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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nazeem v Niamat [2024] DIFC SCT 377 (18 October 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_377.html Cite as: [2024] DIFC SCT 377 |
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Nazeem v Niamat [2024] DIFC SCT 377
October 18, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 377/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS LEASING TRIBUNAL
BEFORE SCT JUDGE MAITHA ALSHEHHIBETWEEN
NAZEEM
Claimant
and
NIAMAT
Defendant
Hearing : 7 October 2024 Judgment : 18 October 2024 JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 22 August 2024 (the “Claim”)
AND UPON the Defendant’s defence dated 30 August 2024 and 11 September 2024
AND UPON the Claimant’s reply dated 25 September 2024
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 7 October 2024 with the Claimant and the Defendant in attendance (the “Hearing”)
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The security deposit in the amount of AED 5,962 shall be forfeited in favour of the Claimant as the Defendant is entitled to deduct the amount of AED 2,538 from the Claimant’s security deposit for the repairs.
2. Each party shall bear its own costs.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 18 October 2024
At: 10am
REASONS
Parties
1. The Claimant is Nicholas James Witty Nazeem (the “Claimant”), the tenant of unit in DIFC, Dubai, the UAE (the “Unit”)
2. The Defendant is Niamat (the “Defendant”), the owner of the Unit.
The Claim
3. The Claimant entered into a tenancy agreement with the Unit’s previous owner for the period from 13 August 2023 to 12 August 2024. The rental amount was agreed to be AED 170,000 annually, and the security deposit amounted to AED 8,500 (the “Tenancy Agreement”).
4. The Defendant purchased the Unit from the previous owner in July 2024, and the Tenancy Agreement was transferred to him accordingly.
5. The Claimant submits that the previous owner’s agent, Nuzhat of Nestor, did not the undertake a condition report on handover; there was minor damages to the unit water staining to floor tiles, which is common within the building, and a damaged banister rail which the previous owner refused to fix.
6. As the Unit came with a washing machine, the Claimant states that he asked Ms Nuzhat to arrange for the removal of the washing machine as he wanted to install a new one. However, he submits that the work was not properly carried out, therefore causing leakage as the water supply was not capped off. This resulted in damage to the laundry cupboard doors which the Defendant intends to deduct from the security deposit to the amount of AED 900.
7. The Claimant argues that he left the Unit in the same condition handed over to him pursuant to the terms of the Tenancy Agreement. As such, the Claimant argues that he is entitled to receive his full security deposit without deduction for repairs, as the damage caused amounts to fair wear and tear only in accordance with the terms of the Tenancy Agreement.
8. The Claimant adds that the parties were present in the Unit on 10 August 2024, and although it was not a joint inspection of the Unit submits that no issues were raised by the Defendant at that stage.
9. The Claimant also disputes the Defendant’s deduction of AED 277 for professional cleaning of the Unit, and submits that he already arranged for it to be cleaned prior to moving out. Due to the nature of the building being not sealed and the façade not being airtight as confirmed by building management, the Unit would require daily cleaning or otherwise dust would accumulate, which is no fault of the Claimant
10. The Claimant also disputes the deduction of AED 1,699 from his security deposit for the repainting of the Unit and states that he is not contractually obligated to do so as the Tenancy Agreement is silent on this matter and asserts that he handed over the Unit in the same manner received from the previous owner.
11. Also, the Claimant submits that the Defendant advised him by way of WhatsApp message to remove any wall hanging or fixtures only which he did. The Defendant also informed him to give the wall a lick of paint, but the Claimant refused to paint the Unit.
12. The Claimant further disputes the deduction of AED 900 in respect of the replacement of the laundry cupboard door and submits that the Defendant should be liable for it due to the actions of the agent, as he had nothing to do with it.
13. Therefore, due to the Defendant’s or his agent’s failure to have a condition report that demonstrates the status of the Unit upon moving in, the Claimant is seeking the refund of the full security deposit in full in the amount of AED 8,500 without any deduction as he is not contractually obligated to paint nor clean the Unit as per the Tenancy Agreement.
The Defence
14. The Defendant submits that the Claimant sent him videos and photos of the status of the Unit upon vacating it. However, upon inspecting the Unit on 12 August 2024, he observed that the walls had very visible marks of nails removed, or nails still stuck in the wall and loose nails on the floor with significant amount of dust on the floor.
15. The Defendant submits that the laundry cupboard doors were in bad condition and could not be closed, which means he needs to have them removed and replaced, therefore the cost should be borne by the Claimant as he is liable to return the Unit in the same condition as the start of the lease.
16. The Defendant confirmed that he is willing to disregard the damage on the floor tiles and banister wall.
17. The Defendant asserts that the Claimant failed to handover the Unit in the same condition as the start of the lease in accordance with Clause 2.8 of the Tenancy Agreement as the Unit was handed back without new paint and in dirty condition, which reads as follows:
“The Lessee shall return the Premises to the lessor at the end of the Lease Term in the same condition as at the start of the Lease Term (fair wear and tear excepted), unless otherwise specified in this Lease. Furthermore, the Lessee shall leave any furniture and effects at the Premises provided by the Lessor in the rooms or places in which they were at the beginning of the Lease Term.”
18. The Defendant asserts that he has the right to deduct the painting amount from the security deposit as the Unit was freshly painted at the request of the Claimant upon moving in and due to the nails on the wall, the Unit must be painted again.
