Bennet v Holesgrove & Anor [2015] QCAT 377

CITATION: Bennet v Holesgrove & Anor [2015] QCAT 377 PARTIES: Warwick Douglas Bennet (Applicant) v Aaron Holesgrove Natalie Raffenot (Respondent) APPLICATION NUMBER: MCDT65-15 MATTER TYPE: Residential tenancy matters HEARING DATE: 5 June 2015 and 31 July 2015 HEARD AT: Pine Rivers DECISION OF: Member Favell DELIVERED ON: 11 September 2015 DELIVERED AT: Brisbane ORDERS MADE: The Residential Tenancies Authority pay to the applicants $900.03 and to the respondents $839.97 from the bond of $1740.00 held by it in respect of the premises at 3 Cypress Street, North Lakes. Bond number 4944249-x. CATCHWORDS: Lease premises - fixed term agreement – whether damage or fair wear and tear – extent of tenants’ obligations – ss 166, 188 of the Residential Tenancies and Rooming Accommodation Act APPEARANCES and REPRESENTATION (if any): APPLICANT: Warwick Bennet RESPONDENT: Aaron Holesgrove REASONS FOR DECISION [1] The respondents entered into a fixed term agreement starting on 17 May 2013 and ending on 14 May 2015 in respect of the premises at Cypress -- 1 of 7 -- 2 Street, North Lakes. The rent was $435.00 per week and it was due to be paid weekly. The bond was $1740.00. [2] Prior to the expiration of the term it was decided the property could be put on the market. The tenants were happy to corroborate. The owner says he required and requested a signed affidavit from both tenants to indicate they wanted to move and would be happy with a 30 day notice to vacate as soon as the property was sold. [3] On 15 December 2014 Ms Raffenot gave a statutory declaration that she declared that she was aware the property was being listed for sale and confirmed upon written notice to her the property is sold she would vacate the property within 1 month from date of such notice. She confirmed there would be no financial liability by herself or the landlord for breaking the lease agreement early and in other respects the rental lease agreement remained unchanged. [4] On 13 January 2015 both tenants signed a document headed early exit agreement to the following effect: “(a) We, the tenants at 3 Cypress Street undertake to bring the property back to entry condition by 21 January 2015 in accordance to the clauses and stipulations of the Residential Tenancies and Rooming Accommodation Act 2008. (b) Failing (a) above we the tenants undertake to bear the cost of professionals bringing the property back to entry condition after our vacation of 3 Cypress street on 21 January 2015 should remedial action not take place within 24 hours of written notification differences between the entry condition and a supplied exit condition report to our supplied forwarding mailing address. (c) We the tenants undertake to continue paying rent on 3 Cypress street until completion of either (a) or (b) above and understand that no further rent or obligation to the lease will be required after either 21 January 2015 or date of completion of (a) or (b) above whichever is the greatest) under a mutual agreed release from obligation to the original rental agreement between the lessor and tenants. (d) We the tenants understand that break lease fees do not apply to this arrangement and that a replacement tenant for the remainder of the original tenancy agreement is not required.” [5] On 21 January 2015 the tenants vacated the property. The landlord now claims $4939.80 made up as follows: Replacement of carpets in bedroom 2 and 3 and laundry $500.00 excess Security screen mesh by 3 $150.00 -- 2 of 7 -- 3 Garden damage and exterior clean $340.00 Tile floor clean $275.00 Aircon cable repair $150.00 Cleaning of interior $300.00 Rent outstanding 15-21 January 2015 $440.00 Rent 22 January – 18 February 2015 $1697.40 Outstanding January 2005 water bill $221.03 Remaining water bill Estimated at 3.298 per day from 5 December 2014 to 21 January 2014 - $63.68 Painting of two walls, paint and rollers $51.70, Labourer $80.00 Colour photos copied by 5 $565.25 QCAT Tribunal fee $105.00 TOTAL $4939.80 [6] During the course of the hearing the tenants admitted responsibility for the replacement of one mesh screen and responsibility for rent of $395.00 being for the period 15 to 21 January 2015 as well as the December water bill (invoice 41324) of $221.03. With the exception of the estimation for the water the claims are backed by invoices, receipts or ledgers. [7] The residential tenancies authority holds the bond of $1740.00 with the bond number 4944249-x. [8] After the tenants had moved out a dispute arose as to the condition the property was left in. When the tenants