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H & H PROPERTIES UK LIMITED AGAINST MARC DOURIS & LINZI DOURIS


Submitted: 26 January 2017

 SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

SA236/16

[2017] SC DUN 18

JUDGMENT OF SHERIFF SG COLLINS QC

 

in the cause

 

H & H PROPERTIES UK LTD.

Pursuer

against

 

MARC DOURIS & LINZI DOURIS

Defenders

 

Act:   Forsyth, Muir Myles Laverty, Solicitors

Alt:   (1) Party (2) Absent

 

Dundee, 26 January 2017

The Sheriff, having resumed consideration of the cause, grants decree against the defenders jointly and severally for payment to the pursuer of the sum of £1,648 with interest thereon at the rate of 8% per annum from date of citation until payment; finds the defenders liable in the expenses of the cause on the small claim scale.

 

Findings in Fact:

  1. The pursuer is a limited company.  They are owners of the residential premises at 23 Donald’s Court, Dundee, DD2 2TN, a modern, three bedroom townhouse (“the subjects”).   The defenders are husband and wife.  They leased the subjects from the pursuer with date of entry on 25 November 2011, and occupied as joint tenants until around 7 December 2015, together with their children.
  2. Between 25 November 2011 and 24 November 2013 the defenders’ tenancy was in terms of the lease agreement signed by them on 22 November 2011, part of which is lodged as pursuer’s production 1/1.  The rent was £725 per month payable in advance.  The defenders paid a deposit of £725 by the date of entry.  This deposit was lodged by the pursuer with a registered tenancy deposit scheme.  Between 25 November 2013 and 7 December 2015 the defenders’ tenancy was in terms of the lease agreement signed by them on 17 October 2013 and now lodged as production 1/2 for the pursuer.   The rent was increased to £750 per month under this agreement.  No further deposit payment was made.  The £725 paid by the defenders under the earlier lease continued to be held under the deposit scheme in relation to the defenders’ obligations under the second lease agreement.  Otherwise the second lease was in materially identical terms to the first. 
  3. Throughout the tenancy, therefore, the clauses of the lease agreement relevant to the present proceedings were as follows.   Clause 5 provided:

    “RENT

     

    The rent is… per calendar month payable in advance… “

     

  4. Clause 6 provided:

    “6.  DEPOSIT

     

    At the date of entry or before a deposit of £725 … will be paid by the tenant… No interest shall be paid by the landlord in respect of the said deposit.  The landlord will be entitled at the expiry of termination of the lease to use the deposit to meet any outstanding sums or accounts due by the tenant, the cost of repairing or replacing any of the fittings and fixtures which have been broken, damaged or lost and the expense of making good any failure by the tenant to fulfil any of the other conditions of this lease…”

     

  5. Clause 15 provided as follows:

    “15.  ALTERATIONS

     

    The tenant agrees not to make any alteration to the accommodation, its fixtures or fittings, nor to carry out any internal or external decoration, change any of the locks in the accommodation or add new locks without the prior written consent of the landlord.  If putting up pictures etc. we ask that you be careful.  If there are any damages to the walls relating to pictures/art being hung, then we will ask you to repair to the standard the house was being handed over to you.” (sic)

     

  6. Clause 19 provided:

    “19.  PETS

     

    It is agreed that there will be no pets allowed within this property.”

     

  7. Clause 28 provided:

    “28.  PAYMENT FOR REPAIRS

     

    The tenant will be liable for the cost of repairs where the need for them is attributable to his fault or negligence, that of any person residing with him, or any guest of his.”

     

  8. Clause 31 provided:

    “31.  Re-decoration of the property – wall papering isn’t allowed at all.  If painting is carried out, then it is the Tenants responsibility to repaint the property before vacating.  If this isn’t done and the colour is not suitable for the new tenants then the re-decoration costs will be deducted from the deposit held.”

