Wagdy HANNA -v- Sung (Chris) JUNG
[2007] ACTRTT 7
•26 October 2006 and 13 February 2007
Wagdy HANNA -v- Sung (Chris) JUNG ACTRTT7 [2007]
CATCHWORDS
End of lease dispute – Compensation
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Sections 33, 31 and 38
Clause 64 Standard Residential Terms
CASE LAW
Case Reference Number: RT 2220 of 2006
Re: Premises at 239 Beasley Street MAWSON ACT 2602
DECISION
ORDERS
1.That the tenant/s is to pay the lessor the sum of $1271.76 being unpaid rent for the period up until 12th September, 2006.
2.That the tenant/s is to pay the lessor the sum of $2667.58 being compensation for:
(a)$304.32 being for carpet;
(b)$1400.00 being for repairs, maintenance and painting;
(c)$284.00 being for replacing vertical blinds;
(d)$90.00 being for repairs to lawn mower;
(e)$522.00 being for replacing lawn & shrubs and garden maintenance;
(f)$67.26 being for replacing letterbox.
3.That taking into account the rent arrears of $1271.76 and compensation of $2667.58, less the bond to be released of $1600.00 the total amount owed by the tenant to the lessor is $2339.34.
4.That the tenant is to return the catcher for the lawn mower by posting it to the lessor; PO Box 238, CURTIN ACT 2605, by the 9th day of November 2006.
5.That the Office of Rental Bonds is directed to release $1600.00 to the lessor forthwith. Any amount received by the lessor is to be set off against the amounts awarded above.
6.That the lessor is to produce receipts for the amount $814.00 for vertical blinds, painting and patching walls other than the kitchen and hallway on or before the 9th day of November 2006. If the lessor does not produce the required receipts, then the tenant is only required to pay $1525.34
7.That the Residential Tenancies Tribunal is to advise the tenant immediately after the 9th November 2006, if receipts have been produced or not produced by the lessor as per Order 6.
8.That the tenant is to pay the final amount calculated from Orders 3 & 6 above on or before the 23rd day of November 2006.
9.That both parties have liberty to apply to have this matter re-listed on 7 days notice.
Amended Order
10.That the tenant is to pay the lessor’s costs of the application being $104.00, this amount to be in addition to the final amount calculated under Order 8 above.
Member: Jennifer David
Date: 26 October 2006 and 13 February 2007
STATEMENT OF REASONS
1 The parties entered into a residential tenancies agreement in relation to premises at 239 Beasley Street, Mawson in the Australian Capital Territory. The tenancy was for a fixed term tenancy from 15 October 2001 that converted to a periodic tenancy from month to month thereafter. An Inventory and Condition Report, in evidence before the Tribunal, was signed by both the lessor and the tenant on 26 October 2001.
2 The lessor and the tenant singed a document entitled “AGREEMENT TO EXTEND THE LEASE AT 239 BEASLEY STREET MAWSON” (the Agreement) on 14 September 2004 which provided that the “lease is to be extended for two years and the rent is to be CPI adjustable”. The Agreement also provided that “All conditions are the same as in the existing lease expect that the rent is to be adjusted by the Canberra CPI”. Further the Agreement set out the CPI for the year ending 30 June 2006 (a typing error in the Agreement since it was signed and dated by both parties on 14 September 2004 and the CPI for 2004 did not rise above 2.7%) as 2.9%.
3 Also on 14 September 2004 the lessor and tenant signed an “ADDITIONAL CLAUSE” (the Additional Clause) which falls under section 8(1) of the Residential Tenancies Act 1997 (ACT) (the Act) as a “fair clause for posted people” requiring the tenant to give 30 days notice in writing if he was moved away from Canberra “by work/employment”.
4 On 4 July 2006 the tenant gave notice that of his intention to vacate on 4 August 2006. He did not do so. On 7 August 2006 the lessor confirmed in writing that the tenant had undertaken to arrange another time and date for the final inspection and advised that the tenant that the tenant had not paid the increased rent of $46.80 per month from 15 October 2005.
