Why haven’t things changed?!?

Over the past few decades, change has been slow, piecemeal, ineffective, and has usually favoured the interests of landlords. In no jurisdiction has there been systemic review of the model first put forward in the Poverty Report. In the result, legislation is geared towards protecting the financial interests of landlords as investors in property. The case for increased protection of tenant interests has been cogently presented. Proposals of non-government organisations have been largely ignored by the authorities. In my opinion, there are three reasons as to why change has been so sluggish.

Property Rights

Increased protection of tenants directly confronts Australia’s western liberal tradition which favours the rights of property owners. The states and territories have emphasised pathways to home ownership rather than improved protection of tenant rights and interests. It was John Locke who said government was necessary to protect the rights of property owners. In his words, the ‘great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property’.

This school of thought still resonates in modern time despite powerful and well-known critique.  Such reliance is often not explicitly articulated but can be identified upon analysis. Such as when a court determines reasonableness in favour of property owners without providing detailed reasoning as to their decision. Implicit is the belief that rights attached to ownership have precedence over all other interests. A more prescriptive approach to drafting legislation may be needed to combat the social norm that priorities property ownership over other societal interests.

Public/Private Distinction

The second reason is the traditional distinction drawn between the public and private spheres of human activity.  Western liberal theory posits that the state should only seek to regulate the public sphere. The distinction has been widely discredited. Feminists have demonstrated that the divide operates to the disadvantage of women. The divide continues to have a strong hold in the context of residential tenancy law. People spend their time in the public or private sphere. In the public sphere, for example, the law of employment and labour relations in Australia is well-developed. By contrast, the home itself, along with landlord and tenant relations, has been heavily neglected.

The integrity of residential tenancy laws has a special significance for women. Feminists have identified the link between women’s rights and housing. In contemporary times, women are still more likely to stay at home carrying out household chores and caring for children. Residential tenancy laws have internalised a specialised form of systemic gender-based discrimination. Such approaches perpetrate a systemic form of violence against women and should not continue. Further development is necessary to give meaningful content to principles of equality and non-discrimination.

Power Imbalance

The third reason is the power imbalance between tenants and their advocates on one hand, and landlords and their agents on the other. Tenants may be retaliated against if they seek to enforce existing rights, while advocates risk losing funding if they criticise government policy. The study of power has been integral in the field of employment and labour relations. The employer and employee relationship is similar to the tenant and landlord relationship.

Employers and landlords aspire to money, while employees aspire to fair wages and working conditions, and tenants aspire to fair rent and housing conditions. The pursuit of these things impact on the objective of profit. These interests are in direct opposition. The state has, on the whole, successfully addressed the power imbalance between employers and employees.  But it has not done so in the private sphere with respect to residential tenancy law. Tenants can only be protected if this fundamental power imbalance is addressed both in law and practice.

Concluding Remarks

If the law of residential tenancy is to advance, we must first understand what has held tenants back. Any effort at law reform must address the state’s blindness to the private sphere, the power imbalance between tenants and landlords, and the cultural emphasis on property ownership. Theory first; law reform later.

 

 

My landlord stole from me!

Yes you read correctly. A tenant has written in and reported that her landlord was thieving. Forgive me for the tabloid-style beginning...but this is indeed shocking stuff.

Little Red Riding Hood rented a flat in inner-city Brisbane. Over time, it became clear that the landlord was dodgy, with a capital D. He would make up excuses about needing access to the property. This happened on a fairly frequent basis. And sometimes, Red Riding Hood could not be present. And then over time, she started noticing things going missing and realised...it was the landlord! 

Landlords do not have to pass any kind of character test. Instead of protecting tenants at risk, the law assumes that tenants will just move on. But why should they have to?

I have recently reviewed statutory provisions in all states and territories. Yes, a tenant has a right to quiet enjoyment of property. This is something judges made up to protect tenants. And thereafter, it was enshrined in residential tenancy laws. But the landlord lobby is powerful. In their infinite wisdom, parliaments have granted various rights of access to landlords. If a landlord was to exercise all legal rights to access, you’re in for a pretty rough time.

