Using defamation laws to fight back

It was recognised early on that tenant databases could be abused so governments intervened and started to regulate. In Queensland under the Residential Tenancies and Rooming Accommodation Act 2008 tenants can only be listed in certain defined circumstances.

But the legislation is sometimes ineffective and fails to protect tenants in dire circumstances. Sarah would like to share her story because she is "devastated there aren’t harsher penalties for people like this". Please note that fake names have been used to protect the anonymity and privacy of the tenants at their request.

Mary is an older lady and she seemed fine when we first went to look at the property. We rented the property a few weeks later and signed a 12 month lease. A few months down the track she became the landlord from hell, coming round without notice, banging on the door on a Sunday, picking mandarins off our mandarin tree in the garden and also making numerous rude comments about us being in her eyes "poor".

It got extremely bad when me and my partner lost our jobs 2 days apart and had our 2 year old son to support as well as the bills piling up. I was stressed and depressed. We fell behind on rent and struggled to even eat. We rang Mary to explain our situation and said she was welcome to have our bond and we were trying to get housing and jobs as soon as possible.

Her exact words were "you will be on the street you and your son". She hired a lawyer and a real estate agency. I cried that night so distressed by our bad situation and how someone could be so cruel. Sure enough the next day we received a letter stating we needed to vacate the property.  

My partner found another job and we were able to get a rental property out of town as we were unable to get one in our hometown as she had informed us she had told agencies not to rent from us. We moved out a week later. And to our surprise we received court forms totalling around $4000 as not only did Mary want her rent back she wanted payment for damages and compensation! Luckily the court case ended and she only received the rent we owed which got taken out of our bond and with our bond there was still $1,370 owing (this was including court costs).  

The judge made the order they got the bond and we just had to pay Mary back the $1,370 how ever way we wanted. We started up a $5 a month payment plan which isn’t a lot at all but was all we could afford. We then received harassing letters saying if we didn’t pay $100 a week we would be blacklisted. Obviously in our situation this was an enormous amount we couldn’t afford. We let them know we couldn’t afford it and all she could say was "sorry, owners request, if you don’t pay what she wants you blacklisted".

Surely enough we received in the mail a letter informing us we are blacklisted on TICA. We still receive harassing letters and Facebook messages. We are harassed when we go out in public and can’t move on with our lives. We can’t get on with our lives and have even been forced to start processing bankruptcy just so we will be left alone. Mary told us she wants to see us on the street with our young child and no money. I am going to try and take out an AVO if anything happens again.    

The first thing to note is that the landlord and agent broke the law. The Residential Tenancies and Rooming Accommodation Regulations 2009 states a tenant can be listed if there has been a tribunal order for the payment of money AND the time for payment has passed. The agent would have known this but went ahead regardless and blacklisted this family who had fallen on hard times.

This case also highlights the difficulties families experience trying to pay bills in the private rental market when a job has fallen through and they are thrust onto Centrelink well-being support which is manifestly inadequate.

It also shows that legislation needs to be extended to cover informal blacklisting. This is a problem in the regional areas particularly small towns. As in this case, all the landlord needs to do is go for a walk around town and chat to real estate agents.

In this scenario, the family sued Mary for defamation. I don't know how successful they were, but it is one tool tenants can use to right the injustices of the current system.

 

Lesson learned: Don't assume your agent is professional...

This is a story about a seemingly "professional" real estate agency, and I use the word loosely. A fan of Bad Landlord Australia wrote in wanting to share her parent's experience vacating a property down south.

My parents were tenants of a house in New South Wales through a Queensland-based real estate agent. My parents gave the real estate agent the required notice to end the tenancy, and subsequent to this, the real estate agent provided my parents with a detailed list of things that my parents were required to do upon ending the tenancy, with particular focus on professionally cleaning the carpet. Note that my parents did not own a pet. 

The tenancy notice issued to my parents insisted that my parents pay for the carpet to be professionally cleaned, and in addition informed them that dry cleaning was not acceptable, that self-cleaning by the hiring of a machine was not acceptable, and even named a particular carpet cleaning company that they did not regard as having an acceptable standard of cleaning. 

I did a little research on my parents’ behalf, and found that this request was in breach of the Residential Tenancy Act 2010. Section 19(2) prohibits the inclusion of terms requiring professional carpet cleaning at the end of a lease.

I informed my parents of their obligations under the Act, and my parents then mentioned the legislation regarding carpet cleaning to the agent. The agent quickly agreed that they did not need to have the carpet professionally cleaned. I think the agent may have been trying their luck, and counting on my parents not checking up on the current tenancy legislation.

