Wonder Woman and Super Man inspected the property twice. Each time, they only had 15 minutes. For such a significant decision, I would question whether this is sufficient time. It’s only enough time to look around. Certainly not enough time in which to identify possible faults. And really, a lease is a significant legal obligation. The second time, they decided to proceed with the rental. The house was far from spotless but the property manager informed them it would be cleaned before they moved in. So on that basis, they made an informed decision to go ahead and sign the lease.
When Wonder Woman collected the keys, the house was still in a filthy state. They found animal droppings in the upper kitchen cupboards and food in the cupboard and oven. The kitchen was covered in grease and generally grubby. There were pubic hairs in the bathroom, soap scummed showers and dirty floor tiles. She says, "The carpet, oh the carpet - when we first walked on it bare foot you literally stuck to it, it was horrible". They ended up bringing in and paying for professional cleaners. They also paid for the carpets to be cleaned as well. They were not reimbursed and were told by the property manager that they should not have such high standards.
I’m assuming that the previous tenants failed to live up to their obligation to leave the premises clean for the next person. I would also think that the landlord would have made claims against the rental bond. So what happened? Did the landlord claim the money and not spend it on the hire of cleaning professionals? I don’t know the answer. But I don’t think there is any obligation to spend moneys obtained via the rental bond on the stated purpose. This was a clear breach of the landlord’s duty to supply the premises in a clean condition. See section 65 of the Residential Tenancies Act 1997 (Vic).
Yet the only answer to this kind of situation under law is that the tenant does not have to occupy the premises and does not have to pay rent until that takes place. This is just legally retarded. This very simple answer ignores practical realities of moving house. Most people don’t have a choice but to occupy the premises if they have vacated their previous residence and their furniture and worldly possessions are in transit.
The landlord was required to supply the premises in a "reasonably" clean condition. Yet the shoe was on the other foot, when Wonder Woman and Super Man decided to vacate. Wonder Woman says, "Now as we leave they have the cheek to give us a list of cleaning requirements that we have to complete in order to protect our bond. The standard is much higher than that which it was handed to us as acceptable. It is unbelievable, the double standards". Should the cleanliness of a property upon occupation be taken into account when claims against the bond are assessed? I have come to the conclusion there is only one way cleanliness can be determined in a fair and appropriate manner. And that is if it is determined by an impartial, unbiased and neutral third party. Reasonableness should not be determined by significant power imbalance.
Returning to the property manager’s complicity in this matter. Under section 501, it is an offence to make a false representation in relation to a tenancy agreement or residency right. Theoretically, Consumer Affairs Vitoria could step in and fine the landlord or agent a significant sum for making false representations about the cleanliness of the property. But would they actually do this? In practice, is this something they actually do? I don’t know the answer here. But I don’t think the best answer is - Suck it up princess, it’s your bad luck you’re just the tenant.
Repairs and Maintenance
During pre-contract negotiations, the couple were told that a cracked work surface was reflected in the price of the rent. Section 68 (1) of the Residential Tenancies Act clearly states: A landlord must ensure that the rented premises are maintained in good repair. I certainly don’t think a landlord should be able to use their power in the market place to abrogate their responsibility to keep a property in good repair. Shouldn’t there be a law against this kind of behaviour?
It is interesting to note there is no provision for a landlord to be penalised for failing to keep premises in good repair. Consumer Affairs Victoria cannot step in and issue an infringement notice. They do not have the power to fine a landlord for failing to keep premises in good repair. But really, it just makes good business sense. Keeping a property in good repair contributes to the capital value of the property. While it certainly makes life easier for a tenant, this is a direct financial benefit to the landlord. Wonder Woman says, "The landlord doesn’t seem to understand that good tenants cause less problems...Investing a bit of the income into the maintenance and repairs of his house would have give him a better house and attract a better rent".
Wonder Woman and Super Man stayed at the rental property for over two years. The oven was faulty and didn’t work properly. It wasn’t cooking food properly and the door was warped causing damage to the side cupboards. The handyman, otherwise known as 'bodge-a-job' checked it by placing his bare hand into the oven with a moving fan and the safety guard removed. The couple was told to use the oven without the safety guard. Even a broken door handle didn’t warrant replacement, instead they moved it to a door used less frequently.
