Morton v TETTEH-ACHIM (Residential Tenancies)
[2022] ACAT 96
•16 November 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MORTON v TETTEH-ACHIM (Residential Tenancies) [2022] ACAT 96
RT 958/2021
RT 371/2022
Catchwords: RESIDENTIAL TENANCIES – lessor claim against bond – lessor enters property after final inspection – agreed outgoing condition report – no issues – lessor raises issues after inspection with tenant – lessor not entitled to claim – tenant claim for lessor failure to repair – lessor obligation to repair – extent of lessor obligation – repair or improvement – excessive delay in repair
Legislation cited: Residential Tenancies Act 1997 s 30A; standard terms 55, 57
Cases cited:McCarthy v Sharma & Anor (Residential Tenancies) [2020] ACAT 62
Tribunal:Senior Member K Katavic
Date of Orders: 16 November 2022
Date of Reasons for Decision: 16 November 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 958/2021
BETWEEN:
MANDY MORTON
Applicant/Lessor
AND:
MICHAEL TETTEH-ACHIM
Respondent/Tenant
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 371/2022
BETWEEN:
MICHAEL TETTEH-ACHIM
Applicant/Tenant
AND:
MANDY MORTON
Respondent/Lessor
TRIBUNAL:Senior Member K Katavic
DATE:16 November 2022
ORDER
The Tribunal orders that:
The lessor must pay the tenant the sum of $1,940 comprising:
(a)$1,440 for the return of the tenant’s bond; and
(b)$500 compensation for the lessor’s breach of clauses 55 and 57 of the Standard Terms in relation to the bathroom tastic unit.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
The tenancy between the parties in this matter for a property in Ngunnawal in the ACT (the premises) came to an end on 13 October 2021. The bond, held by ACT Rental Bonds Office (the Bonds Office), of $1,800 was not released to either party as the lessor had made a claim against the bond. The Bonds Office referred the dispute to the tribunal in accordance with its usual processes (the Bond Claim). The procedural trajectory that followed resulted in part of the bond being released to the lessor without the tenant’s position being heard. This was ultimately set aside, and the Bond Claim was reinstated for contested hearing. The lessor has retained the amount of the bond released to her.
Parallel to this, and after the Bond Claim was referred to the tribunal, the tenant commenced proceedings against the lessor seeking compensation for failure to make repairs (the Tenant’s Claim).
Eventually, the Bond Claim and the Tenant’s Claim were heard together. This decision deals with both matters.
The lessor relied upon an Application for Resolution of a Dispute under the Residential Tenancies Act 1997 dated 24 May 2022 with the attachments below:
(a)Residential Tenancy Agreement between the lessor and the tenant dated 23 June 2020 which includes the standard residential tenancy terms.
(b)Email correspondence between the tenant and the property manager in the period from 14 October 2021 to 25 October 2021.
(c)A witness statement provided by the lessor’s representative with an attachment of photos of the conditions of the premises left by the tenant.
(d)Email correspondence between the lessor and the property manager in the period between May 2021 and October 2021.
(e)Exit Condition Report dated 13 October 2021.
(f)Electrician report dated 29 June 2021.
The tenant relied upon the following documents:
(a)Application for Resolution of a Dispute under the Residential Tenancies Act 1997 dated 18 May 2022 with an attachment of email correspondence between the tenant and the property manager in the period between 1 July 2020 and 29 May 2021.
(b)Rental Bond or Security Deposit Claim Response dated 17 July 2022 with attachments marked as “Exhibits”:
(i) Email correspondence between the tenant and the property manager in the period between 13 October 2021 and 25 October 2021 regarding bond refund and final inspection.
(ii) A statement from a cleaning service company in an email dated 17 July 2022.
(iii) An invoice from a cleaning service company dated 12 October 2021.
(iv) Photos of the premises, especially on final inspection day on 13 October 2021.