I am concerned that this agent has other tenants who may not be aware of their rights. I suspect the agent may have asked other tenants to professionally clean their carpets at the end of their tenancies, and if the agent is flouting this part of the law, I assume there may be other sections of the law the agent is not adhering to.

What can be done to make sure that tenants are aware of their rights, and to ensure that real estate agents don't try and break the law? Some people just believe whatever the agent tells them, as they assume the agent is professional enough to know the legislation regarding tenancies.

The reality is that it is too easy for agents and landlords to get away with this sort of thing, without any repercussions even if they are caught out. Agencies such as this should be investigated and fined in cases like this to deter them from doing the same thing in the future.

It is also interesting that the real estate agency blacklisted a particular cleaning service. I have heard of cases where contractors who express concerns about unethical conduct have been blacklisted and are no longer given any work.

So what is the lesson learned? Know your rights and responsibilities and don't assume that your agent is telling the truth. They represent the rights and interests of landlords which do not necessarily coincide with yours. Be suspicious and prepared.

 

 

Warning: Tenants being exposed to asbestos

Tenants have little specific rights when it comes to asbestos. If asbestos is suspected, tenants could take the matter to court arguing urgent repairs. And I'm pretty sure a court would grant a request to vacate the property even if the lease hasn't expired.
 
The situation is a little different in the Australian Capital Territory because of the MR Fluffy asbestos scare. Landlords are required to provide an asbestos assessment report, failing that, an asbestos advice under the Dangerous Substances Act 2004. But how is this provision to be enforced if the tenants simply aren't aware?

One concerned tenant wrote in wanting to tell his story and warn over tenants. He has dobbed in John Serafini (company name, Serafini Chains) in Bowen Hills, Queensland.

Myself and my wife have been living in a rental property under a cash arrangement for 2 1/2 years in Bowen Hills. We had a cupboard where we have kept our pots, pans, things we use to put food in for the time we have lived here.

We recently became aware that the broken sheet inside the cupboard is made of asbestos. Small pieces of this same broken sheet are dropping from the underside of the floor on to the garage floor under the flat we live in. There is a good chance that this broken sheet would have been touching things we eat from, I also replaced the bench top above it possibly exposing myself further.

I have been in contact with the asbestos-related disease society and submitted exposure forms for me and my wife. To reduce future incidences of asbestos-related disease in the Australian community, something needs to be done.

I believe that me and my wife have been exposed to asbestos or at least put at risk by it. What about the next tenant here? These owners wouldn't pay for anything to be fixed even if they did have the money. We are vacating the rental and don't want others to have the same problem and potential exposure to a banned and known cancer-causing product. 

The author of this blog post is not an expert in asbestos, so she contacted the Asbestos Council of Victoria:

On the info you have given me, it is hard to say what exposure the family has had – but probably there is exposure – how much? – anyone’s guess. Will they get sick from the exposure? There is no way to know or quantify that. They may never get anything wrong with them. It is Russian Roulette with exposure to asbestos fibres. Of course the more exposure you get the more chances you are taking. You should never allow yourself to be exposed it is the only way to make sure you never present with an asbestos-related disease.  

Of course in saying that I do know of cases where someone who had had only a small known exposure had contracted mesothelioma. God willing they will all be okay. As for the rental place, the owner has a duty of care to make sure that the place is safe to rent and asbestos that is broken or old and deteriorating needs to be taken care of in a rental situation. Asbestos cement sheet that is in good condition and painted and sealed is not a problem. If the house is with a real estate agent the agent needs to make sure the owner has done his duty of care in keeping the house in good condition.

So we can't know for sure in this situation, but the best thing to do is avoid asbestos as much as you can.

Should landlords be criminally charged if they lease properties which are known to be infected with asbestos? This was happening before the ACT Government decided to release the addresses of all Mr Fluffy homes. 

 

If tenants are being exposed to asbestos, this is a massive health risk and should be dealt with appropriately.
 

Tenants would be better protected if inspections were mandatory and landlords were prohibited from leasing asbestos-infected properties to unsuspecting tenants. They should be responsible for paying a licensed assessor if asbestos is later suspected and for compensating tenants for moving costs.

 

If you think you have been exposed to asbestos, you can

• contact your local asbestos-related disease support society; and
• register your exposure with the Maurice Blackburn national asbestos register.

Right to a professional handy man

Some dodgy landlords refuse to hire professional handymen, doing the work themselves, hiring mates or second-rate tradies. Of course, they do this to reduce costs and save money on carrying out repairs.

But there are a number of problems with doing this. First of all, it can be dangerous depending on the kind of work being done. When it comes to electrical work for instance, you want someone who knows what they are doing.

