Michel v Belle Property Buderim; Bendall v Michel
[2012] QCAT 379
•8 August 2012
| CITATION: | Michel and Anor v Belle Property Buderim; Bendall v Michel and Anor [2012] QCAT 379 |
| PARTIES: | Xavier Jean Jules Michel Yolan Marie Alexandra Michel (Applicants) |
| v | |
| Belle Property Buderim (Respondent) |
| APPLICATION NUMBER: | MCDT648/12 / MCDT466/12 |
| PARTIES: | Cecilia Ann Bendall (Applicant) |
| v | |
| Xavier Michel Yolan Michel (Respondents) |
| APPLICATION NUMBER: | MCDT649/12 / MCDT773/12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 9 May 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 8 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Cecilia Ann Bendall pay to Xavier Michel and Yolan Michel the sum of $730.00. [2] Future communication by Cecilia Ann Bendall and/or agent Belle Property Buderim to Xavier and Yolan Michel shall be by hand delivery to the mailbox 89 Dahlia Road, Verrierdale and/or by prepaid ordinary post. |
| CATCHWORDS: | Notice to leave – liveability – maintenance of premises – entry notices and objectionable behaviour |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS/ RESPONDENTS: | Felicity Stewart and Ella Frankiewicz of Belle Property Buderim Cecilia Ann Bendall, Owner |
| APPLICANTS/ RESPONDENTS: | Xavier Jean Jules Michel and Yolan Marie Alexandra Michel |
REASONS FOR DECISION
Applications
These four applications came before the Tribunal on 9 May 2012. All arise out of the same tenancy and are properly heard together. They all seek orders pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (RTA legislation).
Application 648/12
By application filed 6 January 2012 at Nambour as application 2/2012 and subsequently transferred to Brisbane Xavier Michel and Yolan Michel as tenants sought cancellation of a notice to leave due to non liveability issued by Belle Property Rentals as agent for the owner Cecilia Ann Bendall on 19 December 2011 and expiring 9 January 2012.
Application 649/12
By application filed 16 January 2012 at Maroochydore as application 16/2012 transferred to Nambour as application 4/2012 and subsequently transferred to Brisbane the owner Cecilia Ann Bendall sought possession of the premises based on the same notice to leave due to non liveability issued by Belle Property Rentals as agent for the owner Cecilia Ann Bendall on 19 December 2011 and expiring 9 January 2012.
Application 466/12
By application filed 7 March 2012 at Brisbane the tenants Xavier Michel and Yolan Michel sought compensation of $25,000 under various heads including leaking roof, insecurity or premises, lack of keys, presence of cockroaches, loss of personal property and loss of data from a laptop as well as the addressing of maintenance issues.
Application 733/12
By application filed 19 April 2012 at Brisbane Cecilia Ann Bendall sought termination of the tenancy based on the objectionable behaviour of the tenants Xavier Michel and Yolan Michel.
Background and evidence
The rented premises (the premises), being the substantial 3 bedroom highset wooden house and surrounding unfenced yard area is situated at 89 Dahlia Road, Verrierdale. The premises and yard area are situated within a 51 acre (21.24 hectares) property which includes a commercial macadamia farm consisting of 1,800 macadamia trees, lemon myrtle trees and some 3,000 exotic trees, 2,000 native trees and 4,000 commercial plants. Other improvements include internal roads and paths, erosion control drains, fencing, fire tracks and 2 dams. Ms Bendall since 2008 had employed one Barry Ludwig to manage and maintain the macadamia farm.
The premises was lived in by the owner Ms Bendall from the time it was built in 1989 to approximately 21 October 2011. A short time prior Ms Bendall made the decision to rent the premises. Inspections and negotiations took place in October 2011. Ms Bendall’s agent, Belle Property Rentals (the agent), accepting Mr & Mrs Michel as suitable tenants.
