MEYER & ANOR v HICKMAN & ANOR (Residential Tenancies)
[2021] ACAT 39
•18 May 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEYER & ANOR v HICKMAN & ANOR (Residential Tenancies) [2021] ACAT 39
RT 633/2020
Catchwords: RESIDENTIAL TENANCIES – claim for damage to carpet – whether there were stains & smell from dog urine – claim not established
Legislation cited: Residential Tenancies Act 1997 standard term 64
Tribunal: Senior Member J Lennard
Date of Orders: 18 May 2021
Date of Reasons for Decision: 18 May 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 633/2020
BETWEEN:
MATTHEW MEYER & MATTHEW STARKS
Applicants/Lessors
AND:
JOHN HICKMAN & ANASTASIA HICKMAN
Respondents/Tenants
TRIBUNAL: Senior Member J Lennard
DATE: 18 May 2021
ORDER
The Tribunal orders that:
1. ACT Rental Bonds on behalf of the Territory is directed to release $199 of the disputed sum to the lessors and the remainder to the tenants.
………………………………..
Senior Member J Lennard
REASONS FOR DECISION
1. This is a claim made by the lessors of the property for compensation in the amount of $10,443.40 being: the cost of dry cleaning the curtains – $199; and the complete cost of replacing carpets on the property – $10,244.40. The lessors allege that the tenants have breached clause 64 of the standard tenancy agreement in that they have failed to leave the premises in the same state of cleanliness and substantially the same condition as the premises were in prior to commencement of the lease, fair wear and tear excepted. The respondents have conceded that they should pay the cost of dry cleaning the curtains. Therefore, the only issue for the Tribunal is the compensation for replacement of the carpet.
2. The parties entered into a residential tenancy agreement for a fixed term from 26 July 2019 to 23 January 2020. The residential tenancy continued as a periodic tenancy until the tenants vacated, following notice from the lessors that they were returning to live in the premises on 14 August 2020. A copy of the residential tenancy agreement dated 10 July 2019 was before the Tribunal.
3. At the commencement of the tenancy the lessors’ real estate agent, Peter Blackshaw Gungahlin, prepared an entry condition report, an unsigned and undated copy of that report was before the Tribunal. The description of the carpet in each of the relevant rooms was as follows: “beige new carpet no stains no marks”. There was no comparable exit condition report compiled at the end of the tenancy.
4. The Tribunal received oral evidence as to the state of the premises at the end of the tenancy, from the real estate agents who had managed the property and who had been involved in the inspections conducted on 14 August 2020.
5. The tenants gave evidence that they had arranged for professional cleaning of the carpet to be undertaken on 13 August 2020.
6. Mr Craig Sleeman, property manager, Peter Blackshaw Real Estate, provided a written statement in which he gave evidence that he attended the premises at approximately 4:00pm on 14 August 2020, the lessors were also in attendance. The inspection of the property took between 45 and 60 minutes. Mr Sleeman had advised the lessors that if they were happy with the premises following that inspection, they could retake possession of the premises with the view to moving back in the next day. At paragraph 8 of his written statement, Mr Sleeman stated that neither the owners nor the agents identified any issues with the interior of the premises and that they had only noted an amount of rubbish left outside the premises. At paragraph 10 he stated:
We then left the property after taking a photo of the water meter, the keys were provided to Matthew & Matthew, as they stated they were happy with the property.
At paragraph 14 of that written statement Mr Sleeman stated that there was no visible evidence of urine or smell of urine identified at the final inspection.
7. Mr Sleeman gave evidence that on the afternoon of 14 August 2020 he had regarded the condition of the house as generally satisfactory. He stated that the owners had not drawn his attention during that inspection to any issues relating to the general condition of the interior of the premises.
8. The lessors in their application had appended a table headed ‘damage to property not considered to be fair wear and tear’. Mr Sleeman gave evidence that none of the items mentioned in this list had been drawn to his attention at the inspection on 14 August 2020. Further, Mr Sleeman gave evidence that the lessors accepted the house in the condition they found it, and were prepared to ‘wear’ minor issues in order to be able to re-occupy the premises on the following day.
