The proceedings pertain to the landlord's claim for the bond from the tenant pursuant to Section 175 of the Residential Tenancies Act 2010 ('the RT Act') and for compensation under Section 187 of the RT Act due to the condition of the property at the end of the tenancy. The applicant ('the landlord') appeared and gave sworn evidence. The respondent ('the tenant') appeared and gave sworn evidence. The tenant's mother, Ms Keeble, appeared and gave sworn evidence.
There is a long history of discord and previous proceedings between the parties. There is no dispute that the parties were in the relationship of landlord and tenant. The landlord and the tenant resided in the same residence, with the tenant residing in a full self-contained portion of the lower ground floor and the landlord and his family residing upstairs. On 23 November 2015, the Tribunal made orders, after a contested hearing, awarding the tenant compensation for re-imbursement of electricity charges that had been not been administered by the landlord in accordance with the RT Act. A proposed rent increase by the landlord was set aside under Section 44(1(a) of the RT Act, and the tenant's claim for a rent reduction under Section 44(1)(b) of the RT Act due to a reduction or withdrawal of services was dismissed. The tenant subsequently vacated the property on 12 December 2015.
According to both parties, when the tenant vacated the property on 12 December 2015 there was an altercation between the parties, involving the tenant and her sister, and the landlord and his wife. There was a report to the police and police attended the premises. Both parties blamed the other party for the altercation. It is unnecessary to go into detail about the altercation on 12 December 2015, because it has little, if any, relevance to the issues in dispute in this application.
The amount of the bond is $1,280.00 and the bond is currently retained with NSW Fair Trading Rental Bond Services until the determination of the proceedings. The tenancy commenced on 5 September 2013 and ceased on 12 December 2015. The rent at the end of the tenancy was $350.00 per week.
The proceedings were filed on 30 December 2015. The landlord seeks compensation for breach by the tenant of the tenant's obligations under Section 51(3) of the RT Act.
The landlord claims the following compensation:
1. Replacement of lock to sliding door; cleaning of the property; rubbish removal and supply of mesh to sliding screen door and bedroom window. This aspect of the claim is based on a tax invoice of Smart Maintenance Services dated 28 December 2015 in the sum of $1,300.00;
2. Repainting the residence and replacing 2 porcelain tiles. This aspect of the claim is based on a tax invoice of Smart Maintenance Services dated 15 January 2016 in the sum of $1,300.00;
3. Replacing a vertical blind and cleaning 5 bundles of vertical blinds. The landlord states that he paid $530.00 in respect of such work.
The matter was before the Tribunal on 19 January 2016, when orders were made regarding the filing and serving of documentary evidence. Each party had filed and served documents in accordance with Tribunal directions. The documents of the landlord were as follows:
1. Chronology of events.
2. Ingoing inspection report, signed by both the landlord and tenant, dated 5 September 2013.
3. Outgoing inspection report of the landlord (not signed by tenant) with comments of landlord about the condition of the premises.
4. Tax invoice of Smart Maintenance Services dated 28 December 2015 (in respect of replacing sliding door lock; internal cleaning of premises; rubbish removal; and supply of mesh to sliding screen door and bedroom window) in the sum of $1,300.00;
5. Tax invoice of Smart Maintenance Services dated 15 January 2016 in the sum of $1,300.00 (in respect of painting of the property and replacing 2 porcelain tiles) in the sum of $1,300.00;
6. Quotation of Fleetmore Mobile Blind Cleaning dated 15 February 2016 in the sum of $530.00;
7. Photographs of the property taken at the ingoing inspection and outgoing inspection by the landlord.
The tenant's documents were as follows:
1. Photographs taken by the tenant in September 2015 (at the commencement of the tenancy) and on 12 December 2015 (at the end of the tenancy);
2. Tenant's copy of the ingoing inspection report;
3. Statutory declarations of Ms Samantha Saward (the tenant's sister) dated 15 January 2016;
4. Undated statement of the tenant's mother, Ms Patricia Keeble;
5. Copies of text messages between the parties.
[2]
RELEVANT LEGAL PRINCIPLES
In respect of any claim for the bond, the landlord bears the onus of proving the entitlement to the bond, or any component of it, as the bond is prima facie the property of the tenant (Nicholas v Miernik [2011] NSWCTTT 293). In the circumstances of this matter the landlord must prove on the balance of probabilities that the tenant breached her obligation under Section 51(3) of the RT Act. Section 51 of the RT Act states as follows:
51 Use of premises by tenant
(1) A tenant must not do any of the following:
(a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose,
(b) cause or permit a nuisance,
(c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant,
(d) intentionally or negligently cause or permit any damage to the residential premises,
(e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement.
(2) A tenant must do the following:
(a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,
(b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.