5 On 16 August 2006 the tenant gave what he termed “final notice to vacate” in writing stating he would vacate on 31 August 2006. The tenant also stated that “we already discussed and agreed not to increase the rent then. I really don’t understand why you’ve claimed all the short fall amounts after I gave you notice of the intention to vacate recently”.
6 The tenant and his family vacated on 29 August 2006. The lessor and a representative from Property Window (Property Window) carried out the final inspection on that date in the presence of the tenant and the tenant’s parents. Property Window apparently gave the tenant a copy of Property Window’s working notes from the inspection and he initialled each page. A detailed Property Inspection Report (Final Inspection Report) was later finalised by Property Window. Whilst the Final Inspection Report was in evidence before the Tribunal, the Working Notes were not.
7 The lessor’s Application was made prior to the tenant vacating the premises. The lessor sought payment of the rental shortfall together with rent for a full month’s notice from 16 August 2006 The lessor also sought compensation “to maintain the property to the same state as at the beginning of tenancy”.
8 The matter was heard on 26 October 2006. The lessor was present in person and the tenant was represented by his son via telephone link. The tenant was ordered to pay rental arrears of $1,271.76 and compensation of $2,667.58 for:
(a)$394.32 for carpet cleaning
(b)$1400 for repairs, maintenance and painting
(c)$284.00 for replacing vertical blind slats
(d)$90.00 for repairs to lawn mower
(e)$522.00 for replacing front lawn, shrubs and garden maintenance
(f)$67.26 for replacing letterbox.
The lessor was ordered to produce receipts for (b) and (c) above to the Registry on or before 9 November 2006 and the tenant was ordered to return the catcher fro the lawn mower by posting it to the lessor.
9 By letter dated 20 November 2006 the lessor requested the following statement of reasons. The Tribunal Member who heard the matter was absent from Australia during December 2006 and January 2007. She apologises for the length of time taken to provide the reasons.
FINDINGS AND REASONING
Applicable Law
10 Clause 64 of the Standard Residential Terms, Schedule 1 of the Residential Tenancies Act 1997 (the Standard Terms) provides:
The tenant shall leave the premises:
(a) in substantially the same state of cleanliness, removing all his or her 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.
11 Section 31 of the Act provides:
A lessor is entitled to deduct from the bond paid ...any of the following:
(a) the cost of repairs to, or the restoration of the premises or goods leased with the premises as a result of damage(other then fair wear and tear) caused by the tenant;
12 Section 38 of the Act provides:
A person who, but for this section, would be entitled to compensation under this Act is not entitled to the compensation, or part of it, where the loss, or part of the loss, to be compensated could have been reasonably avoided.
13 Section 30 (1) of the Act provides that where the condition report prepared at the commencement of a tenancy is signed by both the tenants and the lessor it is conclusive evidence of the state of repair or general condition of the premises as at the day on which the tenant was given the report. A report of a final inspection that was attended by both the lessor and the tenant is evidence of the condition of the premises at the end of the tenancy.
14 Sections 100 and 102 (b) of the Act provide:
The parties to a hearing shall bear their own costs unless the tribunal, if it considers that a party to an application has caused unreasonable delay or obstruction before or during the hearing of the application, orders that party to pay the reasonable costs of the other party arising from the hearing.
15 Clause 55 of the Standard Terms, places an obligation on a lessor to maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the premises. Standard Term 55 also places an obligation on a tenant to notify the lessor of any need for repairs. Section 56 of the Act provides that the lessor’s obligation does not extend to repairing damage caused by the negligence or wilful act of the tenant.
16 Finally, section 31(a) of the Act provides that a lessor is entitled to deduct from the bond paid under the residential tenancy agreement the cost of repairs to the premises as a result of damage caused by the tenant.
17 The lessor’s claims are dealt with individually below. The Tribunal notes the tenancy had been for 5 years and that under Clause 64 and section 31 above the lessor is not entitled to require the premises to be returned in the “same state” they were at the commencement of the tenancy, merely in “substantially the same condition” as they were at the commencement of the tenancy “fair wear and tear excepted”. Given that a tenancy of almost 5 years is a relatively long tenancy, the amount of fair wear and tear to be excepted under Clause 64 will be greater than that for a shorter tenancy of only one or two years.