9. The Tribunal examined the items on the list of ‘damage to property not considered to be fair wear and tear’; and heard evidence from the lessors, the tenants and the real estate agent with regard to the general state of the premises on the final day of the residential tenancy agreement. Mr Sleeman conceded that the damage listed was the type of damage that ought to have been readily identifiable by anybody doing a final inspection. Mr Sleeman gave evidence that on the final walkthrough inspection with the lessors none of the items mentioned in the list of ‘damage to property not considered to be fair wear and tear’ were drawn to his attention. He further stated that in relation to several of those items, the first notice he had of these concerns was when he received a copy of the list submitted by the lessors for the purposes of this hearing. Mr Sleeman stated that he did not prepare the usual final inspection report because he had formed the view that the lessors had no complaint about the state of the premises, were content to move back in the next day, and were making no claim against the rental bond.
10. Ms Huovenin, an agent who attended the final inspection and had undertaken routine inspections during the tenancy, gave evidence that the owners were happy with the condition of the premises on 14 August 2020. She stated that she had begun to write a report but that the owners had indicated that this was not necessary.
We started to do that, but then as we were moving through the house the owners were saying that they were happy with everything. They couldn’t believe how great the carpet had come up; what a great job the cleaners had done; and they were checking blinds in kitchen. We were walking through the lounge room looking at the carpets, the curtains.
In relation to the manner in which the tenants kept the property during the course of the tenancy she stated, referring to routine inspections:
That they looked after it well. They maintained it. It was always clean and tidy. They reported maintenance, yes, it looked always clean and tidy when I went there for a routine inspection.
11. The lessors gave evidence that they had raised issues in relation to the garden and rubbish in the bins with the agents at the final inspection. There is no evidence from the lessors that they observed, at that final inspection, any of the items they have listed on the table of ‘damage to property not considered to be fair wear and tear’. The lessors gave evidence that the agent had indicated to them that they could take the property as is, or require the tenants to come back to remedy any of issues arising from cleanliness or damage. The lessors accepted the keys from the agents on the afternoon of the final inspection and did not indicate that they required the tenant to return to attend to any matter at that time. There is no evidence before the Tribunal as to when the table headed ‘damage to property not considered to be fair wear and tear’ was compiled; nor is there any evidence that the tenants were advised of these issues.
12. The real estate agents informed the tenants that the rental bond would be returned to them.
13. I take into account all of the above evidence, and note particularly the evidence of the agent that the lessors had not drawn any of the items listed in the table to the attention of the agents; that the lessors had indicated that they were happy to take the premises back in the condition evident during the final inspection with the agent; that there was no proper outgoing condition report compiled by either the lessors or their agents. I also note that the agents had indicated to the tenants that the bond would be returned to them. Clause 64 of the residential tenancy agreement provides:
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.
14. I am not satisfied on the evidence before me that the lessors have provided evidence that establishes on the balance of probabilities, that in relation to the items listed in the table, ‘damage to property not considered to be fair wear and tear’, that the tenants had breached the residential tenancy agreement.
15. I turn now to consider the alleged damage to the carpet throughout the premises. I am satisfied on the evidence before me that the carpets in the premises we are installed as follows: in the master bedroom on or about 29 May 2017 at a cost of $1,650; and in the remainder of the house on or about 15 November 2017 at a cost of $3,078.50.
16. A “Service Report” was prepared by Harvey Norman Flooring dated 19 August 2020. The report states that the carpet was inspected by the manager of commercial and residential sales at Harvey Norman Flooring. There is no evidence before the Tribunal as to the qualifications or experience of the person compiling the report, nor of any tests that were undertaken on the carpet. There is no evidence before the Tribunal to indicate how the writer of the report reached his conclusions. The “Service Report” reaches the following conclusion:
…the carpet and underlay is beyond the state to be cleaned as the backing of the carpet has discoloration from the acidity of the pet urine and the excessive amount of urine has begun to breakdown the adhesives in the backing. This issue cannot be fixed and or cleaned. My Professional recommendation is a complete replacement of the carpet and underlay, I highly advise the carpet and underlay taken up as soon as possible and the concrete to be treated.
