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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EDWARDS v IZZARD (Residential Tenancies) [2016] ACAT 91

RT 1052/2015

Catchwords:RESIDENTIAL TENANCIES compensation damage to garden scratches on window

Legislation cited:Residential Tenancies Act 1997 ss 29, 30, 83, standard terms 63, 64

Cases cited:Hlubucek v Sinodinos; Sinodinos v Hlubucek [2007] ACTRTT 12

Martins v Zhang [2014] ACAT 48

Verscheure & Bradbury v Richards & Retmock [2009] ACAT 11

Tribunal:

Senior Member H Robinson

Date of Orders:

16 August 2016

Date of Reasons for Decision:16 August 2016

AUSTRALIAN CAPITAL TERRITORY)

CIVIL & ADMINISTRATIVE TRIBUNAL)RT 1052/2015

BETWEEN:

PETER EDWARDS and ROSLYN EDWARDS

Applicant/Lessors

AND:

BRETT IZZARD

Respondent/Tenant

TRIBUNAL:

Senior Member H Robinson

DATE:

16 August 2016

ORDER

The Tribunal orders that:

1. The Tenant is to pay the Lessors the sum of $ 1130.50 comprised of:

(a) Rent arrears of $669.00.

(b) $390.00 for equivalent to six hours labour to restore the garden.

(c) $71.50 being a nominal sum calculated by reference to 10% of the cost of the mulch and the labour to install the mulch on the subsequent day of work.

..

Senior Member H Robinson

REASONS FOR DECISION

Background

1. The applicant (Lessor) is the owner of a property in Condor in the ACT (the property).

2. On or about 10 July 2013, the Lessor entered into a residential tenancy agreement with the respondent (Tenant). The Tenant vacated the property on 13 March 2015.

3. A final inspection was undertaken on 13 March 2015. The Tenant did not attend.

4. Following the cessation of the tenancy, the Lessor sought compensation for damages to the Property in the amount of:

(a) $1235 for gardening; and

(b) $3300.00 for a scratched glass door to be replaced.

5. The Tenant agreed that rent was owed and orders about that were made by consent. Other issues that were identified were also paid through the Lessors insurer.

The Hearing

6. The hearing was conducted on 31 May 2016. At the hearing, the Lessor was represented by Ms Elissa Norris and Ms Danielle Gavin from Peter Blackshaw. The Tenant represented himself.

7. Both parties filed submissions and evidence prior to the hearing. Following the hearing, the parties were given an opportunity to file further submissions in relation to the issue of the glass door and both parties did so on 2 June 2016.

Legislative Framework

8. Clause 63 of the Standard Residential Tenancy Terms (Standard Terms), found in Schedule 1 to the Residential Tenancies Act 1997 (ACT) (RT Act) provide that:

63

During the tenancy, the tenant must

(a)not intentionally or negligently damage the premises or permit such damage; and

(b)notify the lessor of any damage as soon as possible; and

(c)take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.

9. Under clause 64 of the Standard Terms a tenant must leave the premises:

(a) in substantially the same state of cleanliness, removing all the tenants belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and

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

10. If a tenant intentionally or negligently damages the property or does not return to property in a manner consistent with the requirements of clause 64, the tenant is liable to compensate the lessor for:

(a) any damage that is caused that goes beyond fair wear and tear; and

(b) the costs of returning the property to an equivalent state of cleanliness to that which the property was in at the commencement of the tenancies.

Issue one: The gardening

11. The Lessor claimed that the final inspection identified:

(a) damage to the Propertys garden beyond fair wear and tear, including:

i. overgrown vegetation;

ii. damaged or dying lawn; and

iii. five cubic metres of mulch missing from the garden.

(b) dog faeces left in the garden and the mulch.

12. The Lessors evidence consisted primarily of the ingoing and outgoing condition reports in support of their claim, a report by AJ Grant conducted on behalf of the Lessors insurer, and the evidence of the agents.

13. Section 29 of the RT Act sets out a number of procedural requirements in relation to the preparation of ingoing condition reports. One of these requirements is that two signed copies be provided to the tenant. Compliance with these requirements is a perquisite to the ingoing report being considered evidence of the condition of the premises.

14. The ingoing condition report was prepared by Ms Gavin and provided to the tenant on 10 July 2013. The copy of the ingoing condition report provided to the Tribunal was not signed by either party. The applicants agents stated that the Agency provided signed copies to the tenant and that he never returned one. The tenant conceded that this was likely. In the circumstances, I am prepared to accept that the ingoing condition report met the requirements of subsections 29(1) and (2) of the RT Act. Still, it would be prudent for the agents keep a copy of the signed report rather than just the unsigned report in future so as to avoid these issues.

