Bond dispute - tenant's obligation to return premises to a reasonable condition and state of cleanliness - objective standard of cleanliness

Residential Tenancies Act 1995 (SA) ss 69, 95

1. This is the landlord's application for payment of particular amounts from the bond.
2. This is a tenancy agreement under the Residential Tenancies Act 1995 (the Act). The lease was for a fixed term from 1 February 2017 to 6 February 2018.
3. Rent was $470.00 a fortnight. The lease required the tenant to pay all water usage and supply charges.
4. The landlord claims a total amount of $1,983.97 made up as follows:
   • Rent arrears 30 January 2018 - 6 February 2018 (inclusive): $505.71
   • Water charges: $456.26
   • Cleaning costs: $450.00
   • Carpet cleaning costs: $110.00
   • Repair costs: $462.00.
5. The tenant does not dispute the claims for rent arrears and water charges; therefore, these claims will be allowed ($505.71 and $456.26 respectively).
6. The claims for cleaning, carpet cleaning and repair costs are based on the obligation on the tenant, under s 69(3) of the Act, to return the premises to the landlord, at the end of the tenancy, in reasonable condition and in a reasonable state of cleanliness.
7. The tenant disputes these claims.
8. The dispute was referred to a full hearing after a compulsory conference on 13 March 2018 did not resolve the matter.
9. The evidence given by the tenant raises two grounds on which the claims are disputed, which can be summarised as follows:
   • first, that the premises were in reasonable condition and in a reasonable state of cleanliness at the end of the tenancy; and
   • second, that the landlord (via the agent) unlawfully took possession of the premises before the end of the fixed term and thus denied the tenant the opportunity to attend to any outstanding cleaning or repairs.

1. The parties' evidence is consistent on some facts, and I make the following findings based on the consistent or uncontested evidence:
   • The fixed term of the lease was due to expire on 6 February 2018.
   • By a Form 2A notice dated 19 December 2017, the landlord gave notice to the tenant to vacate the premises on 6 February 2018.
   • The tenant requested an inspection of the premises to occur on 2 February 2018.
   • The agent carried out an inspection of the premises on that day.
   • By that time, almost all of the tenant's possessions had been removed from the premises. At the time of the inspection, the agent indicated certain items in a bedroom wardrobe, and the tenant removed those and took them to her car.
   • At the time of the inspection, the keys to the premises were on a kitchen bench. The agent asked the tenant if they were all of the keys (or words to that effect) and the tenant said 'yes'.
   • At the same time, the agent asked the tenant about instruction manuals for appliances, and the tenant indicated where they were.
   • After the agent had done the inspection, there was a conversation between the agent and the tenant in which the agent raised concerns about the state of the premises. The tenant offered to take care of the things raised by the agent. However, the agent said it was too late, she had already taken possession of the premises (or words to that effect).
   • Shortly afterwards, the tenant left the premises.
   • Later that day, there was an email exchange between the tenant's partner (who had also been living at the premises) and the agent. The tenant's partner asserted that the agent had unlawfully taken possession, and demanded the return of the keys. The agent asserted that the tenant had abandoned the premises, which entitled the agent to take possession.
   • The following day (3 February 2018), the tenant's partner entered the premises, with the help of a locksmith, and repaired some damage to a door.
2. While the parties' evidence is consistent on those facts, the parties differ about whether the agent was entitled to take possession on 2 February 2018.
3. The tenant gave evidence that she had done a lot of cleaning of the premises before the inspection. She said she wanted the inspection to see whether the agent had any issues with the premises. She said she believed she would have an opportunity to address any issues.
4. The tenant said she did not regard the inspection as a final inspection. She said she did not understand that the carrying out of a final inspection indicates that a tenant has vacated, or is handing over, the premises.
5. The agent submitted that the tenant was handing over the premises at the inspection. She said the tenant only raised objections after the agent indicated that there could be costs charged to the tenant.