(v) Email correspondence between the tenant and the property manager in the period between 1 July 2020 to 8 July 2020.
(vi) Residential Tenancy Entry Condition Report completed on 25 June 2020.
(vii) Email correspondence between the tenant and the property manager in the period between 16 October 2020 to 29 May 2021 regarding maintenance issues.
I have considered all of these documents.
The Bond Referral
On 19 November 2021, the Bonds Office referred the Bond Claim to the tribunal following the lessor’s agent’s request for the whole of the bond to be refunded to the lessor. The tenant disputed the lessor was entitled to any of the bond. The general procedural history follows.
In accordance with its usual practice, the tribunal listed the Bond Claim for a conference on 10 January 2022 at 11:30am by telephone. On 29 November 2021, the tribunal sent a Listing Notice to the parties.
The Listing Notice required the lessor to give to the tribunal and each other party an itemised list of the claims made in relation to the bond within seven days of receiving the notice.
The tenant sought to adjourn the conference, but due to an oversight, this was not actioned.
On 7 January 2022, the lessor’s agent sent a list of claims by email totalling $1,890 (being more than the bond) comprising:
(a)$900 for two weeks lost rent at $450 per week;
(b)$350 plus GST for oven, bathroom mould, blinds and internal windows, skirting and cleaning;
(c)$150 plus GST for carpet cleaning;
(d)$150 plus GST for external window cleaning and fly screen removal;
(e)$250 plus GST for weed removal and garden maintenance.
Neither party attended the conference on 10 January 2022, and it was adjourned.
The conference was listed for 14 February 2022 at 9.30am. Neither party attended the conference. In the absence of the parties, the tribunal ordered:
Ex-Parte:
1. ACT Rental Bonds on behalf of the Territory is directed to release $1,440.00 of the disputed sum to the lessor and the remainder to the tenant.
On 9 March 2022, the tenant made an Application for Interim or Other Orders seeking to set aside the ex-parte Order. The tribunal sought the views of the parties in relation to this application and on 21 March 2022 made orders in chambers granting the application, setting aside the ex-parte Order, and listing the matter for a conference. Unfortunately, by this stage, the Bonds Office had released the sum of $1,440 to the lessor with the remainder of $360 not yet claimed by the tenant.
The effect of the orders made on 21 March 2022 put the whole bond in dispute, and that dispute was yet to be resolved. As a consequence, the lessor was not entitled to retain the amount refunded, and any entitlement was dependent upon future orders or agreement. As the Bonds Office no longer holds that amount, the lessor might be ordered to pay some or all of it to the tenant. Agreement could not be reached, and directions were made listing the matter for hearing.
The tenant submitted that the final inspection was conducted with the lessor’s agent on 13 October 2021. The outgoing condition report was signed by the tenant and the lessor’s property manager following that inspection. There are no records on that outgoing condition report regarding the items the lessor subsequently claims should be deducted from the bond. The lessor did not attend the final inspection conducted by her agent with the tenant. The tenant handed over the keys on 13 October 2021.
The lessor attended the property on 16 October 2021, being three days after the final inspection in the presence of the tenant had been conducted and was dissatisfied with the property manager’s assessment of the condition of the premises. This is how her claim against the bond arose.
Section 30A of the Residential Tenancies Act 1997 (the RTA) makes it clear that once a final inspection is completed in the presence of the tenant, and the outgoing condition report is signed by the tenant and in this case the lessor’s agent, that comprises the evidence of the property at the end of the tenancy.
It states:
30A Final inspection and condition report—end of tenancy
(1)A lessor must, together with the tenant, carry out an inspection of the premises at the end of the residential tenancy agreement.
(2)The lessor must, together with the tenant, complete and sign a condition report based on the inspection.
(3)However, a party may complete and sign the condition report in the absence of the other party if the party has given the other party a reasonable opportunity to be present when the report is completed and signed.
