Nield v Wetton
[2010] QCAT 584
•17 November 2010
| CITATION: | Nield v Wetton [2010] QCAT 584 | |
| PARTIES: | Danny Nield & Helen Stewart Nield (applicants) | |
| v | ||
| Andrew Wetton & Patricia Wetton (respondent) | ||
| APPLICATION NUMBER: | 3051/10 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 22 October 2010 |
| HEARD AT: | Southport |
| DECISION OF: | Julie Cowdroy, Member |
| DELIVERED ON: | 17 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] It is ordered that the bond being held by the Residential Tenancies Authority in the sum of $1800 in respect to premises at 28 Angourie Crescent, Pacific Pines be released to the tenants, Danny and Helen Nield. |
| CATCHWORDS : | Dispute over rental bond, Residential Tenancies and Rooming Accommodation Act 2009 – what constitutes fair wear and tear – Section 188(4) - reliance on entry and exit reports to the exclusion of oral evidence |
APPEARANCES and REPRESENTATION (if any):
| Mr and Mrs Nield, Ms M Waters from L J Hooker, |
REASONS FOR DECISION
The Issue
The issue in dispute is whether the applicant has entitlement to the rental bond of $1800 being held by the Residential Tenancies Authority in respect of premises at 28 Angourie Crescent, Pacific Pines.
Evidence
The applicants are disputing a claim by the respondent who seeks the return of the bond to him in its entirety. He claims compensation in respect of the staining of a deck, landscaping/gardening work, a missing man hole cover, a broken light switch casing and a cracked dishwasher handle. There was other damage which the landlord claimed was caused by the tenants in respect of which no compensation was sought, such as rust marks on the concrete driveway, stains on walls and on the garage floor.
The tenants resided at the property from April 2009 to 5 September 2010. The property was built in 2008. When the applicants commenced residency, the property was managed by Harcourts Ashmore and the entry condition report was completed by a representative of that agency. On 1 February 2010, L J Hooker Runaway Bay was appointed as property manager and in about September 2010 the Professionals at Southport were appointed to mange the property.
The applicants claim that the back deck is not damaged but weathered due to its constant exposure to the elements. Mr Nield had offered to stain the deck but the offer was refused. He considered that the deck needed staining every six months to keep it well maintained and this had not occurred during the term of the tenancy.
In respect to the claim for landscaping and gardening, photos were produced depicting the state of the gardens at the beginning of the tenancy and on vacating. The back yard has a steep slope and the applicants raised with L J Hooker in April 2010 its concern that the garden was difficult to maintain, being comprised mainly of chip bark and rocks. Weed control was a problem. Discussion occurred between the agent and the landlord and it was agreed that the tenants would pay an additional $10 per week rent towards maintenance of the gardens and the landlord would also contribute. A new lease to this effect was prepared with effect from August 2010, but before it was signed, the tenants indicated they were vacating the premises.
It was contended by the applicants that the casing around the light switch had simply given way, that the crack on the dishwasher handle was due to wear and tear and that the manhole cover had been absent since the beginning of the tenancy.
Ms Hardwick claimed the deck was damaged by the tenants and pointed to reddish orange stains depicted on the photos where an outdoor table had been located. There were other dark patches in the timber against the wall where a barbeque had been placed.
The Tribunal was provided with various entry condition reports. Ms Hardwick was critical of omissions on an exit report completed by Ms Water and suggested that certain entries had been placed on one of the entry reports more recently. Ms Hardwick relied on the entry report which indicated that there was no mention of damage.
Ms Waters indicated she was satisfied with the state of the property at the end of the tenancy. There were a few things which required attention in the garden and the tenants were notified. They had the garden whipper snipped, mowed and sprayed for weeds, although the weeds may still have been present when the Professionals inspected, as the spray takes 2-5 days to work.
[10] The house cleaning was excellent with the exception of a window sill in the garage. In Ms Waters’ opinion, the state of the deck was due to wear and tear. Although it was weathered and there were three small rings from the presence of pots Mr Nield had offered to come back and rectify these. The small crack in the handle of the dishwater was due to wear and tear. Before the tenants could carry out any repairs, the new agent started to obtain quotes for the work.
