Mooney v Peterson

[2012] QCAT 116

CITATION: Mooney and Anor v Peterson and Anor [2012] QCAT 116

PARTIES:	Karla Mooney Roger Mooney (Applicants)
v
Jason Peterson Yu-Ling Tseng (Respondents)

APPLICATION NUMBER: MCDT887-11 (Beenleigh)

MATTER TYPE: Residential tenancy matters

HEARING DATE: 11 January 2012

HEARD AT: Beenleigh

DECISION OF: Trevor Davern, Adjudicator

DELIVERED ON: 29 February 2012

DELIVERED AT: Beenleigh

ORDERS MADE:

(1)      The Residential Tenancies Authority (RTA) is to pay out the Rental Bond sum of $1,800.00 to the Tenants.

(2)      The Lessors (Karla Mooney and Roger Mooney) are to pay the Tenants (Jason Peterson and Yu-Ling Tseng) the sum of $342.87 within 28 days, for full compensation.

(3)      This order represents full and final resolution of all compensation issues between the parties relating to the subject rental premises.

CATCHWORDS:

Compensation claims by lessors and tenants in a tenancy dispute – Early termination of the tenancy agreement because of failure by the lessors to remedy breaches – Determining a termination date when the notice served by the tenants was invalid

Residential Tenancies and Rooming Accommodation Act 2008, ss 325, 302, 327, 331(2)(a)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms Jayne Burke-agent (LJ Hooker Springwood)
RESPONDENT:	Mr J Peterson & Ms Y Tseng – in person

REASONS FOR DECISION

1. The Lessors’ application identifies a compensation claim of $2,182.85.  In their counter-claim filed 24 October 2011, the tenants seek an order for the sum of $3,678.57.  

2. The Lessors’ claim is made up of the following amounts: 

   • $1,542.85 – loss of rent from vacate to new tenant (9/9 to 4/10/11)
   • $   450.00 – break lease fee
   • $     90.00 – pool maintenance
   • $   100.00 – cleaning – mould in ensuite and oven

The Tenants dispute all of the elements of claim.

1. The Tenants’ counter-claim is made up of the following amounts:

   • $1,028.57 – refund of rent for loss of amenities 
   • $   750.00 – relocation costs 
   • $   100.00 – Foxtel installation charge
   • $1,800.00 – Bond refund

2. Chronology

30/6/11	Signing and commencement of the tenancy agreement.
1/7/11	Tenants send an email to agent detailing deficiencies with the state of the property that are contrary to the recorded comments by the agent in the Entry Condition Report.
4/7/11	Tenants completed the Entry Condition Report (unsigned by Lessor/Agent) and identified a range of cleaning, maintenance and security issues.
22/7/11	Tenants issue a Notice to Remedy Breach – identifying 11 elements of breach to be rectified by 5/8/11.
26/7/11	Agent sends an email to tenants in response to the Notice to Remedy Breach.  Aspects of the tenants’ concerns are conceded and the agent indicates that she will discuss the topic of rent reduction with the owner.
29/7/11	Agent sends an email to tenants to confirm what work the owner has agreed to and planned action for the outstanding issue of the air conditioners.
29/8/11	Agent issues an Entry Notice for 2/9/11, for maintenance work to be carried out by an electrician.
30/8/11	Tenants issue a Dispute Resolution Request relating to alleged breaches.  Tenants also issue a ‘Resident Leaving Form for rooming accommodation’ to be effective on 9/9/2011.
1/9/11	During discussions between tenants and agent, the agent informed the tenants that they would be liable for rent until a new tenant moved in.
9/9/11	Agent sends email to tenants confirming that most of the issues have been resolved and proposed action for the remainder.
10/9/11	Tenants handed in the keys.
12/9/11	Agent completes Exit Condition Report.
14/9/11	Agent issues a Dispute Resolution Request relating to alleged breach of agreement, rent arrears and cleaning costs.

1. When the tenants viewed the property on 21 June 2011, the owners were still living there.  Any issues relating to cleaning and maintenance of the property should have been properly dealt with prior to the tenants moving in on 30 June 2011.  The evidence confirms that this was not done to the extent that it should have been.  An early concern between the parties was the owners’ cat.  It had gone missing and the tenants were requested to let the agent or owners know if it turned up at the rental premises so that it could be collected.  After repeated attempts by the tenants to advise that the cat had been visiting nightly, it ended up with the ‘Logan Pound’ and was put down. 

2. The Applicant Lessors have pressed their claim for compensation on the basis that this was a standard break lease situation.  It is clear from the evidence that this was not the case and the tenants were justified in terminating early because of the lessors’ failure to properly remedy all of the identified breaches.  From the evidence it is determined that problems with the doors and other maintenance related issues were not sufficiently resolved by the vacate date of 9 September 2011, and that the breaches were sufficient in substance to justify a termination.  

Invalid Notice

1. The tenants were relying on a termination of the tenancy agreement on 9 September 2011 based on a notice they served on the agents on or about 30 August 2011.  However, the document that they served was a ‘Resident Leaving Form for rooming accommodation’ (s 379).  The dispute relates to a residential tenancy agreement and not a rooming accommodation agreement.  Therefore the notice that was used was not a ‘Notice of Intention to Leave’ in the correct form (s 327(1)(a)).  Consequently the notice that the tenants served was invalid.  If an approved form of a Notice of Intention to Leave had been served, it would have been necessary to give at least 7 days notice (s 331(2)(a)).  The Notice to Remedy Breach (s 325) that was issued by the tenants on 22 July 2011 was a valid notice in the approved form.  It is from the identified breaches in this Notice that the tenants were justified in terminating the agreement. 

Calculating Compensation 

1. To properly consider any compensation recovery by the lessor or tenants, a date of actual termination must be determined.  The tenants failed to complete and deliver an Exit Condition Report, but delivered the keys to the agent on 10 September 2011.  For the purposes of the exercise, it shall be determined that termination of the agreement occurred on 17 September 2011, seven days after delivery of the keys.  This provides that there is a total rent liability for the period 30 June 2011 to 17 September 2011 (11 weeks and three days). 

2. The other elements of claim by the lessor are dismissed.  The break lease fee cannot be sustained in the circumstances.  The pool maintenance charge related to the pool turning green between the vacate date and the date of reletting on 5 October 2011.  Photographic evidence from 10 September 2011 confirms that there was no such maintenance issue at that time, and the recorded cleaning and mould issues at the beginning (of the lease) negate the cleaning related issues at the end. 

[10]  The tenants shall be granted a rent reduction to reflect the loss of amenities.  From the range of breaches that have been identified, it is determined that the rent should be reduced by one sixth for the entire period of the tenancy (from $450 to $375 per week).  In the circumstances of this case the tenants could have persevered with the tenancy after being properly compensated up until the time of remedy of all of the identified breaches.  As there was no immediate necessity to vacate and it was a clear choice of the tenants to leave, the claims for moving costs and Foxtel costs cannot be sustained, and are dismissed.  

[11]  The agent’s rent ledger confirms that the total amount of rent paid by the tenants was $4,628.57.  The tenants’ rent liability for the period is calculated to be $4,285.70 (11 weeks three days @ $375 per week).  From these calculations the outstanding compensation owed to the tenants is $342.87.