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!'

 

Fighting the System: The Landlord’s Minions?

Despite Matt’s best efforts, problems with Wantirna 'Professionals' continued two and a half months after the original complaint was submitted to Ms Hunter. As I have discussed previously, Matt and his family had experienced major problems with the property they were renting. There were numerous issues including leaking gutters, broken stove, dripping taps, and broken fly screens.

Despite numerous phone calls and emails, repairs had still not been carried out. At this point, I think we can see that Ms Hunter is employing a deliberate strategy. Matt says, ‘Some repair issues have been solved after we repeatedly requesting the agent, but some are still remaining or suspending. The agent just simply sent their tradesman to check and then no follow-up, no result, and no feedback like the fly-screens (finally fixed). They also sent someone to do some tiny repair which doesn't really fix the problem like the gutters’.

Minor repairs are carried out so it looks like action is being taken to keep the property in working order. Or band-aid solutions are applied to major faults which don’t fix the fundamental problem. Or tradespeople are sent to obtain quotes for repairs with no real intention of following through. Or cheap and useless alternatives are offered so it looks like efforts are being made to negotiate a compromise.

I think I have a fairly good understanding of human nature. If you put enough roadblocks on someone’s path, most will simply give up. But Matt didn’t give up. He sought advice from the Tenants Union of Victoria and served the real estate agency with a Notice for Breach of Duty. Ms Hunter finally got her act together and sent a repairman to fix the flyscreens and gutters. But the burners were not fixed. And the gutters continued to leak.

And then the truth came out sometime mid-March. The property manager actually admits that the landlord does not want to carry out repairs because she is going to demolish the house and build an apartment block. Accordingly, the repair of the automatic ignition is an ‘unnecessary expense’. First of all, I can’t believe she actually puts this in writing. And secondly, it shows the level of respect this property manager has for tenancy law.

 

So I looked at section 68(1) of the Residential Tenancies Act 1997 (Vic). It clearly states, ‘A landlord must ensure that the premises are maintained in good repair’. I can’t believe I have to say this. A landlord should still comply with legal obligations despite commercial rationale. So in this situation, we can see that business considerations are at play. If premises are unfit for human habitation, then they should not be made available for lease in the first place. Tenancy is a business, and landlords should be held accountable.

In other situations, sometimes landlords say they can’t afford to carry out repairs. The rental market is dominated by ‘mum and pop’ investors but this doesn’t make tenancy any less of a business. Renting should not just be an easy way to make cash, it’s a responsibility. And quite frankly, if you can’t afford to comply with legislative requirements, then you should find somewhere else to invest. Attitudes need to change, and the law has a role to play.

The other day, I popped into my local council to apply for a parking permit. By the time I returned to my car, I had received a parking fine. I bitched and moaned. I said to the parking inspector, ‘Look, I can’t afford this'. And you know what. He didn’t care and I still have to pay for the damn fine. When it comes to tenancy law, if a landlord says they’re broke, they can get away with not maintaining properties. But if you get a parking fine, you know you have to come up with the money, or you will be penalised.

After Matt and his family vacated the property, he submitted a complaint about Ms Hunter to Victoria Consumer Affairs. He said the property was ‘not fit for human habitation’ and the agent had ‘engaged in misleading and deceptive conduct’. The problem is that Consumer Affairs Victoria encourages voluntary resolution of a dispute and does not possess the power to make binding resolutions under law. The process is redundant when tenants give up and move out. There is nothing to stop real estate agencies from repeatedly facilitating breaches of residential tenancies laws.

 

Property managers and real estate agencies should be subject to enforceable duties under the Residential Tenancies Act 1997 (Vic). A central regulatory body should have the power to impose fines to punish and deter unethical conduct. So in this situation, Ms Hunter would be deterred from simply renting out the property again to someone else in the same condition.
 

The prevailing public perception of tenants is that of a ‘dead-beat’ with no job or prospects for the future. Clearly, Matt does not fit this stereotype. He is a dedicated IT professional with a young family. As the law stands, property managers and real estate agencies are mere minions. This needs to change. Mr Burns: 'Fly my pretties, fly!'

 

 

A Tenant’s Right to Pets

A friend of mine had to move from one rental property to another. As her new landlord didn’t allow pets, she had to find a new home for her beloved cat Moxie. So she started looking for a new home for Moxie on Facebook. Moxie was lucky and found a new home and loving family. But sometimes pets are not so lucky. And the worst happens. It breaks my heart, it really does. For this reason, I volunteer as a foster carer for abandoned cats.

