Last update: 25 February 2007.

The Small Claims Tribunal Act 1973 provides that the hearings of claims in the tribunal shall be held in private and not open to the general public. The Referee has control of the conduct of the hearing and can therefore allow other persons to be present at the hearing. Persons with legal qualifications and legal advocates are prohibited at hearings unless all parties and the Referee agree. The Referee can permit support persons and observers to attend the hearing. Tenant advice workers can appear as a support person to the tenant or may be permitted to appear as an agent of the tenant if the person has sufficient knowledge of the case. The right of any person to appear is at the discretion of the individual Referee.

Can agents charge fees for re-inspection of premises or for call out to premises where tenants have lost keys etc?

The Residential Tenancies Act 1994 (The Tenancies Act) provides for agreements between lessors and tenants. There is no provision in the legislation for specific agreements between the tenant and the agent. The agent is simply that, an agent of the lessor. Two provisions of the Tenancies Act would appear to prohibit terms in the agreement where the tenant agrees to pay the agent certain charges. Section 95 prohibits collateral contracts where a tenant agrees to pay for services of a person as part of the agreement. ?Services? may be interpreted as paying for agents to attend premises for inspections or for other reasons. Section 96 declares that a term in an agreement is void if the term exposes a tenant to a payment as a penalty for a breach of the agreement. The tenant is liable for any cost incurred to the lessor such as replacement of keys or cleaning or damage to the property but the tenant cannot be charged a fee as a penalty for committing that breach.

When is a tenancy terminated in relation to the return of keys?

Section 151 of the Tenancies Act provides that the tenancy agreement terminates when the tenant hands over possession of the premises on or after the handover date in a Notice to Leave (RTA Form 12) or a Notice of Intention to Leave (RTA Form 13). For a tenant to hand over possession of the premises there must be a physical act by the tenant indicating that they have surrendered their right to occupy the premises. The most common means of doing this is by the tenant returning the keys of the premises to the lessor or the agent. It is not necessary that all keys be returned. If eventually all keys are not returned, the agent/lessor may seek compensation. The tenant may indicate by letter or orally that he has vacated the premises even though no keys are returned.

How is damage to carpet assessed?

Where the tribunal is satisfied that the tenant is responsible for damage to carpet in the premises, the Referee should then look at three matters namely whether the carpet needs replacing or just repairing, the age of the carpet, and finally the condition of the carpet when the tenant commenced the tenancy. The lessor is not entitled to recover the full cost of replacement of the carpet from the tenant. It is generally accepted that the life of carpet in a premises is 10 years and the replacement cost should be depreciated accordingly. Another factor that may be taken into account is the condition at the beginning of the tenancy. If the carpet was badly damaged at the start of the tenancy the amount paid by the tenant should be reduced and likewise if the carpet was in a good condition the tenant should pay slightly more than the depreciated value.

How does the tribunal assess claims by tenants for loss of amenities?

There is no set formula that is used by the tribunal in these situations. The tenant must have taken early action to lodge the claim. The tribunal would be reluctant to award compensation to a tenant who lodges a claim years after a problem has arisen. The tenant would be entitled to greater compensation for loss of a room in the premises than to the loss of a dishwasher. The amount awarded would depend on the type of loss, duration of loss, and the rent of the premises. These cases are simply determined on their individual merits.

By Bill Randall, Magistrate and Referee, Small Claims Tribunal