Selleck v Cassin & Anor (Residential Tenancies)

[2017] ACAT 7

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SELLECK v CASSIN & ANOR (Residential Tenancies) [2017] ACAT 7

RT 406/2016

Catchwords:RESIDENTIAL TENANCIES – rental bond dispute – compensation – no incoming condition report – fair wear and tear

Legislation cited:      Residential Tenancies Act 1997 ss 29, 30, standard term 64

Cases cited:Bell & Bell v Boccola, Campbell & Lawrence [2009] ACAT 26

Maroney v Bullard [2016] ACAT 33

Tribunal:  Senior Member J Lennard

Date of Orders:  10 February 2017

Date of Reasons for Decision:         10 February 2017

AUSTRALIAN CAPITAL TERRITORY        )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 406/2016

BETWEEN:

REBECCA SELLECK

Applicant/Lessor

AND:

CHRISTOPHER CASSIN

AND

JOY HUMPHRIES

Respondents/Tenants

TRIBUNAL:  Senior Member J Lennard

DATE:10 February 2017

ORDER

The Tribunal orders that:

1.The tenants are to pay to the lessor compensation in the amount of $2466.45 being made up as follows:

(a)cost of second clean to the carpet – $35

(b)cost of odour treatment of carpet – $280

(c)loss of value of carpet – $400

(d)cleaning of the premises – $640

(e)painting and patching of walls – $281.25

(f)gardening and rubbish removal – $200

(g)water usage – $70.20

(h)lightbulbs – $50

(i)lost rent – $510

2.The office of regulatory services is directed to release to the lessor the rental bond in the amount of $2040.

3.The tenant is to pay the balance of $426.45 on or before 14 days of the date of this order.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

The application

1.       The matter was initially dealt with as a rental bond conference on 30 May 2016 and directions were made at that conference. On 14 June 2016 the applicant lessor filed an application claiming compensation in the amount of $9326.05. This application related to the condition of premises at the end of the tenancy.

2.       The tenants denied liability for the items as claimed.

3.       The hearing of the matter was conducted over the following days: 11 July 2016, 21 July 2016 and 18 August 2016. Each party filed detailed evidence, witness statements and submissions. At the conclusion of the hearing on 18 August 2016, the matter was adjourned for a written decision and the parties were directed to file final written submissions. Each party provided the final written submissions. The evidence, witness statements and submissions will be referred to as necessary in the decision below.

4.       The tenancy commenced on 10 August 2012, and terminated on 22 March 2016. A copy of the residential tenancy agreement was in evidence before the tribunal. There was no ingoing condition report attached to the residential tenancy agreement.

Finding as to the condition of the premises at the commencement of the tenancy

5.       Ms Jodie Humphries, daughter of the tenants, gave evidence that as her parents were still working and living in Cootamundra, but expecting to move to Canberra she inspected the property on their behalf. This inspection took place at some time prior to 27 July 2012. Ms Jodie Humphries stated that she found:

the house, to be an ideal size for my parents, but it had not been cleaned and had a lot of furniture and rubbish in the garden, poisons and paints in the back shed and rubbish behind the shed, fly screens were torn, the clothes line was broken and the garden was overgrown, especially out the front of [the premises] the pool was filthy and the deck was dirty, the windows were dirty and there were spider webs and spiders everywhere.

6.       Ms Jodie Humphries attended the premises after her parents had collected the keys. She stated that she was “shocked to see the house was still very dirty, the pool was still filthy and there were items left in the yard, shelf and garage.” Ms Jodie Humphries and each of the tenants gave evidence that they expected that work would be done between the inspection and the commencement of the tenancy to ensure that the premises were reasonably clean and that the yards and garden were in a reasonable state.

