ROSS v AL BALILI & ORS (Residential Tenancies)
[2020] ACAT 20
•24 March 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ROSS v AL BALILI & ORS (Residential Tenancies) [2020] ACAT 20
RT 421/2019
Catchwords: RESIDENTIAL TENANCIES – when did the tenancy end pursuant to tenants’ notice to vacate – effect of delay of final inspection on reliability of exit condition report
Legislation cited: Residential Tenancies Act 1997 ss 8, 29, 30, standard terms 64, 84
Tribunal: Senior Member E Ferguson
Date of Orders: 24 March 2020
Date of Reasons for Decision: 24 March 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 421/19
BETWEEN:
TRACY ROSS
Applicant/Lessor
AND:
MOHAMAD AL BALILI
MOUSTAFA OMAR
RAISA LEVINA
Respondents/Tenants
TRIBUNAL:Senior Member E Ferguson
DATE:24 March 2020
ORDER
The Tribunal finds that tenancy ended at midnight on 29 May 2019.
The Tribunal orders that:
1.The tenants shall pay to the lessor by 21 April 2020 the sum of $10,655.96 comprised of:
(a)$5,400 break lease fee.
(b)$128.57 rental arrears for the period up to 29 May 2019.
(c)$377.36 for water consumption from 6 March to 29 May 2019 inclusive.
(d)$407.08 for electricity consumption from 6 March to 29 May 2019 inclusive.
(e)$4,342.95 compensation for contravening clause 64 of the standard residential tenancy terms comprised of:
(i) $750 for cleaning and gardening.
(ii) $398.95 for other damage.
(iii) $400 for replacement of four heat lamps in the “Tastic” in the bathroom.
(iv) $3,000 for replacement of bifold door.
(v) $200 for damage to the carpet
2.ACT Rental Bonds on behalf of the Territory is directed to release the bond of $3,600 to the lessor to be credited against the amount owing by the tenants at order 1(e).
………………………………..
Senior Member E Ferguson
REASONS FOR DECISION
Introduction
1.This is a claim by a lessor, Ms Ross, against three of four joint tenants Ms Levina, Mr Al Balili, and Mr Omar, who I have referred to collectively as the respondents.
2.The fourth tenant is a building company, Gcon Formwork Pty Ltd (Gcon) of which the respondents are directors. All tenants are jointly and severally liable under the tenancy agreement and the respondents also personally guaranteed the company’s obligations.
3.None of the respondents is proficient in English and all required the assistance of an interpreter at the hearing.
4.The parties communicated regarding the tenancy through their respective agents; Kristy Jones of Peter Blackshaw Real Estate Gungahlin for the lessor, and Alsu Zaripova for the tenants. Ms Zaripova is Ms Levina’s daughter and works for Gcon.
5.The respondents originally intended to accommodate Gcon’s workers in the five-bedroom house they let from Ms Ross. However, they changed their mind and Mr Omar, his wife and nine children, lived there instead.
6.The tenancy was for a fixed term of 12 months but after about three months Mr Omar’s family found the house did not suit them and the tenants broke the lease in accordance with a notice of intention to vacate given by Ms Zaripova to Ms Jones.
7.Ms Ross claimed a sum of $17,419.61 for the break lease fee, unpaid rent and utility consumption charges as well as compensation for loss she said she suffered as a result of the tenants failing to leave the house in the required state of cleanliness and repair.
8.The respondents readily conceded liability for the break lease fee, as well as unpaid rent and utility consumption charges for the period up to the end of the tenancy, but the parties did not agree when the tenancy ended.
9.The most controversial aspect of Ms Ross’ application was her claim for $9,988.35 to compensate her for the condition in which the tenants left house.
10.I heard the matter over two days and reserved my decision. After considering the parties’ submissions and evidence, I ordered the respondents to pay Ms Ross the uncontested break lease fee; decided that the tenancy ended on the day the tenants returned the keys to the lessor and ordered the respondents to pay for rent and utility consumption up to that date; and ordered the respondents to pay Ms Ross compensation of $4,342 for loss she suffered as a result of their failure to leave the premises in the required condition.
11.My decision and reasons for it are set out in full below.
The claim
12.Ms Ross claimed $17,419.61 (adds up to $17,419.62) comprised as follows:
(a)$5,400 compensation for break lease in the amount agreed under the tenancy agreement.