     

  9. Clause 32 provided that:

    “32.  RESPONSIBILITIES OF TENANT BEFORE MOVING OUT

     

    Before moving out of the accommodation, the tenant must do the following:

    i.  leave it in a clean and tidy condition and in good decorative order…

    …vi.  remove any fixtures and fitting installed without the landlord’s written permission and put right any damage caused;

    vii.  do the repairs the tenant is obliged to do;

    viii.  replace any of the fixtures, fittings or furnishings in the accommodation which have become lost…”

     

  10. The subjects were newly built by the pursuer, and were newly carpeted and decorated throughout shortly prior to the start of the defenders’ tenancy.  
  11. During their occupation of the subjects the defenders:
    1. kept a cat as a pet, contrary to the terms of clause 19, locating its litter tray in the utility room of the subjects.  As a result the lino on the floor of this room smelt of cat urine on the defenders’ departure;
    2. hung strongly patterned wallpaper in the lounge and kitchen of the subjects, but did not remove it and restore these rooms to their original decorative state on their departure;
    3. painted one wall of each of the three bedrooms with a strong primary colour (brown, dark pink and blue respectively), without the written permission of the landlord,  and did not repaint these walls to the original buttermilk colour on departure;
    4. caused minor cosmetic damage to internal walls throughout the subjects (chips, scratches, pin holes, damage caused by attaching adhesive hooks), and did not repair these prior to departure;
    5. caused minor discolouration of a number of internal wall surfaces throughout the subjects.  However this was as a result of ordinary usage of the subjects as domestic premises, and these walls remained in generally good decorative order;
    6. damaged a carpet in one of the bedrooms by scorching a small area, roughly the size of a 20 pence piece, in the centre of the room;
    7. removed a pendant light fitting in the utility room and replaced it with a spotlight fitting, and removed and replaced pendant light fittings in the kitchen and downstairs toilet.  They did not have the landlord’s written permission to do this.  They did not remove any of them on departure;
    8. damaged a plug socket in the utility room.   They did not repair or replace this prior to departure;
    9. damaged three internal (fire) doors in the property by scratching or marking them.  A fourth door, to the bathroom, had become discoloured by ordinary use due to it opening onto a fixed radiator located on the wall behind it;
    10. removed a window blind in one of the bedrooms, without the prior permission of the landlord, and did not replace it on leaving the subjects; and
    11. stained a carpet in the master bedroom.  The defenders had hired professional carpet cleaning equipment shortly prior to their departure and used it to clean the carpets throughout the subjects, but they did not remove this particular stain.
  12. Following the defenders’ departure the pursuer arranged for the subjects to be inspected, and produced a ‘check out report’ dated 8 December 2015, now pursuer’s production 2/1.   In December 2015 and January 2016 the pursuer obtained estimates for redecoration, repair and replacement of certain items, now set out in pursuer’s production 1/5(a) – (g).  A schedule of these estimates is set out in pursuer’s production 1/5.  Certain works were subsequently carried out between around May and September 2016, at cost to the pursuer.  Invoices for these works are lodged as pursuer’s productions 3/1 to 3/6.     
  13. In particular (all figures being rounded down to the nearest pound):
    1. The pursuer instructed replacement of the lino in the utility room at a cost of £130 including VAT (production 3/2).   An earlier quotation of £92 had been obtained for this work from a different tradesman (production 1/5(g)).   The pursuer chose not to use this tradesman but to incur the higher cost;
    2. The pursuer instructed complete redecoration of the lounge and kitchen, to remove the wallpaper hung on two walls by the defenders and to repaint these and all other walls with two coats of paint (pursuer’s production 3/1(a)).   The cost of removing the wallpaper and painting the kitchen walls was £172 excluding VAT.  The cost of removing the wallpaper and painting the lounge walls was £373 excluding VAT;
    3. The pursuer instructed complete redecoration of the three bedrooms, one wall of each of which had been painted by the defenders, with two coats of paint.   The total cost of this work was £440 excluding VAT (pursuer’s production 3/1(a));
    4. The pursuer instructed redecoration of the remainder of the subjects, namely by painting the hallways, cloakroom, utility room, and bathroom with two coats of paint, at a total cost of £507 excluding VAT (pursuer’s production 3/1(a));
    5. Ancillary to the above redecoration, the pursuer instructed the preparation and filling of all pin holes in the walls and the removing of self adhesive plastic hooks.   The total cost of this work was £200 excluding VAT (pursuer’s production 3/1(a));
    6. The pursuers instructed replacement of the bedroom carpet with the scorch mark at a cost of £118 including VAT (pursuer’s production 3/2).  An earlier quotation for £137 had been obtained, but was not accepted (pursuer’s production 1/5(b)).
    7. The pursuer instructed electrical works, namely replacement of the new light fittings installed by the defenders in the kitchen, utility room and cloakroom, replacement of the damaged plug socket in the utility room, and the carrying out of an Electrical Installation Condition Report.  The total cost of these works was £202 excluding VAT (pursuer’s production 1/5(c));
    8. The pursuer instructed replacement of four internal fire doors in the subjects.  The total cost to them of supplying and fitting these doors was £644 including VAT  (pursuer’s productions 3/3 and 3/4), that is, £161 per door.
    9. The pursuers instructed refitting of the bedroom window blind which had been removed by the defenders.  The cost to them of this work was £30 including VAT (pursuer’s production 3/4);
    10. The pursuers instructed professional cleaning of the subjects, to include carpet shampooing throughout and a light clean of the oven and extractor hoods and filters.  The total cost of this work was £135 including VAT (pursuer’s production 3/5);