7.       Each of the tenants provided a written statement and gave oral evidence as to the condition of the premises at the commencement of the tenancy. Each of the tenants gave evidence that the premises were not clean, that the pool was not clean, that the yard and gardens were in a poor state, and that there were a significant number of minor repairs required. That evidence was supported by photographs taken by Ms Jodie Humphries and date stamped 4 August 2012. The tenants gave evidence that they had been concerned at the absence of an ingoing condition report and, on the advice of Ms Jodie Humphries, had taken photos and made a list of items that they believed needed to be noted and/or attended to. The tenants each gave evidence that at the first inspection, they raised issues in relation to the state of the yards, vanity unit and other repairs that needed to be done.

8.       The applicant gave evidence as to the condition of the premises at the commencement of the tenancy. The applicant conceded that no ingoing condition report was available or could be located on the file. The applicant further conceded that she had located on the real estate agency file relating to the premises, the list of repairs that the tenants say they had provided early in the tenancy. The applicant’s evidence was patchy, confused and occasionally inconsistent.

9. Section 29(1) of the Residential Tenancies Act 1997 (the RT Act) requires a lessor to provide to the tenant two copies of a report, signed by the lessor, about the state of repair or general condition of the premises on the day the tenant is given the report. The report must be provided not later than the day after the tenant takes possession of the premises.

10. Section 30(3) of the RT Act provides that if section 29(1) has not been complied with, evidence by the tenant about the state of repair or general condition of the premises is evidence of that state of repair or general condition on the day the tenant took possession of the premises.

11. I am satisfied on the evidence before me that section 29(1) of the RT Act has not been complied with by the lessor. The lessor has given evidence that she has seen the file of the agents, and that she has produced to the tribunal almost everything that was on it. There is no evidence that the lessor ever supplied a condition report.

12.     I have consistent evidence from both of the tenants and their witness that there was no condition report supplied. The tenants and their witness offered the explanation that on 16 August 2012 they took the photos they have produced to the tribunal to protect themselves because they thought that there should have been a condition report.

13. Section 30(3) of the RT Act directs the tribunal to consider that the evidence by the tenants about the state of repair or general condition of the premises, is evidence of the state of repair or general condition on the day that they took possession of the premises. The tenants’ evidence, which is consistent across the three written statements, the oral evidence and photos is that the premises were in a dirty condition with some evident damage to the walls; that the fly screens were in a very poor state and were both dirty and damaged; the pool was not clean, and no pool cover was provided; the garden was in a pretty ordinary state and specifically it needed mowing and weeding; there were scratches on the floor and the carpets were described as not new. Ms Humphries describes the carpets as in a reasonable condition showing some wear, not brand new. The lessor has not produced any evidence that would cause the tribunal to set aside the evidence of the tenants or to put any less weight upon it.

14.     On the evidence before me I am satisfied that in general terms the premises showed some signs of wear. I would describe the premises is unclean but not filthy – it appears that some cleaning was done, but it was not extended into every corner, into every cobweb or to every mark on the walls. I find that the pool was not clean and that it was so unclean as to be not immediately usable. There was no pool cover supplied. Fly screens were damaged and most of them were dirty. There were some marks on window fittings. There were some scratches on the wooden floors. There were some chips and marks on the walls. The carpets were in good condition, showing some signs of wear and tear and were probably recently new, but on the evidence before me not brand new.   The yard and the gardens were unkempt and not mown in some areas.

The lessor’s claims

15.     Each party provided extensive and detailed evidence in the form of photographs, witness statements, oral evidence, invoices and quotes. In addition there was some evidence of correspondence between the tenants and the lessor/agent, including copies of inspection reports.

16.     The lessor gave oral evidence. I am satisfied that she gave truthful evidence to the best of her ability, however, the evidence was often inconsistent or not complete and was occasionally revised by the lessor. I am satisfied that at the commencement of the tenancy, the lessor was under considerable personal stress and that this may have affected her recall.

17.     Mr Whittaker, the partner of the lessor as well as a real estate agent employed by her parents’ company, gave thorough, forthright and reliable evidence.