The premises was let at $500 per week for the period 10 November 2011 to 9 November 2012 with a bond of $2,000 to be held by the RTA. The general tenancy agreement according to the agent consisted of the itemised 2 page tenancy details, standard terms, special terms, annexure “A” and special terms and conditions attached to annexure “A”. Those terms and conditions excluded “right of access to any of the sheds below the house region, nor use of any of the equipment stored in these areas”. The premises was connected to electricity and otherwise serviced by tank water and a septic system.
There was a machinery/work shed situated about half a kilometre from the premises which itself was some 650 metres in from the main gate located on Dahlia Road. The shed contained according to Ms Bendall some quarter million dollars worth of machinery. Adjacent to the shed was a 1,200 litre diesel fuel tank.
Mr Ludwig’s duties, apart from managing and maintaining the macadamia farm, included maintenance “in the house area” such as emptying the grease trap, cleaning rain heads, ensuring drains around the house were not blocked and ensuring support posts were maintained in a clean and clear state. Mr Ludwig had for the last 3 years a key to the main gate to enable him to carry out his duties. Both the premises and the macadamia farm are serviced by the one main gate on Dahlia Road.
Mr and Mrs Michel contended that the tenancy agreement originally signed by them did not contain any special terms and conditions.
On or about 14 November 2011 Mr and Mrs Michel complained of the smell of dog urine in the premises. The agent arranged for a cleaner, Bondzart, to attend the premises. That cleaner identified a smell and suggested a “clean with an antibacterial clean by a professional”.
The agent then arranged for Killyptus to carry out the clean. However that cleaner was not able to clean the floors for fear of causing damage to the timber. Mr and Mrs Michel took it upon themselves to sanitise the wooden floor skirting boards etc by application of white vinegar and baking soda. Mr and Mrs Michel expressed their disappointment with this state of affairs by letter dated 16 November 2011.
On 17 November 2011 the agent and Mr and Mrs Michel signed an agreement to terminate the lease on 25 November 2011 subject to certain refunds and payments. Mr and Mrs Michel did not vacate the premises but elected to stay on and some days later brought a Tribunal application 76/11 in the Nambour Magistrates Court. That application claimed firstly loss of amenity 95% rent reduction from commencement of tenancy to date of rectification, secondly cleaning of premises (dog urine issue) $1,500 and thirdly loss of amenity workspace and income $2,500. During the course of the hearing the claim then became $2,500 for cleaning and 3 months rent reduction i.e. $6,000 a total of $8,500. The agent filed application 78/11 in the same registry seeking to enforce the agreement of 17 November 2011. On 19 December 2011 the presiding Magistrate as Tribunal Member awarded Mr and Mrs Michel the sum of $1,500 compensation for loss of amenity due to the urine smell. According to the agent his Honour recorded that Mr and Mrs Michel voided their right to any further compensation by not leaving when they said they would.
The record of the proceeding shows that his Honour in making his decision took into account the fact that Mr and Mrs Michel had spent considerable hours cleaning the premises to overcome the urine smell. According to his Honour the cost of cleaning was not quantifiable as Mr and Mrs Michel had undertaken that themselves and they were not professional cleaners. The tenor of his Honour’s reasoning was that with Mr and Mrs Michel wanting to continue to reside in the premises and they having spent considerable hours cleaning that the order of $1,500 compensation for loss of amenity payable to them finalised the issue of urine smell within the premises. It appears that his Honour’s decision has since been appealed. The same day application 78/11 was dismissed. It has not been appealed.
Applications 648/12 and 649/12
The notice to leave issued by the agent on 19 December 2011 was grounded on non liveability pursuant to s 284 of the RTA legislation. That notice to leave issued the same day as the Nambour hearing appears to have been based on concerns on the part of the agent that the premises may well have been unliveable particularly in the light of evidence given by Mr Whiteside at the Nambour hearing. His report which is included as evidence in these proceedings suggested major structural removal and replacement to categorically rid the premises of the urine problem. By implication it would not be possible for the premises to be occupied whilst that was being done.