Most tenants prefer to present when a landlord or agent has access to their home. The reason why is pretty obvious. You do not know if the person will steal from you, go through your unmentionables, or simply poke around. You don't know if the person is a pervert, a gambler, a blackmailer, and some kind of freaky deeky weirdo.

Little Red Riding Hood got to the point where she had enough. She issued Mr Wilson with a notice to vacate and booked a removalist. Mr Wilson turned up and tried to forcibly evict her before the removalist arrived. Little Red had to call the police three times over two days so she could clean the apartment and remove her property. Big kudos to the Tenants Union of Queensland. Little Red says the help of the local tenancy advice service during this time was invaluable. And just so you know, if your landlord is harassing you, you can apply for an apprehended violence order.

On the flip side, Alice in Wonderland reports her landlord is incredibly ‘nasty’ and ‘shifty’. She is actually concerned that he is a bit unbalanced. His name is Frank Graham. He owns many, many properties in Tasmania. Be warned, he advertises through Gumtree. One property he rents out his 3/24 Georges Terrace, Battery Point. Alice decided to move out of her ‘cute little flat’ on the posh side of Hobart. Out of pure spite, Mr Graham contested the bond application. It didn’t matter that Alice had left the flat in an excellent condition and had many photos to prove this. She still has to wait for the return of her bond. Apparently this character is known to the authorities, but they have not seen fit to take any action.
What will it take for the governments to do something? Are they just waiting for something really bad to happen? I certainly hope not.

 

Part 2: Tactics Property Managers Use to Screw Tenants

Property managers are very adept at using the law to screw over tenants. In this article, I will look at strategies a property manager uses against a tenant. Previously, I looked at how Michelle Heta, a property manager at Centurion Real Estate, bullied Lucan into removing a pool from his home.

Hinder Communication – Throughout the whole debacle, Lucan repeatedly requested the landlord’s contact details. Understandably, he wanted to communicate directly with the landlord. I can only imagine the conversation between the property manager and the landlord. But of course, it was not in the interest of Centurion Real Estate to do this considering they had actually screwed up in the first place.

Obstructing Repairs – After Lucan put in a complaint, obtaining repairs became very difficult. Lucan asked for safety repairs. He requested that the screen door be fixed. He had found his young son out the front near the busy road. Michelle Heta sent out a repair man, but provided the wrong phone number, so he could not obtain access.

As Lucan and his family no longer had a pool, he asked that the air conditioning be fixed. Michelle Heta repeatedly requested further information. How is a tenant supposed to know the inns and outs of air conditioner servicing? Lucan cottoned on to what Michelle Heta was doing. So Lucan asked if he could go up on the roof, have a look and maybe fix it. But he was not allowed. Vindictive much? Finally, he was told that he would be charged a call out fee because the air conditioner did not work in humid weather (but the humidity level was only 16%). Perhaps I’m mistaken, but I thought that was what air conditioners were supposed to do.

Unlawful Breach of Duty Notice – Michelle Heta proceeded to issue a notice of termination on the basis that the agreement had been breached. As a professional, and I use the term loosely, Michelle Heta should have known that such a notice can only be issued if the breach had not been remedied. But Lucan had actually complied. He had removed the pool and the fence.

Misleading Eviction – When this was brought to her attention, Michelle Heta attempted to evict Lucan and his family again. She emailed Lucan and told him he had to hand in the keys as he was immediately evicted. On this basis, Lucan quit his job, half moved out, and prepared to leave the country. His stress was through the roof! Then he received another email from Michelle Heta informing him that he was behind in rent. I am inclined to think this was a deliberate strategic manoeuvre so that she could whack him with the ‘bad tenant’ stick.

Trespass on Property – Third attempt. Michelle Heta personally delivered the termination of lease notice. Unfortunately, personal service is permitted in the great state of Western Australia. This does not mean, however, that agents can use this loophole to harass tenants. After Michelle Heta delivered the legal document, she stayed on the premises. She told Lucan that she was permitted to come onto the property and ask him questions. Well actually no, this is an interference with Lucan’s right to quiet enjoyment of the property. I also think it is arguable that Michelle Heta trespassed on Lucan’s property. Trespass on property is a criminal charge. It does not matter that Michelle Heta is the landlord’s agent. Lucan took his complaint to the police, but of course, they weren’t keen on getting involved. In the too hard basket, it went.