18.     Ms Sonya Mobbs gave evidence by telephone. The oral evidence of Ms Sonya Mobbs, once employed as the property manager in relation to these premises, was discounted and afforded no weight because she refused to cooperate with the tribunal, and terminated the phone call during her evidence. The tribunal did place weight on the contemporaneous written evidence compiled by her – the inspection reports.

19.     The tenants provided witness statements and oral evidence. That evidence was consistent, forthright and reliable.

20.     The tribunal particularly notes that the evidence established that the tenants had made early complaints as to the condition of the premises in relation to the towel rail, the pool and the pool cover. Periodic inspection reports which were before the tribunal indicates that Ms Mobbs noted “Property well maintained and loved. Thank you.” This was inconsistent with her written evidence given by way of statutory declaration that the inspections of the property were always “just satisfactory”. There is no evidence of any complaints being made to the tenants during the course of the tenancy in relation to their maintaining the property in a reasonable state of repair or in a reasonable state of cleanliness.

21.     Nevertheless, the evidence before the tribunal established that the tenants had not taken reasonable care of the carpets: there was no evidence that they had had the carpets cleaned at all during the course of the tenancy; had neglected parts of the garden, had caused damage to the walls and putting in picture hooks without permission.

22.     The lack of a detailed ingoing condition report has made it difficult for the tribunal to compare the condition of the premises at the beginning of the tenancy with the condition of the premises at the end of the tenancy. The lessor had an obligation to provide an ingoing condition report and, where the evidence is not clear the evidence of the tenants is preferred.

Relevant law

23.     Clause 64 of the residential tenancy agreement 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.

24.     The lessor’s claim is based upon a breach of this contractual obligation. A key issue for the tribunal was whether the condition of the premises as to repair and cleanliness went beyond fair wear and tear. The approach that the tribunal should take to this issue is set out in Bell & Bell v Boccola, Campbell & Lawrence [2009] ACAT 26 at [23] to [25]: Fair wear and tear generally relates to damage or deterioration that happens through the ordinary day-to-day use of the place by the tenant (carpet is worn down by walking upon it, plaster cracks as buildings settles, garden mulch breaks down over time) and by the operation of natural forces (sunlight fades carpets, rain rusts garden furniture). The tenant is not liable to compensate the lessor for any loss or cost relating to such deterioration or damage. Careless or negligent use of the premises by the tenant, where that negligence causes deterioration of the premises will render the tenant liable for the associated cost. In determining whether particular deterioration is fair wear and tear or negligent damage the Tribunal must consider, inter alia:

(a)the age, quality and condition of any item at the beginning of the tenancy;

(b)the average useful lifespan of the item;

(c)the reasonable expected use of such an item;

(d)any special terms of the tenancy agreement relating to that item;

(e)the number and type of tenants, and

(f)the length of the tenant’s occupancy.

25.     The issue of whether any of the claims made by the lessor go beyond fair wear and tear must be assessed objectively, meaning neither by reference to the views of a fastidious lessor nor the views of a tenant who is (or was) indifferent to the maintenance and care of the leased property.[1] The meaning of fair wear and tear was considered in both Bell and Maroney. In reaching my conclusions I have applied the principles set out in those cases.

[1]Maroney v Bullard [2016] ACAT 33

26.     Each party made final written submissions and I have determined the claim in accordance with the order as set out in the applicant’s final written submissions and have summarised the evidence and my conclusions below.

Wooden floor

27.     The wooden floor was installed on 3 November 2011. The lessor gave evidence that the wooden floor had some scratches at the commencement of the tenancy. These scratches were under the couch and the result of movement of the couch. The evidence established that there were more scratches on the floor at the end of the tenancy. These scratches were most evident in the dining area and adjacent to a wall in the lounge area. The lessor provided no evidence that these scratches were caused other than by the movement of the furniture.