17. A written witness statement dated 27 October 2020 was provided by Mr Brett Walmsley, from Pet Stains Canberra and Scrubbers Carpet Cleaning. Mr Walmsley is an accredited carpet cleaning technician. In his written report dated 19 August 2020 he states:
Upon entering the premises, the smell of urine was overpowering. I tested the carpets in the 3 bedrooms, study, lounge and dining room with a prong moisture meter. Every room had extensive urine contamination in the carpet, padding and subfloor. The main bedroom carpet had been pulled back to reveal large urine stains. I can’t determine the exact age of the stains however as most of the stains are still active, meaning wet with urine, they have to be very recent in the last few weeks at least.
18. Mr Walmsley’s oral evidence is summarised as follows:
(a) He had visited the premises on 18 August 2020 and that he had been there for approximately a half an hour, to an hour. He agreed that when he entered the property there were already white stickers laid out over the carpet and that he tested each of the spots marked with white tape and identified urine in each of those spots.
(b) He used a moisture meter with prongs, which measures the moisture in the subfloor. He indicated that the moisture readings were quite high. In cross-examination he conceded that the moisture meter detects moisture, not specifically urine.
(c) When the carpet was pulled back in the main bedroom they were big stains on the backing, so he concluded that his moisture testing was accurate.
(d) In response to being asked whether there was any visible evidence on the surface of the carpet of any urine stains he stated that he “didn’t notice any at all, not actually on the carpet itself”.
(e) The smell was quite strong when he entered the property: the smell was very strong, very pungent smell and that it was a smell of ammonia. He said:
It’s not actually the urine you’re smelling. It’s the bacteria that’s growing in there because …if you look at it scientifically, it’s the bacteria, not the urine you’re smelling because the bacteria will grow in urine, and as soon as they get a bit of humidity, bang, they start growing and then the smell is horrendous.
(f) That the steam cleaning of the carpet would have spread the urine from the subfloor to the carpet throughout the house, but it was very unlikely that the moisture meter had picked up the residual moisture from the steam cleaning.
(g) As the carpet dried, after steam cleaning, urine may have been pulled up from the subfloor. In response to questioning by the Tribunal Mr Walmsley confirmed that the carpets were not wet to touch, that the moisture he had measured was coming from the subfloor area. That if there was urine in the subfloor the dry cleaning of the carpet could spread the urine into the carpet, and that as the carpet dried it could draw urine up from the subfloor.
(h) He had not conducted any chemical testing to determine that the stains and the smell were caused by pet urine but that he was satisfied that the stains fluoresced green or yellow under a black light test and that the smell indicated that dog urine was present. There was a salt test available, but he hadn’t performed it.
(i) When asked how the Tribunal could be sure that the urine that came up from the subfloor came up from urination on the carpet in the last 12 months rather than urination by other pets occupying the premises at some time earlier he stated that he couldn’t honestly say, but that he had concluded upon his examination that the stains were still active. He did however concede that wetting the carpet to steam clean it could possibly draw up old stains from the subfloor, which could have been caused approximately 12 months earlier.
(j) If pets had been regularly urinating on the carpet then you would smell it even though the carpets haven’t been steam cleaned but the smell would be much worse after the carpets were cleaned.
19. There was no evidence before the Tribunal to indicate the method of using the ‘black light’ to identify pet urine or any evidence as to the reliability of this method. The Tribunal was not supplied with any information as to the moisture readings obtained by Mr Walmsley, or any explanation of the method by which it was determined that the moisture in the subfloor was dog urine.
20. I note that Mr Walmsley’s report was produced initially for the purposes of an insurance claim to be made by the lessors; and that the company which employed Mr Walmsley, “Scrubbers Carpet Cleaning Specialists” performed the work of treating and sealing the concrete floor. I therefore treat the evidence contained in Mr Walmsley’s report and his oral evidence with caution.
21. Matthew Meyer, one of the lessors gave evidence, which is summarised as follows:
(a) At the time of the final inspection on the afternoon of 14 August 2020, in the company of the agents he did:
…note the smell of urine and I assumed all the doors and windows were open on a very cold wet day on the Friday, I assumed it was just to ventilate the house and the smell was coming in from the garden where the dogs usually did their toilet.