vacated the owners complained that the tile floor was sticky and dirty, bedrooms 2 and 3 smelt of urine, there were scratches on the inside of the doors and the carpet in bedroom three was badly scratched. [9] The premises were built in 2010. [10] The tenants returned to the property to carry out some further cleaning afterwards. The outstanding keys were provided to the real estate agent on 6 February 2015. [11] Much of the determination of the issues raised depends on a comparison of photographs provided by the applicant and the respondents and a consideration of whether any damage done to the property or claimed in respect of the property fell within fair wear and tear. There is also a question -- 3 of 7 -- 4 as to the extent of the obligations of the tenants to return the premises in a condition they were in at the start of the tenancy with fair wear and tear excepted (clause 37, section 188(4) Residential Tenancies And Rooming Accommodation Act). [12] It was an obligation of the tenants on vacating the premises to return all keys, have all carpet professionally cleaned, fair wear and tear excepted repair damage to the premises arising or as a result of the tenants or its guests actions including damage if any caused by the tenants pets, removal of the tenants property from the premises including rubbish, leave the premises (including the grounds) in a neat and tidy condition, fumigate as reasonably required if pets have been on the premises, provide written evidence of the requirements of Addendum B and return all remote controlled devices in good working order and condition. The addendum attached to the tenancy agreement provided that “where the premises includes a car space and/or drive away for the tenants exclusive use, the tenant acknowledges and confirms it is the tenants responsibility to keep such areas free of oil stains and otherwise keep such areas clean and tidy. [13] Clause 17 of the tenancy agreement provided for water service charges I am told that the premises were water efficient for the purposes of section 166 of the Residential Tenancy And Rooming Accommodation Act. The clause required the tenant to pay the amount of the charge to the lessor within one month of giving the tenant copies of relevant documents about the incurring of the amount. [14] Part of the claim relates to an area near the external door which is said to be affected by water damage. The respondents say that the damaged is because of the ingress of external water. [15] The applicant has produced two statutory declarations, one from his wife stating on 22 January she attended for an inspection and noticed a strong urine smell in bedrooms 2 and 3 and that the tile floor was sticky and not clean. She said that the grout was dirty. [16] A statutory declaration from the property manager is to the same effect. [17] A number of inspection reports have been provided. Some cleanliness requirements were mentioned as were holes caused by dogs in the rear garden area. [18] The inspection report of 14 April 2014 notes that there are no oil stains in the garage. [19] The respondents rely upon photographs supplied by them to counter the claims in respect of the security screen mesh, garden damage and exterior clean, tile floor clean, the interior clean, and the painting of two walls. [20] They dispute the water bill of $155.03 because they have not been provided with a finalised bill. -- 4 of 7 -- 5 [21] As to the claim for “air con cable” repair the respondents say that the “air con cable” was wrapped in blue tap from the beginning of the tenancy and any repair required to the air con was not because of anything they did. They say that they manually turned on the air conditioning and it worked throughout the time they were at the property. [22] I note from the invoice for CNS air conditioning solutions that the claim was in respect of the split system not responding to the remote because the receiver cable was damaged. [23] I have reviewed the photographs from 21 January 2015 supplied by the respondents and they generally show the property in a clean condition and well maintained. I have compared them with the photos of 24 January 2015 and they similarly show the property in good condition apart from some minor marks. [24] The applicant has provided scope of works from Ausmar which included rubbish removal, the painting of bedroom 2, bedroom 3 and bedroom 4 as well as the laundry. It also included replacement of timber reveals around the sliding door and the painting of those reveals. There was an insurance excess tax invoice of $500.00 for which the