Bullying Behaviour – When Michelle Heta turned up at Lucan’s door, he asked her to leave the premises over ten times, but she used the opportunity to badger and harass him. Lucan’s kids were terrified, they thought they were being made homeless. Michelle Heta knew very well she was not welcome. He tried to physically remove her from the premises. She looks directly at the camera and says ‘did you get that one’. She then brags that her husband is Maori and her son-in-law is in the police force. Later she turns to the camera man and says, ‘he is not a client, you fucking idiot’. She grabs the camera and slams it against the camera man’s head.  

This is the worst display of misconduct that I have seen. We are lucky that it was documented via email and on video. And it all started over a pool. Yours truly, Bad Landlord Australia.

Post script. Ms Hetta has provided a statement in which she has said, 'I am not in the habit of strategic moves to get out tenants and have always worked 100% under the Residential Tenancy Act. I do however think Lucan misunderstood the notices that were sent to him. A breach was issued for non payment of rent and this was not remedied after the 14 days'.

Part 2: Tactics Property Managers Use to Screw Tenants

Property managers are very adept at using the law to screw over tenants. In this article, I will look at strategies a property manager uses against a tenant. Previously, I looked at how Michelle Heta, a property manager at Centurion Real Estate, bullied Lucan into removing a pool from his home.

Hinder Communication – Throughout the whole debacle, Lucan repeatedly requested the landlord’s contact details. Understandably, he wanted to communicate directly with the landlord. I can only imagine the conversation between the property manager and the landlord. But of course, it was not in the interest of Centurion Real Estate to do this considering they had actually screwed up in the first place.

Obstructing Repairs – After Lucan put in a complaint, obtaining repairs became very difficult. Lucan asked for safety repairs. He requested that the screen door be fixed. He had found his young son out the front near the busy road. Michelle Heta sent out a repair man, but provided the wrong phone number, so he could not obtain access.

As Lucan and his family no longer had a pool, he asked that the air conditioning be fixed. Michelle Heta repeatedly requested further information. How is a tenant supposed to know the inns and outs of air conditioner servicing? Lucan cottoned on to what Michelle Heta was doing. So Lucan asked if he could go up on the roof, have a look and maybe fix it. But he was not allowed. Vindictive much? Finally, he was told that he would be charged a call out fee because the air conditioner did not work in humid weather (but the humidity level was only 16%). Perhaps I’m mistaken, but I thought that was what air conditioners were supposed to do.

Unlawful Breach of Duty Notice – Michelle Heta proceeded to issue a notice of termination on the basis that the agreement had been breached. As a professional, and I use the term loosely, Michelle Heta should have known that such a notice can only be issued if the breach had not been remedied. But Lucan had actually complied. He had removed the pool and the fence.

Misleading Eviction – When this was brought to her attention, Michelle Heta attempted to evict Lucan and his family again. She emailed Lucan and told him he had to hand in the keys as he was immediately evicted. On this basis, Lucan quit his job, half moved out, and prepared to leave the country. His stress was through the roof! Then he received another email from Michelle Heta informing him that he was behind in rent. I am inclined to think this was a deliberate strategic manoeuvre so that she could whack him with the ‘bad tenant’ stick.

Trespass on Property – Third attempt. Michelle Heta personally delivered the termination of lease notice. Unfortunately, personal service is permitted in the great state of Western Australia. This does not mean, however, that agents can use this loophole to harass tenants. After Michelle Heta delivered the legal document, she stayed on the premises. She told Lucan that she was permitted to come onto the property and ask him questions. Well actually no, this is an interference with Lucan’s right to quiet enjoyment of the property. I also think it is arguable that Michelle Heta trespassed on Lucan’s property. Trespass on property is a criminal charge. It does not matter that Michelle Heta is the landlord’s agent. Lucan took his complaint to the police, but of course, they weren’t keen on getting involved. In the too hard basket, it went.