(b) Mr Meyer was asked “Did you ever note the smell with the agent?” He replied:
Yes, I did, and in the exit condition report they did prepare on the Monday, because we required it for insurance purposes, they have included that in the exit condition report they have noted. For each of the rooms where there was carpet they have indicated that we noted the smell of urine.
(c) That Mr Walmsley had been called to inspect the premises on the advice of his insurance company and that his original assessment of the state of the carpet was for insurance purposes.
(d) That there was a smell of urine in every room including the bedrooms and that it was “overwhelming”. He stated that most of the stains were in those parts of the house where the smell was strongest, and the master bedroom was by far the worst. The lessors also supplied photographs of the carpet, with white pieces of tape indicating where they said the stains were. I cannot be satisfied on the evidence of those photographs that there was obvious and extensive staining on the carpet throughout the premises.
(e) That there was a meeting at the premises with the agents on Monday at 3:30pm. He agreed on cross-examination that the agent indicated that they could not smell anything, let alone a strong smell of urine.
(f) That at the meeting on 17 August 2020 Mr John McEwen from Stain Busters had attended but after a brief time he had been asked to leave the premises. Mr Meyer gave evidence that he had not agreed to the presence of Mr McEwen at the premises. The lessors denied that Mr McEwen had been able to undertake any inspection of the carpet and strongly denied the information contained in Mr McEwen’s witness statement.
(g) That the agents were only present at the property for a short period of time, before they were asked to leave. Mr Meyer stated that he had asked the agent to leave the property, and that the agents were there for about 10 minutes he said they spent the entirety of it disagreeing and saying, “oh, there – there can’t be – I can’t smell urine. I can’t smell urine, and which was incredulous to me it was it was impossible not to smell it”.
22. Rebecca Braddon, an agent employed by Peter Blackshaw Gungahlin, provided a written statement and oral evidence. Ms Braddon had attended the follow up inspection. In relation to the carpet, she stated that there were pieces of masking tape on the floor throughout the premises and that the lessors told her these indicated where the smell was worse. She said:
I personally could not smell urine at the property, there was a slight damp smell however, I am unable to identify the smell as urine, my colleagues were unable to smell anything unpleasant.
In relation to other areas of damage alleged by the lessors she noted that only the issue with the shower hose had been drawn to her attention and she had ventured the opinion that this would be lessor maintenance.
23. Mr Craig Sleeman gave evidence and provided a written statement to the Tribunal. He stated in his written statement that over the weekend, following the final inspection his office had received four emails from the lessors regarding concerns they had identified post the final inspection and they believed that there was dog urine on the curtains and carpets. One of the emails sent on Saturday 15 August 2020 advised that they were not to release the bond to the tenants he stated this “was very surprising to me, as when the final inspection was carried out Matthew Meyer and Matthew Stark indicated they were very happy”. Mr Sleeman attended the meeting at the premises on the Monday and he states at this inspection: “I noted masking tape laid out on the carpet, by the owners, indicating all areas of the carpet that the owners claimed were affected by pet urine and or vomit. The carpet in the master bedroom had been pulled back to expose a stain on the underside. I personally could not smell urine at the property there was a slight damp smell however, this smell is in my opinion a smell that is evident when carpets have been cleaned, along with the house being closed up”.
24. In her oral evidence Ms Houvenin was referred to Mr Walmsley’s statement in his report that upon entering the house the smell of urine was “overpowering” and that there was extensive urine contamination in the carpet in every room, and asked whether she had noticed any of these things. She replied:
I did not notice any of these things and I’m actually surprised that there would be a report like that. That actually does really surprise me because at the final inspection when myself, Craig [Sleeman] and both Matts [the lessors] were present, nobody there raised any concern of any type of smell of urine at all, or any marks on the carpet.
25. Mr John McEwen, owner and manager of Stain Busters Carpet Cleaning, ACT, provided a written statement and gave oral evidence. He attended the property at 3:20pm on 17 August 2020 and met the owner; he said that he explained why he was there and said he would like to start his inspection while waiting for the agents. He was shown into the lounge room.
