R & S Investments (Aust) Pty Ltd ACN 139 062 141 v Dal Piva & Anor (Residential Tenancies)

[2021] ACAT 113

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

R & S INVESTMENTS (AUST) PTY LTD ACN 139 062 141 v DAL PIVA & ANOR (Residential Tenancies) [2021] ACAT 113

RT 817/2021

Catchwords:               RESIDENTIAL TENANCIES – tenant’s application for consent to keep an animal on the premises – lessor’s application to refuse animal – application to refuse animal is dismissed – lessor to consent to tenant’s application to keep animal on premises subject to conditions

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 9

Residential Tenancies Act 1997 ss 71AE, 71AF, 76

Subordinate

Legislation cited:        Residential Tenancies Amendment Bill 2018 (No 2)

Tribunal:Member A Morris

Date of Orders:  22 October 2021

Date of Reasons for Decision:      22 November 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 817/2021

BETWEEN:

R & S INVESTMENTS (AUST) PTY LTD ACN 139 062 141

Applicant

AND:

DANIEL DAL PIVA

First Respondent

AND:

OLIWIA JAFRA

Second Respondent

TRIBUNAL:Member A Morris

DATE:22 October 2021

ORDER

The Tribunal orders that:

1. The lessor’s application is dismissed.

2. The lessor is to consent to the tenants application to keep the animal Rohlson on the premises, subject to the following conditions:

   (a)On or before 26 October 2021, the agent for the lessors will attend the premises and do a 'base-line' inspection of all flooring in the property, to be used in the final assessment of the floor's condition at the end of the lease;

   (b)any damage caused by Rohlson is the responsibility of the tenants to repair or pay for; and

   (c)for the avoidance of doubt, this includes, but is not limited to flyscreens, the front door, carpet and bamboo flooring.

   The effect of this order is that the tenants can keep the animal Rohlson on the premises, subject to the conditions stated above.

3. Rohlson may take up residence at the premises from 27 October 2021.

   …..……signed….……..

Member A Morris

REASONS FOR DECISION

1. This is an application by the lessor for an order approving the lessor’s refusal of the tenant’s application to keep an animal on the premises.

2. I heard the application on 22 October 2021 and delivered my decision in the matter at the conclusion of the hearing on that day.  The tenants have requested written reasons for that decision. These are those reasons.

The premises

1. The applicant is the lessor of an apartment in Turner (the premises). 

2. The premises consist of 70.5 square metres of internal living space, with a living area, bedroom, bathroom and study, together with a 19.8 square metre balcony, giving a total living area of 90.3 square meters. The unit is on the second floor above the ground floor, described by the lessor as being on the third floor.

3. The premises are leased unfurnished.

The animal

1. The tenant seeks the lessor’s consent to keep ‘Rohlsen’, a (at the time of hearing this matter) 3-month-old cavoodle puppy. A cavoodle is (in this instance – the dam and sire may have different mixes in different iterations of the breed) a mix of a toy or miniature poodle and King Charles spaniel/Labrador. It is a smaller-sized dog.

Relevant other facts/matters

1. I noted from the material supplied to me and from the submissions that the applicant lessor’s case was very light on detail as to why it had made its decision to refuse the dog’s presence. The filed material makes assertions as to its position, but at no time, either in writing or in submission did the lessor provide any evidence for those assertions. Its whole case appeared to rest on that it:

   does not feel [that] this kind of apartment is appropriate for a dog/Cavoodle puppy.

2. Some of the pleadings from both sides appeared to refer to a dispute as to how much the rent would increase. As neither side raised this in submissions, I was not called upon to deal with the obvious question as to whether bad feelings between the parties had been engendered. So that aspect of the matter plays no part in this decision.

3. The application only sought orders that ACAT formally decline the request (under section 71AF of the Residential Tenancies Act 1997) and as such, no question of retaliatory action can arise. I mention it in these reasons to indicate to the parties that the matter has been considered.

The law

1. The ACT Civil and Administrative Tribunal (ACAT) is established under Australian Capital Territory law by the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and can deal with applications under authorising legislation made pursuant to section 9 of the ACAT Act. By reason of section 76 of the Residential Tenancies Act 1997 (RT Act), a similarly established ACT law, the ACAT is the appropriate forum for determining disputes under the RT Act in the ACT. The ACAT accordingly has jurisdiction to determine this application.

2. This action is brought pursuant to section 71AF of the RT Act. Section 71AF of the RT Act provides that:

   Lessor to apply to ACAT for refusal—animals

   (1)     A lessor may apply to the ACAT for an order approving— 

   (a)the lessor's refusal of the tenant's application under section 71AE(2) to keep an animal on the premises; or

   (b)a condition on the lessor's consent to the tenant's application.

   (2)     The ACAT must— 

   (a)approve the lessor's application; or

   (b)refuse the lessor's application; or

   (c)order that the lessor consent to the tenant's application but impose stated conditions on the consent.

   (3)     The ACAT may make an order under subsection (2) (a) or (c) if satisfied— 

   (a)the premises are unsuitable to keep the animal; or

   (b)keeping the animal on the premises would result in unreasonable damage to the premises; or

   (c)keeping the animal on the premises would be an unacceptable risk to public health or safety; or

   (d)the lessor would suffer significant hardship; or

   (e)keeping the animal on the premises would be contrary to a territory law.

3. Section 71AF came into effect on 1 November 2019. The Explanatory Statement to the Residential Tenancies Amendment Bill 2018 (No 2), pursuant to which this provision was enacted, clearly states the policy behind the amendments is “to make it easier for tenants to keep pets in rental properties” and “to provide an explicit pet-friendly presumption in the RTA, while giving the lessor the opportunity to be consulted”.