applicant claims. I do not know what the extent of the total tax invoice was. [25] The applicant has also supplied a tax invoice from the House of Carpets dated 2 February 2015 which was for $830.00 being for the supply and laying of the president granite on new foam underlay to two bedrooms and the replacement of old carpet and underlay due to a strong urine odour. The invoice is not further broken up. [26] The invoice from Pennant Blinds for re-meshing the fly screen doors was broken down into $40.00 for service call, $84.00 to re-mesh fly screen door and re-mesh fly screen $26.00. [27] The invoice from Speeds Lawn and Garden Maintenance in the sum of $340.00 was to trim vertical and horizontal edges, fill holes along the side of the fence with gravel, pressure clean back patio, outside slab near garage, near side garage door, water tank and slab, pressure clean house, tidy up stone areas, mow front and rear lawn, blow down all areas and mulch the front garden. That invoice was dated 3 February 2015 but is not further broken down. [28] An invoice from Aussie Supreme Clean dated 8 February 2015 that charged $275.00 for tile and grout cleaning. [29] An invoice from DB&WP Sussens in the total sum of $300.00 is for “first session for presale clean, second session pressure clean garage and final cleaning session including pressure cleaning.” I note the receipt given to the applicant for the painting of bedrooms, wall and lining and living area wall was via Steve Adams North Lakes Prestige Properties in the sum of $80. I note the tax invoice from Sweep Cleans dated 20 January 2015 given -- 5 of 7 -- 6 to Ms Raffenot in the sum of $680.00 for a bond clean, carpet clean and pest control. [30] I note on the entry condition report relevant to this claim in bedroom 4 there was a 20c piece sized paint chip above the powerpoint noted on the door, in the laundry a small paint chip under the taps is noted and in the garage some scratches as well as a stained concrete floor. The grounds were noted as mowed and hedged, and garden and rock areas weed free. I note the exit condition report and the opportunity to rectify various complaints. [31] In my view some of the work claimed was work done to prepare the premises for sale. The tenants should not be liable for the cost of that work. [32] Much of the claim in my view was the repair or attending to items which were covered by the fair wear and tear exception and the tenants should not be responsible for these costs. [33] I accept the contention that the air conditioning receiver cable was damaged before the tenants moved in and accordingly they should not be responsible for the cost. [34] Because part of the water charge is estimated and the claim is not properly made in accordance with the tenancy agreement and the Act the tenants should only be liable for the amount based on the invoices and admitted in the sum of $221.00. [35] The tenants are responsible for outstanding rent of $395.00. In my view once the property was vacated the operation of the agreement came into play and no further rent was payable. [36] I am not satisfied that the carpets required replacing because of the tenants. The cost of replacing the carpets said to smell of urine has not been particularised, nor has the cost of removing any urine smell. [37] I accept that the tenants should be liable for the cost of replacing one fly screen door. When the service call is taken into account it is reasonable that the Tenants pay $104.00 in that regard. [38] I am not satisfied the tenant should be responsible for the full amount claimed for garden damage and exterior clean. They should not be responsible for any house pressure clean. However, they should be responsible for rectifying holes in the garden. Pressure cleaning in my view is covered by the fair wear and tear exception. Making allowances based on the invoices as best I can the tenants should be responsible for $180.00 of the costs. [39] In my view the tile floor clean claim for the grouting is covered by the fair wear and tear exception. I am not satisfied the claim for the copy of colour photographs five times is reasonable or is made out. Both parties have had some success. The filing cost is not allowed. -- 6 of 7 -- 7 [40] After consideration of all the material I am satisfied that tenants should be liable to pay $900.03. [41] The order is the Residential Tenancies Authority pay to the applicants $900.03 and to the respondents $839.97 from the bond of $1740.00 held by it in respect of the premises at 3 Cypress Street, North Lakes. Bond number 4944249-x. -- 7 of 7 --