Parker v Parker

[2010] QCAT 235

CITATION: Parker v Parker [2010] QCAT 235

PARTIES:	Glen Parker
v
Narelle Parker

APPLICATION NUMBER:   Minor Civil Dispute - Tenancy 102/10

MATTER TYPE: Residential tenancy matters

HEARING DATE:     05 May 2010

HEARD AT:  Coolangatta

DECISION OF: Ms Kay Kirmos, Adjudicator

DELIVERED ON: 05 May 2010

DELIVERED AT:      Coolangatta

ORDERS MADE: The Tribunal orders that the tenant pay the landlord $7675, and directs the RTA to pay to the lessor the bond of $2100 in part satisfaction of the order

CATCHWORDS :  Failure of Lessor to Remedy Breach, Termination Residential Tenancies and Rooming Accommodation Act 2008, s 309

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	In person
RESPONDENT:	In person

REASONS FOR DECISION         

1. The lessor seeks compensation on the basis of a breach of tenancy agreement of $5775 due to the tenant having vacated the rented premises early, $3,296.65 for repairs and replacement of items damaged or missing, $525 weekly until the premises are relet, reletting fee of $525, compensation of the difference between the amount at which the premises are relet and $525 weekly, and bond to be released to the lessor.  The tenant seeks a termination of the tenancy, and return of his bond.

2. The tenant moved into the rented premises on 1 April 2009, having entered into a tenancy for a period of two years ending 27/3/10 at a weekly rent of $525.  The rented premises were furnished.  The tenant vacated on 21 February 2010, having given a notice to the lessor to remedy breaches and a notice of his intention to leave.

3. The lessor attended the hearing with her witness, her daughter Carriae Dawson-Wheeler.  The tenant attended the hearing personally and gave evidence.  Both parties tendered a large volume of documents in support.

4. The lessor and her witness gave evidence in summary: 

• On 25/6/10 she received an email from the tenant, indicating that he was very happy with the rented premises.  She only agreed to the tenancy and the painting of the rented premises ass the tenant had stated that he would stay for two years.  He was a professional man and she wanted to ensure he was happy.

• Things were going wrong when he said he wanted to buy the rented premises.  On 13/1/10, he told the lessor that he wanted to vacate the rented premises.  On 15/1/10, he was informed he would not be let out of the lease.  He then invented problems with the rented premises, and wanted the lessor to evict him.  He gave the lessor a notice to remedy breach on 15/1/10, and giving the lessor until 22/1/10 to make repairs.  She was not given the required 7 days.   In any event, she completed all the required repairs by 28/1/10, although the tenant gave her a notice of intention to leave on account of the unremedied breaches on 4/2/10, and misinformed the Tribunal that the breaches had not been remedied.  The tenant was told that he could leave if he found another tenant

• The tenant served the breach notice only after the lessor served the notice to tenant to enter the rented premises, with the intention of fixing the problems he reported.  She disagreed that the rented premises were let in a filthy condition.  A few tiles were off the balcony which she was prepared to fix, but the tenant told the lessor not to do this.  It did not require retiling.  It was retiled anyway as soon as she could arrange the tiler.  New hooks and runners were put up for the curtains on 13/1209.  She had offered to install fans when the tenant wanted them.  He did not know how to use the remote control to operate the fans.

• The tenant told the lessor the washing machine did not work but gave her no chance to check it.  He disposed of it before she saw it. It was gene by the time the tradesman had arrived to replace it. It was new at the start of the tenancy.  He did the same with the television set.  It was about 2 years old at the start of the tenancy. 

• The tenant damaged the vanity unit.  It has not been repaired.  He destroyed linen.  The tenant left the rented premises in a filthy condition.

• She has been unable to relet the rented premises.  She put notices up at the hospital and airport on 4/2/10, and it had top spot on the internet on 5/2/10.  The rent was reduced from $495 to $450 weekly.

  5. The tenant gave evidence in summary:

• The rented premises were let in a dirty condition and left clean at the end of the tenancy.  Items listed in the inventory were missing or damaged.  The rented premises did not look like the advertising- the furniture was different.  He spent over $3000 fixing up the rented premises.

• He was bullied and intimidated by the lessor and her daughter, who is a lawyer.

• He enjoyed the rented premises at first.  He fixed some things himself.  Things got worse and he followed advice and wanted to end the lease because of the repairs needed to the rented premises.  These were major.    A meter of tiles had come loose on the balcony and were a trip hazard.  The curtains had fallen down.   The lessor did nothing about these issues until the last day on the breach notice, which he faxed to the lessor on 15/1/10.  She had not given the tiler instructions to retile the whole floor which added to the delays.

• The vanity   tap dripped and this damaged the vanity.  It was already damaged at the start of the tenancy.  The lessor left no sheets and she took away the bedspreads.  The cutlery drawer liner was already broken.

