Claim No: SCT 105/2017
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL
BEFORE SCT JUDGE MAHA AL MEHAIRI
Hearing: 6 June 2017
Judgment: 13 June 2017
JUDGMENT OF SCT JUDGE MAHA AL MEHAIRI
UPON hearing the Claimant and the Defendant
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT the Defendant shall pay the Claimant AED 2,000 as reimbursement of the remainder of the security deposit.
Date of issue: 13 June 2017
1.The Claimant is Harlow (the “Claimant”), the tenant of Unit 2 in in the DIFC (the “Premises”).
2. The Defendant is Hartie (the “Defendant”), the Claimant’s landlord.
Background and Preceding History
3. The Claimant and Defendant entered into a tenancy contract (the “Tenancy Contract”) for the period of 25 January 2016 to 24 January 2017 with a rental amount of AED 90,000 for the year, payable in 12 cheques with a security deposit of AED 5,000. The Claimant contacted the Defendant’s agent, Hasse (the “Agent”) and requested that he stay a further two months in the Premises. On 24 January 2017, the Claimant extended his stay in the Premises for two months, making 24 March 2017 his last day. Cheques for the extension were given to the Agent to be handed to the Defendant.
4. On 12 March 2017, the Claimant booked 15 days in a hotel, commencing from 23 March 2017. He also contacted a cleaner to come and clean the apartment on 24 March 2017, the day he was due to vacate the apartment. The Claimant had also arranged for movers/ storage services to deliver empty boxes to the Premises on 22 March 2017, and to collect and store the full boxes on 23 March 2017. On the day of collection, the movers were prevented access into the building by security due to the absence of documents required by the building management prior to a move; this included an NOC from the Defendant of the apartment to permit the Claimant to move boxes out of the Premises.
5. The Claimant messaged the Agent on 23 March 2017 requesting an NOC from the Defendant to be emailed to the Claimant’s email. On 25 March 2017, the Defendant sent an email to the Claimant containing the following information:
“To whom it may concern,
We have no objection for Harlow to vacate the apartment (in DIFC) from tomorrow. Harlow will submit the keys and access card to Hasse and will ensure all furniture remains in the apartment upon vacating.
6. On the same day, the Claimant sent the NOC with the required documents regarding the moving company to the building management; copying in the Defendant and Agent, for them to process and give clearance for the move. The building management replied on 26 March 2017, requesting a signed NOC or if the Defendant has a POA, a copy of that POA and the passport holder of the POA. The Defendant was also copied in the email and a reminder from the Claimant was sent to the Defendant and Agent on the same day.
7. On 27 March 2017, the Defendant sent a signed NOC dated 26 March 2017 to the building management. The building management subsequently requested further documents in order to confirm the move; namely, the title deed or SPA copy and Passport copy of the Defendant. The Claimant provided those documents and the building management responded that the signature in the passport was different from the signature of the NOC provided by the Defendant. The Defendant sent another NOC dated 27 March 2017 to the building management.
8. On 28 March 2017, the Claimant emailed the building management again with the details of the moving company and their driver’s licence. The building management then emailed the Claimant a form to fill out for the access to be provided. The Claimant filled out the form on the same day for it to be processed. The building management replied with access passed to be scheduled on 30 March 2017.
9. On 29 March 2017, the Claimant emailed the Defendant and Agent with the date scheduled to move out the boxes, and requested if they wish to meet at that time. He also sent a message to the Agent telling him the same. On 4 April 2017, there was correspondence between the Defendant, Agent and Claimant with regard to the snag list, but the Claimant provided proof that the Premises was in the condition that he moved in and that the deposit should be returned in full. On 7 April 2017, the Defendant emailed the Claimant awaiting confirmation from his brother that the Premises is in good condition for the deposit to be returned.
10. On 16 April 2017 the Defendant, emailed the Claimant with the following:
Apologies for the delay, as I have been out of the country and returned on Thursday. I talked to my brother, who viewed the apartment, and we’ll deduct 1,500aed from the deposit, due to the following:
As your contract ended on the 24th of March and you gave in your keys on the 1st of April, this implies an overstay of 8 days. It is your responsibility to start the leave out process days in advance to ensure you leave the apartment on the end date of your contract.
Based on the above, the total deduction adds up to 2,600aed, however we agreed to reduce this amount to 1,500aed.
Please send me your ENBD bank account details and I will request to transfer 3,500aed to your account.
11. The Claimant replied to that email arguing that he left the apartment in the exact condition it was received in, and provided proof for that. With regard to the overstay, the Claimant contends that it was the Defendant’s responsibility to provide the Claimant with the correct documentation for the move out to be on time. He also communicated that if the Defendant does not intend to return the full deposit the Claimant will file a claim with the DIFC Court’s Small Claims Tribunal (“SCT”) to resolve this matter.