15. The ingoing condition report describes the back garden as:

...extremely neat and tidy manicured established garden, 3 covered areas, weed free crushed stone areas, weed free edged garden beds, neatly trimmed, healthy plants throughout (see photos).

16. The attached photographs are rather small (nine to an A4 page) but appear to match this description, although one picture shows an area around a pathway where weeds had grown around some of brickwork, and another shows a patch of yellowing grass.

17. The Lessor organised for a gardener to attend the premises on 30 July 2013 to remove weeds from the garden bed and lay mulch.

18. An inspection report from 14 August 2013 notes that the gardener had replenished the red bark to the rear garden beds, but there are no photographs attached. This report makes no mention of dog faeces or other issues with the garden.

19. A further inspection report from 14 February 2014 noted that the gardens were neat and tidy.

20. The next property inspection report from 29 October 2014 states, relevantly, as follows:

Was unable to access rear gardens due to the dogs in the backyard this was a safety issue as one of the dogs was not friendly at all, from what I could see from the windows the gardens need a tidy up and the grass needs to be mown look as if there is no bark remaining in the garden beds...

...The garden requires immediate attention in the front and backyard, this needs to be weeded and watered on a regular basis...hedges on the front of the property are not looking well.

21. The outgoing condition report then states, relevantly, in relation to the rear garden:

Most of the lawn is dry or dead, new mulch needs to be laid throughout all of the garden as there is dog droppings throughout all the garden ...rubbish present throughout the backyard, hedges are overgrown, debris present on cement...

...a lot of mulch missing.

22. Other issues relating to the garden were also identified in the outgoing report, but they do not form a part of this claim.

23. The photographs attached to the outgoing condition report show a large amount of yellowing grass and some areas of barren soil. The hedges have grown significantly, and it would not be unreasonable to describe them as overgrown. The area around the path, however, appears to have fewer weeds than it did when the tenant moved in. One picture appears to show old dog faeces on the grass, but there are no photographs showing dog faeces in the mulch. The mulch appears sparse in places, but not necessarily any more so than in the ingoing condition report (noting that it had been replenished since that report was prepared).

24. The tenant has consistently maintained, since receiving the outgoing condition report, that it does not accurately reflect the state of the premises when he left it.

25. One difficulty that arises in this case is that the Tenant did not attend the final inspection. This left both parties in a more difficult position than would otherwise have been the case. By reason of his absence, the Tenant was not able to contest any part of the report during the inspection, and nor could the parties discuss and deal with any issues capable of immediate remedy (eg. the dog bowl that was left).

26. In responding to the claim, the Tenant relied upon his own evidence, and statements from his parents, who attended the property to assist with cleaning it prior to the vacation date. Neither parent was called to give oral evidence. In relation to the claims about the dog faeces, the Tenant contended that he and his father spend many hours cleaning the yard prior to vacating the property. His fathers witness statement supports this. The Tenant also contended that his dog only did droppings in one area of the yard, and as such his dogs faeces could not be present in the mulch.

27. Confronted with this conflicting evidence, the Tribunal must determine whose evidence it prefers.

28. I accept that a photograph in the outgoing condition report clearly shows that the yard contained at least one dog dropping. The agents contended that the photograph was but one example, but did not provide any further photographic evidence. I accept that there were some other dog droppings remaining in the grassed area of the yard when the Tenant vacated. I cannot determine how extensive a problem this was.

29. I also accept the Tenants evidence that his dog usually (if not always) did his droppings in one part of the yard. However, there was also uncontested evidence that an additional dog, owned by a third party, was at the property in (at least) October 2014. Even if the Tenants dog was consistent in where he did his droppings, there is no evidence about the behaviour of the other dog. It is possible, and indeed probable, that this dog did its droppings in another part of the rear yard. Having regard to the evidence of the agents, it seems possible, even probable, that this included in the mulch.

30. Accordingly, I accept the evidence of Ms Gavin that there were dog droppings in the mulch. Again, however, in the absence of photographic evidence, it is impossible to determine how extensive the problem was.

31. Having regard to the presence of at least some dog droppings in the grass and in the mulch, I am satisfied that the Tenant did not return the property in the same state of cleanliness as when he moved in. He must pay some compensation toward the cleaning up of the garden.

32. The situation with the missing mulch is a more complicated issue. The evidence clearly showed, and the Tenant agreed, that garden was freshly mulched early in his tenancy. The Tenant submitted that much of that mulch went to the front yard, not the rear yard. Ultimately, however, he conceded that there was some diminution in the amount of mulch in the rear yard during the tenancy. The questions is: how much and what was the cause?

