Monday, 24 December 2012

Fighting the System: Going to Tribunal

'Really the troops...we’re going to court!' Or tribunal, as the case may be. This is what a small number of tenants do. The ones that choose to fight for their rights, rather than put up with privacy violations, dangerous and unsafe premises, or failed promises to undertake repairs.

So Matt did the right thing. He submitted an application to the Director of Consumer Affairs Victoria for an inspector to investigate the need for non-urgent repairs. This was in June 2012. The stove amongst other things had still not been fixed. He said, ‘We hope the document will enable you to come and make inspection, and help my family’. This is about 7-8 months after the landlord was originally notified of the property fault. Still not resolved.

I went poking around the Residential Tenancies Act 1997 (Vic) looking for time frames. And there are no time frames in Victoria. The legislation makes a distinction between urgent and non-urgent repairs. That is it. A tenant has to submit an application to the tribunal which can then issue an order stating that repairs are to be carried out by a certain date. So landlords and agents can drag things out and dither around.

Matt then lodged an application with the Victorian Civil and Administrative Tribunal (VCAT). In June 2012, the tribunal found in Matt’s favour and ordered that the landlord carry out all necessary repairs. But in late July, Matt had to write to the tribunal again to request that the order be renewed in relation to the oven. Seriously, the things are not that hard to fix.

In August 2012, the matter came before the tribunal again. Matt says, 'We were unable to check the stove and gutters during inspection and the agent didn't note these issues as well. This is their mistake and either the landlord or the agent should be responsible for it'.The tribunal ordered that the landlord pay compensation amounting to $800 and that Matt's family were entitled to vacate without penalty. I can understand but do not condone why tenants with limited legal understanding and communication skills get fed up and engage in inappropriate behaviour.

To start off with, I would question the adequacy of the amount of compensation awarded. Matt claimed about $2000 for loss of amenity associated with each problem but the tribunal only awarded $800. The tribunal can only award compensation for loss or damage. See sections 209 and 210 of the Residential Tenancies Act 1997 (Vic). Renting out a property is a business and landlords employ a cost-effective strategy. I would think that some unscrupulous landlords would weigh up the costs involved in quickly carrying out urgent and non-urgent repairs as opposed to not doing so and waiting until the tenant gives up and moves out. This is a simple cost/benefit analysis. No wonder landlords treat tribunal orders like they are toilet paper and don’t take responsibility for their properties. 
Paltry awards given out by the tribunal such as the one in this case do not reflect the costs involved in making applications to the tribunal, and costs involved in relocating to another property. Such awards do not reflect time spent liaising with property manager or owner, time taken off work to attend tribunal hearings, time taken off work to be home when a trades person attends the premises, time involved in preparing and gathering materials for tribunal, time taken to research the law and obtain advice from tenancy services.

So we can see that the existing system has inbuilt disincentives deterring tenants from enforcing their rights. It’s a win for the government as pressure on the system is alleviated.
A person’s time has value. I don’t see why time spent by an ordinary person enforcing rights through the tribunal system can’t be taken into account. A court can award costs so that the losing party pays for the legal costs of the other. I’m drawing an analogy here.

Also think about the tribunal's discretion handling repairs as opposed to rent arrears. If a tenant does not pay rent, the tribunal takes this very seriously. This might have something to do with the ease of calculating loss for failure to pay rent as opposed to losses associated with lack of amenity.

Another issue is that the tribunal cannot hear claims for death, personal injury, or pain and suffering. See section 447. Matt had actually slipped and twisted his ankle. The front decking had become slippery because of the leaking gutters after continued rain.  So the tribunal could not take this into account when calculating damages. Landlords owe a duty of care to their tenants to provide safe premises. But tenants have to pursue compensation for personal injury through the court system. Unless the accident is severe, it’s really not worth doing (so the system wins again).

Tenants are encouraged to appear in tribunal without a lawyer. This means tenants are disadvantaged. Landlords are represented by their property managers. As property managers appear in tribunal on a regular basis, they understand the system and its processes better than tenants. This comes down to experience. In this situation, Matt’s friend helped him with tribunal paperwork and appearances. But what if you don’t have a clever friend? Can ordinary people effectively represent themselves in a semi-legal setting? After all, lawyers study and train for many years. Yet we expect ordinary people to exercise advanced skills in negotiation, analysis and advocacy. The system is simply stacked against tenants.

Just because people give up doesn’t mean just and fair outcomes are achieved. The stress involved in tenancy disputes can be very taxing. It’s a bit different to other consumer disputes because property rental is ongoing. I think many people faced with similar situations just give up. Matt’s tenacity is admirable.

I think the iconic Aussie movie, the Castle, has some relevance here. Federal Court Judge: 'And what law are you basing this argument on?' Darryl Kerrigan: The law of bloody common sense!'


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