The landlord has filed an application on 27 May 2015, seeking orders against the tenants for damages to the premises.
The landlord claims $1,830.00 for the replacement of an oven and stove top unit, and $720.00 for the cost of installation. The landlord also claims $3,212.00 for painting, $1,112.75 for repairs and $540.00 for replacement of 2 ceiling fans.
The landlord also seeks an order that the rental bond be paid to her.
Both parties have filed and served documents in support, in accordance with the Tribunal's previous directions.
[2]
Evidence
The parties entered into a residential tenancy agreement ("RTA") on 22 May 2012 for a 12 month period until 21 May 2013 in respect of premises at Marrickville. Rent was payable under the RTA in the amount of $2,389.88 per month, and a bond of $2,200.00 was also paid. An inspection was carried out and an ingoing condition report completed on 22 May 2012.
At the end of the fixed term, the tenancy continued on a periodic basis until 25 April 2015.
The landlord appeared with her husband and both gave evidence under oath. Both tenants appeared and gave evidence under affirmation. The parties filed and served evidence in accordance with previous Tribunal directions.
The landlord stated that, approximately 2 months after the commencement of the tenancy, she received a call from the real estate agent who advised her that the tenants had painted the interior of the house. She had not given them permission to do so.
When the landlord inspected the premises, she stated that she was shocked that everything had been painted white, including door frames. The agent advised her that the tenants were seeking reimbursement in the amount of $450.00 for the cost of the paint, and she agreed to pay this.
The landlord's evidence was that the premises had been previously painted just before the commencement of the RTA.
The landlord gave evidence that she received a call from the agent advising her that the tenants had replaced the oven and cooktop with an upright oven. The pre-existing oven was described as an elevated cooker, resting on a cabinet. The tenants disposed of the oven and cooktop and the cabinet on which it rested, and replaced it with an old upright cooker.
The landlord stated that she did not give the tenants permission to change the oven and stovetop. She also stated that the previous stove was not that old and worked perfectly and was clean inside at the beginning of the tenancy. When she heard about the oven, she reported it missing to the police.
As a result of these incidents, the landlord asked the agent to give the tenants a notice of termination. The tenants did not move for some time as they could not find other premises, but finally gave vacant possession on 25 April 2015.
On 28 April 2015, the landlord's agent carried out an outgoing inspection with the tenants. At this time, it was found that certain items were missing or damaged.
At the outgoing inspection, the ceiling fans in the lounge room and bedroom 1 were missing, there was a hole in the dining room wall, and various other items which the landlord claims need repair.
The landlord relies on the ingoing and outgoing condition reports, photographs and invoices, including an invoice dated 11 June 2015 from Hire A Hubby Canterbury for repair of flyscreens, supply new toilet roll holder, clean paint from laundry tub and remove the lattice covering the window of the garage.
The landlord submits the house is currently in a state whereby it unable to be rented as a consequence of the tenants' actions, and that she is suffering financial hardship as she relies on the rent for living expenses.
The tenants gave evidence that they obtained permission from the landlord's agent to paint the premises prior to entering into the RTA. They state that they considered it a condition of entering into the RTA that they be allowed to paint, although this is not expressed in writing.
The tenants state that the landlord inspected the property in November 2012 and commended them on the painting and reimbursed them for the paint. They deny the landlord's claim that the premises were freshly painted prior to the tenancy, and refer to photographs included in their evidence.
The tenants rely on an email sent to the landlord's agent on 31 October 2012, stating that the landlord had verbally given permission for the tenants to paint the interior of the premises, and seeking reimbursement for cost of materials. The tenants have not provided a copy of any reply.
Further, the tenants sent an email to the landlord's agent on 20 September 2013 seeking permission to carry out further works, and again did not produce a reply.
The tenants stated that the landlord attended all but one of the inspections, and believed that she was aware of the changes that they had made to the property.
In regard to the cooker, the tenants claim that they obtained permission from the landlord's agent to change the oven, and that this was given verbally. They disposed of the cooker in place, and bought an upright cooker for $50.00 from Gumtree, which they installed.
The tenants dispute the landlord's statement that the cooker was only 2 years old. They say that the igniters were not working, although they did not request the landlord's agent to arrange for repair.