26. He gave evidence that the lessor pointed out several (approximately 30) spots that had been marked with tape to pinpoint areas that he thought were contaminated. Mr McEwan said:
I used my moisture meter to check for moisture in, under and around one of the marked areas and found there to be no moisture present. The owner asked me what I was doing so I explained that even though the surface seems dry, the meter picks up the moisture contained in the microscopic urine crystals that form as urine dries. I confirmed there was none in the area I had just checked.
27. At paragraph five of his written statement Mr McEwan says:
I left the lounge room having only tested one of the marked spots to inspect the room where the carpet had been pulled back. An area approximately 1 metre long an approximately 20mm wide was damp along the skirting board. I concluded the moisture was from water leaking from the adjoining ensuite bathroom. My conclusion was based on the fact that there was, no urine odour present, despite the area still being damp and the shape of the damp area being in keeping with that of a small leak or seepage rather than that of an animal urinating. At this point the owner asked me to leave so I left immediately.
In an attachment to his written statement, that is an email written on 17 August 2020 to Mr Sleeman, Mr McEwen stated: “there was no discernible odour coming from this area and I concluded the moisture was caused by water exiting the ensuite”. He noted that:
Unfortunately, I can’t make any meaningful determination without checking at least some of the other marked areas. I can state categorically that there was no evidence of any urine on the surface or in the sub floor in the areas I was able to check before being asked to leave.
28. The lessors and the tenants each kept two dogs at the premises. Each party gave evidence by way of written statement and oral evidence that their dogs were toilet trained, well behaved, spent most of their time in the backyard, slept in beds and to the best of their knowledge had not urinated on the carpet.
29. The tenants gave evidenced that their dogs were housetrained. During the tenancy their dogs spent most of their time in the backyard and were taken out walking once a day. When the tenants were not at home the dogs would be kept in the backyard, and not allowed in the house if the tenants were not at home. At night the dogs slept in the tenants’ bedroom. They have two small beds and they do not sleep anywhere else. There is also a Pet Haven brand, puppy training pad that was at the base of the bed and another pad of the same kind on the tiled floor of the one ensuite. They stated that their dogs were well behaved and to the best of their knowledge did not urinate on the floor or carpets only occasionally using the pee pads late at night.
30. The respondents also provided the Tribunal with copies of statements made by friends and neighbours who had visited the house during their tenancy. I note that the statements are supportive of the tenants, and that at least one of them is highly prejudicial to the lessors. I have placed little weight on the evidence contained in those statements, however I note that the statements, in regard to the way the tenants cared for the house tend to corroborate the statements made by Ms Huovenin in paragraph 10 above.
31. Mr Meyer suggested in his oral evidence that the three real estate agents were not being truthful when they said that they could not smell urine in the house and suggested that they were “protecting themselves because they know they erred in their provision of services to us”. I note that Mr Meyer was generally highly critical of the performance of the real estate agent. Mr Meyer in his oral evidence insisted that he had drawn the smell of the urine to the attention of the agents at the final inspection on the afternoon of 14 August 2020. This is denied by each of the agents in their written and oral statements. Mr Meyer asked Mr Sleeman on several occasions to confirm that the lessors had raised the question of the smell of urine at that final inspection. Page 19 of the transcript of proceedings 10 December 2020 reveals the following exchange:
MR MEYER:Sorry. In the time I was inside did I not mention several times that I could smell urine throughout the property?---You never mentioned to me once you could smell urine throughout the property.
Well, it’s referenced in the final inspection. It was cobbled together on the Monday afternoon when we required it for insurance purposes. For each of the rooms it says, ‘Owners noted smell of urine’, and I did say several times to both - - -?---Not to us on the Saturday.
I did say several times to both yourself and Tanya that there was the smell of urine throughout the house - - -?---Well, I didn’t hear you say that.
32. I do not accept the evidence of Mr Meyer that he drew the attention of the agents to the smell of urine on the final inspection on 14 August 2020. I place no weight on the unsigned and undated final report which contains the sole annotation in relation to each room that the owners noted the smell of urine. This report was produced by the agents at the request of the lessors for the purposes of furthering their insurance claim.