In their application 648/12 Mr and Mrs Michel sought cancellation of the notice to leave on the basis that “the property is completely liveable” but at the same time claiming that the owner was “in breach with maintenance request and they were aware of the problem since the start of the tenancy in November 2011”. The application attaches their letter of 16 November 2011 complaining of smell of dog urine, condition of the kitchen, general unclean condition of the house, necessity for pest control, leaking tap, crooked/missing fly screens, jammed shower and sticking windows. Mr and Mrs Michel asserted that s 284 of the RTA legislation providing for the owner/agent to give a notice to leave if the premises was unfit for occupation did not apply because the agent’s notice to leave was not given within 1 month of the premises so being unfit to be occupied. Mr and Mrs Michel then asserted only small repair issues were in dispute. These have not been further pursued or quantified.
In application 649/12 Ms Bendall, the owner, asserted “the property needs to have extensive repairs and cleaning due to bacteria from dog urine, there are also other repairs to a leaking roof which need to be attended to. The house is not fit for occupation due to the bacteria and also the extent of work that needs to be carried out to rectify them. It is unfit for occupation”. The application attaches and appears to primarily rely on the report of Mr Whiteside, J & E Cleaning Services dated 17 December 2011 addressed to Mr and Mrs Michel.
Mr and Mrs Michel’s position in December 2011 was that they ought to be entitled to a 95% rent reduction (amongst other things) to date of rectification of the dog urine smell. Their position as of 6 January 2012 is that the premises is “completely liveable” but that there are maintenance issues.
The owner Ms Bendall’s position in December 2011 is to resist assertions of non liveability by Mr and Mrs Michel. Her position as of 16 January 2012 is that the premises was not liveable such as to warrant Mr and Mrs Michel having to vacate.
Mr and Mrs Michel have continued to reside in the premises paying the agreed rent to date albeit in the context of ongoing unresolved maintenance issues. Photographic evidence provided by Mr and Mrs Michel indicate a liveable premises with minor identifiable maintenance issues.
Clearly the premises is liveable.
Application 466/12 – claim for $25,000 and other orders
This application raises 6 heads of damage as follows:
(a)First head of compensation roof leak
Mr and Mrs Michel first complained of the roof leak in the notice to remedy breach issued 7 December 2011. The agent issued an entry notice by email on 9 December 2011 for entry later that day to effect maintenance. A full 24 hours notice had not been given so Mr and Mrs Michel turned the agent’s representative and Mr Ludwig away citing illegal trespass and breach of privacy. Mr Ludwig offered to return the following day, Saturday, “to have a look at the roof problem and hopefully arrange to fix it”. Mr and Mrs Michel refused stating they did not want to see anyone until at least the following Tuesday. Photos produced by Mr and Mrs Michel indicate some minor pooling of water. Thereafter through to 25 January 2012 Mr and Mrs Michel assert failure to repair the roof leak with the agent asserting Mr and Mrs Michel not allowing entry for that purpose. When a lengthy inspection by the agent and Mr Ludwig took place on 25 January 2012 Mr Ludwig noted that the roof leak appeared minor and occurred only in very heavy rain. Mr and Mrs Michel asserted 3 months’ inconvenience at the time this application was filed on 7 March 2012. Mr and Mrs Michel have not approached this issue with any urgency. The very minor nature of the leaks would suggest that they do not fall within the category of emergency repairs. In the meantime there has been no coming together of the parties such that the repair has been effected.
The evidence points to minor leaks in extreme weather conditions. Compensation of $10 per week for 22 weeks (7 December-9 May) is granted in the sum of $220.
(b)Compensation for insecure rental house
(c)Compensation for not having keys for each tenant and locks
Mr and Mrs Michel first complained of a lack of keys to the premises in their notice to remedy breach issued 29 December 2011. They asserted the one key they had would not properly lock or unlock the front door. On the 25 January 2012 attendance at the premises Mr Ludwig sprayed WD40 inside the lock to make operation easier. The one key in fact operated 5 locks at the premises. Mr and Mrs Michel were not convinced the front door lock operated correctly after 25 January 2012. On 5 March 2012 they obtained a quote for the replacement of the front door lock from Coast & Hinterland Mobile Locksmiths which entity attended the premises on 30 March 2012 and replaced the front door lock. The written quote of 5 March 2012 was to “replace worn front door lock with similar” and commented “the existing lock is insecure as it is not locking correctly and requires replacement”.