The explanatory statement in relation to section 30A states:
This clause inserts a new provision requiring a final inspection and condition report to be completed at the end of a residential tenancy agreement. New section 30A requires the end of tenancy inspection and condition report to be completed by the lessor and tenant jointly as the intention of this amendment is to assist in managing end of tenancy disputes about the condition of the premises. An end of tenancy condition report may still be completed in the absence of the other party provided the other party has been given reasonable opportunity to be present. A tenant would not be penalised for signing the condition report, other than in respect of not having an input into what is included in the evidence about the condition of the report. If the parties cannot agree on the condition report, then there will be provision on the form for each party to make their own observations about the condition of the premises. (emphasis added)
There is nothing in the outgoing condition report before the Tribunal that indicates any agreement to the items now claimed by the lessor or that they were the subject of discussion, assessment, or contention at the time the final inspection was done. In any event, had they been, the tenant was not given any opportunity to remedy them. However, that is irrelevant in this case where the condition of the property was as agreed by the tenant in the outgoing condition report and signed off by the lessor’s agent.
The lessor may well have disagreed with the agent’s acceptance of the condition of the premises, but there is no basis for a lessor to enter the premises after that final inspection without the tenant present and after the outgoing condition report has been signed by her representative, and claim further items require attention and be deducted from the bond. If further costs were incurred by the lessor arising from matters the agent did not address or require the tenant to remedy, then that is a matter between the agent and the lessor. It is not capable of being claimed against the bond.
The requirements of a final inspection and outgoing condition report safeguard against that very conduct where after a tenant leaves a property and has agreed to the condition in which it is left. It ensures there are no surprises later. The tenant loses control over the condition of the property and any subsequent claims if anyone enters the property after that has occurred. It is the essence of why final inspections are carried out with the tenant present either in the company of the lessor or the lessor’s agent. That final inspection forms the basis upon which the parties then agree on the outgoing condition report.
Given the circumstances of this case, I am not satisfied the lessor is entitled to make any claim for deductions from the bond. The items claimed were not identified or agreed to at the final inspection conducted between her agent and the tenant and were not included in the agreed outgoing condition report. By attending the property later and without the tenant present, it leaves the tenant exposed to any kind of claim for damage without knowing who may have interfered with the property following their departure and agreement to the final condition of the property. Regardless of any issues with the relationship between the tenant and the lessor, the agent was the lessor’s representative for the purposes of managing the property, conducting the final inspection, and signing the outgoing condition report.
Accordingly, the lessor is ordered to pay to the tenant the sum of $1,440. The tenant will need to arrange the refund of the remainder with ACT Rental Bonds.
In the Bond Dispute, the tenant claimed the following in addition to the full return of his bond:
(a)$450 interest;
(b)$2,600 loss of income; and
(c)$2,500 damages from stress.
I am not satisfied that there is any basis to the tenant’s claimed amounts nor evidentiary support for them. Any claim by the tenant beyond the payment of $1,440 by the lessor is dismissed.
The Tenant’s Claim
The tenant claims compensation against the lessor for breach of clauses 55 and 57 of the standard residential tenancy terms (the Standard Terms).[1] Clauses 55 to 57 of the Standard Terms govern the lessor’s obligations regarding repairs:
Lessor to make repairs
55 (1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
56 The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
[1] Residential Tenancies Act 1997, schedule 1, applicable to the Residential Tenancy Agreement between the parties dated 5 December 2018 by virtue of item 18
A breach of clause 57 arises where a lessor does not make repairs “within four weeks of being notified of the need for repairs”. This applies to non-urgent repairs. Equally, a lessor is not in breach of clause 57 if repairs are not required.[2]
[2] McCarthy v Sharma & Anor [2020] ACAT 62
The tenant claims the lessor failed to make certain notified repairs within the required time as follows:
(a)The flyscreen sliding door in the kitchen/dining area.
(b)The wooden gate.
(c)The bathroom extractor/heating unit (tastic).
