(f)     Tighten P/P in kitchen (power points)
(g)    Supply effective key for security door (rear)
(h)    Fault in alarm system
(i)     Repair flyscreen (laundry)
(j)     Repair electrical ceiling fan (electrical fault) possible fire risk
The Maintenance Repair Request form that referred to items (a) – (d) above was signed by the tenant and dated 18 February 2007. The Property Manager agreed that at the first inspection he had received two Maintenance Repair Request forms covering items (a) to (i) above, but denied receiving the Maintenance Repair Request form that referred to the electrical ceiling fan (j) above. The Tribunal noted that the writing on that form appeared to be quite different to the writing on the other two Maintenance Repair Request forms attached to the tenant’s written submissions; also, the form was not signed or dated.

The Inventory and Condition Report was handed to the tenant on the signing of the tenancy agreement. The tenant did not return a signed, noted-up copy to the Property Manager so section 30 (2) of the Act provides that “a statement in an [inventory and condition report signed by the lessor about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.” The lessors stated that Mr Goulding, a cleaner, carried out an end of lease clean and steam clean of the carpets in the premises three days prior to the commencement of this tenancy. The lessors tendered photographs of the condition of the premises at the commencement of the tenancy, taken on either 19 or 20 January 2007 after that cleaning was undertaken, and at the end of the tenancy, taken at the time of the final inspection.

The tenant tendered photographs he stated were taken at the commencement of the tenancy (of the state of the garden) and during the tenancy (electricity plugs in the kitchen),

In the Table below each item in paragraph 16 above is dealt with in detail, setting out the Inventory and Condition Report, the tenant’s submissions and evidence and the lessors’ submissions and evidence in relation to the item.

Item

Tenant’s Submissions

Lessors’ Submissions

(a) Repair back door lock

Tenant stated the rear door was unlockable at the commencement of the tenancy as the door knob was loose and the push button lock did not work. He said a trades person had informed him the lock was not repairable. As a result, he argued the property was not secure.

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

The maintenance person first contacted him on 4 April 2007 and stated that he had been told to contact the tenant about 3 days before.

Tenant agreed the doorknob had been repaired on 14 April 2007.

A work order to repair the doorknob was issued on 2 March 2007 and owing to the difficulties the maintenance person experienced in contacting the tenant to gain access to carry out the repairs, the door lock was repaired on 14 April 2007.

The lessors argued there was a small slide bolt above the doorknob on the rear door that could be slid into place to secure the door. Thus the property could be secured at all times.

(b) Repair cooktop knobs (wok and rear burner)

The tenant submitted that only 2 of the 4 burners were working at the commencement of the tenancy.

The tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

The maintenance person first contacted him on 4 April 2007 and stated that he had been told to contact the tenant about 3 days before.

Inventory and Condition Report did not note whether the burners were working.

Lessor’s maintenance person was authorised by letter dated 2 March 2007 to insect the wok and back burner knobs and repair if necessary.    The maintenance person experienced difficulties in contacting the tenant to gain access to carry out the repairs

At the Final Inspection all 4 burners were working.

(c) Repair and supply manual for oven – fan working intermittently

Tenant stated the fan only worked intermittently. He gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

Inventory and Condition Report noted the oven as “General Electric; black, control knobs clean and in working order, door glass black, handle plastic black, racks x 2 clean and intact, baking dish with minor baked on”. The lessors argued the oven was in working order.

Photographs at commencement of tenancy showed oven clean whereas photographs at the Final Inspection showed oven and over door dirty, so the oven had been used during the tenancy.

Lessor’s maintenance person was authorised by letter dated 2 March 2007 to insect oven as the “fan only works some of the time” and repair if necessary. The maintenance person experienced difficulties in contacting the tenant to gain access to carry out the repairs

(d) Examine dirt between shower and vanity

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

Inventory and Condition Report noted the bathroom was “dusty but intact”.

The lessors submitted that photographs of the bathroom taken in both January 2007 (prior to this tenancy) and at the time of the Final Inspection did not show any dirt.

Also, the lessors stated that Mr Goulding, cleaner, carried out an “end of lease clean” in the premises three days prior to the commencement of this tenancy. He would have cleaned any such dirt.

(e) Tighten cold water tap (laundry tub)

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

Tenant said lessors had given maintenance person the wrong mobile telephone number to contact him and it was only in early April that the maintenance person was given the tenant’s correct mobile number. The maintenance person first contacted him on 4 April 2007 and stated that he had been told to contact the tenant about 3 days before.

Lessor’s maintenance person was authorised by letter dated 2 March 2007 to insect and repair if necessary. The maintenance person experienced difficulties in contacting the tenant to gain access to carry out the repairs

The taps were repaired on 14 April 2007.

(f)   Tighten power points in kitchen

Tenant tendered 2 photographs of power points with “smallish” gap between the white power point “cover” and the wall.

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

The maintenance person first contacted him on 4 April 2007 and stated that he had been told to contact the tenant about 3 days before.