The Tribunal is satisfied on the basis of this evidence that there was a necessity to replace the front door lock. No security issue arises from the marginally delayed replacement. Mr and Mrs Michel are awarded the locksmiths invoiced cost of door lock replacement at $231.
The shed adjacent to the premises proper called the studio is an unlined metal clad shed partly enclosed. Apart from a solitary stove and some curtains the enclosed section is otherwise bare. The enclosed section also contains a basic bathroom. The unenclosed section housed the washing machine and clothesline ie an open laundry. The studio could not be locked. It was a partly enclosed shed not designed for occupancy as any sort of residence.
The Tribunal is satisfied on the basis of this evidence that it was never incumbent on the owner to provide a lockable shed/studio.
Mr Ludwig had a key to the main gate on Dahlia Road which was the one access to both the premises and the macadamia farm. Mr and Mrs Michel had in their possession as early as 3 October 2011 the sketch drawn on the titles office plan clearly stating that the tenancy was for “lease of house and immediate area around … right to travel to get to house but not leased” (referring to the access road from Dahlia Road to the premises). If it was not clear to Mr and Mrs Michel at the time of signing the tenancy agreement on 12 October 2011 it was certainly clarified and accepted by Mr and Mrs Michel on 17 October 2011 at a meeting attended by Mr and Mrs Michel and Mr Ludwig. Mr and Mrs Michel were made aware of Mr Ludwig’s role as farm manager and the necessity for him to have access to carry out his duties. At the same time it was made clear that the machinery shed located some half a kilometre from the premises together with the diesel tank stand adjacent to that shed were used for purposes associated with the management of the macadamia farm all of which is consistent with the terms of the general tenancy agreement detailed in paragraph 7 of this decision.
On the basis of the above evidence the Tribunal is satisfied that the premises as let was constituted by the premises, the yard or garden area immediately around the premises including the “studio” and the right to use of the access road for travel to and from the premises. The Tribunal is satisfied that it was always necessary for Mr Ludwig to have a key to the one and only main gate to the whole of the macadamia farm and premises to enable him to carry out his duties. No security issue arose from Mr Ludwig’s having a key to the main gate on Dahlia Road.
(d)Cockroaches
Mr and Mrs Michel stated that they first advised the agent of a cockroach problem in the premises on 14 November 2011 and that it was only addressed on 10 February 2012 after being recited as an item of complaint in their notice to remedy breach issued 3 January 2012.
The owner, Ms Bendall, stated that an annual pest inspection had been carried out in April 2011; that the premises was situated on a rural property partly covered by rainforest vegetation; that vermin and pests were ever present in such a location and that any delay was brought about by Mr and Mrs Michel firstly agreeing to leave subsequently deciding to stay put and then refusing access after the lengthy inspection of 25 January 2012. Pest control was carried out on 10 February 2012.
On the basis of the above evidence the Tribunal is satisfied some minor loss of amenity has been occasioned to Mr and Mrs Michel and assesses same at a nominal sum of $200.
(e)Compensation for loss of property
On 2 February 2012 Mr and Mrs Michel’s laptop was stolen from the shed/studio. Apparently no other items were stolen at the time. The studio was not locked at the time nor was it capable of being locked at the time.
The notice to remedy breach of 3 January 2012 recites amongst other complaints “provide keys and repair doors of the studio”.
The Tribunal has already discerned that it was not incumbent on the owner to provide a lockable shed/studio. If Mr and Mrs Michel had seen fit to leave a laptop of significant value in the unlockable studio/shed then that was a risk that they took. As there is no link between the occurrence of this incident and the owner’s conduct there is no basis for liability for compensation.