(b)$771.44 for rental arrears comprised of:
(i) $128.57 for rent up to and including 29 May 2019.
(ii) $642.87 rent for five days pro rata from 30 May to 3 June 2019.
(c)$332.26 for water consumption for the period 6 March 2019 to 3 June 2019 comprised of:
(i) $277.80 from 6 March 2019 to 13 May 2019.
(ii) $54.46 from 14 May 2019 to 3 June 2019.
(d)$927.57 for electricity consumption for the period 6 March 2019 to 3 June 2019 comprised of:
(i) $503.55 from 6 March 2019 to 13 May 19;
(ii) $424.02 from 14 May 2019 to 3 June 2019.
(e)$9,988.35 compensation for loss suffered by the lessor caused by the tenants contravention of their obligations under the tenancy agreement to leave the premises in substantially the same condition and state of cleanliness as at the commencement of the tenancy. The amount is detailed in the next paragraph.
(f)$4,041.85 for repairs to return the leased premises to pre-lease condition. At the hearing Ms Ross relied on the invoice of Hypdup Constructions for particulars, although the amount invoiced was only $3,146.85. It was not clear why the amount claimed differed from the sum invoiced. The invoice was comprised of:
(i) $1,150. for cleaning.
(ii) $1,996.85 for various other repairs.
(iii) $621.50 for electrical repairs.
(iv) $4.500 to rectify bifold doors.
(v) $600 to replace wall mounted vacuum cleaner.
(vi) $225 to replace wall mounted vacuum cleaner.
(g)The lessor also claimed an additional unspecified amount of compensation for damage to the carpets (she asked the Tribunal for “reasonable compensation”) and to a bedpost on the double bed.
The issues
13.The respondents said the tenancy ended on 29 May 2019 when they returned the keys. The lessor said it ended on 3 June 2019 when she and her agent conducted the final inspection. The date of termination was critical to determining the respondents’ liability for rental arrears and unpaid electricity and water consumption charges.
14.At hearing the respondents agreed:
(a)they were liable for outstanding rent of $128.57 up to and including 29 May 2019;
(b)they had not paid for any electricity and water consumed during the tenancy;
(c)they were liable for water and electricity consumption charges up to and including 29 May 2019;
(d)they did not dispute the accuracy of the lessor’s accounts from the water and electricity suppliers covering the relevant period;
(e)they also acknowledged that in regard to the electricity charges, under the terms of the tenancy agreement, Ms Ross was entitled to retain the benefit of the solar electricity feed in tariff.
15.The respondents insisted that at the end of the tenancy the house was in substantially the same, if not better, state of cleanliness and repair as it had been at the beginning.
16.In particular, they challenged the reliability of the exit condition report on the basis that the lessor had allowed cleaners to access the property in the intervening period between the tenants relinquishing possession on 29 May 2019 and the final inspection on 3 June 2019.
17.The outstanding issues for me to determine were:
(a)When did the tenancy end?
(b)How much did the tenants owe the lessor for rent for the period of the tenancy?
(c)How much did the tenants owe the lessor for charges for electricity consumed during the tenancy?
(d) How much did the tenants owe the lessor for charges for water consumed during the tenancy?
(e) Had the tenants contravened their obligations to leave the premises in substantially the same condition and state of cleanliness as at the commencement of the tenancy as alleged by the lessor; and if so
(f) What compensation, if any, was lessor entitled to?
The hearing
18.The lessor and all three respondents attended both hearing days, gave evidence and were cross-examined. On the second day of the hearing, Mr Omar’s daughter, Avin Omar attended in person and Ms Jones attended by phone and both gave evidence and answered questions.
19.The respondents relied on the statutory declaration of Alsu Zaripova, dated 11 June 2019 in which Ms Zaripova gave a chronological account of her interactions on behalf of the tenants’ with the lessor, the lessor’s agent and the cleaner.
20.Although Ms Zaripova was not available to be questioned on her evidence at the hearing, I placed weight on her account as it was:
(a) logically consistent;
(b) supported by email correspondence and other documents in evidence;
(c) based on her direct knowledge of events; and
(d) not inconsistent with, nor contradicted by, the evidence relied upon by the lessor.
When did the tenancy end; and the tenants’ liability for rent and utilities?
