Rose v RMR Enterprises Pty Ltd t/as Beaudesert Properties - [2013] QCAT 647

CITATION:

Rose v RMR Enterprises Pty Ltd t/as Beaudesert Properties & Anor [2013] QCAT 647

PARTIES:	Susan Rose (Applicant)
v
RMR Enterprises Pty Ltd t/as Beaudesert Properties Colin Pitts (Respondents)

APPLICATION NUMBER:

MCDO114/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

21 November 2013

HEARD AT:

Beaudesert

DECISION OF:

Adjudicator Howe

DELIVERED ON:

21 November 2013

DELIVERED AT:

Beaudesert

ORDERS MADE:

1. The lessor provide to the tenant an entry key in respect of each entry way door to the premises and shed within 7 days of the date hereof. In so far as it is necessary to effect that, new locks be set in such entry way doors.

2. The lessor engage an electrician to conduct an inspection of the electrical circuitry in the residence and effect repairs as necessary to provide a good, safe and working electrical system insofar as inspection and necessary repairs has not already been undertaken since the hearing of 29 August 2013.

3. The lessor’s application for termination of tenancy and compensation is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE - residential premises – farm – fencing responsibilities – tenant responsibility for non-malicious damage – termination for damage less than malicious

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Susan Rose appeared in person

RESPONDENT:

RMR Enterprises Pty Ltd t/as Beaudesert Properties represented by Marie Richardson, agent
Colin Pitts appeared in person

REASONS FOR DECISION
Background

This matter commenced with an application made on 16 August 2013 by the tenant, Susan Rose, for various orders against a lessor and agent. Amongst other things Ms Rose seeks orders about the rules of entry, emergency repairs, compensation for loss of amenity, maintenance obligations of the lessor and the validity of a form 11 notice to remedy breach dated 27 July 2013.
The tenant also seeks clarification of the term “farm” and directions as to responsibility for maintaining fences on the property.
By counter-application filed on 29 August 2013 the lessor seeks an order for termination of the tenancy and compensation for damage to the property.

The Lessor's Application

The lessor’s application is unusual. It is not made by application to the Tribunal and payment of a filing fee, but brought by way of counter- application in response to the proceedings commenced by the tenant.
The lessor relies upon a form 11 notice to remedy breach dated 27 July 2013. There is no affidavit of service deposing to the date and method of service in the material filed by the lessor. The tenant states in her material that in fact the application was served on her on 28 July 2013, by a process server. In the counter-application document service of the form 11 on the tenant is indeed stated to have been on 28 July 2011. Given that, which I accept was the date of service, there has not been the requisite 7 days remedy period allowed to rectify breach as required by s 328 of the Residential Tenancies and Rooming Accommodation Act 2008 (Act). To achieve that, service of the form 11 had to have been effected by no later than 27 July 2013. It wasn’t.
That renders the form 11 notice to remedy breach invalid and the following form 12 notice to leave ineffective. It follows the lessor’s application for termination must fail.
The lessor’s associated application for compensation for damage to property has been made without first referring the matter to the Residential Tenancies Authority for conciliation as required by s 416 of the Act. Accordingly the application for compensation is premature and cannot be addressed at this stage by the Tribunal. The lessor’s application for compensation associated with damage to fencing and gates and sundry items must therefore also be dismissed.

