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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Fair wear and tear
        -  Scratching to floodboards
        -  Where tenancy more than 10 years
        -  Where quote for repair obtained by tenant
        -  Minor damage to timber floors and marks on walls
        -  Objective standard to be used to assess



Scratching to floorboards   

The landlord applied to the Tribunal for compensation from the tenant.

The Tribunal noted that s 51 of the Residential Tenancies Act provides that a tenant must “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”.

The Tribunal noted that there was a Residential Tenancy Agreement in place and that the Tribunal therefore had jurisdiction to hear the matter.

The landlord attended the hearing. However the tenant sent documents to the Tribunal and asked that it be heard on the papers.

The landlord claimed that when the tenant had vacated the property there had been scratched floor boards and a cement rendered wall that required repainting.

When the tenants had vacated the property, the landlord had inspected the property and had passed it and the bond had been paid in full to the tenant.

The Tribunal noted that a tenant’s obligation is to leave the premises in the same condition as they found it, except for fair wear and tear. Since the tenancy had commenced in May 2009, some wear and tear was to be expected throughout the course of the tenancy.

The Tribunal stated that, on the photos supplied to it, it was not satisfied that the scratch damage complained about went beyond fair wear and tear. The Tribunal also noted that the need for repainting the wall had not been supported by photographic evidence.

Therefore the Tribunal dismissed the landlord’s application.

Spink v Blair [2012] NSWCTTT 2



Where tenancy more than 10 years 

The landlord lodged an application with the Tribunal, seeking compensation from the tenant of $3,045.00, and the payment of the bond to the landlord.

The landlord claimed costs for steam cleaning the carpet, painting the walls, replacing floor coverings, and a small amount of outstanding rent.

The tenants had occupied the premises for 10 years. They contended that the condition of the paintwork and carpet upon termination of the tenancy was merely that which was to be expected, considering fair wear and tear over the 10 years of the tenant’s occupancy. The tenant also pointed out that there was no reason to clean the carpet if it were to be replaced. The tenant agreed that he owed the small amount of rent claimed.

The landlord accepted that the paintwork and floor coverings had not been renewed for ten years, and that the carpet and paintwork would be fully depreciated for tax purposes and would normally be expected to be replaced.

The Tribunal held that it was not reasonable to hold the tenant liable for cleaning the carpet immediately before it was to be replaced, and that it was not the tenant’s responsibility to bear the cost of painting the walls. The Tribunal noted that the general standard of the rental premises was a relevant factor to take into account in determining what was fair wear and tear in the circumstances, and what it was reasonable for the tenant to be required to do.

The Tribunal made orders for payment of the small amount of rent that was outstanding, but otherwise ordered the balance of the bond to be paid to the tenant.

Keynorth v Manticas [2011] NSWCTTT 196 
    


Where quote for repair obtained by tenant 

Following the termination of a residential tenancy agreement, the tenants conceded that they damaged the lawn at the property while they were tenants, and that the damage continued at the end of the tenancy.

The tenants obtained a quote for $759 for repair of the lawn, and submitted it to the landlord’s managing agent.

At the hearing, the landlord’s agent conceded that the work had not been done, and that it may not be possible to do it, as the premises had been let to new tenants.

The Tribunal pointed out that a landlord has a duty to mitigate the loss caused by damage to the property. Therefore, even if the landlord were to have repairs done by another tradesman that cost more than $759, the amount the landlord could claim would be limited to $759.

At the hearing, the tenants submitted, for the first time, that the damage was fair wear and tear. The Tribunal held that the fact they had obtained a quote and submitted it to the landlord’s agent, without reserving their rights, amounted to an admission that the damage was their fault, that the work had to be done, and that the cost was acceptable to them. They could not now claim that the damage was fair wear and tear.

The Tribunal considered that the appropriate order was that the entire bond be returned to the tenants, but that, if the landlord ever does the work required to repair the lawn, the respondents must pay the cost, up to $759.

Jablonski v Mantle & Keith [2011] NSWCTTT 3



Minor damage to timber floors and marks on walls 

The landlord sought the rental bond in compensation from the tenant for breach of the Residential Tenancy Agreement. The compensation was for re-sanding floors, repainting damaged walls, cleaning pavers and rekeying locks.

After the hearing, the landlord sought to introduce further evidence and make further submissions. However, as the hearing had already been finalised and the tenant did not have an opportunity to comment upon the further evidence, the Tribunal rejected the further evidence and submissions.

The landlord relied on the condition reports at the start and end of the tenancy.

The Tribunal referred to cll 13.3 and 13.4 of the Residential Tenancy Agreement. Under cl 13.3, the tenant agreed not to intentionally or negligently cause or permit any damages to the premises. Under cl 13.4, the tenant agreed to leave the premises in as nearly as possible in the same condition (except for fair wear and tear) as set out in the condition report completed at the start of the tenancy.

The Tribunal accepted that the floors were clean and undamaged at the start of the tenancy. Further, the Tribunal accepted that, at the end of the tenancy, there were small indentations and small scratches on the floor. The Tribunal took into account that the floors were polished timber floors and that the tenant and her husband had lived in the premises for about 21 months. The Tribunal was not convinced that the damage to the floor went beyond fair wear and tear, and rejected the landlord’s claim for compensation in this respect.

The Tribunal also found that the tenants had caused some minor damage to the walls and pavers, but again held that this was fair wear and tear.

The tenants did not dispute that that landlord was entitled to $316 for rekeying locks, and so this was the only compensation that the Tribunal ordered.

Acevska v Foss [2010] NSWCTTT 541



 
Objective standard used to assess 

The landlord commenced proceedings in the CTTT against the tenant for vacant possession of the leased premises. After an initial hearing, the parties agreed that the residential tenancy agreement would be terminated, that the tenant would give vacant possession to the landlord by a certain date, and that the tenant would pay an occupation fee and arrears of rent. The tenant also agreed that he would repair certain occurrences of damage to the property. There remained a dispute between the parties regarding the tenant’s liability for certain other occurrences of damaged property.

The tenant brought his own application to the CTTT for an Order that he be paid the rental bond.

Section 26 of the Residential Tenancies Act 1987 (NSW) provides that the tenant must leave the premises in as nearly as possible the same condition as it was before the tenancy, except for fair wear and tear. The CTTT pointed out that “fair wear and tear” is not a subjective standard that differs for each landlord. Rather, it is an objective standard to be assessed according to the situation “commonly prevailing among tenants of comparative premises”. Further, the landlord must take appropriate action to mitigate any loss suffered.

The CTTT found that the damage in dispute in this case went beyond the fair wear and tear that might be expected during a 20-month tenancy.

The CTTT ordered compensation to the landlord of $2,290.50, and ordered that the bond should be retained by the landlord, and should be deducted from this amount.

Burgin v Primrose [2010] NSWCTTT 383