On 28 October 2014, the tenants sent an email to the landlord's husband seeking permission to dispose of the cabinet on which the cooker had rested, and to install a wall cabinet in the kitchen. The landlord replied by email dated 29 October 2014, stating that no permission had been given to the tenants to make any changes to the kitchen or the cooker.
The tenants claim that all of the fans in the house were old and noisy and they took it upon themselves to replace them with new fans, albeit in a different style. The old fans were placed in the garage and became water damaged.
The tenants dispute items on the invoice from Hire a Hubby. They say that the flyscreens only require minor fixing and were originally made by the landlord's husband. They admit that a hole existed in the dining room, but not in bedroom 2.
The tenants say that they have improved the property and assess the cost of materials and labour supplied by them in the sum of $1,363.88.
[3]
Relevant Law
Section 51(3)(b) of the Residential Tenancies Act 2010 ("the Act") provides:
"On giving vacant possession of the residential premises, the tenant must do the following:
(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,
Section 66 of the Act states:
"Tenant must not make alterations to premises without consent
(1) A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.
(2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.
(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.
(4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.
(5) This section is a term of every residential tenancy agreement."
Section 69 of the Act provides:
'Landlords' remedies for alterations
(1) The Tribunal may, on application by a landlord, make any of the following orders:
(a) …
(b) an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant on the residential premises.
(2) The Tribunal may make an order under subsection (1) (b) only if the Tribunal is satisfied that:
(a) the work was not done to a satisfactory standard, or
(b) the work, if not rectified, is likely to adversely affect the landlord's ability to let the residential premises to other tenants.
(3) The Tribunal may make an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant whether or not the landlord consented to the carrying out of the work.
[4]
Findings
It is apparent from the evidence that the tenants breached their obligation under section 51(3)(b) of the Act to leave the premises in the same condition at the end of the tenancy as existed at the beginning of the tenancy.
I am satisfied that the tenants have breached this obligation, and make this finding on the basis of the evidence of the landlord, comprising the condition reports, photographs and her oral evidence.
I am also satisfied that the tenants did not have written consent to carry out any alterations or renovations in accordance with section 66(1). Although the tenants argued that consent to paint the premises was part of the RTA, I do not find that there is any evidence that such consent formed part of the terms of that agreement.
Although the landlord paid a sum to the tenants to reimburse them for the cost of the paint, I do not find that this should be construed as consent given either at that time, or retrospectively.
The tenants did not have written consent from the landlord to make any of the changes to the property including the disposal of the cooker and cabinet, the disposal of ceiling fans, the placement of cupboards, lattice and painting. The tenants' argument that the landlord or her agent should have been aware of the changes, or gave verbal consent, does not amount to written consent within the meaning of the Act.
The tenants argued that the work that they have done to the premises actually improved them, but the landlord disagrees. The tenants have chosen to carry out work at the premises to suit their own purposes. I find that the work done by the tenants in the nature of painting, replacing the oven and ceiling fans and installing lattice did not improve the property and I accept the landlord's evidence that she has or will, incur expense in bringing the premises back to the condition in which they existed at the beginning of the tenancy.
Section 69 of the Act gives the Tribunal the power to make orders for compensation to the landlord to rectify the work done by the tenants, only where the Tribunal can be satisfied that the work has not been done to a satisfactory standard or that it is likely to affect the landlord's ability to re-let the premises.
The landlord has argued that the premises in their current condition are unable to be re-let, as advised to her by her agent. Although the agent does not appear to give such evidence, I accept the landlord's evidence as to that advice.
From the tenants' own evidence, the oven that they replaced was at a cost to them of $50.00 and was second hand. I cannot see how this can be determined to be an improvement to the property.
In regards to the landlord's invoices, I accept their claims for repainting and repairs, and make orders in the sums of $3,212.00 and $1,112.75 respectively.
In respect of the claims for replacement of the oven and ceiling fans, I accept the tenants' arguments that these were not entirely new when the tenancy commenced, and assess that the proper amount for compensation for the oven should be $1,000.00, and $340.00 replacement of the ceiling fans. I allow the cost of $720.00 for the installation of the oven.
Accordingly, I order that the tenants pay to the landlord the sum of $6,384.75 on or before 1 September 2015.
I order that the Rental Bond Services pay the whole of rental bond No. A635281-8 to the landlord, and that this amount be credited against the money order.
L Williams
General Member
Civil and Administrative Tribunal of NSW
26 August 2015
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 08 October 2015