Residential Tenancies Act 1997 (ACT)

ACT Civil and Administrative Tribunal Act 2008 (ACT)

Yandle v Katsoulis [1999] ACTRTT 1

Hlubucek v Sinodinos [2007] ACTRTT 12.

Taylor v Webb [1937] 2 KB 283

CIVIL & ADMINISTRATIVE TRIBUNAL ) NO: RT 90 of 2009

1. That the Office of Rental Bonds is directed to release $860.00 to the tenants forthwith.

CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 90 of 2009

1. This is a rental bond dispute over the claimed cost of replacing an area of approximately 10 square meters of wooden flooring the Lessors alleged was damaged during the tenancy by 5mm stiletto heels causing "hundreds of circular indentations". The flooring consisted of thin wood laid on boards.
2. The residential tenancy commenced on 12 January 208 for a fixed term of 6 months and continued thereafter as a period tenancy from month to month. There were a number of "Additional Clauses" attached to the tenancy agreement that were unenforceable as they were not endorsed by the Tribunal under section 10 of the Residential Tenancies Act 1997 ('the Act'). The wooden flooring was not referred to in any of the Additional Clauses.

3. The Tenants vacated the property on 12 January 2009 with the final inspection being undertaken by the Lessors' Property Manager on 13 January 2009. After the Final Inspection the Property Manager emailed the Tenants on the same day stating that she had found the property in "generally good clear condition but the owners do need to get back to me in regards to the following items:
   • - Small holes to the largest lounge room wall from where a hook has been removed
   • - Black scuff marks to centre of this same wall about head height
   • - Several kitchen floor times chipped
   • - Bedroom blinds dusty
   • - Window sills dirty throughout
   • - Dark marks towards the centre of the carpet in the back room
   • - Small holes to the wall with toilet roll holder from where hook removed in toilet
   • - Small black mark to this same wall in toilet
   • - Toilet seat cracked to edges and underside (from heat?)
   • - Inside of laundry cupboard needs cleaning
   • - The hook board attached to the back of the bathroom/laundry door has a couple of broken hooks."

4. On 15 January 2009 the Property Manager again emailed the Tenants on 15 January 2009 in relation to the above listed items, advising that the Lessors had inspected the property and wanted compensation for the following: the black scuff marks, the dusty blinds, the dirty window sills, the small black mark on the toilet wall, the cleaning of the laundry cupboard and the cracked toilet seat. The Property Manager advised that the cleaning items would take no more than two hours at $33 per hour. The Property Manager sought information on how the toilet seat had been cracked.
5. Then on 16 January 2009 the Property Manager again emailed the Tenants advising that the Lessors had agreed to pay for the cracked toilet seat to be replaced. The Property Manager then stated that, whilst the Lessor, Ms Verscheure, had been at the property on 15 January 2009 to check the cracked toilet seat:

"... she noticed that there was quite a bit of damage to the floorboards from high heeled shoes having been worn on them and would like to seek some form of compensation for this."

1. The Tenants having denied liability for the alleged "marks caused by high heels" the Lessors then claimed $860 of the bond moneys under section 31(a) of the Act which provides:

A lessor is entitled to deduct from the bond paid under the residential tenancy agreement any of the following:

(a) the cost of repairs to, or the restoration of, the premises or good leased with the premises as a result of damage(other than fair wear and tear) caused by the tenant;"

1. Clause 64(b) of the Standard residential tenancy terms ('the standard terms'), Schedule 1 of the Act, provides that "A tenant must leave the premises -

(b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted."

1. The Inventory and Condition Report ("the Condition Report') signed by the Tenants on 24 January 2008 at the commencement of the tenancy, and not signed by the Lessors, described the floors in the living room as "timber floorboards, slightly faded and cracked towards sliding door otherwise in good condition" to which the Tenants had added "some scratches". The Condition Report also described the floor in the dining area as "timber floorboards, excellent condition" to which the Tenants had also added "some scratches".
2. At the hearing on 23 April 2009 the Tribunal decided in favour of the Tenants and ordered the release of the disputed amount of the bond to the Tenants. On 29 April 2009 the tenant, Dr Richards, requested this Statement of Reasons.