Rental Arrears
18 The lessor sought rental arrears on two bases: a) rental from 31 August 2006 to 12 September 2006, being the final 12 days of the required notice under the agreements dated 14 September 2004; and b) rental of $46.80 per month, being the CPI adjusted increased rent from 15 October 2005 to 12 September 2006.
19 In his Statement of Defence the tenant submitted that a lessor cannot increase the rent during a fixed term lease. However, the increase had been agreed by the tenant and the lessor by the agreement dated 14 September 2004 signed by both of them. As a consequence the tenant is liable to pay the increased rent from 14 October 2005. The tenant also argued that the CPI adjusted rental rate increase had not been sought by the lessor until after the tenant gave notice in July 2006. However, this is not a defence to the obligation to pay the agreed rental increase. Therefore, the tenant was ordered to pay the rental increase of $46.80 per month for the 12 months of the term in which it had not been paid, amounting to $561.80.
20 Under the Additional Clause dated 14 September 2004 the lessor was entitled to 30 days notice from the tenant of his intention to vacate. Whilst the tenant initially gave notice on 4 July 2006 that he would vacate on 4 August 2006, he did not so vacate. The tenant did not notify the lessor that he was not so vacating and no agreement was entered into with the lessor for an extension of that date. The tenant gave the lessor what the tenant termed the “final notice of intention to vacate” in writing on 16 August 2006 that he would be vacating on 31 August 2006. In fact, the tenant vacated on 29 August 2006. In these circumstances the lessor is entitled to 30 days notice from 16 August 2006. As the tenant had only paid rent to 31 August 2006 he was ordered to pay a further 12 days rent at the daily rate of $59.18, amounting to $710.16.
21 Therefore, the tenant was ordered to pay total rental arrears of $561.60 and $710.16, totalling $1,271.76.
Lawn Mower
22 The Inventory and Inspection Report at the start of the tenancy listed the lawn mower as having a catcher and being in “good clean operable condition”. The lessor stated that at the final inspection the lawn mower had no catcher and was not working. The tenant said that by mistake the catcher had been packed with the tenant’s belongings and undertook to return the catcher.
23 The Tribunal ordered the tenant to return the catcher by post to the lessor by 9 November 2006. The lessor having spent $90.00 on a service for the lawnmower to “get it working” the Tribunal also ordered the tenant to pay that amount to the lessor.
Garden
24 The Inventory and Condition Report listed all lawns on the property as being “healthy, green and mown” with trimmed edges. The trees and shrubs on the property were also listed as in “healthy condition”. The Report stated there were no weeds. The Final Inspection Report noted that there were wheel tracks on the front lawn and few plants in the front garden. At the hearing the lessor produced photographs taken in July 2006 showing the front lawn to have almost disappeared. The lessor stated the tenant and his family had parked cars on the front lawn and had driven over the lawn and some of the shrubs to park and to gain access to the garages.
25 The tenant stated that the lawn had been driven over to get to one of the double garages. The tenant also raised the recent drought and water restrictions in Canberra which he claimed had made watering difficult.
26 The Tribunal was convinced by the lessor’s photographs that the front lawn had been driven over regularly and that it needed replacing at the end of the tenancy. The shrubs in the front garden in the part that had been driven over also had to be replaced. This was not fair wear and tear even in a 5 year tenancy and the Tribunal ordered the tenant to pay compensation of $522.00 to the lessor.
Letter Box
27 The Inventory and Condition Report listed a “burgundy metal/brass letter box” with 2 keys. The lessor stated the lesser box had been new at the start of the tenancy. The Final Inspection Report did not refer to a letter box. The lessor produced the letter box at the hearing to demonstrate that the door at the rear of the letter box no longer closed or locked. He also produced receipts for a new (less expensive) letter box and for a padlock. The receipts totalled $67.26. The tenant was ordered to pay the lessor that amount in compensation as the original letter box could not be repaired and the lessor had mitigated his loss by purchasing a less expensive letter box.