Inventory and Condition Report noted there were 2 single and 2 double power points in the kitchen but did not note any problem with the power points. Photographs taken at the beginning of the tenancy did not show an problem with any of the power points. The photographs at the end of the tenancy did not show any such defect.

Lessors submitted one of the tenant’s photographs showed a person’s fingers holding the power point cover away from the wall.

Lessor’s maintenance person was authorised by letter dated 2 March 2007 to insect and repair if necessary. The maintenance person experienced difficulties in contacting the tenant to gain access to carry out the repairs

The lessors’ property manager alleged that the tenant did not want the maintenance person to have access to the property because of the condition the property was in as it was dirty and a “herb” was being grown hydroponically.

(g) See (a)

(h) Fault in alarm system

Tenant stated the system was faulty in that it went off intermittently.

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

The lessors stated the tenant was given the codes to set the alarm by email dated 2 March 2007 together with the security firm to ring if the tenant had any further problems.

The lessors said there has been no issue with the alarm system since the tenant vacated.   The lessors alleged that the tenant did not operate the system correctly.

(i)   Repair flyscreen (laundry)

Tenant stated there was a part of the wire of the screen that was unattached.

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

Inventory and Condition Report noted the flyscreen screen mesh was “dusty but intact”.

Photographs of laundry window taken in January 2007 do not show any problem with the window or the screen.

(j)   Repair electrical ceiling fan (electrical fault) possible fire risk

Tenant stated he gave a Maintenance Request Form concerning this item to the lessors’ Property Manager at the initial inspection on 22 February 2007.

The Tribunal noted that the writing on the other two Maintenance Repair Request forms attached to the tenant’s written submissions appeared to be quite different to that on the form relating to this item; also the form relating to this item was unsigned and undated.

Inventory and Condition Report noted the exhaust fan was “clean and intact”.

No Maintenance request form was received for this item: only two such forms were received on 22 February 2007.

(ix) – (xii) Rubbish in rear garden, lawns not mowed, dead plants, weeds in tan bark

Tenant submitted that there were two piles of rubbish in the rear garden at the commencement of the tenancy. He submitted photographs of the two piles.

He agreed both piles were removed on 3 March 2007.

Regarding the weeds in the tan bark the tenant submitted photographs taken at the commencement of the tenancy showing weeds already in the tan bark.

The tenant submitted there were “dead plants” in the garden at the commencement of the tenancy and the lawns had not been mowed.

Photographs taken at the commencement of the tenancy showed there was little lawn both at the front and rear of the property and that it had not been mowed recently.

The lessors argued that there was only one pile of rubbish. Rubbish was removed on 3 March 2007.

Lessors submitted photographs taken at the end of the tenancy showing heavier weed coverage in the tan bark,

Concerning the dead plants, the lessors submitted there was a single dead tree in the back yard at the commencement of the tenancy.

Whilst the photographs taken at the commencement of the tenancy showed that the lawns had not been mowed recently they could not be considered “long” or anything like “knee high”.    Photographs taken at the final inspection showed the lawns to be in a similar condition as at the commencement.

(k) Was the tenant liable for rental arrears from 1 April to 10 May 2007

Whilst the Tribunal was sympathetic to the tenant’s reasons for non-payment of rent from 31 March 2007, as the tenant was informed at the hearing, tenants cannot decide not to pay rent to “force” a lessor to carry out requested urgent or non-urgent repairs. The appropriate action is either for the tenant to carry out the urgent repairs in accordance with the provisions of Clause 61 of the Standard Terms or for the tenant to make application to this Tribunal for an order that the lessor undertake enumerated repairs and for a rental reduction and/or compensation for the period during which the repairs were either not undertaken or were being undertaken. Therefore, subject to any rental reduction determined below, the tenant is liable for the rent arrears of $2,194.30 claimed by the lessors.

(i) State of the premises at the commencement of the tenancy and whether lessors breached their obligations

The tenant submitted that the lessors had breached their obligations at the commencement of the tenancy in relation to the following defects in the premises that the tenant stated were present at the commencement of the tenancy:
(xiii) Serious electrical faults
(xiv)   A fault in the alarm system
(xv)     Flyscreen in laundry window damaged
(xvi)   Cold water tap in laundry was loose
(xvii) Dirt between the shower and vanity
(xviii)      Only two burners out of four were working on the cooktop
(xix)   Oven fan only worked intermittently
(xx)     Lock to rear door could not be locked
(xxi)   Rubbish piles in garden
(xxii) Weeds throughout the bark mulch in the garden
(xxiii)      Dead plants
(xxiv)       Lawns not mowed
As stated above, under Clause 54 of the Standard Terms, lessors have an obligation at the commencement of a tenancy to ensure the premises and appliances are:
(a) fit for habitation; and
(b) reasonably clean; and
(c) in a reasonable state of repair; and
(d) reasonably secure.
In Lam v Lu (RTT90/008960) the NSW Residential Tenancies Tribunal (as it then was) affirmed that the test of “reasonable state of repair” is one of contemporary standards at the time. The Tribunal adopted the words of Lord Atkin from the Court of Appeal in Summers v Salford Corporation [1943] AC 283 that
“If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier either in respect of personal injury to life or limb or injury to health, then the house is not in all respects fit for habitation.
… The standard which the Tribunal must consider are the prevailing conditions in the community.”
Finally, in NSW Associated Blue Metal Quarries v FCT (1956) 94 CLR 509 Kitto, J in the High Court said about the two standards:
“The conclusion I draw ... is that the landlord is obliged to hand the premises over to the tenant , at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and prospective life of the premises: and that the state of repair must at least meet the minimum standards inherent in the contemporary understanding of the term “fit for habitation”.
Applying those standards to all the evidence and information presented by the tenant and the lessors including that presented in the Table above, whilst the tenant was dissatisfied with the condition of the premises (which he had inspected prior to signing the tenancy agreement) at the commencement of the tenancy, I find that, applying the standards inherent in contemporary understanding” the condition of the premises at the commencement of the tenancy was “fit for habitation” and “in a reasonable state of repair” such that the lessors’ obligations under Clause 54 of the Standard Terms were satisfied.

