The Residential Tenancies Bond Authority shall pay the landlord $206.00 and the tenants $1008.00.

The principal registrar shall send a copy of the order and reasons for the order to the parties and to the tenant's representative, Footscray Community Legal Centre, Level 1, 72 Buckley St Footscray 3011.

The landlord Davies made an application against the tenants Tereke and Abera for the bond in the sum of $1214.00 for alleged damage to the rented premises during the tenancy. The tenants made a cross application for compensation for loss of amenity in the sum of $1420.00 for the landlord's alleged failure to maintain the rented premises being a failure to provide a hot water service in good working order.

The Tribunal heard both cases at the same time with the assistance of a Tigrinya interpreter who assisted by way of telephone. During the course of evidence the landlord's agent withdrew claims for replacement of blinds, replacement of smoke detectors and replacement of lino on kitchen bench top.

The remaining items in the landlord's claim are sanding and painting kitchen walls -$330.00, removing texta marks on hallway wall -$55.00, replace broken window -$176.00, replacement of carpet -550.00 and replace section of lino $88.00. The tenants agreed to pay for the broken window, the amount of $176.00 is allowed. They do not dispute the damage to the lino, agreed that they should compensate the landlord for the cost of removing drawings on the walls but submitted that the amount claimed was excessive. They conceded that damage was caused to the carpet through coals falling from the fire onto the carpet but submitted that the carpet was beyond its depreciated life.

The tenancy commenced on 9 October 2013 and ended on 9 November 2014. Section 61 of the Residential Tenancies Act 1997 places a duty upon a tenant to ensure that care is taken to avoid damaging the rented premises. The kitchen and hallway walls had been freshly painted prior to the tenants moving into the premises. Having regard to the photographs taken by the landlord's agents after the tenancy ended showing the extent of scribble on walls in the kitchen and texta marks on hallway walls I do not consider the amount claimed by the landlord excessive however painting of the kitchen walls shall be reduced due to depreciation by one year. The sum of $297.00 is allowed for sanding and painting kitchen walls and $55.00 for removal of texta marks.

There is a mark consistent with a burn mark on the lino in the kitchen. The tenants do not know how it was caused. It was not present at the start of the tenancy. The landlord does not claim replacement of all the lino, just the damaged section, the amount of $88.00 is reasonable and is allowed.

There are three burn marks on the carpet in the lounge caused by coals from the wood heater, there are tiles around the heater. The burn marks are small but are visible against the light coloured carpet. The tenants had a duty to take care to ensure that coals do not fall onto the carpet when the heater was opened. Laying a simple mat over the area near the wood heater would have avoided the damage.

There is no evidence given as to the age of the carpet, the photographs do not show the carpet to be particularly worn or in otherwise poor condition apart from the burns. The condition report signed by both parties at the start of the tenancy records the carpet as being in undamaged condition. The tenants believe it is old and submit it is beyond its depreciated life and the landlord's agent describes it as old in her signed summary of proofs. In view of the fact that the landlord has provided no reliable evidence as to the age of the carpet and both tenants and landlord's agent believe it to be old the Tribunal is unable to make an assessment as to the extent of depreciation that is applicable to the replacement cost of the carpet. . I take the view that it would have been open for the landlord to have the carpet repaired rather than replaced and the decision to replace it is an upgrade that the tenants are not liable to compensate the landlord for. I estimate the reasonable cost of a repair to be $150.00 and I allow this amount.

The total compensation payable by the tenants to the landlord is $766.00.

The tenant's claim for compensation for loss of amenity is based upon them being without hot water on a number of occasions during the course of the tenancy when the gas hot water service was not working. The landlord has a duty pursuant to s.68 of the Act to ensure that rented premises are maintained in good repair. When the tenants moved into the premises on 9 October 2013 the hot water service was not working, they reported it to the landlord's agents the next day, they advised that this would be reported to the owner to fix. A week later it had not been investigated and they reported it again. A hot water service that is not working is considered by the Tribunal to be a basic service and an urgent repair item. It took another week before it was fixed by the landlord attending and igniting the pilot light. This was an easy remedy, the delay was unacceptable and the tenants were without hot water for 2 weeks. During the course of the tenancy the pilot light went out on many occasions.

I am satisfied that the reason for the hot water service not working from time to time is that the pilot light kept going out. I accept that the tenants were shown by the landlord how to re-ignite the pilot light and a technician also attended and undertook routine maintenance. I accept that the landlord's agents believed that the tenants did not understand how to re-ignite the pilot light and in their view this contributed to the tenants being without hot water. I do not accept that a hot water service pilot light that goes out on a regular basis is a service that is in good working order. Unusually windy conditions may on rare occasions result in a pilot light being extinguished.

I am satisfied that a pilot light regularly going out flows from the fault of the appliance , not the tenants inability to regularly re light it. The landlord should have ensured that the pilot light was in working order so that it did not regularly go out. The tenants have suffered loss of hot water on a number of occasions throughout the tenancy as a result of the landlord's breach which I estimate to equate to the value of 2 weeks rent. I allow $560.00.

The amount of compensation payable by the landlord to the tenants shall be set off against the amount of compensation payable by the tenants to the landlord.

After set off the tenants shall pay the landlord $206.00 compensation which shall be deducted from the bond.