4. Under the legislation, the onus is on the lessor to persuade the Tribunal that approval of the lessor’s application for refusal is appropriate. This means that the lessor must establish that one of the grounds under subsection 71AF(3) of the RT Act is made out before the tribunal may make an order approving the lessor’s refusal to consent to the pet.

5. The lessor in the present case asks that the Tribunal approve the lessor’s application on grounds that are by no means clear or articulated. The stated reason is that the “dog is unsuitable for a top floor 1 bedroom apartment”.

6. Specifically, the lessor stated that it was:

   concerned about scratches and damages to the floor boards as well as any swelling or carpet damage from the puppy not being toilet trained and in general: does not feel this kind of apartment is appropriate for a dog/Cavoodle puppy.

7. In oral submissions the lessor’s representative mentioned potential damage to the flyscreens as well.

8. No other evidence was provided or adduced for these propositions.

9. The scheme of the legislation in matters such as this is unusual, in that it requires the applicant to demonstrate what is in effect a negative position, i.e., that a tenant should not keep a pet, in this instance, a dog. All the tenant need do is assert under section 71AE of the RT Act that the tenant requires consent of the lessor to keep a dog. It then becomes the lessor’s obligation should the lessor so wish, to say (and produce evidence as to) why this should not occur.

10. In such a matter, the Tribunal must determine the lessor’s application under section 71AF(2) in accordance (only) with the terms of section 71AF(3)(a)-(e) (see above).

Decision

1. In the present matter, turning to the applicant’s application, I find that none of the matters that I must consider in section 71AF(3)(a)-(e) are successfully made out.

2. Specifically, having reference to the premises themselves, I do not consider that of its nature, a unit is an unsuitable place to keep a small–medium sized dog. No doubt in an ideal world, animals would be happier on a quarter-acre block, but the reality is that many Territorians do not live that way nowadays. And Rohlsen is not a horse or a pig. He is a small to medium dog, of the sort which are commonly housed in Territory apartments.

3. Having regard to the common usage of pets being housed in units in this day and age, I do not find that a unit is an inappropriate place per se to seek to house a cavoodle.

4. The lessors did not make out a clear or compelling case as to how a dog would damage the property. They did not suggest that the property was particularly fragile, or that it contained irreplaceable fittings or antiquities. They only asserted – without any evidence – that they were “concerned about scratches and damages to the floorboards as well as any swelling or carpet damages”. I agree that the dog may well scratch the floors or urinate in places where he shouldn’t. In this respect, I note the tenants’ clear and explicitly stated undertakings to supervise and clean up or repair any indiscretions.

5. The entirety of the tenants’ evidence by way of contrast gave clear and articulated statements (unrefuted or even explored by the lessor) that the dog was appropriately trained, and unlikely to cause damage. They also pointed out that they have had – both jointly and severally – significant experience in housing dogs in apartments.

6. I also noted the tenants’ proposals as to how the dog would be housed and treated, namely that he would be crated, generally restrained from going into carpeted areas and fed from bowls on latex mats. Their submissions note that most of the wooded floors are in fact covered by the tenants’ own rugs. I consider that this would offer a useful degree of protection to the floor.

7. In this context, I note that the tenants appear to have considered the requirements of responsible dog care, and I am satisfied that they understand their responsibilities both towards the lessor/property and the dog.

8. Nobody suggested that the dog’s presence in the apartment would constitute an unacceptable (or indeed any) risk to public health or safety. Consequently, I do not need to consider section 71AF(3)(c) in this decision. Neither was it contended that the provisions of section 71AF(3)(e) (contrary to a Territory law) were relevant, so I disregard this head of discretion also.

9. However, the provisions of section 71AF(3)(d) (significant hardship) do need to be considered.

10. The lessor is concerned about the possibility of additional damage to the apartment caused by the presence of an animal, in addition to two humans. These concerns are not unreasonable. There is no doubt that a dog is capable of causing damage to an apartment.

11. I consider that the concept of ‘significant hardship’ includes costs incurred in repairing or making good a property that has been damaged by a pet. This brings it under section 71AF(3)(d).

12. The onus is on the lessor to establish that the dog would cause such unreasonable damage. While accepting that some wear and tear is likely inevitable, there is no evidence or suggestion that the damage would not be capable of being remediated. If beyond reasonable wear and tear, such remediation must be at the tenant’s expense. This ground has not been made out. Accordingly, I do not consider that this should be a prohibition on keeping this pet dog in the unit.

13. Having considered the submissions and evidence, I am satisfied that such damage as this dog might do is readily capable of repair by payment of money.

14. Accordingly, I order that the agent attend some time suitable to all parties not later than 26 October 2021 with a camera and whatever she needs to conduct base level inspection of the flooring in the property. The tenants can be present and might choose to also take pictures at the same time.

15. This will form a baseline for a record as to how the property was, at the time, immediately before the dog moved in. Following the making of this record, the dog can then move in on and from 27 October 2021.

16. The tenants will, of course, take all reasonable care not to let him do any damage but in the next six months (or whatever other period) that they are there; any damage he does, as evidenced by the video record and the parties’ observations, become the responsibility of the tenants to have repaired at their expense.

17. Any dispute that arises as to the costs of repairs can be brought before ACAT in the usual manner of rental bond disputes.

18. I note that any repair tradesmen selected by the lessor to provide quotes for repairs should not (unless by agreement of all the parties) be family or related to or close associates of the lessor.

    ………………………………..

Member A Morris

Date(s) of hearing	22 October 2021
Applicant:	Ms E Barnes, authorised representative
Respondents:	In person