I have not been able to establish a clear timeline of events from the material relied upon by the parties. Each party has submitted various emails and written submissions asserting various things were said and done, but those submissions lack specificity as to the timing of things. I have relied upon the emails as the more reliable contemporaneous record to piece together the sequence of events.
What becomes clear upon a complete reading of all the available emails submitted by the parties is that both parties became increasingly frustrated, and the relationship deteriorated. The tenant began reporting various issues with the premises to property managers from the moment he moved in. There were several different property managers over the life of the tenancy. Any repairs or maintenance issues were handled personally by the lessor for her assessment and action. Some issues were attended to by the lessor, and for other issues she disagreed there was a need to repair or a reluctance to repair as she attributed the responsibility to the tenant.
On 1 July 2020 at 5:20pm, the tenant sent an email to the property manager,[3] stating amongst other things:
…
3) I like the house but there are a few issues that need to be attended to quickly.
i) the main gate into the house, (the wooden gate between the garage and main house) is worn out, weak and almost falling apart. It does not protect entry by intruders. It really doesn’t feel safe at all. Kindly have a look and get it repaired.
ii) master bedroom: there are two wardrobes. One of then (right one) has the handle loose. It comes of when u pull it. So doesnt open at the moment. Kindly arrange to have it opened so i can use it as they’re all very tiny.
iii) the bathroom sink: the cabinet underneath the sink is very weak. The last drawer is broken and falling apart. One cannot keep anything in. Kindly have it repaired.
…
[3] RT 371/2022, applicant’s submissions dated 18 May 2022, attachment A2
On 6 July 2020, the property manager responded advising she had entered the maintenance issues into the maintenance system, and someone should be in contact with the tenant shortly to arrange access.
On 12 July 2020, the tenant sent an email to the property manager of photos of the bathroom drawer, the bathroom tastic, and the flyscreen door.[4] There is no text in the email message, just photos.
[4] Tenant’s submissions dated 18 July 2022, Exhibit 11
The tenant experienced some technology issues in completing the entry condition report and ultimately completed a hard copy version on 16 July 2020. In it and relevant to his claim, he identifies the bathroom tastic as not working and should be repaired, and the wooden gate is damaged and falling apart affording no security. There is no mention of the flyscreen door.
The issues with the bedroom wardrobe and bathroom drawer were fixed. The date is unclear. In any event, these are not the basis for the tenant’s claim.
On 10 February 2021, the tenant sent an email to the property manager reporting the flyscreen door had come off and requested immediate repairs. The property manager replied advising she would pass it on to the maintenance team.[5]
[5] Tenant’s submissions dated 18 July 2022, Exhibit 9
On 28 February 2021,[6] the tenant sent a further email to the property manager. It appears from the tenant’s email that the lessor did attend and fix the flyscreen door. The tenant’s email also suggests the lessor had previously attended the property to look at the flyscreen door around the time the tenant moved in. At that time, the tenant asserts there was an issue with the locking mechanism of the flyscreen door which he brought to the lessor’s attention. He informs the property manager that this remains unresolved as he cannot lock the flyscreen. He again reports the bathroom extractor fan does not work properly, and the bathroom heating is not working. He also repeats the issue with the gate being made secure as this had not been done. The tenant requests the flyscreen door lock be repaired.
[6] Tenant’s submissions dated 18 July 2022, Exhibit 9
A change of property manager occurred, and on 7 March 2021, the tenant sent an email to a different property manager in relation to the issues he raised.[7] In this email, the tenant asserts:
(a)the flyscreen lock has not been fixed since first requested in July (I assume July 2020);
(b)the main gate is not secured as it is wooden and held together with strings;
(c)the extractor fan is not effective and does not work properly and has not been fixed since first reported in July (I assume July 2020); and
(d)the bathroom heating is not functioning, and he was told by the lessor it is his responsibility.