21.On Wednesday 22 May 2019 Ms Zaripova emailed Ms Jones to advise that Mr Omar’s family intended to move out of the property that coming weekend so that the keys could be returned to Ms Jones on the following Wednesday, 29 May 2019. She also advised that the tenants agreed:
to pay the six weeks compensation fee for breaking the lease before the end of the fixed term as outlined in Clause 5 of the lease.
She asked what the process for terminating the lease agreement was.
22.I am satisfied that Ms Zaripova’s email was a valid notice of the tenants’ intention to vacate in accordance with the tenancy agreement.[1]
[1] Residential Tenancies Act 1997, Schedule 1, Clause 85 of the standard residential tenancy terms.
23.Clause 84 of the standard residential tenancy terms, sets out the consequences of the tenant serving a notice of intention to vacate on the lessor:
(1) If the tenant serves a notice of intention to vacate and vacates the premises in accordance with the notice, the tenancy terminates on the date of vacating the premise;
(2) On receiving a notice of intention to vacate, the lessor may—
(a) accept the notice and accept that the tenancy ends on the date nominated in the notice; or
(b) apply to the tribunal for confirmation of the tenancy agreement, an order for compensation or both.
24.Clause 84 gives the lessor a binary choice, either accept the notice or apply to the tribunal to confirm the tenancy and seek compensation for breaching the fixed term.
25.Ms Jones responded to Ms Zaripova’s email as follows:
(a) She acknowledged receipt of Ms Zaripova’s email and said she had notified the lessor of it.
(b) She attached a “final inspection/checklist to assist in preparing the property for final inspection”.
(c) She advised Ms Zaripova that the keys could not be handed back until the property was:
… completely ready for a final inspection should the keys be handed back and the house isn’t to the required standard, rent will continue to be charged at the daily rate until it is resolved.
26.Ms Zaripova and Ms Jones agreed that Ms Zaripova would return the tenants’ keys to Ms Jones at her office by close of business on Wednesday 29 May 2019 and that they would both attend the property the following morning to conduct a final inspection.
27.Just before close of business on Wednesday 29 May 2019, Ms Zaripova returned the tenants’ keys to Ms Jones’ office. It is not in disputed that the cleaners engaged by Ms Zaripova had not completed the cleaning.
28.Ms Jones at first postponed the final inspection indefinitely pending completion of the cleaning, but when she subsequently discovered that the cleaner was too ill to complete the cleaning, she rescheduled it to Monday 3 June 2019.
29.The lessor argued that the tenancy and the tenants’ liability to pay rent continued until the final inspection.
30.I was not convinced by the lessor’s argument. Failure by a tenant to leave the house in the condition required under clause 64 may give a lessor a right to be compensated for loss she suffered as a result of that contravention but it does not entitle the lessor to unilaterally extend either the tenancy, or the tenants’ obligation to pay rent.
31.I am satisfied that Ms Ross in choosing not to pursue action under clause 84(2)(b) effectively accepted that the tenancy ended on the date nominated by the tenants. Accordingly, pursuant to clause 84(1) the tenancy ended when the tenants vacated the premises on 29 May 2019. Therefore, the respondents are only liable for rental arrears; and electricity and water consumption charges for the period up to and including 29 May 2019.
32.Although a tenant is only obliged to pay rent for the period of the tenancy, a lessor may be entitled for compensation for ‘loss of potential rent’ if a tenant’s contravention of clause 64 causes delay in reletting the property until rectification works are completed. However, Ms Ross did not seek compensation on this basis.
33.Based on the Icon Water accounts in evidence, I calculated that the tenants were liable for $377.36 for water consumption on a pro rata basis from 6 March to 29 May 2019 inclusive.
34.Based on the ACTEW AGL accounts in evidence, I calculated that the tenants were liable for $407.08 for electricity consumption on a pro rata basis from 6 March to 29 May 2019 inclusive. In calculating this sum, I took into account the following:
(a)that the tenants agreed that under the terms of the tenancy the lessor was entitled to the benefit of the solar feed in tariff; and
(b)that the lessor had received a discount for paying the account on time. I applied ¾ of this discount to the benefit of tenants roughly in proportion to the amounts attributed to consumption and supply.
Contravention of clause 64 of the tenancy agreement
35.Clause 64 provides that:
The tenant must leave the premises—
(a) in substantially the same state of cleanliness, removing all the tenant’s belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and
(b)in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.