Mr and Mrs Michel also claimed the replacement cost of a rug and 2 beds damaged as a result of water leaks. They relied on item (B) to their application which appears to be copies of Ikea purchase receipts. Included in those receipts there is an item purchase for “rug flat” at $79. Some photos of pine bed frames appearing to be water stained but otherwise intact were produced.
The Tribunal accepts that the water leaks, although minor, may on balance have been sufficient to damage a rug beyond repair. The purchase receipt is dated 22 December 2011 and consistent with the general timing of Mr and Mrs Michel’s complaint regarding water leaks. The Tribunal accepts the rug replacement cost at $79.
(f)Compensation for loss of laptop data
The same reasoning applies to this head of damage as applies to the loss/theft of the laptop. No liability for compensation arises.
Application 466/12 part F
Matters referred to under the heading “the reason I am seeking orders from the Tribunal”.
Mr and Mrs Michel alleged breaches of various sections of the RTA legislation as follows:
§Breach of section 210 dealing with provision of locks and keys. This issue has been determined.
§Breach of section 185 dealing with cleanliness of the premises and health and safety of persons in the premises. The issue of cleanliness has in terms of the dog urine odour been determined. There was no evidence produced apart from the cockroach issue which raised health and safety issues at the commencement of the tenancy.
§Breach of sections 65 and 67. These sections deal with the provision of an entry condition report and information statement at the commencement of the tenancy. Breaches of these sections are dealt with by the Residential Tenancies Authority.
§Breach of section 145 obliging the agent to give the receipt for the rental bond to the tenant is dealt with by the Residential Tenancies Authority.
§Breach of section 202 requiring entry notices to be given and the length of time beforehand they are to be given are dealt with by the Residential Tenancies Authority.
§Additionally Mr and Mrs Michel sought orders as follows:
(a) That the Tribunal order that notifications by the agent to Mr and Mrs Michel be by mail and not by email for the reason that they are no longer reliably connected to the internet. It is essential that communication between the parties be conducted in the most reliable and prompt manner available. There is no reason why communications from the agent to Mr and Mrs Michel ought not be by hand delivery to the mailbox located 89 Dahlia Road or delivery by mail.
(b) That the agent change the lock to the gate of the property because the maintenance man (presumably Mr Ludwig) is permanently in possession of the key and “proceeds with unlawful entries”. The Tribunal has made it abundantly clear that it considers Mr Ludwig requires a key to the front gate to carry out his duties as farm manager. There is nothing unlawful about his entry. Such application is dismissed.
In conclusion
In this application Mr and Mrs Michel claimed back the sum of $25,000 as well as seeking other orders as compensation. At the time of filing of this application some 17 weeks of the tenancy had passed. This application has been made in the context of Mr and Mrs Michel continuing to pay the full rental of $500 per week. As such it could be viewed as Mr and Mrs Michel sitting tight and paying the rent whilst accumulating a compensation claim far in excess of rent paid. To that extent it could be seen as disingenuous, contrived and lacking of any genuine effort to mitigate their alleged losses.
Application 773/12
The owner/agent asserts a litany or accumulation of events amounting to objectionable behaviour as follows:
(a) On 17 November 2011 Mr and Mrs Michel attended the agent’s office became abusive and threatened to throw a mixture of bi-carb soda and dog urine at a staff member. They then threatened to stay and sleep in the office. That episode lead to the agreement of the same day whereby Mr and Mrs Michel would vacate by 25 November 2011 on certain terms and conditions. Mr and Mrs Michel did not vacate.
(b) On 9 December 2011 an agent’s representative and Mr Ludwig attended the premises in response to complaints about the premises by Mr and Mrs Michel. As insufficient notice of entry had been given they were turned away by Mr and Mrs Michel who refused entry to the premises.