Scorch Mark on Carpet and Oil Stains
28 The lessor sought compensation for replacement of the carpet in the family room, producing a quote for $1,494.00. He also produced a quote to replace all the carpet in the premises at a cost of $5,358.00. In the Inventory and Condition Report all carpets were listed as being in “good clean condition”: the carpet in the family room was listed as having no marks or stains. The Final Inspection Report said all the carpets had been professionally cleaned at the end of the tenancy, that there were two scorch marks in the family room carpet and there were “heavy indentations” from furniture in the carpets in all rooms. The lessor produced a photograph that showed one of the scorch marks in the family room to be about 12 cm long and of a somewhat darker colour that the surrounding carpet.
29 The tenant submitted the scorch marks in the family room “were only light damage caused by a tea kettle”. He included a photograph with his Statement of Defence that supported his contention that the scorch marks were only light and not extensive: the photograph showing a smallish, lightly coloured mark.
30 Taking all the above into account, the Tribunal held that, after a 5 year tenancy, the scorch marks (the only marks reported to be on carpets throughout the premises at the end of the tenancy) were within fair wear and tear under Clause 64 above. The Tribunal ordered the tenants to pay compensation of $304.32 to the lessor for the cost of work on the scorch stains in the family room, oil stain on the driveway and a stain on the back porch. The oil stain and the stain on the porch were stated by the lessor to have been present at the final inspection. The lessor produced photographs to show the latter stains were significant. The tenant did not deny this.
Repairs and Painting to Walls, Ceilings and Kitchen
31 The lessor further claimed $3,370 for: general repairs and painting; re-grouting in bathrooms and the kitchen; adjusting cupboard doors in the bedrooms and kitchen; resealing the front double doors and lower section of outside walls; repairing a gate; setting rat bombs; replacing covers to irrigation system; repairing cracks around doors and general walls; repainting the lounge room; repainting the dining and kitchen ceilings; repainting the ensuite and main bathroom.
32 The Inventory and Condition Report stated the property was in “good, clean condition” except the doors of the cupboards in two bedrooms which were noted to need “adjusting”. Thus a need for adjustment to some of the cupboard doors in the bedrooms existed at the commencement of the tenancy.
33 The Final Inspection Report noted the paint on the external walls was “worn, with paint peeling off at the base of the walls on all external walls”. Photographs tendered at the hearing showed the paint to be worn and peeling at the base of the outside walls and up from the base. Worn paint is a lessor maintenance problem after a 5 year tenancy, not damage by the tenants for which the lessor can seek compensation.
34 The Final Inspection Report also listed the gate as moving well and locking easily. Thus the repairs to the gate were not proved to be necessary and, therefore, were not damage by the tenants for which the lessor can seek compensation.
35 The Final Inspection Report noted for the kitchen, the main bathroom and ensuite the grouting had been cleaned but “still had some marks” and all tiled floors were cleaned but “the grouting is stained”. The grouting in the kitchen tiles was noted to have “grease spots”. There was also “some mould” on the inside of the shower in the ensuite. There was not evidence that the re-grouting was necessary, rather that further cleaning was. The mould was similarly a further cleaning problem. If re-grouting was necessary, on the balance of probabilities it would be a lessor maintenance problem after a 5 year tenancy, not damage by the tenants for which the lessor can seek compensation.
36 The Final Inspection Report noted that there were two broken sprinkler heads on the irrigation system. This is damage for which the lessor is entitled to be awarded compensation.
37 The Final Inspection Report noted that “all walls have dirty marks and streaks on them” and that there was a “mark on the ceiling in the bedroom near the bathroom”. The lessor stated that a number of walls had indentations from furniture and boxes stored against them. These indentations had required repairing and the walls repainting. The dirty marks on all walls and the mark on the ceiling were a further cleaning problem for which the tenants need to compensate the lessor.
38 The Final Inspection Report noted that there was a “substantial stain” on the ceiling of the family room Photographs of the stain on the family room ceiling supported the tenant’s submission that the mark was a stain from possums in the ceiling. If this was so, the tenant should either have organised for the removal of the possums or reported the need for repairs to the roof and the need for the removal of the possums to the lessor so that the lessor could carryout this maintenance. In the circumstances the tenants are liable to pay compensation to the lessor for the repair and repainting of the ceiling.