1. The above factual findings establish (whatever the parties' views about the lawfulness of it) that the agent in fact took possession of the premises on 2 February 2018.
2. Section 95 of the Act says that a person must not enter premises for the purpose of taking possession of the premises unless:
   • the tenant abandons, or voluntarily gives up possession of, the premises; or
   • the person is authorised to take possession of the premises by force of a notice to vacate issued in respect of the premises; or
   • the person is authorised to take possession of the premises under the order of a court or this Tribunal.
3. There is no suggestion in this case of any court or Tribunal order for possession of the premises.
4. There was a notice to vacate the premises, but it required the tenant to vacate on 6 February 2018; so, there was no notice authorising the taking of possession before that date.
5. The only issue is whether the tenant abandoned, or voluntarily gave up possession of, the premises on 2 February 2018, such that the agent's repossession was authorised under s 95(a).
6. I interpret s 95(a) as covering two situations: one, the tenant 'abandons' the premises; or two, the tenant 'voluntarily gives up possession' of the premises.
7. Whether the tenant has done one of those two things is to be determined by the Tribunal, having regard to all the circumstances.
8. Section 94(1a) sets out factors the Tribunal may have regard to in determining whether the tenant has abandoned the premises. I do not regard this case as one of abandonment.
9. Section 95(a) does not set out any particular factors that the Tribunal may have regard to in determining whether the tenant has voluntarily given up possession.
10. Although 'voluntarily' suggests that the tenant's intention is relevant, I do not consider that the determination is made based solely on the tenant's subjective intention.
11. Rather, the Tribunal must, in my view, have regard to all the circumstances in determining whether the tenant voluntarily gave up possession.
12. In this case, in my view the tenant - even if she did not fully appreciate the consequences of events on 2 February 2018 - voluntarily did the essential acts necessary to give up possession. That is, the tenant:
    • moved almost all of her belongings out of the premises before the inspection, and moved some other items out during the inspection;
    • cleaned the premises before the inspection;
    • requested the inspection; and
    • had the keys available at the inspection.
13. I find that the tenant said nothing to the agent before or during the inspection to indicate that she had not finished moving out or that she was intending to keep possession of the premises until 6 February 2018, despite the inspection. All indications were that the tenant was handing over possession at the inspection.
14. Having regard to all the circumstances, I find that the tenant voluntarily gave up possession of the premises on 2 February 2018. Therefore the agent was entitled to take possession when she did.
15. I note, for the avoidance of doubt, that this does not alter the landlord's entitlement to rent until the end of the fixed term on 6 February 2018.

Claims for cleaning, carpet cleaning and repair costs

1. This means that I can go on to consider the landlord's claims for cleaning, carpet cleaning and repair costs.
2. The first question is whether the tenant breached the obligation in s 69(3) of the Act to return the premises to the landlord, at the end of the tenancy, in reasonable condition and in a reasonable state of cleanliness.
3. The tenancy ended on 2 February 2018, so the state of the premises is to be considered as at the time of the inspection on that date.
4. The tenant submitted photos taken at the premises by Mr Deane on 3 February 2018. They show the premises in a good state of cleanliness and repair, although they show a stain on an area of carpet and repaired scratches to a door.
5. Given that these photos were taken after 2 February 2018, they are only of incidental use in considering what the state of the premises would have been on that day.
6. The agent submitted copies of:
   • the ingoing and outgoing (on 2 February 2018) condition report;
   • photos;
   • a work order to a professional cleaner (listing work requested) and an invoice from the cleaner for that work;
   • an invoice for carpet spot and stain removal; and
   • an invoice for repairs to the laundry door and door frame (patch and paint), the master bedroom door (removal of a latch, and patch and paint) and to a toilet wall (patch and paint), including colour matching of paint.
7. Individual views of the cleanliness and state of repair of premises vary. The Tribunal uses an objective standard of reasonableness. It is for the landlord to establish, on the evidence, that the tenant did not return the premises in 'reasonable condition' and in a 'reasonable state of cleanliness'.
8. Having carefully considered all of the evidence, I am not satisfied that the tenant breached the obligation to return the premises in a reasonable state of cleanliness; however, I am satisfied that the tenant breached the obligation to return the premises in reasonable condition, as regards the damage to doors and walls, and the stain on the carpet.
9. As already mentioned, the tenant repaired damage to the laundry door on 3 February 2018. However, the tenant had (as it turns out) no right to do that, since by that stage possession had been given back. The landlord was entitled to have that work professionally re-done.
10. At the hearing, the tenant acknowledged having installed the latch on the master bedroom door, without express permission from the landlord. The landlord was entitled to have that removed and to have the door patched and painted.
11. At the hearing, the tenant also acknowledged the stain on the carpet, although said that she had it professionally cleaned. If so, the stain remained, as the photos show. The landlord was entitled to have a professional cleaner try to remove it.
12. As to the damage generally, the tenant submitted that I should take into account fair wear and tear, including what would be expected of a family with young children.
13. In deciding that the tenant did not return the premises in reasonable condition in the respects mentioned, I have taken into account (as required by s 69(4) of the Act) the condition of the premises when the tenant took possession, and the probable effect of reasonable wear and tear since that time.
14. The landlord's claim to cleaning costs is disallowed. The landlord's claims to carpet cleaning costs and repair costs are allowed, in the amounts of $110.00 and $462.00 respectively.

1. The landlord's claims are allowed in the total amount of $1,533.97 made up as follows:
   • Rent arrears 30 January 2018 - 6 February 2018 (inclusive): $505.71
   • Water charges: $456.26
   • Carpet cleaning costs: $110.00
   • Repair costs: $462.00.

1. The bond of $2,820.00 (Bond No. 4127893-0) is to be paid to the landlord (via the agent) in the sum of $1,533.97 and to the tenant in the sum of $1,286.03.