33. As to how much, it is clear that at least five cubic metres of mulch was delivered to the property in August 2013. There is conflicting evidence from the Tenant and the agents as to how much went to the backyard and how much to the front. There are no clear photographs of the mulch post-August 2013, although there is agreement that the mulch in the backyard was sparse when the Tenant vacated. It is impossible to determine how much mulch actually disappeared during the tenancy.

34. As to the cause, several possibilities were advanced by the parties.

35. The Lessors agent contended that one cause of the loss of mulch was the Tenants dog, because dogs eat mulch. They offered no evidence in support of that contention. The Tenant denied that his dog ate mulch, especially the amount alleged. The Tribunal may inform itself in any way it considers appropriate in the circumstances. Notwithstanding the lack of evidence from the Lessors, I am prepared to draw on my own experience, and general knowledge, as a basis for accepting that some dogs do eat mulch. However, I cannot accept, without some kind of independent evidence, that the Tenants medium sized dog was capable of eating up to five cubic metres of mulch, even over the course of a year and a half (and with the assistance of another dog in 2015). At most, the dog may have been a contributing factor, not the sole cause.

36. The Tenant argued that mulch degrades over time. I can also draw on my same experience and knowledge to accept that mulch, and particularly organic mulch deteriorates over time. Again, however, I cannot make any finding as to how much it deteriorates without proper evidence, which neither party offered.

37. A further possible cause of a loss of mulch may have been cleaning the mulch of dog droppings. As set out above, I accept that there may have been dog droppings in the mulch, although I cannot readily assess how significant a problem this was. The droppings may have been left by a dog other than the Tenants dog, but that is immaterial, as both dogs were on the property with the Tenants agreement. The presence of droppings would have required some cleaning and perhaps some diminution of the mulch through that cleaning process. Again, I can make no finding as to how much this contributed to the diminution in the amount of mulch.

38. Presented with these several possible explanations for the deterioration of the mulch, and minimal evidence for any of them, I cannot conclude which is more likely in this case. It is perhaps most likely a combination of all these factors. It is impossible to accurately quantify this loss, or the liability of the Tenant. While I accept that the Tenant may be responsible for some portion of the loss of mulch, I do not have any evidence that would confirm that liability is anything more than nominal.

39. In relation to the lawn, grounds and general state of the garden, it is apparent from the ingoing and outgoing condition reports, the inspection reports and the photographs, that there was a general deterioration to the condition of the rear yard toward the latter part of the tenancy. The Tenant suggested that this was due to the unusually hot and dry weather. No doubt that was a factor, but the general deterioration is clearly beyond fair wear and tear, even allowing for dry conditions.

40. The photographs show significant dead grass. There are many reasons why grass dies. It could die through the neglect of the Tenant or as a consequence of being urinated on by the Tenants dog. It could also die due to the effects of a hot and dry summer. The ingoing photographs show at least one patch of yellowing grass at the time the Tenant moved in in an otherwise excellently maintained garden, which would seem to indicate that keeping grass alive is not always the easiest of tasks. Still, the situation was worse by the time the Tenant vacated the property.

41. In addition to the yellowing grass, it is apparent that the garden was somewhat overgrown and in need of weeding and tidying when the Tenant left. There was also rubbish left, most obviously a dog bowl.

42. Consistent with the Standard Terms, a tenant has an obligation to take reasonable care of the garden and return it in the same condition he or she received it in, allowing for fair wear and tear. Any assessment of fair wear and tear in this context must take into account the fact that a garden consists of living, and growing, plants. A tenant should do those tasks necessary to preserve the condition of the garden. This includes regular weeding, watering (having regard to water restrictions and reasonable costs), removing leaf litter and garden waste. Some simple pruning may be expected to prevent the garden from becoming unduly overgrown. However, a tenant is not expected to maintain a garden to a professional standard, and nor is a tenant expected to undertake, for example, tree lopping or mulching.

43. It in this case, the garden was left in a poor state, having regard to its condition at the commencement of the tenancy, and allowing for fair wear and tear. The lawns and garden beds need care and restoration. It appropriate that the Tenant bear some of the cost of repairing and tidying the garden.

44. The invoice from the gardener shows a breakdown between labour time and materials, but there is no breakdown of the timing of each task. In the absence of such a breakdown in costs, it is difficult to assess the relative liabilities of the parties for the restoration of the garden. Precision being impossible, the best the Tribunal can do is make a fair apportionment, having regard to the apparent relative responsibilities.