36.Ms Ross claimed that the tenants were in breach of both obligations under clause 64 and sought compensation for the cost of returning the house to the required standard.
37.The respondents assert that any damage or lack of cleanliness identified at the final inspection on 3 June 2019, five days after they relinquished possession, was either present at the commencement of the tenancy or caused by cleaners who Ms Ross allowed to access the property after the tenants vacated.
The evidence
38.Mr Omar and his daughter were able to give evidence of the condition of the premises before they moved out on the weekend before the tenancy terminated.
39.Mr Omar told the Tribunal:
But when we actually left the property, we left it in a pristine 100 per cent condition, as it was when we first moved in.
40.Ms Omar told the Tribunal that the family spent a week packing and cleaning and that they had left the house in a clean condition.
41.Mr Al Balili visited Mr Omar and his family at the house during the tenancy and observed the condition of the property. The overall impression he formed from his visits was that the house was being well cared for by the Omars. He last visited the house a few days before the family moved out when they were in the throes of packing. I found Mr Al Balili’s evidence to be of little assistance as he did not inspect the property at beginning and end of tenancy and attended the premises as a guest, not to examine its condition.
42.Ms Ross attended the inspection of the property with Ms Jones and Ms Zaripova prior to commencement of the tenancy. Ms Ross also accompanied Ms Jones when she conducted the final inspection on 3 June 2019. Ms Ross later organised contractors to attend to rectify the condition of the house before reletting it.
43.Ms Jones was the managing agent for the duration of the tenancy. She inspected the house at the beginning and end of the tenancy and completed both the entry condition report and the exit condition report, which she told the Tribunal were accurate.
44.Ms Ross relied on the following documentary evidence:
(a)Entry condition report containing the comments of both the lessor’s agent and the tenants. It was signed by each of the respondents on 21 March 2019, and Ms Jones on 22 March 2019.[2]
[2]Pursuant to Residential Tenancy Act 1997 section 29(3)(b)
(b) Photos, which according to Ms Ross, were taken by Ms Jones and provided to the tenants at the commencement of the tenancy. The respondents denied receiving these photographs, I prefer the lessor’s evidence on this point as it is supported by an acknowledgement of receipt in evidence dated 22 March 2019. Ms Ross did not submit copies of these photographs and relied at the hearing on electronic version on her iPad. Ms Ross told the Tribunal that there were approximately 1,300 such images, unsurprisingly during the hearing Ms Ross at times had difficulty locating the relevant image.
(c) Exit condition report dated 3 June 2019 but unsigned with attached photographs. Only Ms Jones and Ms Ross attended the final inspection on 3 June 2019 upon which the report is based.
(d) Photos, which according to Ms Ross, she took when she attended the final inspection with Ms Jones.
(e) Photos, which according to Ms Ross, were taken by the cleaner engaged by the tenants on 29 May 2019.
(f) Photos, which according to Ms Ross, were taken by a tradesperson engaged to rectify damage some five days after the final inspection.
45.The condition of the house at the commencement of the tenancy was largely uncontroversial. To the extent of any relevant difference of opinion, I relied on the comprehensive written entry condition report, signed and annotated by the respondents, which is conclusive evidence of the condition of the property at the commencement of the tenancy.[3]
[3] Residential Tenancy Act 1997 sections 29, 30
46.The central issue in dispute was the condition of the house at the end of the tenancy.
47.The tenants are entitled to rely on the exit condition report as the lessor’s definitive assessment of the condition of the premises. Accordingly, I disregarded all photographs, which do not form part of the report.
48.The respondents challenged the reliability of the exit condition report on the grounds that:
(a)the final inspection upon which it was based was not conducted at the end of the tenancy, but some five days later on 3 June 2019; and
(b)during this time the house was not under the control of the tenants and the lessor allowed people, other than the tenants, to access the premises.
49.Ms Ross denied that anyone had access to the house between the 29 May and 3 June 2019. She said that during this time all copies of the keys remained in safe custody at Ms Jones’ office, an assertion supported by Ms Jones.
Exit condition report
Was the exit condition report reliable?
50.I was satisfied of the following facts, which were either not in dispute, supported by email correspondence in evidence, or asserted by the Ms Zaripova based on her personal knowledge and not contradicted by the evidence of the lessor.
51.Ms Zaripova organised cleaners and pest contractors to come in after the Omars moved out to prepare the house to be returned to the lessor.