The Tenant’s Application

Many of the tenant's claims associated with breach notices have already been remedied by the lessor. They seem to be added to bolster the tenant’s case. They do not require further orders made about them.
The lessor has made valid complaints however about the lights not working in the house and insufficient provision of entry keys.
I have not been provided by either party with a full copy of the tenancy agreement. Generally, replacement of light bulbs and globes in residential premises is the responsibility of the tenant. Ms Rose states she was advised by a “tradesman” that the house has ‘special bulbs’ and it is the responsibility of the lessor to replace them. I am not satisfied that that is the case. The responsibility for replacement of bulbs, if that be the problem in the house, I conclude, in the absence of further evidence, is the responsibility of the tenant.
Ms Rose also suggested however at hearing on 29 August 2013 that the constant failure of lights may be attributable to an electrical fault. At the hearing Mr Pitts the lessor agreed to have an electrician inspect the premises. Neither party has provided any additional information since then as to an inspection being conducted nor the outcome. Given that I am unable to conclude what the problem was, light bulbs or electrical fault, and given that I am not persuaded to make an order for loss of amenity in favour of the tenant in respect of this item of claim.
Furthermore, looking to a schedule filed by the tenant showing delays in effecting repairs on the part of the lessor, the electrical problems were known to the tenant for at least 12 months prior to this application being made. Once notice of this problem was given to the lessor, the lessor’s failure to effect repairs constituted a breach of the tenancy agreement on the part of the lessor to maintain premises and inclusions in good repair pursuant to s 185 of the Act. By s 419 of the Act, the tenant was thereafter obliged to bring an application concerning that unremedied breach within 6 months. That was not done and the tenant is now out of time.
Similar considerations apply in respect of the gate malfunction reported in January 2013, during the term of the previous tenancy agreement. The tenant is again out of time.
As to a claim concerning the oven, it was reported to the landlord and it was repaired within 3 weeks. I do not allow any claim for loss of amenity there. In any case that claim also goes back to January 2013 and is similarly out of time.
Concerning the internal vacuum system, there is insufficient supporting material to allow me to conclude that it is unable to be used. I make no orders in respect of that claim to loss of amenity.
In respect of keys, in so far as at the date hereof entry keys have not been supplied by the lessor, they must be. I accept the evidence of the tenant that only one key to one entrance, and none to the shed, had been supplied as at date of hearing on 29 August 2013. By s 210(1) of the Act the lessor is obliged to supply and maintain locks that are necessary to ensure premises are reasonably secure. By s 210(2) of the Act the lessor must give the tenant a key for each lock that secures entry to the premises. In so far as at the date of this order a key in respect of each entry to the house has not been provided by the lessor to the tenant, the lessor must do that.

Residential Tenancy

The property concerned is 92 acres with a four bedroom house. The tenant maintains the property is a farm. It is not clear why this is a factor which requires clarification by the Tribunal other than a finding that the premises are not a residential tenancy takes away jurisdiction from the Tribunal to determine the issues between the parties.
The limited pages of the tenancy agreement tendered in this matter are pages from a standard form, form 18a tenancy agreement. There is no indication from that that the agreement struck between Mr Pitts and Ms Rose is a commercial tenancy arrangement.
The Act has as its main objects to state the rights and obligations of tenants, lessors and agents for residential tenancies. By s 10 of the Act residential premises are premises used or intended to be used as a place of residence or mainly as a place of residence.
By s 12(1) a residential tenancy agreement is an agreement under which a person gives to someone else a right to occupy residential premises as a residence. By s 9(1) premises for a residential tenancy includes a part of premises and land occupied with premises.
There does not appear to be any other relevant provision in the Act to guide me to a decision as to whether a house situated on 92 acres is or is not residential premises to which the Act applies.
In my opinion the matter comes down to the intention of the parties. In many areas around capital cities there are areas zoned (in so far as zoning is still a valid term and concept in light of the principles in the Sustainable Planning Act 2009) rural-residential and rural, used and occupied purely for the purpose of residential accommodation. Such premises are often described as “hobby farms”.
Here a standard residential tenancy agreement has been used. A significant issue that has arisen in this matter is fencing. The fencing on the property appears to be in large part “dog wire”. It is not suitable fencing to keep in horses and cattle. That suggests the property is not suitable for use in a commercial animal husbandry venture.
In the subject residential tenancy agreement before me item 17 of the tenancy agreement has been completed, though not with any clarity, to indicate that there are horses, dogs, cats, cows, a goat, a pig and a sheep allowed as “pets” to the tenant during the occupancy of the premises. That points to a residential tenancy. It is unclear as to the numbers of permitted pets. The tenant’s evidence is that she thought the numbers “10.2.4” in the box provided in the schedule was a code reference. I think that is a valid objection as to that being a restriction on numbers – it is unclear. The numbers of “pets” were not made clear by the document and it should have been.
But returning to the issue of the agreement being commercial or residential, there is no mention in the document before me to indicate that the occupation of the premises was intended to be a commercial venture on the part of the tenant or regarded as such by the lessor.
There is no indication from the residential tenancy agreement that the property is run as a “stud” by the tenant and insofar as that is argued one would have expected a copy of relevant taxation returns to be produced by the tenant to show that it is run as such a business. None such have been filed.
In my opinion despite the large area of land surrounding the house, the premises and all the land at 4523 Boonah Rathdowney Road, Rathdowney are residential premises to which the Residential Tenancies and Rooming Accommodation Act 2008 applies.