(3) On giving vacant possession of the residential premises, the tenant must do the following:
(a) remove all the tenant's goods from the residential premises,
(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,
(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,
(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,
(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.
(4) In this section:
residential premises includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant.
(5) This section is a term of every residential tenancy agreement.
In respect of breach of Section 51(3) of the Act, if the landlord proves breach, the landlord is entitled to damages calculated on the basis of putting the landlord in the position that the landlord would have been had the breach not occurred. The test of "fair wear and tear" is objective, and is not from the subjective perspective of a "fastidious landlord".
[3]
LANDLORD'S EVIDENCE
In respect of the items in dispute, the evidence of the landlord was as follows:
[4]
Internal Cleaning
The landlord asserted that the property was unclean at the end of the tenancy in respect of the following:
1. The premises smelt of cat urine;
2. There was a stain at the base of the toilet seat bracket;
3. The shower and bathroom had soap scum;
4. There was dirt in window sills;
5. There was cleaning reside remaining on floor tiles;
6. There was sticky tape residue on the edge of doors;
7. The kitchen stove cooktop was not completely clean, with some "cooked on food".
[5]
Damage to Tiles
A porcelain floor tile contained a scratch mark and indentation that could not be cleaned, and was not fair wear and tear.
[6]
Sliding Door Lock
The tenant changed the lock of the front sliding door without permission, and all the keys for the sliding door and windows were not returned.
[7]
Painting of Premises
The walls required repainting because of the smell of cat urine.
[8]
Blinds
New vertical blinds in the premises had been installed immediately prior to the tenant moving in. 2 blades of one blind were "missing" and other blinds had marks on them, where the landlord asserted the cat of the tenant had likely climbed on the blades. The blinds also smelled of cat urine.
[9]
Rubbish Removal
The tenant had left rubbish on the kerb, and after police attended the premises on 12 December 2015 the police told the landlord that the tenant had arranged for a Council pick up to collect the rubbish. The landlord said the rubbish had not been picked up within 2 weeks, and neighbours had complained. The landlord contacted the local Council, who said the pick-up was arranged for 7 January 2016. The landlord arranged for the rubbish to be removed by a contractor engaged by him, and put his own rubbish out for collection in respect of the Council rubbish pick up on 7 January 2016.
[10]
Damage to Shelving in Bedroom
There was a clothes hanger and shelving in the bedroom. The tenant had damaged the rail of the shelving, and the landlord had replaced the shelving by purchasing a kit from Bunnings and installing it himself. The kit cost $170.00. The landlord did not retain an invoice for the cost of the replacement parts.
[11]
Damage to Fly Screens
The landlord stated that fly screens of the sliding door and windows had holes in them, which the landlord asserted were due to the tenant's cat.
[12]
TENANT'S EVIDENCE
In respect of the items in dispute, the tenant's evidence was as follows:
[13]
Internal Cleaning
The tenant denied that the property was in an unreasonably clean condition. The tenant stated that she, her mother, and her sister had spent 4 to 5 hours cleaning the property prior to her giving vacant possession. This was supported by brief evidence by the tenant's mother Ms Keeble. The tenant stated she had a cat, but it was not kept inside the premises during the day and there was kitty litter for the cat placed in the laundry area. The tenant denied the premises smelt of cat urine at the end of the tenancy.
[14]
Damage to Floor Tiles
The tenant accepted that there was one tile that had a mark on it, but submitted that the mark was fair wear and tear.
[15]
Sliding Door Lock
The tenant stated that, towards the end of the tenancy, the tenant had changed the sliding door lock because, according to the tenant, the landlord had entered the premises without permission. The tenant asserted that she had returned all keys to the sliding door and windows at the end of the tenancy.
[16]
Painting of Premises
The tenant denied that the premises required repainting due to the smell of cat urine.
[17]
Blinds
The tenant denied that any vertical slats of blinds were missing, or that there was any damage to the blinds beyond fair wear and tear. The tenant denied her cat had climbed on blinds and damaged them. The tenant asserted that the blinds were in the same condition as when she moved into the property.
[18]
Rubbish Removal
The tenant stated that there had been some rubbish left in a storeroom underneath the premises, and prior to her moving out there had been a dispute about the landlord performing maintenance to the property and having access to the storeroom. The tenant stated that she had removed the rubbish onto the footpath, but because of the altercation between the parties on 12 December 2015 the tenant was not able to remove the rubbish and had organized a Council rubbish pick up. The tenant stated that the earliest a Council pick up could be organised was 7 January 2016.
[19]
Damage to Fly Screens
The tenant denied her cat damaged the fly screens of the property, and asserted that any damage to the fly screens was fair wear and tear.
[20]
Damage to Bedroom Wardrobe Shelving
The tenant stated that 2 rails were bent due to the wardrobe shelving/rail not being anchored correctly, and this was put back into place. The tenant asserted that the wardrobe could still be used.