       

  14. When the defenders’ lease ended the pursuer’s intention was to sell the property.  Subsequently, in around mid 2016, the pursuer contracted with a third party company to re-let the property.  It was then re-let to new tenants in or around July 2016.   The pursuer remains the owner of the subjects but is not a party to the new lease. 
  15. When the defenders left the subjects they owed rent to the pursuer in the sum of £1,131, which remains unpaid.
  16. The pursuers have now recovered the defenders’ payment of £725 from the registered tenancy deposit scheme.   The defenders accept that the pursuer is entitled to retain this sum, in part payment of the unpaid rent and any other sums remaining due under the tenancy.

     

    FINDS IN FACT AND LAW

  1. The defenders are in breach of the lease between the parties by failing to pay rent due under clause 5 amounting to £1,131.
  2. The defenders are variously in breach of clauses 15, 19, 28, 31 and 32 of the lease, by hanging wallpaper, repainting walls, replacing fixtures and fittings, all without prior permission, damaging a plug socket, and failing to leave the subjects in a fully clean and tidy condition.
  3. The total recoverable loss to the pursuer of the said breaches of lease by the defenders is assessed at £1,242. 
  4. The pursuer being entitled to retain the defenders deposit of £725 in terms of clause 6 of the lease, they are liable to pay to the pursuer a further £1,648, with interest thereon at the rate of 8% per annum from the date of citation until payment.

     