Bullying Behaviour – When Michelle Heta turned up at Lucan’s door, he asked her to leave the premises over ten times, but she used the opportunity to badger and harass him. Lucan’s kids were terrified, they thought they were being made homeless. Michelle Heta knew very well she was not welcome. He tried to physically remove her from the premises. She looks directly at the camera and says ‘did you get that one’. She then brags that her husband is Maori and her son-in-law is in the police force. Later she turns to the camera man and says, ‘he is not a client, you fucking idiot’. She grabs the camera and slams it against the camera man’s head.  

This is the worst display of misconduct that I have seen. We are lucky that it was documented via email and on video. And it all started over a pool. Yours truly, Bad Landlord Australia.

Post script. Ms Hetta has provided a statement in which she has said, 'I am not in the habit of strategic moves to get out tenants and have always worked 100% under the Residential Tenancy Act. I do however think Lucan misunderstood the notices that were sent to him. A breach was issued for non payment of rent and this was not remedied after the 14 days'.

Part 1: When Agents Screw Up

Lucan and his family live in a rental property in Western Australia. One day, they decided to get a portable pool because of the blistering heat. I totally get this. 

Lucan did the right thing and checked with the property manager first. In response to the request, Kim Webster said, ‘The owner would not have a problem with this...’ It seems pretty clear to me that the property manager provided permission for Lucan to install a pool.

Lucan and his family lived in peace for over a year. And all of a sudden, the portable pool became a huge problem. Centurion Real Estate (previously trading as Raine and Horne Maida Vale) took the view that the email did not constitute written permission from the owner. Emily Harris said, ‘This is not written permission from the owner, only from the property manager, the Act clearly states it has to be written notice from the owner’. By this point, Kim Webster had left Raine and Horne.

Hold on a moment. Is this actually true? Section 47 of the Residential Tenancies Act provides a tenant ‘may affix fixtures or make additions to the premises with the owner’s consent. First point of doubt. Is a property manager not an agent of the landlord? An agent usually has an authority to act in the landlord’s shoes. Second point of doubt. It is highly doubtful that a portable pool is a fixture as it can be removed with relative ease. Third point of doubt. There has to be some kind of limit on additions, otherwise tenants would have to get permission to put in swing sets for their kids!

But really, Centurion Real Estate have engaged in misleading and deceptive conduct by intimating that Lucan was permitted to install a pool. Nor does it matter that the Kim Webster is no longer an employee of Centurion Real Estate. She was a representative of their business while in their employment.

Lucan is understandably upset. He spent thousands of dollars making sure his family does not roast in the heat of the outback. He is no fool. He sought legal advice. The contract actually stated, ‘Any reference in this lease to the ‘owner’ doing anything shall mean and include it being done by the owner’s agent’ and further that ‘the tenant shall not without the owner’s prior permission install any water bed, swimming pool on the premises’.

Michelle Heta gets involved at this point. She says ‘the lease clearly states written permission from the owner’. And proceeds to threaten Lucan with eviction if he does not drop his complaint. But Lucan wants to stay. It is his home. He wants to stay there with his family for many more years.

Centurion Real Estate try to pin the whole debacle on council regulations. At the beginning, Emily Harris said the council had to provide approval for the installation of a pool and erection of a fence. I have a problem with this approach. How is it the business of  Centurion Real Estate as to whether Lucan has complied with council regulations? Is Centurion Real Estate paid to enforce council regulations?

Lucan tried to be reasonable. He installed a fence even though technically he was not required to because the pool did not have a ladder. But this wasn’t good enough. Michelle Heta later turns around and demands that the fence be removed because Lucan did not obtain permission to install a fence. This is totally inconsistent with their demand that the Lucan comply with council regulations.

But really, Centurion Real Estate is acting under express instructions of the landlord. The landlord ‘has clearly stated she wants the pool removed and the fence’. Michelle says, ‘at the end of the day, the property belongs to the owner and they have every right to ask you to remove the pool from the garden’. Well actually no, Lucan is paying rent for the right to live on the property. One would think that the longer a person lives in a rental property, the greater their rights to make changes.

Michelle’s true character comes out when she says, ‘Sorry I won’t be told what to do by a tenant’. She is a bully. Unfortunately, I have been told that this kind of behaviour is fairly typical in the industry. At the end of the day, tenants are deserving of respect as any other person. They should not be treated like second-class citizens.