52.Ms Zaripova and Ms Jones agreed that the tenants’ keys would be returned to Ms Jones by 5pm on Wednesday 29 May[4] and that both of them would attend the final inspection the following morning.
[4] Special condition 6 of the Tenancy Agreement
53.Ms Jones asked Ms Zaripova to use the lessors’ preferred cleaner, Tara, who was familiar with the house and cleaned other rental properties for Ms Ross, and Ms Zaripova agreed to do so.
54.Ms Zaripova engaged Tara to conduct an end of lease clean including cleaning the carpets and windows; and gardening for an agreed price of $1,100. Tara was to start work at 9am on Tuesday 28 May 2019 and be finished by 4pm on Wednesday 29 May.
55.On 9:05am on Tuesday 28 May 2019 Ms Zaripova met Tara at the house and gave her the tenants’ keys in order to access the house. When Ms Zaripova came to collect the keys from Tara at on Wednesday afternoon, she found Tara, another woman and two children still cleaning.
56.Ms Zaripova retrieved the keys from Tara at around 4.30pm. When Ms Zaripova told Tara she wanted to lock the house before returning the keys to the lessor’s agent, Tara responded that she still had full access to the house including the garage provided to her by the lessor. Tara and her three helpers remained in the house when Ms Zaripova left.
57.Ms Zaripova rang Ms Jones’ office and, as Ms Jones was not available, spoke to another agent. Ms Zaripova told the agent that the cleaning was not complete and Tara was still at the house. She asked if she could return the keys at the scheduled inspection the following morning. The agent insisted that Ms Zaripova return the keys that afternoon before close of business as previously agreed with Ms Jones, which she did.
58.The following morning, Ms Jones emailed Ms Zaripova to postpone the final inspection indefinitely, pending completion of the cleaning. When Ms Jones found out on Saturday 1 June 2019 that Tara was too ill to complete the cleaning, she rescheduled the inspection to Monday 3 June at 10am and invited the tenants or Ms Zaripova to attend.
59.On 3 June 2019 Ms Zaripova responded that neither she nor the tenants were available to attend the inspection and added:
Regardless of our availability, we don’t see any point coming for the inspection given that third parties already have access to the house.
60.On 3 June Ms Jones went ahead with the final inspection in the presence of Ms Ross and on 4 June 2019 sent Ms Zaripova a copy of the exit condition report giving them an opportunity to rectify the issues identified:
This report details all items throughout the property and external areas which differ from the state and condition in which they were provided at the commencement of the tenancy agreement. These items require rectification/an agreement must be reached between yourselves and the lessor Tracey on each of these items, before the tenancy bond can be settled.[5]
[5] Email Kristy Jones to tenants dated 4 June 2019 at 10:37:04am
61.Ms Ross denied that Tara had keys to the house. Ms Jones thought Tara may have been confused because she had keys to other rental properties owned by the lessor. Ms Jones gave evidence that once Ms Zaripova returned the tenants’ keys all keys remained at her office until the final inspection.
62.Ms Jones said that only Ms Ross had been at the property to feed the dogs, for which she did not need to enter the house. The garage was expressly excluded from the tenancy. The tenants had also entered a separate agreement with Ms Ross to care for her two dogs at the house during the tenancy, pursuant to that agreement Ms Ross was permitted to access the side yard to visit the dogs.
63.No witness statement from Tara was in evidence and no party called her to give oral evidence at the hearing. This was an unfortunate omission as the cleaners were the only people, apart from Ms Zaripova, who observed the condition of the property when the tenants relinquished possession on 29 May 2019. Tara may also have been able to assist the Tribunal to resolve whether she continued to have access to the premises after she gave the tenants’ keys back to Ms Zaripova.
64.I had no reason to doubt the factual account of either Ms Zaripova or Ms Ross. The only explanation, which is consistent with both, is that Tara mistakenly believed that she had keys, or access, to the house. Accordingly, I am satisfied that on Wednesday afternoon Ms Zaripova left Tara and the other cleaners at the unlocked house after retrieving the keys to return to the real estate agency. Once the cleaners left, and locked the house behind them, they could not re-enter as they did not have keys.