• The new paint chipped because of poor surface preparation.

• The lessor is still misrepresenting the rented premises in advertising.  It did not look like the photos at inspection.

• He had the carpets at the rented premises steam cleaned and he cleaned for 2 days.  The rented premises were clean at the end of the tenancy.

• The television and washer were very old.  The replacements were second hand.  The TV emitted smoke and the lessor told the tenant to throw it out.  It took the lessor 3 weeks to replace the washer and she had opportunity to inspect it.  He was not there when the replacement washer was installed and the tradesman could have seen the old one.

DECISION AND REASONS

6. Both parties were keen for the Tribunal to hear and dispose of the matter although some of the lessor’s claims could not be quantified at the time of the hearing.

7. The Tribunal accepts that the tenant’s breach notice was not given the lessor in accordance with the Residential Tenancies and Rooming Accommodation Act 2008 (the Act) as it did not allow 7 clear days for the remedy of the breach (section 328). Consequently, the notice of the tenant’s intention to vacate on which it was predicated was also not given in accordance with the Act and cannot form the basis for a termination on the grounds of unremedied breaches. The Tribunal prefers the lessor’s evidence that the tenant wanted to be let out of the lease early, having stated as much to the lessor’s daughter and the allegations that the lessor had not complied with the breach notices was a contrivance to give effect to his intentions. By vacating the rented premises on 21/2/10 the tenant breached the tenancy agreement. The Tribunal treats the notice as a tenant’s notice of his intention to leave under sections 327 and 331 of the Act, and accordingly orders the payment of rent arrears of $525 weekly for 14 days from 22/2/10, being $1050.

8. The Act requires the Tribunal to have regard to certain matters for the giving of compensation in such circumstances in section 421 of the Act, including

(a) rent required to be paid but not paid for the period starting when the agreement is terminated because of the tenant's action and ending--

(i) when the period fixed as the term of the tenancy ends; or

(ii) if the premises are re-let before the end of the period mentioned in subparagraph (i)--when the premises are re-let;

(b) advertising expenses incurred by the lessor for re-letting the premises;

(c) other expenses incurred by the lessor for work carried out by the lessor for re-letting the premises;

(d) whether the lessor has met the lessor's duty under section 362 to mitigate loss or expense.

9. After being made aware that the tenant was vacating, he Tribunal is satisfied that the lessor advertised the premises as quickly as she was able and has reduced the rental since.  It agrees with the tenant that the photographs of the rented premises are somewhat better than the actual presentation of the rented premises.  It is likely that the rent being sought is still above what the market will bear, but despite the tenant’s belief that he was duped into renting the rented premises, the Tribunal accepts that he saw the rented premises, and he agreed to rent them at $525 weekly and to do so until 2011.

10. The Tribunal is not persuaded that the lessor has proven that she has done all to minimize her loss.  The advertising remains somewhat different from the actuality of the rented premises, the rent is arguably still too high and may need to be lowered further.  Reletting might have reasonably been achieved within a month.  The Tribunal allows $2275 for a month’s lost rent and $3825 as rent loss on account of a reasonable differential between the rent of $525 weekly and the likely future rent to the end of the lease. The Tribunal allows the reletting fee of $525.

11. As to the question of reasonable compensation for the breach of the agreement, the Tribunal accordingly allows a total of $7675.

12. On the basis of the evidence before it, the Tribunal finds that the rented premises were let in an overall clean state at the start of the tenancy and returned to the lessor in a similar state at the end of the tenancy. The claim for compensation for cleaning is dismissed. 

13. The tenant did not allow the lessor reasonable opportunity to inspect the television or the washer before disposing of them.  The lessor however has not proven the age of the items replaced or their value.  While the Tribunal agrees that the tenant should have let the lessor assess the items before disposal, the lessor has not proven the amount claimed as her loss.

14. The lessor has similarly not persuaded the Tribunal that the paint chips and the damage to the cutlery holder were caused by anything more than fair wear and tear.  The inventory does not support the lessor’s claim for sheets.  One bedspread and a quilt are noted with no mention of their condition and a single mattress protector is shown as missing on the inventory by the tenant.  The Tribunal accepts the tenant’s evidence that the bedcovers were taken by the lessor. The Tribunal does not find the lessor’s losses proven in this respect.

15. The vanity unit is ticked as undamaged in the entry condition report.  The tenant had noted the cupboard as water damaged and laminate missing.  Having regard to this, the Tribunal is not persuaded that the lessor suffered loss as a result of the tenant damaging the vanity unit during the tenancy.  The claim is dismissed.

16. Accordingly, the Tribunal orders that the tenant pay the landlord $7675, and directs the RTA to pay to the lessor the bond of $2100 in part satisfaction of the order.