In the next instalment, I will look at how Michelle exploits the law for strategic advantage and commercial gain.

Post Script. Ms Hetta says: Being a Property Manager is a tough job. There are days when you love it and deal with some lovely tenants and owners and there are days when you deal with some unreasonable people. Just like any other normal job that you do dealing with the public. I am actually a very empathetic compassionate person and very rarely loose my rag.

 

 

 

Part 1: When Agents Screw Up

Lucan and his family live in a rental property in Western Australia. One day, they decided to get a portable pool because of the blistering heat. I totally get this. 

Lucan did the right thing and checked with the property manager first. In response to the request, Kim Webster said, ‘The owner would not have a problem with this...’ It seems pretty clear to me that the property manager provided permission for Lucan to install a pool.

Lucan and his family lived in peace for over a year. And all of a sudden, the portable pool became a huge problem. Centurion Real Estate (previously trading as Raine and Horne Maida Vale) took the view that the email did not constitute written permission from the owner. Emily Harris said, ‘This is not written permission from the owner, only from the property manager, the Act clearly states it has to be written notice from the owner’. By this point, Kim Webster had left Raine and Horne.

Hold on a moment. Is this actually true? Section 47 of the Residential Tenancies Act provides a tenant ‘may affix fixtures or make additions to the premises with the owner’s consent. First point of doubt. Is a property manager not an agent of the landlord? An agent usually has an authority to act in the landlord’s shoes. Second point of doubt. It is highly doubtful that a portable pool is a fixture as it can be removed with relative ease. Third point of doubt. There has to be some kind of limit on additions, otherwise tenants would have to get permission to put in swing sets for their kids!

But really, Centurion Real Estate have engaged in misleading and deceptive conduct by intimating that Lucan was permitted to install a pool. Nor does it matter that the Kim Webster is no longer an employee of Centurion Real Estate. She was a representative of their business while in their employment.

Lucan is understandably upset. He spent thousands of dollars making sure his family does not roast in the heat of the outback. He is no fool. He sought legal advice. The contract actually stated, ‘Any reference in this lease to the ‘owner’ doing anything shall mean and include it being done by the owner’s agent’ and further that ‘the tenant shall not without the owner’s prior permission install any water bed, swimming pool on the premises’.

Michelle Heta gets involved at this point. She says ‘the lease clearly states written permission from the owner’. And proceeds to threaten Lucan with eviction if he does not drop his complaint. But Lucan wants to stay. It is his home. He wants to stay there with his family for many more years.

Centurion Real Estate try to pin the whole debacle on council regulations. At the beginning, Emily Harris said the council had to provide approval for the installation of a pool and erection of a fence. I have a problem with this approach. How is it the business of  Centurion Real Estate as to whether Lucan has complied with council regulations? Is Centurion Real Estate paid to enforce council regulations?

Lucan tried to be reasonable. He installed a fence even though technically he was not required to because the pool did not have a ladder. But this wasn’t good enough. Michelle Heta later turns around and demands that the fence be removed because Lucan did not obtain permission to install a fence. This is totally inconsistent with their demand that the Lucan comply with council regulations.

But really, Centurion Real Estate is acting under express instructions of the landlord. The landlord ‘has clearly stated she wants the pool removed and the fence’. Michelle says, ‘at the end of the day, the property belongs to the owner and they have every right to ask you to remove the pool from the garden’. Well actually no, Lucan is paying rent for the right to live on the property. One would think that the longer a person lives in a rental property, the greater their rights to make changes.

Michelle’s true character comes out when she says, ‘Sorry I won’t be told what to do by a tenant’. She is a bully. Unfortunately, I have been told that this kind of behaviour is fairly typical in the industry. At the end of the day, tenants are deserving of respect as any other person. They should not be treated like second-class citizens.

In the next instalment, I will look at how Michelle exploits the law for strategic advantage and commercial gain.

Post Script. Ms Hetta says: Being a Property Manager is a tough job. There are days when you love it and deal with some lovely tenants and owners and there are days when you deal with some unreasonable people. Just like any other normal job that you do dealing with the public. I am actually a very empathetic compassionate person and very rarely loose my rag.