65.At all times the cleaners were engaged by the tenants not the lessor. Accordingly, if the cleaners caused damage to the property, failed to complete cleaning as agreed, or failed to leave when asked by Ms Zaripova it is a matter between the tenants and the cleaners and does not affect the tenants’ obligation under clause 64 to return the house to the lessor in the required condition.
66.Although Ms Jones refusal to conduct the final inspection as agreed on Thursday morning was based on a flawed reason, I am satisfied that the resulting delay until the following Monday morning did not diminish the evidentiary value of the exit condition report because:
(a)the delay was insufficient to cause a significant accumulation of dirt or a deterioration in condition of the premises from natural causes;
(b)I am not satisfied on the evidence that the lessor granted anyone access to the house between 29 May and 3 June 2019; and
(c)the lessor gave the tenants an opportunity to attend the final inspection, which they declined.
67.After providing the tenants with the exit condition report, Ms Jones gave them ample opportunity to rectify the issues identified, and they made no attempt to do so.
Cleaning
68.It was not disputed that when the tenants vacated on 29 May 2019, Tara had not completed the cleaning or gardening. Nevertheless, the respondents insisted they returned the property in a pristine condition. I prefer the lessor’s evidence that the property was not in substantially the same state of cleanliness at the end of the tenancy as it was at the beginning. I reached this conclusion primarily on the evidence of the exit condition report and the photos attached to it, but also because it is implausible that the respondents would engage a cleaner to clean the property over two days if it was already pristine.
69.Although Ms Ross bore the onus of proving the tenants breach, it did not assist the respondents’ case that none of them saw the property on the afternoon the keys were handed back and that Ms Zaripova, who did see it, made no comment in her statement as to its condition, except to note that the cleaner had not finished cleaning.
70.The tenants were strictly liable to return the property to the lessor in substantially same state of cleanliness as it was at commencement of the tenancy. I found that they did not do so and are therefore liable for the reasonable cost of cleaning.
71.According to the invoice in evidence dated 10 June 2019, Hypdup Constructions charged the lessor $1,150 for an end of lease cleaning. I have allowed a lesser amount of $750, that is half of Tara’s quote, on the basis that the cleaning was at least partially completed by Tara.
Other repairs by Hypdup Constructions
72.In addition to cleaning, Hypdup Constructions repaired and replaced items, which Ms Ross claimed the tenants lost or damaged. They charged Ms Ross $1,996.85 for these services. Ms Ross relied on Hypdup’s itemised invoice to particularise this part of her claim.
73.The respondents denied damaging or removing any of the items claimed. They admitted that all of the items referred to in Hypdup’s invoice were there at the start of the tenancy except for:
(a)the coffee table, which they said belonged to the Omars; and
(b)the remote control for the heater, they said the heater did not come with a remote control as the control panel was affixed to the wall.
74.I have allowed an amount of $398.95 for this aspect of Ms Ross’ claim. My findings and reasoning in relation to each of the items claimed is set out in the table below:
Item Finding Replace sofabed with equivalent. $300 claimed I allowed the claim for $300 based on the exit condition report and photos which showed the sofa bed outside and in a faded and poor condition. The entry condition report recorded it being located in the dining area. Replace mirrored shoe cabinet - replace and install. $350 claimed I did not allow this claim, as it was not supported by the exit condition report. Removal/disposal of damaged sofa and mirrored shoe cabinet. $120 claimed I have allowed $60, that is half the amount claimed
because only the damage to the sofa bed was established.Repair of sliding laundry door.
$80 claimedI did not allow this claim, as the exit condition report did not support it. Repositioning of all furniture as per start of lease photos and reconnection of all electrical connection.
$550 claimedI did not allow this claim on the basis that the changes complained of do not amount to a substantial change in the condition of the premises. It is inevitable, especially when premises are used as a home rather than holiday accommodation, that furniture will not be in precisely the same position at the end of the tenancy as it was at start. I am also not satisfied that unplugging appliances constitutes a substantial difference in condition. Replacement of battery in clock. $5 claimed I did not allow this claim as it was not supported by the exit condition report. Replacement of remote control for wall heater. $110 claimed. I did not allow this claim as the evidence did not establish that there was a remote control at the commencement of the tenancy. Replacement of two ornamental globes in lamps in bedroom 3
$20 claimed.
I allowed the claim for $20 based on the exit condition report and photos. Replacement of GVA TV remote control.