12. The Defendant replied:
“With regards to the overstay, your contract clearly mentioned the 24th of March as the end date, yet the handover only happened at the 1st of April, resulting in a 8-day overstay. You have my contact details and I have not received any communication requesting evacuation authorization. I was asked to send an non objection email only on the 24th of March from Hasse and provided this on the 25th of March; promptly providing what you requested. Planning and arranging to move out on time was your responsibility.
I believe the two points above are fair. If you have a different point of view, please explain further, as these are all the data points I have from my side.
I have retrieved your bank details and transferred 3,000 aed (5000 – 8*250) to your back account. Please let me know if you don’t receive it within 48h.”
13. The Claimant argued that the Defendant knows that the Claimant’s move was arranged before the expiry of the rent contract, and that he was not overstaying in the apartment because he was staying at the hotel and that the documents that were supplied by the Defendant in the beginning are the reason for the delayed process.
14. On 9 May 2017, the Claimant filed a case in the SCT seeking the remainder of his security deposit in the amount of AED 2,000.
15. The Claimant attended the consultation via teleconference and the Defendant attended in person on 23 May 2017 before Judicial Officer Nassir Al Nassir. However, the parties were unable to reach a settlement during or after the Consultation.
16. As the parties could not reach a settlement, they were called for a Hearing before me, SCT Judge Maha Al Mehairi, on 6 June 2017, at which time I heard submissions from the Claimant and the Defendant.
Particulars and Defence
17. The Claimant argued that he has been well prepared for the move out and arranged for all the details but didn’t expect that the building management had requirements to allow the movers in the building. He added that he rented a lot of apartments and never encountered such problem before. The Claimant also added that the point of communication between the Claimant and the Defendant was through the Agent and that the Defendant never requested to be communicated directly eliminating the middle man in the communication. The Claimant also argued that the reason for the delay of the whole moving process falls on the Defendant providing the wrong signature on the NOC.
18. The Defendant responded to the Claim, indicating that the tenancy contract stated the exact date of the move out being 24 March and the handover was finalized on 1 April 2017, resulting in an 8 day overstay. The Defendant argued that the Claimant has his personal details and could have communicated with him directly for the process to be shorter, and argues that he received an email from the Agent on the 24 of March and sent the requested document on 25 as communicated in his email. The process of planning and arranging for the move out falls under the Claimant’s responsibility and any delay falls on him and he should be responsible for the overstay.
19. First and foremost, the relevant Tenancy Contract falls under DIFC Courts’ jurisdiction as it concerns the Premises which are located within the DIFC. Therefore, it is clear and undisputed that the DIFC Courts have jurisdiction to decide this matter and should apply DIFC Law in doing so. As the claim value is less than AED 500,000, this claim is properly before the SCT.
20. There is just one issue to be decided in this dispute: whether the Claimant upheld his responsibilities to move out on the expiry date of the contract. This issue is governed by the DIFC Contract Law, DIFC Law No. 6 of 2004 (hereafter the “DIFC Contract Law”).
21. The relevant provisions of the DIFC Contract Law are as follows:
“77. Non performance defined
Non-performance [of a contract] is failure by a party to perform any one or more of its obligations under the contract, including defective performance or late performance.
78. Interference by the other party
A party may not rely on the non-performance of the other party to the extent that such non-performance was caused by the first party’s act or omission or by another event as to which the first party bears the risk.
82. Force Majeure
(1) Except with respect to a mere obligation to pay, non-performance by a party is excused if that party proves that the non-performance was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.
(3) The party who fails to perform must give notice to the other party of the impediment and its effect on its ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, it is liable for damages resulting from such non-receipt.
(4) Nothing in this Article prevents a party from exercising a right to terminate the contract or to withhold performance or request interest on money due.”
22. It is understood from the Tenancy Contract that the last day of the Contract was on 24 March 2017, and from the Claimants submissions it shows that he has fulfilled all his obligations to moveout on time by arranging the cleaning, hotel booking, and arranging for moving company to store his items.
23. It falls under the Defendant’s responsibility to communicate the moving process of the building since he is the owner of the Premises. It also falls under his responsibility to request direct communication between the Claimant and the Defendant. The Defendant not once in the communication request to be communicated with directly by the Claimant. Instead, the Agent accepted cheques in the Defendants name on behalf of him. The Defendant also communicated to the Claimant in an email that the Agent will be accepting the Premises keys at the time of moving out.
24. The Court also finds that the delay would have ended if the Defendant provided the correct signature in the requested NOC on 25 March, which would have resulted in a maximum of a one day delay instead of the 8 days. It is also found that the delay is a result of the unfamiliarity of the building’s moving out policy by the Defendant as he is the owner of the premises and should be aware.
25. Thus, it follows that the Claimant was not overstaying as he was active in trying to find a solution to the issues faced and was never trying to overstay as he had already booked a hotel for that period and made no efforts to delay the process in any way. As such, the Court is satisfied that the Claimant’s Claim for the reimbursement of the remainder of the security deposit is accepted.
Date of issue: 13 June 2017