45. On this basis, the Tenant is to pay the Lessor the sum of $461.50, comprised of:

(a) $390, equivalent to six hours labour to restore the garden (three quarters of the work performed on the first day the gardener was in attendance); and

(b) $71.50, being a nominal sum calculated by reference to 10% of the cost of the mulch and the labour to install the mulch on the subsequent day of work.

The second issue the glass door

46. This aspect of the claim concerns damage to a sliding glass door in the family room of the property. The damage consists of a large number of scratches in the glass.

47. Two issues arise in relation to the doors:

(a) first, whether the Tenant is liable for the damage that was not identified during the final inspection; and

(b) second, if the Tenant is liable, what the amount of compensation should be.

48. The damaged glass door was not noted on the outgoing inspection report. It was also not included on a report prepared by the Lessors insurer, which was based on an inspection completed 16 March 2015.

49. An email from the agents to the Lessor dated 10 March 2015 provided that:

Please ensure that the windows are cleaned inside and outside as we noted them to be heavily marked from the dog jumping up on these.

However, this email appears to be referring to dirt rather than scratches (given the reference to cleaning them).

50. The first mention of scratching is found on the ingoing condition report for the new tenants. This was provided to the new tenants on 18 March 2015 and returned 29 March 2015. In that report, the incoming tenants have noted multiple scratches next to reference to glass in the window and door in the family room. Again, the scratches were apparently not noted by the agent during the incoming inspection.

51. The Tenants evidence was that he did not receive notice of the damage to the door until he received the application commencing these proceedings in November 2015.

52. The primary evidence as to the nature and extent of the damage to the door is a quote from Discount Glass dated 23 July 2015, and a subsequent report, also from Discount Glass, dated 28 April 2016 (DG Report). The DG Report relevantly states that ...the glass was scratched beyond repair and that it needed to be replaced. The DG report attaches photographs that show heavily scratched glass.

53. The DG Report was prepared by the Director of Discount Glass. The Director does not state her qualifications or experience and does not acknowledge the ACAT Expert Witness Code of Conduct. Still, the DG Report was not challenged, and I accept, on the basis of the report, that there is no way to repair the scratches so as to restore the cosmetic appearance of the door. It was not suggested that there was any damage to the doors functionality or security or that it otherwise required repairs. The DG Report does not proffer an opinion as to the possible cause of the damage.

54. The first question that arises is: what is the consequence of the damage to the glass door not being identified on the outgoing condition report?

55. Section 30(2) of the RT Act provides that:

a statement in the Inventory and Condition Report about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant was given the report.

56. Read in context, section 30(2) relates to the ingoing condition report, not the outgoing condition report. There is no provision in the RT Act that sets out the evidential weight to be given to an outgoing condition report. Nonetheless, the Tribunal has considered the weight to be given to outgoing condition reports on several occasions. It is well established that a report of a final inspection that was attended by both the lessors and the tenants, and agreed to by both, is accepted by the Tribunal as evidence of the condition of the premises at the end of the tenancy. The evidential value of a report that results from an inspection attended only be the lesser is of less weight. However, in this case, because the damage was allegedly missed by the agent, the tenant has made no objection to this part of the report.

57. The agents suggest that the report is incomplete and that I should look beyond it. Can I do this?

58. In Hlubucek v Sinodinos; Sinodinos v Hlubucek [2007] ACTRTT 12 the tribunal reflected that looking beyond the outgoing condition report is usually not appropriate:

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 and Young v Forsyth [2003] ACTRTT. A lessor cannot add additional items after the final inspection 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. Even in those later circumstances, there has to be a finite limit to the time in which a lessor can discover such a need and add an item to the list. Once the tenants have vacated the premises they have no control over what happens in and to the premises and should not continue to be held responsible for matters that could have occurred after they vacated the premises.

59. A similar view was expressed by the Tribunal in Verscheure & Bradbury v Richards & Retmock [2009] ACAT 11 (26 May 2009):

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.

60. A slightly more liberal approach was adopted by the tribunal in Martins v Zhang [2014] ACAT 48:

9. ...a tenancy finishes after the final inspection and anything thats discovered after that has to be done within a short timeframe and needs to be an item that wouldnt have been visible at the time of the final inspection. It doesnt relate in any way and doesnt assist in any way the applicants case in terms of whether a lessor can claim any extra rent after the tenancy terminates by way of compensation for putting the property into a condition in accordance with clause 64.