It is common practice for landlords and real estate agencies to include no-pets clauses in lease agreements. According to the RSPCA, the most stated reason for surrendering pets is the owner is moving house and cannot find pet-friendly accommodation. Some tenants approach rescue groups to have their pet re-homed while others are put down. Also know that most people adopt cute and cuddly kittens over senior pre-loved cats.

The concern is that pets might cause property damage. Landlords and agencies usually impose a blanket ban on pets. The reasoning is completely flawed. They could reject applications from parents with young children on the same basis. Some would say children are more destructive than pets. This tenant comments:

I find it insulting that every study shows that the average child causes more damage to a house than the average pet, yet pet owners are consistently turned down or forced to give up their pet. The number of animals in the RSPCA that are there purely because their owners couldn't find a rental property that would take them are horrific.

But we don’t outlaw children and in some jurisdictions families are protected from discrimination. It is also unfair tenants are judged on the behaviour of others. Research shows pet owners have made clear progress in socially responsible pet ownership.

I am concerned the prohibition on pets affects some groups in society more than others. Low income earners are effectively precluded from having pets while those on higher incomes can. Something this simple has created a capital divisions in society between the haves and have-nots. Kathryn comments, "I’m so thankful I have my own home as I think it is shocking the way rental agents state no pets a lot of the time…I for one would live in a tent in the country, rather than part with my beloved pets".

Some rescue groups recommend a pet resume and references. We have seen the development of pet-friendly real estate search engines with "pets permitted" options. As recently as 2009, a frustrated pet owner introduced Pet Friendly Rentals. Tenants can use a simple search to find pet friendly rental properties. But it is still very difficult for tenants to find appropriate accommodation. And this is so despite research showing pet-friendly properties increase in value because tenants are usually prepared to pay more to keep their beloved pets.

 

Research shows pets have numerous physical and psychological benefits. Research has shown that pet ownership reduces risk of cardiovascular disease. Dog owners tend to get outside more and get more exercise. Studies have also shown infants with access to furry pets are less likely to develop allergies. Pets also help people struggling with depression, anxiety, and other kinds of mental illness. Pet companionship is an important support for those coping with the grief of the loss of a loved one. Elderly people, especially those with dementia, benefit greatly from pet companionship. I am not going to list all the studies. They are too numerous to count.

But the right to keep a pet on residential premises is not guaranteed in any state or territory in Australia. This seems incongruous when we consider Australia has one of the highest rates of pet ownership in the world. We only have to watch the Aussie film Red Dog too see Aussies love their pets. Perhaps I am naïve but I thought the law was supposed to be a reflection of community attitudes. Not so. It's all about protecting property ownership.

A trend for pet bonds or agreements to be used is developing. In Western Australia, a landlord can ask for a pet bond if they allow a tenant to keep a cat or a dog. The pet bond can only be used to fumigate premises at the end of the tenancy. It can be no more than $260 (there are some exceptions). In other jurisdictions, pet bonds or agreements are being used informal basis. So who determines if fumigation is needed? The landlord? Clearly, a vested interest clearly exists there. This could be an opportunity for unscrupulous landlords to make some extra cash at the expense of pet owners. And how do we even know that the landlord will use the pet bond for fumigation?

The issue came up in Queensland when there was a review of tenancy laws in 2007. The Committee decided the maximum bond of four weeks was sufficient. This definitely reflects my view. These kind of bonds create an additional barrier to renters with pets trying to enter the private rental market. I do not think other states and territories should follow in the steps of Western Australia. Pet ownership is a normal incident of living. It should fall within a permitted zone of tenant activities. It is a right to be protected, not taken away.

I must admit that I am biased. I have a much-loved black Persian cat Mojo. I used to live in a flat and the landlord did not allow pets. Almost everyone in the block had a cat. Pets would be hidden at a friend’s place come inspection time. If the law was amended to protect pet ownership, tenants could finally stop hiding their pets. We just need someone with leadership to stand up for pets.

See More:
  

• Dan Nancarrow, 'Vet pleads for landlords to allow pets', Domain, 11 January 2012
• Melbourne Institute of Applied Economic and Social Research, Socially Responsible Pet Ownership in Australia: A decade of progress (2006)