[21]
APPLICATION OF FACTS TO LAW
At the hearing, there was clear animosity between the parties. On many factual issues, the evidence of the parties was completely divergent. The animosity and lack of objectivity of each party made it difficult to assess the credibility of the respective parties on factual issues. The Tribunal has, as much as possible, focussed upon the contemporaneous documentary evidence in respect of making factual findings rather than the demeanour and credibility of the parties (Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 at [27]).
[22]
Internal Cleaning
The photographs of the landlord taken at the outgoing inspection, and the photographs taken by the tenant on 12 December 2015 do not show the property to be in an unreasonably unclean condition. I cannot discern from the photographs that each party relies upon any significant amount of dirt or soap scum left after cleaning the premises, nor that the stove was left in an unclean condition. I am not satisfied that there is objective evidence to support the assertion of the landlord that the premises smelled of cat urine. I am not satisfied the landlord has proved on the balance of probabilities that the tenant breached Section 51(3) of the RT Act in respect of the internal cleanliness of the premises.
[23]
Damage to Floor Tiles
There is photographic evidence of marks on 1 porcelain tile and the end of the tenancy. However, the tenancy was for a period of over 2 years, and I am not satisfied the landlord has proved the scratch was beyond reasonable "fair wear and tear" of the premises during the course of the tenancy. I am not satisfied the landlord has proved on the balance of probabilities the tenant breached Section 51(3) of the RT Act in respect of the condition of the floor tiles.
[24]
Sliding Door and Window Locks
The evidence of both parties was in direct conflict as to whether or not all of the keys were returned. There is no clear objective evidence, other than the oral evidence of the parties, to determine whether or not the keys had been returned. The landlord bears the onus of proving breach on the balance of probabilities (i.e. it is more likely than not the keys were not returned). If the balance of probabilities is even, the landlord has not proved breach. I am not satisfied the landlord has proved on the balance of probabilities the all of the keys have not been returned, and accordingly the landlord fails in the claim for the cost of changing locks.
[25]
Painting of Premises
The photographs taken by each party at the end of the tenancy do not show the walls to be damaged by way of scratches or marks (other than very small marks in respect of what appears to be where a towel rail was on a wall, but the landlord has not claimed in respect of this item), and do not show that the condition of the walls requires repainting. I am not satisfied that there was such presence of cat urine as to warrant the repainting of the walls. The landlord has failed to prove the tenant breached Section 51(3) of the RT Act in respect of internal painting.
[26]
Blinds
The photographs of the landlord do not clearly show any missing vertical slats of blinds. The photographs of the landlord show small marks on blinds, but I am not satisfied the landlord has proved on the balance of probabilities that such marks are beyond fair wear and tear. Accordingly, the landlord fails in respect of the claim for the cost of replacing blinds.
[27]
Damage to Bedroom Wardrobe Shelving
The photographic evidence of the landlord at the outgoing inspection does not show such damage to the bedroom wardrobe shelving that the Tribunal is satisfied the tenant has breached Section 51(3) of the RT Act. In any event, the landlord has not provided documentary evidence verifying the cost of repairs. Accordingly, the landlord fails in respect of this aspect of the claim.
[28]
Damage to Fly Screens
The photographs of the landlord at the outgoing inspection show holes in flyscreens. The holes are of such sufficient size that I am satisfied they are beyond fair wear and tear. The ingoing inspection report does not make comment on holes in fly screens. I am satisfied the landlord has proved the tenant breached Section 51(3) of the RT Act in respect of the fly screens, and the appropriate amount to compensate the landlord for the breach is $170.00, as set out in the tax invoice of Smart Maintenance Services dated 15 January 2016.
[29]
Rubbish Removal
The photographs of the landlord at the outgoing inspection show rubbish that had been left on the footpath of the premises. Although there was an argument and altercation on 12 December 2015 between the parties, it is ultimately the responsibility of the tenant to ensure that all rubbish is removed at the end of the tenancy, rather than approximately 3 weeks later by way of a Council pick up. I am satisfied that the landlord has proved breach of Section 51(3) of the RT Act in respect of the cost of rubbish removal, and the amount set out in the tax invoice of Smart Maintenance Services dated 28 December 2015 ($550.00, the landlord giving sworn evidence that Smart Maintenance Services charges rubbish removal on a per trailer basis, and that the charge was for 1 trailer load of removal of rubbish including Council tip fees) is reasonable to compensate the landlord for the breach by the tenant.
[30]
CONCLUSION
The effect of the above findings is as follows:
From the rental bond, the amount of $720.00 is to be paid to the landlord in respect of the cost of repairing fly screens and rubbish removal. The remainder of the bond is to be paid to the tenant.
G J Sarginson
General Member
Civil and Administrative Tribunal of New South Wales
13 May 2016
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: 03 June 2016