28.     The floor is blackwood, with a moderate hardness rating. The wooden floor would ordinarily require resurfacing every seven to ten years. It was accepted that the lessor had not provided any special care or treatment instructions in relation to the wooden floor. There was no evidence to establish that the state of the floor was anything other than would be expected of a wooden floor of this type and which was five years old. The lessor gave evidence that she had not undertaken any remedial work prior to finding new tenants. I am not satisfied on the evidence before me that the tenants have caused any damage, either deliberately or negligently to the floor. The condition of the wooden floor at the end of the tenancy is attributable to fair wear and tear.

Carpet

29.     At the commencement of the tenancy, the carpet was “recently new” with some evidence of wear. The tenants had not had the carpets cleaned during the tenancy, but did have the carpets professionally cleaned at the end of the tenancy.

30.     The evidence of both Mr Whittaker and the lessor was that the carpet was severely worn, stained, had one hole in it and did not look clean at the end of the tenancy. In addition, the smell became evident after the carpet had been cleaned (for a second time) by the lessor. The lessor arranged for odour removal. The evidence was supported by photographs taken at the end of the tenancy and the invoices from Electrodry and Stainbusters. The invoice dated 31 March 2016 from Electrodry made reference to “major pet stains”. I am satisfied that the tenant failed to return the carpet in a reasonable state, and that the stains and damage to the carpets goes beyond fair wear and tear. The tenants are liable to compensate the lessor for the immediate costs related to cleaning and odour removal – that is the cost of second clean by Electrodry in the amount of $35 and the odour removal by Stainbusters the amount of $280. I am further satisfied that the failure by the tenant to return the carpet in a reasonable state and damage to the carpet which goes beyond fair wear and tear has resulted in the carpet’s life being lessened. The tenants are liable to compensate the lessor $400.

Cleaning

31.     The lessor, and Mr Whittaker gave evidence of the premises were not clean at the end of the tenancy. The outgoing condition report concluded “the property was vacated in an unclean state with many items needing repair.” Photographs taken by the lessor at the end of the tenancy show that the premises were generally unclean, with many cobwebs and marks and fingerprints on the walls. The condition in which the premises were left by the tenants would indicate that the tenants have undertaken insufficient cleaning over an extended period of time.

32.     Taking into account that the premises were unclean but not filthy at the commencement of the tenancy, and that the tenants conceded that they are liable with regards to cleaning of the toilet, cupboards and drawers, laundry, light fittings and cobwebs, I am satisfied that the tenants failed to return the premises to the same state of cleanliness as the premises were in at the commencement of the tenancy. The tenants are liable to pay two thirds of the cost of the end of lease clean in the amount of $640.

Repairs to walls and doors

33.     The lessor, and Mr Whittaker, gave oral evidence as to the condition of the walls and doors within the premises. The outgoing report refers to many patches and chips on the walls; and nails and hooks in the walls. The photographs taken by the lessor at the end of the tenancy, supported the outgoing report. The tenants conceded that some patching may be required due to the unauthorised installation of picture hooks. I found that at the commencement of the tenancy that there were some chips and marks on the walls. I am satisfied that the evidence establishes that the walls, doors, ceiling and skirting boards have been damaged during the tenancy, and that that damage goes beyond fair wear and tear.

34.     I am satisfied that the tenants failed to return the walls, doors and skirting boards in a reasonable condition. Taking into account the condition of the premises at the commencement of the tenancy, I find that the tenants are liable to pay an amount of $281.25, being 75% of the cost of painting and patching.

Wooden venetians

35.     The evidence of the lessor established that the venetian blinds were damaged beyond repair. There was some brief reference to the state of the venetian blinds in inspections conducted on 12 November 2014 and 30 September 2015, where they were described as  “needs repair”. There is no clear evidence in regard to the condition of these blinds at the commencement of the tenancy. The tenants asserted that the area received little sun, that they had complained of mould in that area and the tenants note that similar blinds in sunnier areas of the premises are not damaged. I am not satisfied on the evidence before me that the tenants have either deliberately or negligently caused damage to the venetian blinds.