Secondly, it is violates the privacy of tenants. A key element of a lease is the right to quiet enjoyment of the property. If the landlord is doing the work, they get to do an informal inspection without the protections in the Act.

And further, if there is a problem and the matter goes before a tribunal, the landlord has an edge because their mate will probably give a favourable version of the events.

And then there's the hassle. If they don't know what they are doing, it might take longer and they might have to come back.

This is why tenants should have a right to a professional handyman.

Here is a story from a frustrated tenant:

I have a tale of woe to tell. My family and I moved into our dodgy Northcote property two years ago. I knew it was dodgy as I had the pleasure of living in another property owned by the same man when I was a young student.

He was a dodgy prick then and remains one today. Why did I take the property, well der, there is a shortage of three bedroom rentals and my kids need to be near schools transport and so on. Anyway on our first night in the house water poured through the ceiling from the upstairs bathroom into the kitchen. The landlord owns half of Northcote.

For those of you who know the area never rent the houses in Butler street behind the Peacock hotel. The landlords answer to our leaking shower was to send his geriatric worker to carry out repairs. The old guy who has little English has been working on the house for two years as the landlord refuses to engage a plumber who is not his mate. Now this weekend has been shocking.

It has started all over again and it is worse than ever and I am just about at my breaking point. Our rent is due on Tuesday, but I don't really want to pay for a house where I cannot take a shower. I have contacted my property manager. I know that the landlord Andy is going to turn up on my door tomorrow with his old guy. My intent is to not let them in and demand a real worker.

I don't know how the story ends. Hopefully she wasn't evicted for standing her ground. 

But the tenant makes a good point. Why should tenants continue to pay rent when they are not receiving the services they pay for? Tenants should have the right to withhold rent if their landlord abuses their power and does the wrong thing.

Fairer Safer Housing

The Victorian Labor Government is moving to reform the Residential Tenancies Act 1987.

They are like to take a targeted approach rather than "root and branch" reform. This is unfortunate. The problems are deserving of forensic attention.

Here is a list of things I would do:

1. Look to Queensland for inspiration. Their system isn't perfect but a great deal better than Victoria's mess. 

2. Create a separate statutory body responsible for all things housing. I hear good things about the Queensland's Residential Tenancies Authority. I'm not convinced housing is a consumer problem. And I don't think dodgy landlords are an enforcement priority.

3. Set up a register for landlords. Carry out background checks. We need to know who they are and take away their rights if they do the wrong thing. Keep a record of bond claims to make sure the money is going where they say it's going.
 

4. Enshrine a right of appeal. I've heard disturbing stories about VCAT's handling of tenancy disputes ranging from outright bias to errors of law. Tenants should not have to go to the Supreme Court to get a good quality judicial decision.

Here is a perspective from a tenant whose first language isn't English:

No fines, low compensation. If I resume yesterday's hearing, a landlord has the right not to do repairs and to treat you like shit...so why do they have laws??? The thing is I'm petrified when I talk to the tribunal and to the landlord so I can't express what I want to say. I even forgot I had a notice to vacate! 

The notice to vacate as been cancelled but the landlord hasn't been fined for abusing it! Out of the over $10,000 I asked for compensation (I did "over ask" on purpose) I will get $77!!! Even though I pointed out that the real estate agency abused their power, didn't respect the RT act etc, they got away with NO FINE! Conclusion: I am really pissed off!

5. Give tenants an enforceable right to safety. Make carbon monoxide detectors mandatory. Get inspectors out there checking houses for faults. Give them the power to fine landlords who do the wrong thing.

 

6. Do a human right analysis. Residential tenancy laws were enacted before the Charter of Human Rights and Responsibilities 2006 was enacted. Get rid of open inspections for a start. They're a complete violation of privacy.

7. Move away from regulating contracts to regulating housing. It's an important distinction. Begin to standardise laws across different kinds of housing. Why should people renting caravans have less rights than other kinds of tenants?

8. Legislate for minimum standards. Tenants pay for and expect housing that ticks all the boxes i.e. heating, ventilation, waterproofing etc. Is it not too much to ask? Inspect houses before they are leased and don't annoy tenants. Make landlords pay for telephone/internet sockets and TV antennae ports. Why should tenants pay? It is the landlord that owns the property and benefits from these things being installed.

9. Give tenants security of tenure. And flexibility for when the unexpected strikes. Not everyone has secure ongoing employment. I don't know about you, but I can't predict what will happen in three years. Compensation for moving costs would also be great.
 

10. Implement time limits for repairs. Even New Zealand has done it. Everyone's sick of waiting. It's seriously not that hard....