10.I must say I have taken the view, and indeed one or two other members of the Tribunal also have, that human nature being what it is and people sometimes suffering from domestic blindness, which is a common problem we all seem to suffer at times, its unreasonable to expect everything to be picked up on one final inspection. This Tribunal has, on a number of occasions, allowed a landlord to add an additional claim when it is obvious that the matter claimed had to have occurred during the tenancy and could not have occurred in the short timeframe between the final inspection and when the lessor or agent went back through and had another look.

11. Clearly, if it is several weeks after the final inspection, the potential for intervening events - such as climatic conditions, cobwebs growing because of the time of year or a new layer of dust on a window sill - can make it unsafe to attribute the problem to the recently expired tenancy. If however, something is discovered within one or two days after the final inspection (and its usually the lessor going in and picking up something the agents havent or indeed maybe the agents having another look and noting -oops! I missed that one), then that could be added to the list and this Tribunal takes a fairly liberal view of that.

61. I accept, having regard to the comments of the tribunal in Hlubucek and Martins v Zhang, that an oversight in an inspection may be capable of being remedied a short time later. Additional latitude may, and should, be given where there was damage that was not capable of being identified by a visual inspection. However, the final inspection report should be considered the starting point for any assessment of damage. It is usually not appropriate to allow compensation for damage identified after the outgoing report is complete unless the damage was not reasonably capable of identification during the final inspection or unless there is clear evidence that establishes that the damage was caused by the tenant. Obviously, the longer the time between the end of the tenancy and the identification of the damage, the harder it will be for a lessor to meet this evidentiary burden.

62. In terms of whether the damage in this case was capable of identification during the final inspections, the agents suggested that the scratches in the glass door may have been missed because the damage is harder to see in full light. I accept this is possible - the DG Report pictures are taken at night, and the artificial lighting in the background may well make them easier to see. This may also explain why the new tenants identified the problem and the agents did not. The DG Report does not address this issue. I do not have sufficient evidence to make any finding of this point.

63. In terms of timing, I accept the new tenants incoming condition report as providing evidence that the glass on the door was scratched as at 29March2014. However, there is no detailed description of the scratches in the report, and no photographs were attached to the version filed with the Tribunal. I have no means of determining whether the scratching was as extensive at that date as it was when DG Glass undertook its assessment some months later. It is possible that the damage may have increased between the time the new tenants moved in and the time DG visited the property for the first quote, and for the purposes of the assessment. I can make no conclusive findings about this.

64. In terms of causation, I am being asked to accept, by way of submission, that it is obvious that the scratches were caused by the dogs claws. I do not have any evidence before me as to the cause of the damage, or indeed evidence before me that a dogs claws can even cause the kind of damage. If the agents had produced evidence that the scratch marks could be caused by a dog's claws (as opposed to, for example, harsh cleaning products), then it may have been open to me to infer, on the basis of the timeline, that the damage was more probably than not caused by the Tenant's dog. As the current evidence stands, it is not possible to draw that conclusion.

65. Accordingly, I am not satisfied that the tenant (or his dog) caused the damage to the glass door.

66. Given that I am not satisfied that the tenant is liable to compensate the Lessor for damaging the door, I do not need to assess compensation. However, I make the following observation: even if I were satisfied that the tenant had negligently damaged the glass door, I would still not be satisfied that the tenant is liable for the full cost of the replacement of the door. As noted above, there is no evidence that it does not open and close, lock, let light through, keep children in, or that it presents any danger to the occupants. The damage is cosmetic. The lessors are of course entitled to some compensation for the loss of value in their investment, and that investment has no doubt suffered a diminution in value as a consequence of damage to the door. However, that compensation would likely be something less than the full value of a new glass door.

Conclusion

67. The Tenant is to pay the Lessors the sum of $1130.50 comprised of:

(a) Rent arrears of $669.00, as agreed.

(b) $390.00 for the equivalent to six hours labour to restore the garden (three quarters of the work performed on the first day the gardener was in attendance).

(c) $71.50 being a nominal sum calculated by reference to 10% of the cost of the mulch and the labour to install the mulch on the subsequent day of work.

..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:

RT 1052/2015

PARTIES, APPLICANT:

Peter Edwards & Roslyn Edwards

PARTIES, RESPONDENT:

Brett Izzard

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Senior Member H Robinson

DATES OF HEARING:

31 May 2016

RT Act, section 83(d)

RT Act, subsections 29(1) and (2)

RT Act, subsection 30(1)

ACT Civil and Administrative Tribunal Act 2008 s.26

Hlubucek v Sinodinos; Sinodinos v Hlubucek [2007] ACTRTT 12 at [14]

At [14]

At [17]