33. The applicants bear the onus of proof and must satisfy the Tribunal to the civil standard, that is on the balance of probabilities, of three things: that the carpet had suffered damage from dog urine; that dog urine was present in the carpets to the extent alleged by the applicants, and that the urine damage was caused by the respondents’ dogs. The applicants have provided no evidence that there was visible staining on the carpets in any of the rooms in the premises. The real estate agents have given evidence that they did not observe staining either in the routine inspections during the tenancy or in the final inspection on 14 August 2020. Mr Walmsley gave evidence that he did not notice staining on the carpet itself. The photographic evidence provided by the applicants does not reveal substantial staining of the carpet.
34. The applicants submit that there was a smell of urine evident at the inspection on 14 August 2020 and that when they took possession of the premises on the following weekend the smell had become overwhelming. Mr Walmsley describes it as “just everywhere. My eyes was starting to sting from the ammonia from the urine”. Both Mr Walmsley and Mr McEwen gave evidence that if there had been dogs urinating on the carpets in the premises throughout the tenancy the smell would have been noticeable, and intensified after steam cleaning of the carpets. The evidence before the Tribunal does not establish that there was a smell evident during routine inspections, in fact Ms Huovenin’s evidence is to the contrary.
35. The evidence of the applicants and the evidence of Mr Walmsley is that the smell of urine in the property was “overpowering”. The respondents submit that a smell of this calibre would have been noted by experienced agents who, at the time, were still employed by the applicants and were attending the property at the request of the applicants. There is no evidence before the Tribunal to show that the agents had ulterior motives or an intention to breach their fiduciary obligations to the applicants. The evidence of Mr Sleeman that what he could smell at the final inspection was the usual sort of smell after carpets had been steam cleaned. The Tribunal acknowledges the strength of the respondents’ submissions. The evidence of the lessors and the evidence of the tenants is contradictory, and each is totally at odds with the other. The evidence of each of the real estate agents is that there was no evident staining in the carpet and that there was no smell of urine on either 14 August 2020 or the later brief inspection.
36. The Tribunal appreciates that different people may experience smells at different levels of intensity. The applicants claim that the urine was distributed extensively, and throughout the house. There is no definitive evidence that whatever was present in the carpet, and caused the smell the applicants say that they experienced, was dog urine. Mr Walmsley did not carry out any tests, although he gave evidence that tests were available, to establish the presence of dog urine or urine crystals in either the carpet or the subfloor. Mr McEwen gave evidence that he did not identify moisture or dog urine during his very brief inspection of points at which the lessors said they had identified stains. The photographic evidence does not identify substantial visible staining in any area of carpet. The lessors’ written timeline of events set out that on 15 August 2020 they returned to the property just after midday, after staying with friends at nearby Amaroo overnight. They say:
Upon opening the front door we realised there was a major issue with the house – we were hit with an overpowering smell of dog urine. Further investigations led us to discover at least 98 patches of urine in the six carpeted rooms of the house.
This is at odds with the oral evidence given by Mr Meyer. When asked whether there were visible stains on the carpet he said:
No, given the colour of the carpet I’m not surprised. It - it was a beige - beigey/brown colour, and I wouldn’t imagine a yellow stain would be that evident on a - on a carpet that colour.
…
They were visibly, at first glance, yes, they looked the same, but if you got down on your hands and knees, the quite hideous smell of urine, the first stain I smelt I recoiled in horror and then Matthew and I spent the next two hours on our hands and knees going up and down in each room looking for each of the locations of the smell.
I do not accept the evidence of the applicants that there was a smell of urine evident on 14 August 2020, or that they encountered an overwhelming smell of urine when they returned to the property on 15 August 2020.
37. I cannot be satisfied on the evidence before me that the carpet in the premises has suffered damage as a result of dog urine being present. The applicants have failed to discharge the onus of proof and to establish the first of the three matters listed above. In the light of the conclusion I have reached, there is no need to examine the remaining two items. The applicant’s claim for compensation for damage to the carpet is dismissed.
38. I note that the tenants have conceded liability to pay $199 for the dry cleaning of the curtains, and make the appropriate order in relation to the rental bond.
………………………………..
Senior Member J Lennard
Date(s) of hearing
10 December 2020
Solicitors for the Applicant:
Ms K Phillips, Meyer Vandenberg Lawyers
Solicitors for the Respondent:
Mr D Yesildag, ACT Legal Aid
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