Stephen Laros v Subhash Dang

[2007] ACTRTT 11

Stephen LAROS -v- Subhash DANG  ACTRTT11 [2007]

CATCHWORDS

ISSUES
Fixed term lease

LEGISLATION
Residential Tenancies Act 1997 (ACT)

CASES CITED

CASE REFERENCE NUMBER:   RT 1901 of 2006

RE: Premises at 3 Yanco Place DUFFY, ACT 2611

DECISION

ORDERS

1.That the orders of 24 March, 2006 are set aside.

2.That the tenant is to pay $172.00 to the lessor within seven days of the date of this Order.

Member:     Jann Lennard
Date:          28 April 2006

REASONS FOR DECISION

1.    On 30 December 2005 the parties entered into a Residential Tenancy Agreement in relation to the premises at 3 Yanco Place, Duffy in the ACT. The term of the agreement was expressed to be a fixed term commencing 7 January 2006 and expiring 6 January 2007. Rent was paid at the monthly rate of $1190 ($275 per week). The tenant paid a Bond of $1100 to the lessor and lodged on 19 January 2006.

2. The written agreement between the applicant tenant and respondent lessor was contained in a cover sheet drawn up by the lessor (which contained the names of the parties, address of the premises, term of the agreement and the rent to be paid), some annotations in hand writing on the back of the cover sheet and a copy of the Standard ACT Tenancy Conditions, based on the Landlord and Tenant Act 1949.

3.    The annotations were to the effect that the rent had been negotiated from $290 to $275 per week in return for the tenant undertaking to:

a.    Prune trees

b.    Clean gutters and down pipes

c.    Repair front gate on the driveway and

d.    Repair the front veranda ceiling.

4. The parties were, by virtue of their conduct and the agreement they had signed, parties to a Residential Tenancy Agreement as defined by section 6A of the Residential Tenancies Act 1997. The parties entered into a written agreement under the provisions of which MR Dang gave Mr Laros the right to occupy the premises for use as a home, and this right was given for value.

5.    The tenant and lessor are thus in a Residential Tenancy Agreement the terms of which are:

a.    The standard residential terms as set out in the Schedule to the Act, and

b.    The terms as set put in the written agreement between the parties, executed on 31/12/05, so far as these terms are not inconsistent with the standard residential tenancy terms.

6.    The tenant vacated the premises in early February 2006. The evidence before the Tribunal was that the tenant was very unhappy about the state of repair of the premises and did not believe that the lessor would undertake the repairs necessary to bring the premises to a reasonable standard. The applicant tenant asserted to the Tribunal that the parties agreed to early termination of the leases. However, the Tribunal had no evidence as to how, when or on what terms such agreement had been reached.

7.    On 24 March 2006 the Residential Tenancy Tribunal, upon hearing the Applicant tenant, made an ex pate order that the Office of rental Bonds release the balance of the bond remaining, in the amount of $172 to the tenant.

8.    The Respondent lessor made an application to set aside the Orders of 24 March 2006. Upon being satisfied that the respondent had not received notice of the application or hearing date the Residential Tenancy Tribunal did set aside those Orders and reheard the matter.

9.    The Residential Tenancy Tribunal considered the following factors:

a.    The tenant had inspected the premises prior to entering into the Residential Tenancy Agreement;

b.    The Residential Tenancy Agreement annotations that indicated that the rent had been reduced in consideration of the tenant agreeing to undertake some maintenance work;

c.    The tenant had listed more than 60 items he alleged were items of repair that the lessor was obliged to undertake. A condition report compiled on 14 January 2006 was produced to the Residential Tenancy Tribunal. Most of the notations on the condition report related to the rundown nature of the premise (chipped bath, cracked tiles, worn flooring) and were not necessary repairs. These would have been evident to the tenant on initial inspection of the premises, prior to the execution of the Residential Tenancy Agreement;

d.    When the tenant drew the lessor’s attention to water leaks in the premises the lessor responded promptly and organised the repairs necessary;

e. The tenant had not served upon the lessor a notice to remedy or a notice of vacation in terms required by the Residential Tenancies Act. It appears from the evidence of each party before the Residential Tenancy Tribunal that the tenant and the lessor had agreed that the tenant would vacate the premises on 1 February 2006 and that the tenant would compensate the lessor for the costs involved in finding a new tenant.

f.    The lessor advertised the premises for rent in late January 2006 and found a new tenant who occupied the premises on 2 February 2006. The lessor claims compensation as per their agreement in the sum of $172, being the advertising costs and one day’s rent.

g.    The Residential Tenancy Tribunal makes the following order:

i.That the tenant pay $172 to the lessor within 7 days of the date of the order.

10. The Residential Tenancy Tribunal draws the attention of the parties to the requirements of the Residential Tenancies Act 1997 and in particular the Standard Residential Terms as set put in the schedule to that Act.

ORDERS

1.That the orders of 24 March, 2006 are set aside.

2.That the tenant is to pay $172.00 to the lessor within seven days of the date of this Order.

Jann Lennard
Member
13 April 2007