$40 claimed
I did not allow this claim, as it was not supported by the exit condition report. Replacement of Samsung remote. $45 claimed As above
Replacement of 7 glasses and 1 mug. $24 claimed. The entry condition report photographs showed at least six glasses at beginning of the tenancy. The exit condition report records only four. I have disallowed this item. A loss of two glasses over a tenancy of three months, in my view, constitutes fair wear and tear. Replacement of 1 HDMI cable of similar quality. Claimed $36 I did not allow this claim as it was not supported by the exit condition report. Replacement of coffee table as per photo supplied
White table with glass top according to Ms Ross at hearing).
$300 claimed.I have disallowed this claim as the lessor failed to establish it was there at start of tenancy. I prefer the respondents’ evidence that it belonged to the Omars. Repair of broken leather chair.
$50 claimed.
The chair may have been old at the start of tenancy but it was not broken - I have allowed $10 given condition of the chair at the start of the tenancy. 2 x missing keys. $17.90 claimed Emails between Ms Jones and Ms Zaripova on 30 May 2019 establish that one of the keys recorded on the key sheet at the commencement of the tenancy is missing. There is insufficient evidence to establish that a second key was missing. Accordingly, I have allowed $8.95 being half the amount claimed.
Electrical repairs
75.The lessor claimed $621.50 being the amount quoted by Mario Matic to Ms Ross on 25 August 2019 to:
(a)replace dimmer - $65;
(b)replace four heat lamps (in the “Tastic” heating and light fitting in main bathroom) - $400;
(c)clean the “Tastic”- $100.
76.According to the entry condition report the Tastic was “clean intact and working”. The exit condition report recorded that “All heat globes are not working”. Based on this evidence, I have allowed $400 to replace the heat lamps and disallowed the rest of the claim.
Bifold doors
77.The exit condition report recorded the following defects in relation to the three metal bifold doors in the rumpus/ bedroom 5:
(a)Key to bifold missing.
(b)Doors not closing- gap at top- misaligned need repair.
(c)Hand size indents to right hand side of smaller window frame.
78.The entry condition report recorded that the doors were intact with no damage. Keys for the doors were not mentioned.
79.Ms Ross asserted that there was a key in the bifold doors at the start of the tenancy. The tenants deny that assertion and I am not satisfied that Ms Ross has established its existence on the evidence.
80.The entry condition report records some wall damage near the bifold doors. It is not clear from a comparison of the two condition reports whether the indent to adjacent wall recorded in the exit condition report was new or pre-existing.
81.I was satisfied on the evidence that the doors, which were working at start of the tenancy, were not closing properly at the end of the tenancy.
82.Ms Ross relied on an invoice for $4,500 from Jason Day for replacing and installing new doors. The invoice was not itemised and included a range of other work, including patching and painting walls throughout the house, which were not claimed by Ms Ross in her application. I have allowed an amount of $3,000 to replace the bifold doors, on the basis that it is likely that this was the costliest aspect of Mr Day’s work. This amount also includes an allowance for the cost of patching and painting the laundry wall necessitated by the detachment of the wall mounted vacuum cleaner.
2 x vacuum cleaners
83.Ms Ross claims compensation for replacing two wall mounted vacuum cleaners one located in the master bedroom the other in the laundry.
84.Ms Ross claimed $600 in relation to the V6 wall mounted vacuum in the master bedroom. She said that it had been used to vacuum water and was not working and had to be replaced. The respondents denied they damaged it.
85.The entry condition report records that it was clean and undamaged and working. The exit condition report does not mention it. Accordingly, I am not satisfied that the lessor has established it was damaged during the tenancy and so disallowed her claim.
86.Ms Ross claimed an amount of $225 to replace “Dyson DC44 cordless Animal Vacuum in the laundry”.
87.The entry condition report records the existence of a “Wall hanging Dyson” Vacuum under “Furnishings” in the laundry. However, there is no comment on its condition.
88.The exit condition report records its condition as, “Filthy and stopping/starting. The mount has also been pulled from wall and damaged gyprock.”
89.Mr Omar admitted that his family had used the vacuum but found it did not work well. He told the Tribunal that his family used their own vacuum cleaner instead. He insisted that it was attached to the wall when they left.
90.On the balance of evidence I am satisfied that the vacuum was attached at the commenced of tenancy but detached from the wall at the end – causing damage to the wall. I have already allowed for the cost of patching and painting the wall as part of Mr Day’s invoice. I am not satisfied on the evidence that the condition of the vacuum cleaner was otherwise worse at the end of the tenancy than it was at the beginning.