b) (ii) State of the premises during the tenancy and whether lessors breached their obligations

Under Clause 55 of the Standard Terms the lessors have an obligation during the tenancy to” maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement” and the lessors “must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed). There was no evidence of an agreement for the lessors not to carry out the requested repairs within the 4-week period provided.

Also, the tenant has an obligation under clause 55 of the Standard Terms to notify the lessors “of any need for repairs”. Other than for the electrical fault in the ceiling fan, the lessors agreed the tenant had requested the repairs he alleged the lessors had not carried out in the Maintenance request Forms he handed to the lessors’ Property Manager at the Inspection on 22 February 2007. Except for the exhaust fan in the kitchen I find that the tenant did notify the lessors on 22 February 2007 of the need for repairs to items (a) to (i) in paragraph 16 above. I find that on the balance of probabilities the tenant did not notify the lessors of the need for repairs to the exhaust fan.

Once a lessor is notified by a tenant of the need for maintenance and repairs to the property, the lessor has a duty to carry out necessary works within 4 weeks under Clause 55 above. The issue in this matter is that the majority of the requested repairs were of such a minor nature that they could not be held to be necessary to maintain the premises in a reasonable state of repair having regard to the condition of the premises at the commencement of the tenancy. I find that items (a) – (j) in paragraph 16 above fall into this category.

I also find that the lessors did attempt to carry out the repairs when a work order was raised on 2 March 2007. However, the maintenance person was given the wrong mobile number for the tenant. Apparently the maintenance person only tried to telephone the tenant on his mobile number as a result of the wrong number did not contact the tenant until 3 April 2007. I also find that the rear doorknob and the taps were repaired on 13 April 2007.

Taking all the above into account together with the items dealt with in the Table above and the submissions of the parties at the hearing, I find that the lessor did not breach his obligation to repair under Clause 55 of the Standard Terms.

Finally, the lessors have an obligation under Clause 59 of the Standard Terms to carry out urgent repairs “as soon as necessary, having regard to the nature of the problem” and Clause 60 of the Standard Terms lists what is included under “urgent repairs”: the following repairs in that list are relevant to this matter:
(e) a dangerous electrical fault;
(j) a failure or breakdown of any service on the premises essential for hot water, cooking, heating or laundering;
(k) a fault or damage that causes the residential premises to be unsafe or insecure;
(l) a fault or damage likely to cause injury to person or property;
Given the nature of the alleged urgent repairs the tenant relied on (mainly the exhaust fan not working in the kitchen) and the evidence and information set out both in the Table above and in the submissions of the parties, I find that none of the repairs were urgent repairs within the meaning of Clause 60 of the Act and that the lessors were not in breach of their obligations under that Clause.

Finally, I find that the lessors were not in breach of their obligations under the tenancy agreement and the Act . Therefore, the tenant is not entitled to either a rental reduction or to compensation.

(c ) Tenant’s obligations at the end of the tenancy and whether they were breached.

Under Clause 64 of the Standard Terms at the end of the tenancy 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.
The Tribunal carefully considered all the evidence and circumstances including the photographs of the premises submitted by both the lessors and the tenant, and was of the opinion that on the balance of probabilities the tenant had not left the premises as in the condition required by Clause 64. The lessors are entitled to the reasonable cost of cleaning and of rubbish removal at the end of the tenancy.

ORDERS

That the tenant is to pay the outstanding rental arrears of $2,194.30 for the period 1 April 2007 to 10 May 2007.
That the tenant is to pay compensation to the lessor for the cost of cleaning the premises after the tenant vacated; the cost of having the locks re-keyed at $197.00; and the cost of removing the tenant’s property of left on the premises
The lessors are to produce to the Tribunal receipts for the cost of cleaning and the cost of removing the tenant’s property left on the premises within 7 days of this date.
The Tribunal will make final orders for the amount of compensation to be paid by the tenant after the lessors have complied with Order 3 above.

Jennifer David
Member
5 July 2007