[11] Ms Waters acknowledged there was a difficulty in reconciling the various entry reports, however she was very satisfied with the state of the premises when the tenants vacated. She had never seen a manhole cover when she carried out inspections on two visits.
[12] Mr Wetton visited the premises once and was dismayed at the state of the property’s gardens. The mulch had virtually disappeared. In an e-mail to Ms Waters dated 31 August 2010 he contended that several plants were missing from the back yard, the mulch had disappeared and the decking had been damaged due to either the pet, the BBQ and pot plants. He had documented his lack of satisfaction with L J Hooker's management of his property and also mentioned his concern at the conflicting entry reports.
[13] Ms Hardwick relied on the lack of any indication that the man hole cover was missing at the beginning of the tenancy, photos of the crack in the dishwasher handle and the state of the gardens at entry and exit. An invoice was produced for $1100 from Fence 2 Scape Pty Ltd for weeding back areas, trimming shrubs, spraying weed killer, trips to dump and mulching of the back and side garden. This is dated 1 October 2010, and a quotation had been obtained from the same firm by the Professionals prior to the hand over date.
Consideration
[14] The Tribunal carefully considered the evidence of all parties in light of the legislative obligations imposed on both the lessor and tenant.
[15] Section 188(4) requires the tenants to leave the property and inclusions, as far as possible, in the same condition it was in at the start of the tenancy – with fair wear and tear excepted. The Act does not define “fair wear and tear” however it would be unreasonable for a lessor to expect a property to be left in a perfect condition as it was at the commencement of the tenancy, without taking into consideration events which happen during normal use or changes that happen with aging.
[16] There was considerable criticism levelled by the lessor at the conflicting entry reports and Ms Hardwick took the view that the original “unaltered” report did not report the absence of a manhole cover; therefore the tenants should be held liable. I formed the view, having had an opportunity to observe the tenants giving evidence, that they were being truthful when they denied that a man hole cover was ever present. Whilst entry and exit reports can be relied upon in general, they are not infallible. In this instance I place considerable weight on the oral evidence of the tenants and Ms Waters. I therefore disallow that claim.
[17] In respect to the claim for the light cover casing and the crack in the dishwasher handle, I consider that both these items constitute fair wear and tear. I find it concerning that after 18 months tenancy, the lessor is seeking the cost of replacement of a light cover casing.
[18] Similarly, although the gardens were not in the state they were originally, the gardens have a steep slope and it is conceivable over time that the mulch would be displaced and washed away. Weather conditions also affect the appearance of a garden at any given time. The tenants gave evidence that they had the gardens clipped and mown upon vacating the premises. It is not reasonable to expect them to replace mulch which was laid some 18 months ago.
[19] Although there was a level of animosity between Ms Waters, the current agent and Mr Wetton, I am not persuaded that Ms Waters was prepared to perjure herself in attesting that the tenants left the premises in a reasonable state. After an 18 months tenancy, there must be some allowance made on the part of the lessor for the maintenance and restoration of gardens, decks and internal items.
[20] Further, I am not persuaded that the state of the timber deck constitutes damage. Timber decking requires regular maintenance and becomes weathered over time. Although there appears to be some small areas of marking, this is not damage which necessitates the tenants being responsible for staining of the entire deck. The tenants used the deck in an appropriate way. The tenants should not be required to bring the deck back to perfect condition and I consider it unreasonable to expect them to do so. Lessors must expect to incur costs in the same manner as they would be expected for the maintenance of their own residences.
[21] The tenants have claimed their costs in bringing this application as well as compensation for their time due to loss of earnings and photocopying costs. All parties attending have expended time and effort as a result of this application and this is a jurisdiction which fosters an environment whereby each party bears its own costs. I therefore do not propose to make an order in respect to those matters.
[22] The tenants also claim reimbursement of $40 for increased rent between 10 August 2010 and 1 September 2010 which was meant to be a contribution to garden maintenance. I disallow that claim and find that the lessor was not bound to provide evidence that he used the amount received during that short period for garden maintenance.
Order
It is ordered that the bond being held by the Residential Tenancies Authority in the sum of $1800 in respect to premises at 28 Angourie Crescent, Pacific Pines be released to the tenants, Danny and Helen Nield.
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