Stemper v Lockwood

[2012] QCAT 687

CITATION: Stemper v Lockwood [2012] QCAT 687

PARTIES:	Jeannette Anne Stemper (Applicant)
v
Melissa Lockwood (Respondent)

APPLICATION NUMBER: MCDT274-12

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 19 September 2012

HEARD AT: Coolangatta

DECISION OF: R Joachim, Member

DELIVERED ON: 10 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

Residential tenancy – where landlord claims for reimbursement of tenant’s water usage – where lease provides for tenant to pay for water – where premises are not water efficient – where no agreement entered into about reasonable use – whether landlord’s claim is within time

Residential Tenancies and Rooming Accommodation Act 2008, s166, 419
Residential Tenancies and Rooming Accommodation Regulation 2009, s 22

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Ms Stemper represented herself

RESPONDENT: Ms Lockwood represented herself

REASONS FOR DECISION

1. This is a dispute between a landlord, Jeannette Stemper and her tenant, Melissa Lockwood.  The dispute is about Ms Lockwood’s refusal to pay for water usage at the rental property at 1/94 Dolphin Avenue, Mermaid Beach.

2. Ms Stemper has now sold the property and Ms Lockwood remains as the new owner’s tenant.

3. Ms Lockwood signed the tenancy agreement on 21 April 2008.  The property manager at that time was the Professionals at Broadbeach.  Shortly thereafter Ms Stemper took over management herself.

4. Ms Lockwood advised that she gave a deposit to the Professionals on 31 March 2008 to hold the property for her.

5. On 1 April 2008 the law relating to landlords charging tenants for water was amended.  The new provisions allowed landlords to charge back certain water costs to a tenant under the following circumstances:

   (i)if the premises are individually metered; and

   (ii)the rental premises are water efficient; and

   (iii)the tenancy agreement states the tenant must pay for water.

6. A landlord could start such charging if tenants signed a fixed agreement on or after 1 April 2008.  This is the case for Ms Lockwood.  Despite her paying a deposit on 31 March 2008, she did not sign the fixed term agreement until 21 April 2008.  Provided the 3 factors listed above are met, Ms Stemper is entitled to charge Mrs Lockwood for her water usage.

Are the premises individually metered?

1. There is no dispute that they are.

Are the premises water efficient?

1. The Residential Tenancies Regulation outlines what level of water efficiency is required for toilets, shower heads and taps.

2. The Residential Tenancies Authority provides a fact sheet outlining these criteria for lessors and tenants.

3. On 1 April 2008, a contractor Robert Rush provided a Home Waterwise Service to the premises.  Two new shower heads were installed, 2 new 6 litre aerators and an aqualoc were installed in the bathroom taps and two float valves were adjusted in the toilets. 

4. I am not convinced however that this made the premises water efficient.  The document signed by Mr Rush is silent on the kitchen taps and laundry taps water flow which need to flow at a maximum rate of 9 litres per minute (s 22 of Regulation).  No other evidence has been produced about these matters.

5. I also note that the Entry Condition Report used did not refer to water efficient devices. 

6. I accept that Ms Lockwood was given an old fact sheet referring to reasonable amount of water use.

7. I do not accept she was given the incorrect condition report (which she claims) for the new water laws as the one she supplied with her submissions was dated 13 January 2011.

8. I accept she was not supplied with a water efficiency report stating all water devices were water efficient as no such report has been produced by the applicant.

9. I conclude the premises were not water efficient based on the evidence provided by the applicant.

Does the tenancy agreement state that the tenant must pay for water?

1. The answer to this question is an undeniable yes.

If the premises are not water efficient what is the tenant responsible for?

1. Section 166(4) of the Act provides as follows:

   (4) If during a period the premises are not water efficient, the tenant may only be required to pay an amount for the water consumption charges payable for the premises for the period that is more than an amount payable for a reasonable quantity of water supplied to the premises.

2. This essentially means the landlord pays for a reasonable amount of water use and the tenant pays the rest or “an excess”.  What is reasonable depends on the circumstances and in determining this regard must be had to:

   (a) relevant available information about water usage and charges for premises in the local government area in which the relevant premises are situated;

   (b)the area of the relevant land;

   (c) any terms of the agreement affecting the amount of water used;

   (d) the presence or absence of water saving devices in the premises;

   (e) the number of persons occupying the premises;

   (f) the quantity of water for which the lessor should reasonably be liable;

   (g) anything else the tribunal considers relevant.[1]

   [1] Section 169(4) of the Residential Tenancies and Rooming Accommodation Act 2008.

3. The lease agreement made no reference to what was reasonable.

When did Ms Stemper ask Ms Lockwood to pay her and is she within time?

1. According to Ms Stemper, Ms Lockwood paid her for water billed on the rates bills dated 12 February 2009 and 13 August 2009.

2. In a letter dated 22 February 2012 to Ms Lockwood, Ms Stemper advises that she had not sent the details of water usage for payment for some time.  She outlines what is outstanding as below:

   $259.84 on rate notice due 11 February 2010 for 116 kilolitres of water used 27/05/09 to 12/11/09.

   $259.84 on rate notice due 12 August 2010 for 116 kilolitres of water used 13/11/09 to 25/05/10.

   $341.44 on rate notice due 24 February 2011 for 132 kilolitres of water used 26/05/10 to 23/11/10.

   $310.88 on rate notice due 25 August 2011 for 116 kilolitres of water used 24/11/10 to 25/05/11.

   $312.56 on rate notice due 2 March 2012 for 107 kilolitres of water used for 26/05/11 to 19/11/11.