Carpet and bedpost
91.Ms Ross alleged that the tenants damaged the carpet and a bedpost and sought unspecified compensation. In her application she described her claim as follows:
I have not been able to ascertain a quote to have the carpet upstairs repaired as there is damage to the stairwell, upstairs landing, 2 bedrooms (one with 2 white ring bleached marks) the second burn hole in the carpet from what appears to be a light bulb catching fire as glass was found all through the carpet and light bulb was missing from the lamp, carpet damage from the cat in front bedroom downstairs. I would like to seek reasonable compensation so this can be rectified at the end of the current tenants lease as it would be too disruptive to do now.
In addition, I have not been able to put a value on the damage to the double bed from the cat using it as a scratching pole at this moment in time.
92.There is no objective evidence of damage to the bedpost and so I have disallowed Ms Ross’ claim for it.
93.The following comparison of the entry and exit condition reports supports Ms Ross’ assertion that the tenants damaged the carpet.
94.In the stairwell and upstairs hallway:
(a)entry condition report: “CARPET: Gray plush pile carpets, clean, intact and undamaged. No Pulls and stains.”
(b)exit condition report:
Carpet cleaning required, cat hair removal. There are several pulls visible to the carpet on the stairs and on the top landing. The photos attached to the report showed several pulled threads on stairs and in upstairs hallway.[6]
[6] Exit condition report - photographs 6, 15, 17, 18, 19 of 38
95.In bedroom 4:
(a)entry condition report: “CARPET: Gray plush pile carpets, clean, intact and undamaged. No pull x 1 x minor white mark at end of the bed.”
(b)exit condition report: “Carpet cleaning required, cat hair removal and white circle stains present directly to the left of the entry door beside the dresser.”
96.The photos attached to exit condition report show an irregular shaped white stain on carpet in bedroom 4 which I assumed was the same mark noted in the entry condition report. [7] However, another photo showed two white rings on the carpet, which were only noted in the exit report. A pen had been placed next to the marks for scale. I estimated each ring to be approximately 5cm in diameter. Hypdup’s invoice notes that cleaning failed to remove these marks.
[7] Exit condition report - photographs 86 of 108
97.Ms Ross told the Tribunal that the carpet was original and about five years old at the commencement of the tenancy.[8]
[8] Transcript of proceedings 19 November 2019 page 116
98.I am satisfied on the evidence that there were a number of pulled threads in the carpet on the stairs and upstairs hallway at the end of the tenancy which were not present at the commencement of the tenancy.
99.I agree with Ms Ross that the most likely cause of the pulls in the carpet was the Omars’ cat. Under the tenancy agreement, the tenants were not permitted to keep pets (apart from the lessor’s dogs) and yet they brought their cat to the house and, according to Ms Omar,[9] allowed it to remain inside. As the keeping of the cat contravenes the tenancy agreement, damage caused by it cannot be regarded as fair wear and tear.
[9] Transcript of proceedings 19 November 2019 page 64
100.I am also satisfied that there were two small circular white stains on the carpet in bedroom 4 at the end of the tenancy in addition to the pre-existing stain on the carpet at the end of the bed.
101.In my view the new circular stains were most likely caused by the occupants resting a bottle of bleaching agent on the carpet. It is not reasonable to have allowed bleach near a carpet, let alone a dark coloured one, and therefore the resulting damage does not constitute fair wear and tear.
102.Ms Ross elected to relet the house without fixing the damage to the carpet and she did not suggest that the existence of the damage reduced the rent she was able to achieve.
103.Given the age and condition of the of the carpet, and the extent of the damage it would not be reasonable for Ms Ross to be compensated for the cost of replacing it. However, I found that the damage was sufficient to reduce the remaining effective life of the carpet and I have allowed an amount of $200 to compensate Ms Ross for this loss.
………………………………..
Senior Member E Ferguson
HEARING DETAILS
FILE NUMBER:
RT 421/2019
PARTIES, APPLICANT:
Tracy Ross
PARTIES, RESPONDENT:
Mohamad Al Balili
Moustafa Omar
Raisa Levina
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member E Ferguson
DATES OF HEARING:
22 October 2019, 19 November 2019
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