[7] Tenant’s submissions dated 18 July 2022, Exhibit 9
The tenant also repeated an earlier assertion about air conditioning being provided. I cannot see a basis for such a request, and in any event, it does not form part of the tenant’s claim.
On 10 March 2021, the property manager reported the tenant’s concerns to the lessor by email. The main points were the flyscreen door lock, unsecured main gate, and the bathroom extractor fan not working and not heating.[8] The lessor replied by email and said:
[8] Lessor’s submissions dated 17 May 2022, email attachments
…
I have read the maintenance list. The last maintenance issue with sliding door was the tenants fault
Not broken at all he some how opened it and it came off the runner. So time wasted going there
It was his doing.
The gate to rear yard is not held by strings.
The tastic in the bathroom needs new heat globes. From my understanding the tenant is required to replace globes. I will have the exhaust checked.
Also he mentioned air conditioning the property was not advertised with air con.
This property was rented for $450.
I have had a few issues with this tenant requesting extras to be done.
He viewed the property when he signed the tenancy.
Please call me to discus further.
…
Sometime after this, the lessor issued the tenant with a notice to increase the rent beyond the permissible rate and a notice to vacate.
On 16 May 2021, the tenant sent another email to the property manager repeating his request to have the gate secured and the flyscreen lock repaired. He also repeats his request to repair the tastic and extractor fan in the bathroom, rejecting the suggestion that the bulbs need changing. He claims that he is not qualified to fix it and does not know what the problem is.[9]
[9] Tenant’s submissions dated 18 July 2022, Exhibit 8
At no time up to this point had any professional or independent maintenance person attended the property to look at or fix the tenant’s issues. All issues had been personally handled by the lessor and her partner, Garry.
There are several subsequent email exchanges between the tenant and the property manager in May 2021. None of the tenant’s complaints are addressed during this time. The tenant escalated the issue to the general manager of the agency.
The tenant says the bathroom tastic/extractor fan was fixed in the last week of May 2021. He says the flyscreen door was also repaired in May 2021. There is no evidence specifically as to what repairs were carried. The gate was never repaired.
The tenant seeks from the lessor the sum of $10,725 being a 50% rent reduction for 11 months for failure to repair the flyscreen, gate, and bathroom tastic/extractor. He has not distinguished an amount for each issue but a global amount.
Was the flyscreen door in need of repair?
The tenant clarified at hearing that his expectation was to have the flyscreen door latch, not lock in a security sense. The lessor argued that the tenant had consistently requested the flyscreen lock in the context of security issues. The lessor submitted the flyscreen door was designed to latch, not lock. The lessor asserts the flyscreen door latched.
In all of the tenant’s emails regarding the flyscreen door, it is clear that he is referring to having it locked for security reasons. He makes many references to feeling unsafe, unsecured and at risk.[10]
[10] Tenant’s submissions dated 18 July 2022, Exhibit 9, email dated 28 February 2021 and exhibit 8 email 16 May 2021
In McCarthy v Sharma & Anor [2020] ACAT 62 (McCarthy),[11] the tribunal considered a similar issue and noted that even though a tenant requested repairs to screen doors the issue is whether there was a need for repairs at all and that issue is not resolved in the tenant’s favour simply because a tenant makes such a request, or in the tenant’s mind considers there was a need for repair. The tribunal further considered that a tenant’s expected performance of screen doors does not give rise to a need for repairs, nor does it mean the lessor failed to carry out a repair because the doors were functioning in a particular way contrary to a tenant’s expectation. The tribunal recognised the existence of a tension between what is a genuine repair or an improvement to the premises.
[11][2020] ACAT 62 at [41]-[46]
Having regard to the evidence before me and the authorities considered in McCarthy, I am not satisfied the lessor has breached clauses 55 and 57 of the Standard Terms in relation to the flyscreen door. It was not intended to provide security in the manner expected by the tenant – that function was provided by the glass sliding door. The tenant expected it to form some kind of added security measure. Further, the entry condition report makes no reference either by the property manager or tenant of the flyscreen door not latching.