    NOTE

  • [1]In this small claim the pursuer seeks to recover unpaid rent and damages for dilapidations in relation to the defenders’ tenancy of the residential premises at 23 Donald’s Court, Dundee DD2 2TN between 25 November 2011 and 7 December 2015.  The pursuer was represented by their solicitor, Mr Forsyth.  The first defender appeared personally on his own behalf.   He also represented the second defender, his wife.  No objection was taken by Mr Forsyth to him doing so.  I heard evidence at a proof diet on 29 August 2016.  The evidence not being concluded on that date the proof was adjourned until 6 December 2016.  On that date the first defender was absent through illness and the proof was further adjourned and concluded on 13 December 2016. 
  • [2]Only two witnesses gave evidence.  Alison McKelvie, a property manager employed by the pursuer, gave evidence on their behalf.  The first defender gave evidence on his own behalf and on behalf of the second defender.  Having heard this evidence I heard submissions from Mr Forsyth and from the first defender and reserved judgment.   
  • [3]There was no dispute that the defenders left the property owing rent in the sum of £1,131.84.  However the pursuer sought payment of an additional £2,500.35 by way of the costs of redecoration, replacement and repairs, which it was claimed were due as a result of the defenders’ alleged breaches of their lease.   As it was common ground that the pursuer had recovered the whole of the defenders’ deposit of £725, and that they were entitled to retain all of this sum as part payment towards either the rent arrears or dilapidation costs, the net figure sued for was £2,907.19.  The first defender accepted that the defenders were due to make some additional payment for dilapidations, but argued that some of the particular costs which the pursuer sought to recover were unjustified or in any event excessive.
  • [4]Mr Forsyth, for the pursuer, submitted in substance that the issue for the court was as to the measure of damages in relation to the each of the costs being claimed.  He submitted that this was a matter for me to assess, essentially by reference to what I considered reasonable, accepting that this might be a matter for a broad judgment rather than precise calculation.  He referred to Re Johnson [2005] RVR 179, a decision of the Lands Tribunal, concerning a claim for a disturbance payment under the Lands Compensation (Scotland) Act 1973.    He suggested that this was illustrative of the approach that I might take.  In particular, although he pointed out that the pursuer had in relation to some of the items claimed made a 10% per annum deduction to reflect ‘wear and tear’, he accepted that it was a matter for me to decide whether I considered that approach, or that percentage, to be reasonable in each case.  He submitted that it was.
  • [5]The devil is in the detail in cases such as this.  The pursuer has to establish that the defenders were in breach of their lease, that they were caused loss by the breach, and that the sums which they claim by way of damages are a proper measure of that loss, that is, reasonable, proportionate and not amounting to betterment (‘new for old’).   Where as here there is a long schedule of dilapidations, all these matters must be considered item by item.   Even if the defenders breached their lease in one respect, giving rise to actual loss to the pursuer for which a reasonable sum is claimed, it does not follow that the same will be true for some or all of the other items on the pursuer’s schedule.   
  • [6]Too little attention was given at the proof, in my view, to the actual terms of the tenancy agreement between the parties.   The approach taken by the pursuer was rather to focus on the high standard which they expected the subjects to be in, prior to re-letting them, as if somehow that expectation gave them entitlement to charge the defenders for all the costs of putting the subjects back into that state at the end of the lease.    It was rather assumed that the particular obligations placed on the tenant in the lease agreement between the parties were sufficient to justify this approach.  In my view, however, they were not.  That can be seen by examining more closely the terms of the various clauses which I have set out above. 
  • [7]Clause 6 relates to the payment of the deposit. However it does not create substantive obligations on the tenant as regards breakages, damage or loss of fittings and fixtures.  It merely entitles the landlord to deduct from the deposit the expense to it of making good such matters insofar as they arise from breach by the tenant of substantive obligations elsewhere in the lease.  Accordingly the pursuer cannot look to this clause to provide a basis for any claim for damages for dilapidations.
  • [8]Clause 15 relates to alterations to the subjects.  The first part of the clause obliges the tenant not to alter fixtures and fittings or redecorate without prior written consent.   To do so would therefore be a breach of the lease, but this clause does not provide, in the event of such a breach, that the landlord will thereby be entitled to reinstate the subjects to its original condition, nor that the tenant will be liable for the costs of same.   The second part of this clause does set a standard of repair amounting to reinstatement, but it does not impose any enforceable obligation on the tenant.  It merely amounts to a request to them to repair any damage to the walls specifically caused by hanging pictures or art. 