   Water used after 19/11/11 will be included on the next rate notice or will be calculated according to the water meter reading at the time. 

3. In her application to QCAT she notes the final reading resulted in a usage of 92kl and claims $274.16 for this.

4. Ms Lockwood has refused to pay.  There was further correspondence regarding this. 

5. Ms Lockwood responded to Ms Stemper’s letter of 22 February 2012 on 28 February 2012.  Ms Lockwood argued she should only have to pay for a reasonable amount of water.  She suggested 145KL per 6 months billing as reasonable and argued she has not exceeded this.  By letter of 29 February 2012 she requested reimbursement for the $484.33 she had paid earlier, which she had thought was for excess water usage.

6. By letter of 11 April 2012 Ms Stemper acknowledges and regrets the length of time passed before asking for water payments, advises of her parents’ care needs and offers to enter into a weekly payment arrangement.

7. By letter dated 17 April 2012 Ms Lockwood again reiterates she will not be paying and stated had she been aware of the water consumption laws she would not have entered into the agreement.  She argued she was not made aware of the changes.  By letter of 16 May 2012 she offered to pay $10.00 per week.

8. Section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 provides in subsection 3, that an application about a breach of an agreement must be made within 6 months of the lessor becoming aware of the breach.

9. Ms Stemper first applied to the Tribunal on 5/6/2012 about a breach seeking a refund of water costs in an amount of $1,758.72 and the QCAT fee of $95.00.  She had issued a notice to remedy the breach on 16/4/12 and a notice to leave on 25/4/12.  She was seeking a termination of the tenancy because of the failure of Ms Lockwood to leave.  The matter was dealt with in the Southport Court by Adjudicator Trueman on 29 May 2012 who dismissed the claim essentially because Ms Stemper had sold the property (settled 28/5/12), there was no urgency, and there was a need for Ms Stemper to provide a notice of unresolved dispute.

10. The notice of unresolved dispute was provided subsequently and Ms Stemper sought orders through her original application seeking compensation for the outstanding water bills.

11. I find that any breach of the agreement occurred only after Ms Stemper asked Ms Lockwood to pay and she refused.  She first asked for the payment on 22 February 2012.  As the application was received on 5 June 2012, the Tribunal is satisfied Ms Stemper applied within the statutory time frame of 6 months.

Should Ms Stemper have asked for payment earlier than she did?

1. Ideally Ms Stemper should have sent Ms Lockwood the water bills when they were sent to her from the Council.  She remains entitled to claim from Ms Lockwood to cover the costs of the excess water despite being very late in advising Ms Lockwood of her liability.  There are no time limits in the Act prohibiting a request for outstanding charges.

What should Ms Lockwood pay?

1. She has paid 2 amounts, one for $246.84 covering the consumption from 14/5/08 until 20/11/08 and $237.49 covering the period 21/11/08 to 26/5/09, a total of $484.33.  This represented the full amount of water used during these periods, not an excess amount.

2. I am left to determine what is reasonable.  Ms Lockwood suggests 145KL per half year is reasonable.  The most used per half year from the time of the lease commencement until the time of the claim is 132KLs.  The applicant does not suggest a figure, and she was not asked to supply one.

3. I take into account that:

   1.There was 1 adult and 2 children occupying the premises.

   2.There were some water efficient devices fitted.

   3.The premises were a normal residential block.

   4.The agreement stated the tenant paid for water.

   5.The Queensland Water Commission advice re targets for water use per person are as follows:

140 litres	Until	10/4/09
160 litres	From	11/4/09	To	30/11/09
200 litres	From	1/12/09	To	Present

1. I will apply these targets to determine the excess water usage and not discount this usage as the majority of the property was water efficient, and the tenant ought to have known she was responsible for water as per the lease.

2. The table below shows the relevant usage and my calculations as to the excess water payments.

3. This table shows the relevant billing periods, the number of days in each period, the Commission’s daily target usage for a household of 3 people, the average daily usage, the excess water used daily on average above the Commission’s target, the full amount of excess water used across the billing period, the cost per kilolitre for water and the total payable for the excess water for the period.

Dates of water usage/ relevant billing period	No of days	Target usage per day	Average daily use	Excess over target/ day	Total over full period	$ Cost per KL	TOTAL
14/5/08 – 20/11/08	190	420L	694L	274L	274x190= 52.06	1.87	97.35
21/11/08 –  26/5/09	186	420L	682L	262L	262Lx186= 48.732KL	1.87	91.13
27/5/09 – 12/11/09	169	480L	686L	206L	206Lx169= 34.814KL	2.24	77.98
13/11/09 – 25/5/10	193	600L	601L	1L	193L	2.24	.43
26/5/10 – 23/11/10	36	600L	725L	125L	125Lx36=4500L 4.5KL	2.24	10.08
	146	600L	725L	125L	125Lx146= 18250L 18.250	2.68	48.91
24/11/10 – 25/5/11	183	600L	533L	33L	183x33L=6093KL	2.68	16.18
26/5/11 – 30/6/11	36	600L	601L	1L	36L = .036KL	2.68	.10
1/7/11 – 19/11/11	142	600L	601L	1L	142L=.142KL	2.98	.42
20/11/12 – 28/5/12	191 days	600L	481.7L	NIL	NIL	N/A	N/A
Grand Total		$342.58

Grand total $342.58

1. All up the total payable during the lease is $342.58, Ms Lockwood paid $484.33.  She is not required to pay anymore as she had paid in excess of what she needed to.

2. The application is dismissed.