Sundry Issues

Both lessor and tenant have obligations pursuant to the residential tenancies legislation. The lessor must observe the rules of entry set out in ss 192 – 204 of the Act. By s 201(2) of the Act the Tribunal may change the rules of entry in a way considered appropriate if on an application by the tenant the Tribunal is satisfied the lessor or lessor's agent has entered or continues to enter the premises in contravention of the rules of entry.
To provide guidance, I comment that it may be open to the tenant to apply to the Tribunal for an order changing the rules of entry permitted the lessor should multiple notices of entry for trivial matters of repair not truly the basis or reason for entry be served on the tenant. I decline to make any orders in that vein at this stage on the limited unsworn material before me, and in hope that this decision may clarify future matters between the parties.
I might also remark that a number of the notices to remedy breach issued by the tenant to the lessor and agent appear to be erroneous and misconceived. Claims that existing fences should be repaired or replaced by the lessor because of “safety issues” appear to be without merit and references to emergency repairs fail to take into account that emergency repairs are not necessarily all and any repairs. Emergency repairs are limited to those matters listed in s 214 of the Act. Repairs to bores on the property because bore pumps are not working and the water is used to water livestock are not necessarily emergency repairs. Emergency repairs are works needed to ensure essential services to the property used as a residence or such as to make premises safe or secure.
Finally, in so far as the premises are residential tenancy premises, the obligations of care and repair imposed by the Act on lessors and tenants extend to fencing on the property.