The wardrobe

36.     The lessor describes the wardrobe as old and “up-cycled”. There was evidence of minor damage to the wardrobe. There was no evidence of the condition of the wardrobe at the commencement of the tenancy. The tenants denied that they had caused any damage to the wardrobe. The lessor provided no evidence of value of the wardrobe or the cost of replacement. I am not satisfied on the evidence before me that the tenants caused damage to the wardrobe.

Vanity unit and towel rack

37.     The lessor gave evidence and provided photos that showed some damage to the towel rail and water damage to the vanity unit in the bathroom. The vanity unit appears to have been not new at the commencement of the tenancy. The lessor concedes that the vanity was five to ten years old. The note supplied by the tenant early in the tenancy records that there were repairs necessary to the towel rail, and that the drawers in the vanity unit were loose. I am not satisfied on the evidence before me that the tenants caused damage to the towel rail, or to the vanity unit, which would be fairly described as beyond fair wear and tear.

Gardening

38.     The evidence of both the tenants and the lessor was that the garden had been attended to in some but not all areas immediately prior to the tenancy. The evidence was that at the end of the tenancy the garden had been neglected, that the vegetable and herb gardens had not been maintained by the tenants, that the lawn had not been mowed and that there was a great deal of rubbish and detritus in the yard. The tenants conceded that the back lawn and garden and had been neglected during the tenancy. Taking into account the length of the tenancy, the condition of the yard and garden at the commencement of the tenancy and the evidence of the condition of the yard and garden at the end of the tenancy, I am satisfied that the garden was in a worse condition at the end of the tenancy. The tenants are liable to contribute to the cost of work in the garden and yard to the amount of $200.

The pool

39.     Based on the findings of the condition of the premises at the commencement of the tenancy, and noting that no pool cover was supplied by the lessor. I am not satisfied that the tenants have failed to leave the pool in the same condition as it was at the commencement of the tenancy.

Matters conceded by the tenants

40.     The tenants conceded that they were liable to pay an amount of $70.20 for water usage and $50 for replacement of light bulbs.

Lost rent

41.     Noting the findings of liability above, and in particular the findings that the tenants failed to leave the premises reasonably clean, the requirement for patches and painting to the walls, doors, ceilings and skirting boards and that the tenants failed to adequately maintain the garden, I am satisfied that the lessor was not able to advertise the premises for renting until some repairs had been done. I note that the lessor accepted a lower rent and that not all of the necessary cleaning and repairs had been undertaken. The carpet, cleaning, the yard and garden, cleaning the pool, painting and repairs to the walls, doors and bathroom had been undertaken. Some of the delay in finding new tenants would have been attributable to delay caused by the Easter holidays and some of the delay would have been due to the necessity to undertake work due to the failures of the tenants to return the premises in an appropriate condition. I find the tenants are liable to compensate the lessor for one week of rent in the sum of $510.

Orders

42.     The tenants are to pay to the lessor compensation in the amount of $2466.45 being made up as follows:

(a)cost of second clean to the carpet – $35

(b)cost of odour treatment of carpet – $280

(c)loss of value of carpet – $400

(d)cleaning of the premises – $640

(e)painting and patching of walls – $281.25

(f)gardening and rubbish removal – $200

(g)water usage – $70.20

(h)lightbulbs – $50

(i)lost rent – $510

43.     The Office of Regulatory Services is directed to release to the lessor the rental bond in the amount of $2040.

44.     The tenant is to pay the balance of $426.45 on or before 14 days of the date of this order.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	RT 406/2016
PARTIES, APPLICANT:	Rebecca Selleck
PARTIES, RESPONDENT:	Christopher Cassin & Joy Humphries
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Kami Saeedi Law
SOLICITORS FOR RESPONDENT	Tenants’ Union ACT
TRIBUNAL MEMBERS:	Senior Member J Lennard
DATES OF HEARING:	11,  21 July & 18 August 2016