(c) On 25 January 2012 Mr Ludwig, agent’s representative Felicity Stewart and another agent’s representative attended the premises regarding complaints/repairs. Mr and Mrs Michel initially refused entry. Felicity Stewart stated that Mrs Michel grabbed her wrist. This “assault” has become the subject of a complaint to the police.
(d) On 7 March 2012 two agent’s representatives and Mark Boulter, licensed agent, attended the premises to conduct a 6 month rent review. Entry was blocked by Mr and Mrs Michel on the ground that 24 hours notice had allegedly not been given.
(e) On 19 March 2012 after the parties attended a Tribunal hearing in Nambour Ms Bendall, the agent, and Mr Ludwig sought entry to the macadamia farm and the premises to inspect the farm dam wall in danger of collapsing (emergency repair) and the premises including the roof leak. Mr and Mrs Michel asserted they had not received a valid entry notice and initially refused entry. All parties sought justification for the position based on comments made by the presiding Magistrate earlier that day. Mrs Michel barricaded the gate with her vehicle. Police were called and attended for some 2 hours whilst the inspections took place.
(f) On 9 April 2012 Ronald Somers, earth moving contractor, attended the macadamia farm to carry out dam repair. Mr Ludwig was already operating an excavator and a tip truck was on site. Mr and Mrs Michel stated it was a public holiday and told Mr Ludwig to leave which he did. Dam repair work continued on 10 and 11 April. On 12 and 13 April it rained. Continuation of work on 14 April was refused by Mr and Mrs Michel as well as on 16 and 17 April (a police escort to be arranged for 17 April – but it rained that day). On 18 April Mr Somers was, after putting in a full day, able to fill and compact ie stabilise the dam. He stated in his affidavit that shortly after 5pm that Mrs Michel “climbed up on to my dozer” demanding that he stop immediately “as it was after 5pm”. Mr and Mrs Michel then stated they were banning him from the property. Mrs Michel asserted Mr Somers invited her to climb upon the bulldozer because he could not hear what she was saying.
(g) On 19 April 2012 Mr Somers again attended the macadamia farm. He stated that he asked Mr and Mrs Michel why they were obstructing his work and that they answered words to the effect “because they rented the property they could say what went on”.
(h) On 13 April 2012 the agent issued an entry notice for 25 April 2012 for maintenance and valuation purposes. It was a public holiday and entry was refused. A further entry notice was issued also dated 13 April 2012 nominating entry on 10 May 2012. Mr and Mrs Michel asserted no one attended on that day.
The above litany of events is undoubtedly not exhaustive.
Mr and Mrs Michel have issued a number of notices to remedy breach. Ms Bendall/agent have issued numerous entry notices some of which relate to the premises and some of which relate to the macadamia farm. The breakdown of the relationship has been evident from within days of commencement of the tenancy. Numerous allegations of assaults/ violence, inappropriate behaviour, intimidation, breach of privacy have all been made by the parties since that time. It cannot be said that the ongoing train of events complained of, entry notices, refusals of entry and complaints of each other’s conduct amounts to objectionable behaviour on the part of Mr and Mrs Michel but rather is indicative of the complete breakdown of any workable relationship between the parties. This breakdown was articulated in evidence by Mrs Michel stating, “don’t want to stay there anyway but don’t want to appear what we are not…”
The application for termination on the grounds for objectionable behaviour is dismissed.
Findings
The necessary findings have already been made. It is only necessary for orders for the monetary sum payable to Mr and Mrs Michel to be formalised and an order made with respect to future communication.
Mr and Mrs Michel are entitled to $220.00 compensation in respect of roof leaks, $231.00 in respect of the door lock replacement, $200.00 compensation in respect of the cockroach problem and $79.00 in respect of the rug replacement, a total of $730.00.
Orders
Cecilia Ann Bendall pay to Xavier Michel and Yolan Michel the sum of $730.00.
Future communication by Cecilia Ann Bendall and/or agent Belle Property Buderim to Xavier and Yolan Michel shall be by hand delivery to the mailbox 89 Dahlia Road, Verrierdale and/or by prepaid ordinary post.
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