The tenant is not entitled to compensation in relation to the flyscreen door.
Was the gate in need of repair?
I make the same finding in relation to the wooden gate as the flyscreen door for the same reasons. The purpose of the gate was not to provide security in the manner expected by the tenant. The tenant signed the tenancy agreement and accepted it as provided. To expect the gate to perform a function it was not intended to perform is an improvement not a repair. The lessor could have removed it entirely. It was neither a security gate nor a fence.
I am not satisfied the tenant is entitled to any compensation for the gate.
Was the bathroom extractor/tastic in need of repair?
From the commencement of the tenancy, there was an issue with the bathroom tastic unit. This was raised in the entry condition report and repeatedly raised thereafter by the tenant. It is a dual function unit providing extraction, light and heat. The lessor’s response that the tenant should simply change the globes is inadequate. The tenant was, appropriately, cautious in relation to doing anything to the unit himself. As he put it, he was not an electrician and did not know what was wrong with it.
An electrician did not attend the premises to look at and repair the unit until 29 June 2021.[12] This is almost one year after it was first raised. The report prepared by the electrician states:
On arrival to property I investigated “Tastic” and found that both heat lamps and centre light were not functioning. On further investigation I found the fan not functioning properly due to being very dirty. I disconnected and removed the fitting before thoroughly cleaning it. I then reconnected and reinstalled the fitting and tested the operation of the fan. The fan operation was normal. I replaced the heat two lamps and centre light then tested the operation of them which worked as normal. I tested the operation of the heat, light and fan functions again with the tenant present and they were pleased with the result. I then cleaned area and left premises.[13]
[12] Neil Thompson’s Electrician report attached in lessor’s submissions dated 17 May 2022
[13] Neil Thompson’s Electrician report dated 7 May 2022 attached in lessor’s submissions dated 17 May 2022
Clearly there was something wrong with the unit, and it required an electrician to disconnect it. An investigation of this kind could not be carried out by the tenant. I accept the tenant is responsible for changing globes. However, in circumstances where the fan was not working properly from the outset, some diagnosis from a suitably qualified professional was not unreasonable to request. The lessor waited too long to act and consequently breached clauses 55 and 57 of the Standard Terms.
I am satisfied the tenant is entitled to some form of compensation in relation the lessor’s breach. Had the only issue been the heat lamps and the light, I would not have found in favour of the tenant. The fact that there was an issue with the unit at the commencement of the tenancy, which was left unrepaired, the tenant could not be expected to assume the later issue with the heat lamp and light were simply globe replacement. It should have been repaired by a suitably qualified tradesperson and was not. It was avoidable.
In relation to the duration of the breach, I find as follows:
(a)The extractor fan was reported on 16 July 2020 and was required to be repaired by 14 August 2020, being four weeks. It was not repaired until 29 June 2021. This amounts to ten months and 15 days.
(b)The heat lamps were reported on 28 February 2021 and were required to be repaired by 27 March 2021, being four weeks. It was not repaired until 29 June 2021. This amounts to three months and two days.
(c)The light was reported on 16 May 2021 and was required to be repaired by 12 June 2021, being four weeks. It was not repaired until 29 June 2021. This amounts to 17 days.
I am not satisfied the tenant is entitled to a significant rent reduction, but an amount of compensation to reflect the inconvenience arising from a lack of prompt repair and excessive delay. I find that the tenant is entitled to $500.
Orders
The lessor must pay the tenant the sum of $1,940 comprising:
(a)$1,440 for the return of the tenant’s bond; and
(b)$500 compensation for the lessor’s breach of clauses 55 and 57 of the Standard Terms in relation to the bathroom tastic unit.
………………………………..
Senior Member K Katavic
| Date of hearing: | 27 July 2022 |
| Tenant: | In person |
| Lessor: | In person with T Finn, authorised representative |
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