The air-conditioning didn’t work at all during the couple’s occupation. It pumped out black dust and caused respiratory problems. After numerous complaints, a filter was installed which minimised the smell to some extent. But it still took 14 months, a complaint to Victoria Consumer Affairs, and a 10% rent increase, for a handyman to attend the property to fix the dust problem. But wait for it...the landlord’s handyman bodged it. The first time they used the air-conditioning, water came pouring through the ceiling and electrics. It was left like this for three days because the landlord did not consider it an emergency. When 'bodge-a-job' came back, he simply refixed the sagging ceiling with screws and that was it.
Wonder Woman says, "If the agent or the landlord wanted something it was immediate or enforceable. If we asked for permissions or requests for repairs, we were given the run-around. It was either ignored, bounced back as issues with the landlord’s education, language, location etc. This was for simple things like trailing wires, putting up curtains, right through to maintenance for the oven". The law is so distant as to not provide workable solutions for day-to-day problems encountered by tenants. Shouldn’t the law be relevant and responsive?
Wonder Woman continues, "We have had excuses galore - not in the country, can’t talk the language, doesn’t know the Australian system. However, when he wants something he expects us to allow him access immediately and without excuses". The law recognises and protects individuals from non-English speaking backgrounds. When accessing government services or the court system, such individuals are provided with the service of translators. This is a good thing of course. I think it is fair to say that a person from a different country should not exploit tenants for financial gain by feigning ignorance of the law or of the English language especially when they are represented by a real estate agency.
Wonder Woman was often told that the landlord could not respond to correspondence or carry out repairs as he was out of the country. But two landlords listed on the tenancy agreement and they were represented by a real estate agency. Clearly, this was just an excuse to evade responsibilities under legislation. Wonder Woman complained to Consumer Affairs Victoria who wrote to the real estate agency. The property manager responded by saying the landlord was annoyed with them.
Open Viewings
Even though the landlord did not bother to comply with his duties under the Residential Tenancies Act 1997 (Vic), he was very quick to quote the Act when it suited him. This was so in relation to open viewings of the house. Open viewings are a popular way of showing rental properties to a pool of potential tenants. The real estate agency insisted open viewings before the couple vacated the property.
The real estate agency planned on having open viewings every two days until the house was let. Under section 86, a tenant must permit entry so that the premises can be shown to prospective tenants. The couple informed them they were against this. Wonder Woman says, "The heavy artillery was sent in - the senior partner is insisting on doing the open house even though we said we didn’t want it". Obviously, tenants have to make a property ready for potential tenants to inspect. This is time and energy gone with no financial benefit at all (except to the landlord, of course).
Obviously, most people want to be present at inspections to safeguard the privacy if their home. I would not want strangers looking through my house without my immediate supervision. There is also no due regard for a person’s right to earn an income. If a person needs to be present for an inspection, this impacts on their ability to meet and satisfy their employment obligations. And in this case, the open viewing still happened even though the various repairs remained outstanding.
As a professional couple, Wonder Woman and Super Man worked full-time hours during the working week. As such, they needed to negotiate days and times for open viewings suitable to their schedule. But as Wonder Woman says, "They did not negotiate, they imposed". Under section 85, a landlord or their property manager has a right of entry for the purpose of showing the premises to potential tenants, if the existing tenant has agreed to a time after being given 7 days notice, or at any time between 8am and 6pm if at least 24 hours notice has been given. Really, there is no legislative regard for the right of tenants to privacy. I think we need to have a discussion about privacy as a right to be protected under tenancy law and its interaction with a landlord’s proprietary right.
In Victoria, there is the Charter of Human Rights and Responsibilities Act 2006 (Vic). A good step in the right direction, but on the final analysis its utility is limited. Section 13 says a person has the right not to have his privacy, family, home unlawfully or arbitrarily interfered with. But a person can’t sue a landlord for violating their privacy. And a law can still operate even if it is inconsistent with a human right.
On the day of the open viewing, the couple outlined all the problems they experienced on the doorstep in front of all the potential tenants. They also very kindly had informative signs to help potential identify maintenance jobs outstanding. Wonder Woman said, "We finally felt like we actually got heard". Clearly this lady is totally boss, apparently the new word for cool (or so my sister tells me).
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