  • [9]Clause 19 prohibits the keeping of pets in the subjects.  This obligation at least is clear and peremptory.  Understandably, however, it does not prescribe any particular measure of damages in the event of breach.
  • [10]Clause 28 provides for payment for repairs.  Again, it does not impose any general obligation to reinstate the property to its original decorative order or standard at the end of the lease.   It obliges the tenant to pay the cost of repair for damage caused by them through fault or negligence, but not the cost of replacement of any damaged item.    The specific requirement in the clause that for breach there be fault or negligence on the part of the defenders has the effect, in my view, that it was not intended to create liability for the cost of repairing damage which was merely caused accidentally or through ordinary and reasonable use (‘wear and tear’).   It follows that in order to recover a cost of repair of any given item the pursuer must first establish that the damage to it was through fault or negligence by the defenders rather than accident or through ordinary and reasonable use.  
  • [11]In my view this puts the question of wear and tear into clearer focus.  If the tenant has breached clause 28 of the lease by damaging the subjects through fault or negligence, then it may perhaps be appropriate to assess the proper measure of damages by reference to the cost of reinstatement (for example, rather than cost of repair).   In such a case, however, the landlord would in principle recover new for old, and a deduction for wear and tear, relative to the age of the damaged item as against its reasonably anticipated lifespan, may then be appropriate in order to avoid betterment.   However if the damage to a given item arises only as a result of wear and tear due to ordinary and reasonable use of it during the tenancy, then the correct analysis should be that there is no fault or negligence on their part, thus no breach of clause 28.  Accordingly no damages will be due at all by reference to this clause.
  • [12]Clause 31 (or rather, the first clause 31, as there are two clauses in the lease with this number) makes specific provision for redecoration of the subjects.  Insofar as clause 15 also relates to redecoration it must, in my view, be read subject to this clause.   It too does not impose a general obligation on the tenant to return the subjects at the end of the lease to the same colour and/or standard of decoration as they were in at the date of entry.  It imposes in the first place a clear and peremptory obligation not to wall-paper any part of the subjects, but does not provide that on breach that the tenants will be liable for the cost of removal and redecoration.   As regards repainting of the walls, express provision is made for failure to repaint at the end of the tenancy.  This is that the tenant is made liable for redecoration costs, but conditional on whether the colour is or is not suitable for the next tenant.  It would seem to follow that if there is no new tenant, the old tenant will not be liable for the cost of redecorating the painted walls at all.  It would also seem to follow that if there are new tenants, a liability on the part of the old tenant only arises if the colour is not suitable for those tenants.  That presupposes that the new tenants have at least been asked about the matter, as it would be difficult to understand how the colour could not be suitable for them if they had said that it was.  This might all rather suggest that in order to establish a breach of this part of this clause the pursuer has to prove that the subjects were indeed re-let and that that the new tenants did not consider the colour suitable.
  • [13]Clause 32 makes particular provision for the tenants’ responsibilities on moving out.  As regards sub-clause (i), what is ‘clean and tidy’ and ‘good decorative order’, is a matter to be judged objectively and reasonably.  It does not impose a general obligation on the tenant to have any part of the subjects professionally cleaned, nor to return the decoration to its original state and standard.   Sub-clause (vi) does oblige removal of fixtures and fittings installed by the tenant without written permission, but then only to put right damage caused thereby, that is, it too does not oblige the tenant to reinstate matters to their condition at date of entry.  Sub-clause (vii) requires the tenant to do the repairs he is obliged to do, but this begs the question of what these are, for which it is necessary to look elsewhere in the lease.
  • [14]With all the above considerations in mind, it is then necessary to consider the particular costs which the pursuer seeks to recover, in the light of the parties’ respective positions in relation to them.
  • [15]As regards the claim for replacement of the lino in the utility room, this arises from the admitted facts that the defenders kept a cat as a pet and located its litter tray in this room.  The first defender accepted that they had done so without permission, but argued that the pursuer was aware of this yet had not taken any action to enforce clause 19 of the lease.  However in my view the defenders clearly breached this clause and they have not satisfied me that the pursuer truly acquiesced in the breach.   I therefore accept that the pursuer is entitled to damages for loss arising from it.  In that regard Ms McKelvie’s evidence was that a third party had reported to her that the utility room smelt of urine, and this could only be referable to the previous presence of the cat litter tray.  The first defender denied this but I preferred the pursuer’s evidence.   The first defender may have been become used to any smell arising from the cat tray.  