19. The Defendant further asserts that he had to arrange for the Unit to be deeply cleaned as it had significant amount of dust and the costs of which must be borne by the Claimant as the Unit was handed over to him clean upon moving in.
20. Finally, the damage on the laundry door cannot be fixed and the Defendant submits that the amount must be deducted from the security deposit as this occurred during the Claimant’s occupancy of the Unit.
Discussion
21. First and foremost, the relevant Tenancy Agreement is in relation to an apartment in the DIFC, therefore by default any agreement shall be governed by the prevailing law of the DIFC, United Arab Emirates and that upon failure to resolve any disputes connected to the Tenancy Agreement, the dispute shall be referred to the DIFC Courts. Therefore, it is clear and undisputed that the DIFC Courts have jurisdiction to decide this matter. As the claim value is less than AED 500,000, this claim is properly before the Small Claims Tribunal of the DIFC Courts.
22. The dispute is over the Claimant’s security deposit and the repairs which can and cannot be deducted from his deposit.
23. The Defendant is not seeking to deduct any amounts in respect of the damage on the floor’s tiles and banister rail, as such, this shall not be discussed further in this judgment.
24. Article 34 of the DIFC Leasing Law No. 1 of 2020 (“DIFC Leasing Law”) reads as follows:
“Avoiding damage and cleanliness of Residential Premises
(1) A Lessee must ensure that reasonable care is taken to avoid damaging Residential Premises and any common areas connected thereto, and to keep them reasonably clean at all times.
(2) A Lessee who becomes aware of damage to Residential Premises must as soon as practicable give notice to the Lessor specifying the nature and extent of the damage.
(3) A Lessee shall not be liable for any damages caused to a Residential Premises where:
(a) it constitutes Fair Wear and Tear;
(b) the Lessee took reasonable care to avoid such damages; or
(c) the damages were caused by a failure on the part of the Lessor of its obligations under this Law or the Lease.”
25. The Leasing Law defines fair wear and tear as:
“damage to carpets, decorations, fixtures, fittings and furniture that would reasonably be expected through ordinary day-to-day use during a tenancy for the term of a Lease in respect of the type of tenants, who do or did occupy the Leased Premises, in comparison to their state at the outset of the Lease”.
26. The Tenancy Agreement does not mention that the landlord has the right to deduct from the security deposit, however, this right is encompassed in the DIFC Leasing Law under Article 22(5)(b) which provides that:
“A Security Deposit may only be used to compensate the Lessor after a
Residential Lease has ended for the following purposes:(b) damage to the Residential Premises, excluding Fair Wear and Tear”.
27. Reasonable wear and tear are permissible in accordance with the Tenancy Agreement. However, the Claimant failed to submit evidence on the status of the door upon moving in nor was there any evidence of communication to the previous owner or agent during the Claimant’s stay requesting that the doors be fixed as a result of the leakage allegedly caused by the agent. On the other hand, the Defendant submitted evidence on the original status of the doors and accordingly, I find that significant damage has been done and is not fit for use anymore and so this ultimately does not constitute fair wear and tear. The Defendant submitted two quotations, and I shall allow the deduction for the lesser amount of AED 900.
28. As to the cleanliness of the Unit, the Claimant submits that he did not receive the Unit in a clean condition as evidenced in the photos admitted to Court and acknowledged by the Defendant. The Claimant also submitted evidence of a WhatsApp conversation with the Defendant acknowledging that the Unit“sure it looks filthy when you inherited it!”.
29. In accordance with the Tenancy Agreement, the Unit must be returned in the same condition as start of the lease and the Claimant confirmed that it cleaned the Unit before moving out and the Defendant failed to provide proof of the status of the cleanliness of the Unit on inspection, I am of the view that the Defendant is not liable to deduct AED 277 for cleaning.
30. I have arrived at this decision also by taking into consideration the building management’s email sent to the Claimant which confirms that the building was experiencing façade leakages and would normally allow dust and dirt to enter the building easily. On this basis, I accept the Claimant’s argument that dust can be accumulated and the Unit not being very clean upon inspection, which came days after the Claimant moved out.
31. As to the paining, even if the Tenancy Agreement does not explicitly mention the Claimant’s obligation to paint the Unit, the fact is that the Unit must be returned in the same manner as at the start of the Lease.
32. When a Unit is being rented, it is generally expected that the walls may not be in its original condition at the end of the tenancy period. Therefore, it is reasonable that the Defendant expected that the Claimant would repaint the walls.
33. The Claimant and the Defendant confirmed that the Unit had been painted by the previous owner due to the Claimant’s request at the start of the lease. Therefore, in this case, it would not be unreasonable for the Claimant to repaint the Unit, especially since the Defendant submitted various photos of holes and nails on the walls which means it was not left in the same condition as the start of the lease.
34. Although I understand the Claimant’s argument that it was the landlord’s decision and acceptance at the time to paint it, the condition of the wall has changed and requires repainting to go back to normal as I am of the view that tenants are responsible for maintaining the property’s appearance during their stay.
Findings
35. The Defendant is permitted to deduct from the Claimant’s security deposit the amount of AED 2,538 in respect of the repairs for the laundry doors and painting of the Unit.
36. The Claimant is entitled to his security deposit in the amount of AED 5,962.
37. Each party shall bear its own costs.