39 The dry weather in recent years having caused similar problems in houses in Canberra, the resealing of the front doors and the repairing of cracks around all the doors and general walls are lessor maintenance problems, not damage by the tenants for which the lessor can seek compensation.
40 The repairs the Final Inspection Report and the evidence supported were the repainting of the family room ceiling, the removal of the marks from all walls (including any indentations the lessor stated were present in the walls which required replastering and repainting) together with the general cleaning of all surfaces. Taking into account all the above the Tribunal ordered the tenant to pay the lessor $1,400 compensation towards the cost of repainting, cleaning and general repairs incurred by the lessor.
Vertical Blinds
41The Inventory and Condition Report listed the window coverings as “vertical blinds – grey – good clean condition, no marks” whereas the Final Inspection Report state that the ‘vertical blinds of the kitchen, ensuite, bathroom, bedrooms and family room had dirty marks”. The lessor claimed, and produced photographs in support, that four of the blinds had to be replaced. The cost was $71.00 per blind. In the circumstances, the Tribunal ordered the tenants to pay compensation to the lessor for the replacement of the four vertical blinds, amounting to $284.00.
Costs of Application
42 Under section 102 (b) of the Act, the Tribunal has discretion, if it considers that a party to an application caused unreasonable delay or obstruction before or during the hearing of the application, require the party to pay the reasonable costs of the other party arising from the hearing, otherwise each party is to bear their own costs (s100). Given the lessor brought this action on 18 August 2006 (eleven days prior to the tenants vacating the premises) though there was delay caused by the tenant residing in Queensland and requesting an adjournment as the matter was set down for hearing on his wedding anniversary, the Tribunal was of the opinion at the hearing that the tenant did not “cause unreasonable delay or obstruction before or during the hearing of the application”. The lessor’s application for his costs of bringing the application was refused.
43 However, the Tribunal notes that, since the hearing on 26 October 2006, the lessor has had to come before the Tribunal again for an order that the tenant pay compensation for the catcher for the lawn mower as the tenant did not return the catcher as he undertook at the hearing and as the Tribunal ordered him at the hearing. In the circumstances the Tribunal has amended it’s original order to include an order that the tenant pay the lessors costs of the application being $104.00.
ORDERS
- That the tenant is to pay the lessor the sum of $1,271.76 being unpaid rent for the period up until 12 September 2006.
- That the tenants is to pay the lessor the sum of $2,667.58 being compensation for:
- $304.32 being for carpet;
- $1,400.00 being for repairs, maintenance and painting;
- $284.00 being for replacing vertical blinds;
- $90.00 being for repairs to lawn mower
- $522.00 being for replacing lawn and shrubs and garden maintenance;
- $67.26 being for replacing letter box.
- That taking into account the rent arrears of $1271.76 and compensation of $2,667.58, less the bond to be released of $1,600.00 the total amount owed by the tenant to the lessor is $2,339.34.
- That the tenant is to return the catcher for the lawn mower by posting it to the lessor: PO Box 238, CURTIN, ACT 2605, by the 9th day of November 2006.
- That the Office of Rental Bonds is directed to release $1,600.00 o the lessor forth with. Any amount received by the lessor is to e set off against the amounts awarded above.
- That the lessor is to produce receipts for the amount $814.00 for vertical blinds, painting and patching walls other than the kitchen and hallway on or before the 9th November 2006. If the lessor does not produce the required receipts, then the tenant is only required to pay $1,525.34 compensation.
- That the Residential Tenancies Tribunal is to advise the tenant immediately after the 9th November 2006 if receipts have been produced or not produced by the lessor as per Order 6.
- That the tenant is to pay the final amount calculated from Orders 3 and 6 above on or before the 23rd day of November 2006.
- That both parties have liberty to apply to have this matter relisted on 7 days notice.
Amended Order
- That the tenant is to pay the lessor’s costs of the application being $104.00, this amount to be in addition to the final amount calculated under Order 8 above.
Jennifer David
Member
13 February 2006
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