Fencing

I feel I should also provide some guidance to the parties concerning this issue.
By s 188(4) of the Act at the end of the tenancy the tenant must leave the premises and inclusions, as far as possible in the same condition they were in as at the start of the tenancy, fair wear and tear excepted. Other than that, by s 188(3) the tenant is obliged not to maliciously damage or allow someone else to maliciously damage the premises or inclusions.
By s 296 of the Act the lessor may apply to the Tribunal for a termination order if the tenant has intentionally or recklessly caused or is likely to intentionally or recklessly cause serious damage to the premises. The expression “serious damage” is not defined in the Act. Each case would have to be considered on its own facts and circumstances.
Here, insofar as the complaint is that the tenant’s cattle and horses are pushing over dog wire fences, in the absence of any evidence to show that the tenant has intentionally or recklessly caused such damage to the fences, such damage does not necessarily constitute grounds for an application for termination of the tenancy based on damage caused to the property. The intentional or reckless nature of the tenant’s conduct must be addressed.
Given the lessor knew the tenant would run cattle and horses on the property, there may be a difficulty concluding that damage by horses and cattle to dog wire fences amounts to damage caused recklessly or intentionally by the tenant. It might be argued the lessor should have recognised this as a likely consequence when allowing cattle and horses onto the property.
Additionally the Tribunal must be satisfied that the damage caused to the dogwire fencing is to be categorised as serious damage. The present term of the tenancy is the second term. Ms Rose first went into the premises under a tenancy commencing 4 April 2012. There does not appear to have been an issue concerning fencing during the prior term. Indeed the tenant attributes the present problems between the parties to the decision of the lessor to sell the premises, such decision made very shortly after execution of the present extended tenancy term.
Did the damage to fences occur during the current term of the tenancy or the previous? The lessor has not stated when the damage occurred. Indeed there was an inspection of the premises on the day the tenancy agreement was extended. That would suggest, if the damage was already in place, the damage was insignificant to the mind of the lessor at that time.
The tenant has obligations to care for the property imposed by the Act. By s184 the tenant must not cause a nuisance by the use of the premises or interfere with the reasonable peace, comfort or privacy of a neighbour of the tenant.
Damage to external fences with the escape of cattle or horses from the subject premises onto neighbouring premises may amount to a breach of that provision. There is no indication however that that is the case here.
In so far as most of the complaints about damaged fences concerns internal fences however, that basis of claim may not be available to the lessor.
As mentioned, by s 188(2) and (3) the tenant is obliged to keep the premises and inclusions clean having regard to their condition at the start of the tenancy and not to maliciously damage or allow someone else to maliciously damage, the premises or inclusions. By s 188(4) at the end of the tenancy the tenant must leave the premises and inclusions as far as possible in the same condition as they were at the start of the tenancy, fair wear and tear excepted.
Generally, if damage is done to the premises which is not serious damage as required by s 296, the intention of the legislation seems to be that the matter be dealt with at the end of the tenancy. At the end of the tenancy the tenant is obliged to return the property to the condition it was in at the start of the tenancy, fair wear and tear excepted. In this matter before me that time has not yet been reached.
There is, it should be noted, an obligation on a tenant, pursuant to s 217 of the Act, if the tenant knows the premises or inclusions have been damaged, to give notice to the lessor as soon as practicable of the damage. If such damage does not require emergency repairs, the damage is deemed to require only routine repair, and other than for the requirement imposed by section 188(4) that at the end of the tenancy the tenant leave the premises and inclusions in the same condition as they were in at the start of the tenancy, strangely and somewhat to my surprise there is no provision in the Act which makes the failure of the tenant to rectify that particular damage prior to the end of the tenancy a breach of the terms of the tenancy agreement.
If that failure of the tenant to immediately effect and pay for routine repairs is no breach of the terms of the tenancy agreement, the powers vested in the Tribunal pursuant to s 420 of the Act allowing the Tribunal to make orders for the payment of money and orders for compensation or orders in the form of an injunction or an order for specific performance, has no application.
Finally I should mention s 429 of the Act. That provision provides that if there is a dispute between the lessor and tenant “about an agreement” either party may apply to the Tribunal for an order and the Tribunal may make any order it considers appropriate to resolve the dispute.
In this matter it does not appear to be the case that the dispute involves any part of the “agreement” between the parties. That at least is my conclusion based on the material filed. Accordingly that provision does not seem to have application here either.
If the lessor effected repairs to the fencing and claimed the costs of repair from the tenant based on a term of the residential tenancy agreement between the parties, and the tenant refused to pay in breach of that term, then the issue falls for consideration by the Tribunal under s 429. In this regard it would be expected that the tenancy agreement make express provision for the payment of repairs required because of damage attributable to the tenant’s “pets”.
The above are my observations voiced to assist the parties and forestall any pointless repeat applications made in ignorance of the various requirements imposed on parties by the Act.

Orders

In end result however only the following orders should be made:
1.    The lessor provide to the tenant an entry key in respect of each entry way door to the premises and shed within 7 days of the date hereof. In so far as it is necessary to effect that, new locks be set in such entry way doors.
2.    The lessor engage an electrician to conduct an inspection of the electrical circuitry in the residence and effect repairs as necessary to provide a good, safe and working electrical system insofar as inspection and necessary repairs has not already been undertaken since the hearing of 29 August 2013.
3.    The lessor’s application for termination of tenancy and compensation is dismissed.