The third party who reported the smell to Ms McKelvie was not, as far as I could tell, previously aware that a cat tray had been kept in the utility room.    In these circumstances I considered that it was likely that cat urine had seeped into the lino, causing the smell, and that the cost of replacement was therefore a reasonable measure of the pursuer’s loss arising from the breach of clause 19.     Replacement of the lino in fact cost the pursuer £130 including VAT, but a quote for £92 for this work had previously been obtained, and no good reason was given as to why the work was not done at this lower cost.  I consider that it is reasonable to assume a ten year life span for the original lino, and to discount the replacement cost by 10% per year of the four years of the tenancy to account for wear and tear and so avoid betterment.  Thus the pursuer’s recoverable loss in relation to this item is assessed at £55 (£92 less 40%).
  • [16]As regards the claim for the costs of redecoration of the lounge and kitchen I consider it clear that the defenders were in breach of clause 31 of the lease by wallpapering these rooms.   The first defender did not dispute this.  Nor did he suggest that the pursuer was not entitled in the circumstances to the claimed costs for removing the wallpaper and repainting all the walls of these rooms.   This amounted to £373 excluding VAT subject to a deduction for wear and tear.  Adding VAT @ 20% makes £447.  The pursuer sought a 10% deduction per year of the tenancy for wear and tear, but that assumes a 10 year lifespan for the original decoration and I thought that rather optimistic.  Taking a 15% annual deduction would assume a more realistic 6 to 7 year lifespan.   On this basis the pursuer’s recoverable loss in relation to this item is assessed at £268 (£447 less 60%).  
  • [17]As regards the claim for the cost of the complete repainting of the three bedrooms, the first defender did not dispute that one wall of each of these rooms had been painted without permission contrary to clause 15 of the lease.   There was clearly a breach of this clause.   The first defender did not appear to dispute that some payment was therefore due, but as regards the walls in these rooms which he had not painted he complained that at best only one coat of paint would have been necessary, not two.    Ms McKelvie’s position was simply that the pursuer was entitled to redecorate these rooms so as to remove the defender’s colour scheme and return them to their decorative state at the start of the lease.   To that extent it is apparent that she did not consider the defenders’ choice of colour to be suitable for new tenants.  However the pursuer first sought to recover the full cost at a time when the intention was not to re-let the subjects but to sell them.  And although the subjects were later re-let the evidence did not clearly establish that the new tenants had been asked whether they considered that the colour was suitable or not.    I think it therefore questionable that the damages provision giving entitlement to redecoration cost in clause 31 should be relied on.  However standing the first defender’s concession that at least some of the costs of redecoration of these rooms are recoverable, and assuming a fair wear and tear deduction, I am satisfied that damages should be awarded under this head on the basis of the costs of reinstatement less a wear and tear deduction.  The total cost of the work was £440 excluding VAT.  Adding VAT makes this £528. Assuming again a 15% per annum wear and tear deduction to avoid betterment, the pursuer’s recoverable loss is £211 (£528 less 60%).
  • [18]As regards the claim for repainting of the hallways, cloakroom, utility room, and bathroom, Ms McKelvie was taken to various part of the check out report, pursuer’s  production 2/1, and some of the many photographs in it, to illustrate what was said to be damage or discolouration requiring the redecoration of these rooms.   In my view however the evidence did not establish that any damage in these areas had been due to fault or negligence of the defenders.   Indeed what the report suggests is at worst relatively minor accidental damage to these rooms consistent with ordinary and reasonable use of the subjects as a residential dwelling for a family over a period of four years, that is, wear and tear.   For the reasons discussed above I am therefore not satisfied that the defenders were in breach of clause 28 of the lease in this regard.  Nor, looking at the matter reasonably and objectively, am I prepared to hold that it is established that these rooms were not in good decorative order at the end of the lease contrary to clause 33.  None of the other clauses of the lease give rise to an obligation on the part of the defenders to pay the costs claimed under this head.   I am therefore not satisfied that the pursuer is entitled to them.
  • [19]As regards the claim for preparation of the wall and filling of all pin holes in the walls, I would accept that this sort of work is reasonably necessary and ancillary to the cost of redecoration of the kitchen, lounge and bedrooms, the claim for some of the costs of which I have allowed.    However I have not allowed the claim for repainting of the other rooms in the subjects so this approach would not apply insofar as the preparation work was done in these other rooms.  Moreover there is no freestanding provision in the lease requiring the defenders to pay for this item as such.  Clause 15 contains a request in this regard, not an obligation. Again it seems to me that any damage does not go beyond ordinary reasonable use of the subjects, and accordingly no entitlement arises under this head by virtue of clause 28 either.  In these circumstances I find that one half of the £200 claimed is ancillary to the kitchen, lounge and bedroom redecoration, thus £100.  Adding VAT makes £120.   I will make no further deduction for wear and tear.
  • [20]The pursuer also claimed the sum of £158 for making good holes in the kitchen ceiling where the light fittings had been changed and then painting it (pursuer’s production 3/1(a)).   I was not satisfied on the evidence that this work was actually carried out however.  The first defender admitted to replacing the pendant light fitting in the kitchen but said that he used the same hole to do so and that therefore there would have been no need to fill any holes or repaint.  Ms McKelvie seemed rather unsure about this, and had not herself inspected the property.   She had just been told by her boss that ‘all the work had been done’ – at least by the time of the adjourned diet of proof on 13 December 2016.   I did not find this very convincing and was not persuaded that these particular items of work had in fact been carried out, let alone that it was necessary to do so.  Even accepting that the defenders were in breach of clause 15 by replacing the light fitting, therefore, I am not satisfied that the pursuer has in fact suffered the loss claimed, and nor that there is entitlement to damages under this head of claim.
  • [21]As regards the cost of replacement of the scorched bedroom carpet, Ms McKelvie’s position was that given the nature and location of the mark, and the quality of the carpet, it could not be repaired, or at least that any repair would be no less unsightly than the mark itself.  The first defender did not dispute, as I understood him, that the defenders had some liability in this matter, that is, that there was fault or negligence amounting to a breach of clause 28.   He did argue, without any specialist evidence to support it, that the carpet could be repaired, but in any event he objected to paying for the complete replacement of a 12 square metres of carpet on the basis of a scorch mark the size of a 20 pence piece.    I was not prepared to accept it as established that the carpet could be repaired, but nor was I prepared to accept that the cost of replacement (£118 including VAT) was the proper measure of damages.   The carpet remains a four year old, relatively cheap carpet, but which remained fully functional apart from a small aesthetic defect which could easily be covered with a rug or piece of furniture.   I will assess the pursuer’s recoverable loss at £25 under this head.
  • [22]As regards the various electrical works referred to in the quotation at production 1/5(c), different considerations apply to each.   As regards the broken plug socket in the utility room, the first defender admitted liability for this, and accepted that the defenders should pay the replacement cost.  The quotation does not break down the cost of this item but I will assess it at £25, parts and labour.  As regards the cost of replacement of the light fittings, I have already indicated that I am not satisfied that this work was actually carried out as regards the kitchen nor the necessity for it, and given the confusion in the pursuer’s evidence I am not prepared to take a different approach in relation to the light fittings in the utility room and cloakroom.  So I am not satisfied that any recoverable loss arises in relation to these.  As regards the claim for the cost of the carrying out of the Electrical Installation Condition Report, I do not accept that this cost can be passed on to the defenders.  The pursuer’s position was that it was necessary because the defenders had changed the light fittings just mentioned.  However in my view this report was really necessary because it was a legal obligation on the pursuer as landlord to produce it. The relevant statutory provisions are section 19A of the Housing (Scotland) Act 2006 read with Article 3(1)(b) of the Housing (Scotland) Act 2014 (Commencement No. 3 and Transitional Provision) Order 2015 SSI 2015/272.   Given that the defenders’ tenancy was still in existence on 1 December 2015, read together these provisions required the pursuer as landlord to have an electrical safety inspection undertaken no later than this date.   They did not do so.  In any event the inspection and report were necessary in order to re-let the subjects, which was done from July 2016.  It is obvious that the inspection and report, which was not done until June 2016, was preparatory to the new let, and again this was the landlord’s responsibility.  In my view it is wrong in both fact and law to attempt to pass the cost on to the defenders.  The total recoverable loss under this head therefore remains the £25 estimated cost of the plug socket repair.
  • [23]As regards the claimed cost for replacement of the four internal doors, Ms McKelvie said by reference to the check out report that these were fire doors, and that although the damage to them might appear relatively superficial, it had broken the sealing on them thus compromising their fire resistance.   The first defender took some issue with this in cross examination, but ultimately he accepted liability for damage to three of the four doors, and did not dispute, in the face of Ms McKelvie’s evidence, that the appropriate measure of damages was the cost of replacement of them.  Where he stood his ground was in relation to the door to the bathroom.   The photographs of this door did not, he suggested, show breaking of the seal but simply discolouration.  Furthermore, he said that this was due to the fact that the door, by design, opened onto a radiator located behind it.  It was heat from this radiator which had caused the area of discolouration.   In my view there is force in this argument.  It seems to me that the defenders did not breach clause 28 of the lease as regards the bathroom door.   Any damage to it arose from normal use, standing the location of the radiator, and not fault or negligence on their part.    I will therefore assess the pursuer’s recoverable loss as being the cost of replacement of three of the four doors, thus £483 including VAT (3 x £161). 
  • [24]As regards the claim for the cost of refitting the bedroom window blind there was no dispute.  The first defender accepted that he had removed it, contrary to clause 15 of the lease, and that the defenders were liable for the cost of replacement.   The pursuer’s recoverable loss under this head is therefore the £30 claimed.
  • [25]As regards the pursuer’s claim for the professional cleaning of the carpets, Ms McKelvie’s evidence was that this was necessary because the defenders had kept a cat in the subjects.  She said that the pursuer had written to the defenders shortly before they left the subjects asking that they have the carpets professionally cleaned and indicating that they would be charged if they did not do this.  The first defender’s evidence was that he had himself hired professional cleaning equipment and had used it to clean all the carpets.  He accepted that he had inadvertently overlooked, and so failed to remove, a stain on the carpet of the master bedroom, and he accepted that the defenders were liable for the cost of further cleaning of that.  However he disputed liability for any additional cost.  As regards the claimed cost for the cleaning of the cooker and hood, he said that this was not necessary, and referred to the relevant photos in the check out report which he said supported his position.   Taking this last matter first, I accept the first defender’s evidence.  As far as I can see the cooker and hood were reasonably clean and tidy.  That is borne out by the photographs.  Even the invoice at production 3/5 only refers to a ‘light clean’.  I do not accept that the defenders left the cooker in a state amounting to a breach of clause 32(i) of the lease.  As regards the carpet cleaning, and accepting the first defender’s concession regarding the stain on the master bedroom carpet, I am prepared to assess the defenders as liable for the cost of this by virtue of breach of clauses 15 and 32(i). Beyond that it seems to me that the costs claimed are not made out.   I was prepared to accept that the first defender had indeed cleaned the carpets using professional cleaning equipment prior to departure.  Therefore while the breach of clause 19 relative to the keeping of the cat might in principle have justified the landlords having the carpets cleaned, it was incumbent on them to show the need to do so for this reason notwithstanding the cleaning already carried out by the first defender.   That has not been done, indeed no effort was made to do so.  I also am satisfied that standing the first defender’s efforts the carpets were (with the exception of the master bedroom) sufficiently clean and tidy in conformity with clause 32(i).  That being so, the failure of the defenders to instruct a professional third party to clean the carpets is not in itself a breach of any clause of the lease and accordingly the pursuer is not entitled to recover the cost of it.  Any letter which Ms McKelvie might have sent to the defenders (which in any event was not produced) is neither here nor there given that it is to the lease that the pursuer must look in order to found any claim for damages.    I will assess the cost of re-cleaning the master bedroom carpet at £25.
  • [26]In the light of all this I am satisfied that the total recoverable cost of redecoration, replacement and repair arising from the defenders’ breaches of their lease is as follows:
    1. Replacement of lino in utility room:                               £55
    2. Redecoration of lounge and kitchen:                              £268
    3. Redecoration of bedrooms:                                              £211
    4. Redecoration other than the above                                £nil
    5. Preparation, filling of holes, etc.                                     £120
    6. Repairing holes in kitchen ceiling and painting             £nil
    7. Scorched bedroom carpet                                                            £25
    8. Electrical works (socket, light fittings, EICR)                 £25
    9. Replacement of internal fire doors                                  £483
    10. Refitting window blind                                                   £30
    11. Cleaning                                                                           £25

 

Total:                                                                                       £1,242

 

  • [27]Adding this to the admitted liability for unpaid rent of £1,131 (rounded down to the nearest pound) and subtracting the £725 deposit to which the pursuer has retained and is entitled to under clause 6 of the lease, the defenders’ net liability is £1,648.  I shall grant therefore decree against them, jointly and severally, for payment of that sum.   Interest will run at the judicial rate (8% per annum) from the date of citation (23 March 2016) until payment.  
  • [28]The pursuer has been substantially successful in this action, and so is entitled to an award of expenses against the defenders, on the small claim scale.