1. At the hearing, the Lessors' Property Manager stated that the Lessors wanted to acknowledge that the Tenants had always been good Tenants and that they had paid their rent on time. The Property Manager went on to say that the Lessors wanted reasonable compensation to assist in replacing the damaged floorboards in only the two major areas where there was a "concentration of the indentations", a total area of 5-6 square meters. The Property Manager produced photographs of the areas involved which did show a number of round marks that appeared to be dents in the wooden flooring.
2. The Lessors both chose not to attend the final inspection on 12 January 2009, but to visit the premises two or three days later to inspect them.
3. The Property Manager said at the hearing that she had missed the indentations on the final inspection as she was "concentrating on cleanliness, not on fair wear and tear". She stated that the Lessors had not seen the indentations on their first visit after the final inspection, only on their second visit to the premises when they re-inspected. In her undated submission to the Tribunal, received by the Tribunal prior to the conciliation conference on 1 April 2009, the Lessor, Ms Verscheure, stated that "the damage is not obvious by looking directly down at the floors, however it is conspicuous at an acute angle with appropriate natural light - as per photographs attached."
4. The Property Manager stated at the hearing that the Lessor, Ms Verscheure, had always left her shoes at the door when entering the premises and so the indentations could only have been made during the tenancy as the Tenants were the first to tenant the property after Ms Verscheure moved out of the premises. The Tribunal notes that the Lessor, Ms Verscheure, did not attend the Tribunal which, therefore, did not have the benefit of assessing her demeanour when giving evidence.
5. There was no date on the photographs of the floorboards forwarded by the Lessor, Ms Verscheure, and no notation of who took them or when they were taken. However, as the Lessor, Ms Verscheure referred to the photographs in her submission to the Tribunal prior to the conciliation hearing on 1 April 2009; it appears likely that the photographs were taken by the Lessors after the date of the final inspection. However, there was no evidence to this effect.
6. At the closing stage of the hearing, the Property Manager stated that there were new Tenants in the premises and that no replacement of the floorboards had been undertaken prior to the new Tenants moving into the premises. Thus, in actuality, the Lessors had not incurred any cost for the claimed replacement of the floorboards.
7. In their written submission dated 30 march 2009, the Tenants submitted that the Lessors' inspections after the final inspection were unlawful and the Lessors' claim for compensation was also unlawful.
8. The Tribunal determined that the tenants were not liable to compensate the Lessors for any cost of replacing the floorboards claimed to be damaged during their tenancy on all of the following bases:
   • Under section 31(a) of the Act, the Lessor is entitled to deduct from the bond the "cost of repairs to ... the premises as a result of damage ... caused by the tenants". In the circumstances of this matter, the Lessors have not incurred any such cost as no replacement of the floorboards has been undertaken by the Lessors. The Tribunal notes that there was no allegation that the condition of the floors impacted on the reletting of the premises to new tenants.
   • In previous matters, the Tribunal has accepted that a there must be finality about the condition of the premises at the end of the tenancy. See for instance Yandle v Katsoulis [1999] ACTRTT 1, Young v Forsyth [2003] ACTRTT and Hlubucek v Sinodinos [2007] ACTRTT 12. After the Final Inspection a lessor cannot add additional items that the lessor discovers need repairing, cleaning or restoring unless such further discovered items would not have been visible at the time of the final inspection. The Tribunal notes that the Property Manager, in her very thorough inspection, after which she raised with the tenants all the detailed items set out in paragraph 3 above, did not notice any damage to the floor boards, nor did the Lessor, Ms Verscheure, on her first visit two days after the final inspection. It was only on her second visit after the final inspection that Ms Verscheure noticed marks on the floorboards. The Tribunal does not accept that the Lessor Ms Verscheure's inspections after the final inspection were illegal: the Tribunal determines that the Lessor cannot raise any additional items after the final inspection if the items would have been visible at the time of the final inspection and finds that the indentions would have been visible at the final inspection.
   • The Lessors alleged that the Tenants caused the indentations in the floorboards. The Tribunal is not convinced on the evidence before it that the indentations could not already have been present prior to the tenancy commencing. The tenant, Dr Richards, stated at the hearing that she does not wear stiletto heels as "they would be too uncomfortable". Whilst the Condition Report did not note the marks at the commencement of the tenancy, the Tribunal only has the hearsay of the Property Manager that the Lessor, Ms Verscheure, took off her shoes when she entered the premises. Ms Verscheure did not state this in her written submissions to the Tribunal.
   • Under Clause 64(b) of the standard terms tenants must leave the premises in substantially the same condition as the premises were at the commencement of the tenancy agreement, fair wear and tear excepted. The Tribunal finds that the marks on the floorboards, even if they were brought about during the tenancy, are within the definition of "fair wear and tear" in section 31(b) of the Act and clause 64(b) of the standard terms. The phrase "fair wear and tear" was considered by the UK Court of Appeal in [1937] 2KB where that Court stated that the phrase "wear and tear" refers to disrepair The Tribunal finds that the wearing of high heels, including wearing stiletto heels, is a normal use of premises leased for residential purposes. In this tenancy agreement, there was no endorsed clause requiring the Tenants to take any special care of the wooden floors in the premises, or not to avoid wearing high heels, including stiletto heels, in the premises. The Tribunal determined not to follow the decision by a similar tribunal in NSW in (2005 on this issue.

1. For all the above reasons, the Tribunal made the following order: that the Office of Rental Bonds is directed to release $860.00 to the tenants forthwith.

DATE/S OF HEARING: 23 April 2009 PLACE: CANBERRA

DATE/S OF DECISION: 23 April 2009 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )