Expose: House of Horrors

I have recently written about Mr Khourey and the violence he has perpetrated on his tenants. As is usually the story with rogue landlords, there is more than one issue at play. He failed to provide safe premises for his tenants when he converted two four-bedroom townhouses into eleven units without the permission of council. Audrey says, ‘The whole place is a fire hazard, health hazard, and a disaster waiting to happen.’

Holroyd City Council first got involved when Audrey’s son Ben fell and broke his arm on the ground floor staircase of the unit block. The staircase didn’t comply with legal standards with respect to fire safety or maximum incline. Even though the staircase was very steep, there was no railing in place on the opposing side.

The plumbing system didn’t work throughout the entire building. Mr Khourey compacted the rubbish every day and flushed the excess down the toilet. The showers didn’t drain. Every sink and toilet blocked on a regular basis. The cupboards couldn’t be used for storage. The temperature of the hot water system wasn't regulated. The showers didn’t have screens so the water ran off into the kitchens. The water drainage was extremely slow. Here is video footage Audrey shot of her kitchen plumbing gone bonkers. Bless his little heart, Ben said, 'Mummy, we have the water and the troll, but no bridge'. There were only two garbage bins for all the occupants to share. As a side note, tenants are expected to pay for rubbish removal upon vacation of premises, but there is no equivalent duty on landlords to provide for sufficient garbage disposal throughout the life of a tenancy.

The electrical system was in a state of disarray. The power outlets were either ill-fitted loose in the walls or didn’t work. The smoke alarms only worked when the power was on. At various places throughout the building, there were loose electrical cables hanging down. The fuse boxes were a mess. Most of the stoves were unfixed hotplates.The building was not safe. The flooring was either loose or non-existent; either unfitted lino or bare concrete. The upstairs units either had no windows or a single very tiny window. There was no ventilation or fire escape plan. The outside was littered with building materials surfaced with damp slippery clay and no footpaths. In New South Wales, a landlord is required to comply with statutory obligations relating to the health and safety of residential premises. See section 53 of the Residential Tenancies Act 2010 (NSW). In no way shape or form, has Mr Khourey complied with this obligation.

And then there were pests. There was a flea plague and a rat infestation (and by that I don’t mean the chief rat landlord). Keep in mind this particular building is merely four years old. There is no specific obligation on the landlord to take pest control measures. But they are required to provide premises in a way fit for habitation. See section 52 of the Act. Another breach by Mr Khourey.

The building was registered with Council as being built four years ago for the purposes of two four-bedroom townhouses. Mr Khourey converted it into eleven separate units. There was no occupancy certificate. Last year in October, Merrylands Council ordered that the premises be made available for inspection. Mr Khourey refused. Holroyd City Council obtained a search warrant on 24 April 2013. The Parramatta Local Court provided permission for entry to be obtained by any reasonable means. Here is an image shot of the search warrant.

All eighteen residents were informed they may be made homeless. After inspecting the premises, Merrylands Council determined that the entire building should be shut down due to numerous breaches of the Environmental Planning and Assessment Act 1979 (NSW). At this stage, all tenants are seeking alternate housing arrangements.

Mr Khourey owes these tenants about $20,000 in total for bond refunds. He did not provide receipts to these tenants as proof of payment. A clear violation of section 159 of the Residential Tenancies Act 2010 (NSW). Audrey says, ‘...at least this bad rogue trader can never rent this property again. In all likelihood it will be demolished as a house of horrors and depravity’.

And what does Mr Khourey think? He thinks, ‘There are some dark forces at work in our community...These evil forces have neglected the community by misappropriation of valuable community resources to incite injustice, violence and homelessness’. I think Mr Khourey dislikes the government intervening because he thinks he should be able to do whatever he wants with his property. This kind of thinking is wrong on so many levels. This is an image shot of a post by Mr Khourey on the Holroyd City Council Facebook page.

The law of tenancy doesn’t talk very well to other areas of law. Rental premises should be assessed prior to occupation to ensure compliance with health and safety standards. If there was a more proactive approach, tenants would not have to search for alternate housing and pay for additional associated costs. No matter how bad the current housing crisis gets, tenants should expect and demand access to safe housing. In a country like Australia, tenants should not be expected to live like pigs.

Damn the Man!

I have been following the events in Queensland with great interest. Last year, the Newman Government announced its decision to cut funding to the Tenants’ Union of Queensland (TUQ) and the Tenant Advice and Advocacy Services (TAAS). The Federal Government stepped in and provided interim emergency funding but that grant is due to end June of this year.

Despite widespread public concern, Premier Newman has confirmed that funding will not be reinstated by his government. His plan is to divert funding from the 22 tenant advice services to the provision of public housing in Queensland. He says, ‘We stand by our decision to redirect funds to putting a roof over the heads of Queensland's most vulnerable people. That is our priority’. By posing such a choice, the Premier would have us believe the closure of a service that helps vulnerable people will actually help them. But it seems most people are wise to this political parlour trick. As TUQ says, this is just a ‘false dichotomy’. In my view, justifying a funding cut by using the plight of homeless people is unethical if not downright bloody scandalous.

Tenancy services have hit back saying the provision of advice and advocacy services help keep vulnerable persons off the streets. A campaigner says, ‘These services reduce homelessness and help to keep people housed, retain people's self-sufficiency in the private rental market and keep them off the social housing wait list’.

Ms Miller, the Shadow Housing Minister, supports the campaign to reinstate funding. This is what she has to say - ‘Without TAAS providers in Queensland we will see an increase in disputes and court proceedings between tenants and landlords and an ultimately an increase in homelessness in Queensland’.

At the Commonwealth level, the Gillard Labor Government is baffled by Newman Government’s decision. The Housing Minister, Mr Butler says, ‘The most effective way to reduce homelessness is to prevent people becoming homeless in the first place and services such as these help to do exactly that...we want a prevention based approach but the Newman Government seems intent on playing politics instead of policy’.

I would agree with these sentiments. The causal link seems pretty obvious to me. But Premier Campbell Newman has taken the view, ‘There is no evidence to suggest TAAS is preventing homelessness. In fact, between 2009 and 2012, the number of households on the waiting list considered to be homeless or at risk of homelessness increased by 80%.’

I would suggest that he is taking a very general statistic and using it out of context. There is no doubt homelessness is a very complex issue. If he wants to use statistics as a weapon, he should rely on specific statistics tied to the provision of tenant services. That raises another issue. Prior to the funding cuts, did the tenant advice and advocacy services have enough funding to produce detailed statistics about their operations? As a side note, if these services are constrained by confidentiality agreements, the public has a right to know. It is in the public interest to have access to all the necessary information to form a political view on this issue.

 

And just because there is no or limited evidence doesn’t mean something isn’t true. If I tell my boyfriend I have a headache, he can’t exactly prove it. Academics don't pay a lot of attention to tenancy laws. Just because it has been overlooked doesn’t mean the law adequately deals with drop kick landlords.

Premier Newman seems to have taken a bit of a legal approach with his reference to evidence. He has opened the door so let’s see how this plays out. If this was being determined in a court of law, a judge could hear evidence from both sides. One thing a judge can hear is expert evidence. There is no doubt the indomitable Penny Carr from TUQ would be considered an expert witness. She is able to provide a very specific and credible example of how tenant services help people at risk of becoming homeless.

 

She says, ‘[One woman with a disability] was told by the real estate agent that she was in rent arrears. There were some circumstances that were beyond her control. She was being taken to the tribunal for a warrant of possession. She was advised how to respond and how she might save herself from being evicted so she went to the tribunal well armed and well organised and managed not to get evicted and the rent arrears were rectified and she was able to stay in that property until the end of the fixed term agreement’. So not only do we have evidence, but damn good logic.

Still on shaky ground, Premier Newman tries to justify his decision on the ground there is a duplication of services. He says, ‘The services provided by TAAS are already available through government agencies like the RTA and through government programs like RentConnect’. There is a pretty big difference between advice and information. Who will go into bat for tenants when the shit hits the fan? TUQ observes ‘They will lose access to face to face services in their communities, they will have no one to review their documents, help them prepare for tribunal hearings or advocate for them to their lessor or agent. The RTA does none of these things and nor can they as they must remain impartial’.

But the Premier’s team says, ‘The RTA already processes more than three times the number of tenant inquiries as all TAAS providers combined. The RTA will continue to provide renters with free information about their rights on issues like rent disputes, property repairs, entry and privacy and getting a bond refund. They also provide a free conciliation service to help tenants and landlords resolve disputes’.

And please tell me how conciliation is any good when dirt bag landlords break the law and do what they want. In no way shape or form, has the Premier’s team engaged with practical issues on the ground that work to prevent access to justice. Their treatment is just superficial. This is about people, not politics.

Premier Newman also thinks some community organisations provide tenancy advice and advocacy. But he is unable to provide information about the identity of these organisations and the nature of the services they provide.

From the start, the campaign to save tenant services has emphasised that the funding for tenant services comes from interest derived from bonds put up by tenants. As I understand it, less than 15% goes towards the funding of the tenant services in Queensland. This is a fairly minimal amount for what all the State and Territory governments (except the Newman Government, of course) agree is an important  government responsibility.

 

One bemused voter observes, ‘I don't understand how the funding that would have been put into TAAS is really going to make much of a dent in the amount of money needed to properly deal with the issue of adequate social housing’.

But Premier Newman has taken the position that what he is doing is legal and therefore defensible. It might be legal, but in my view, probably not moral. The Premier’s team says, ‘It is not correct to suggest that the interest earned on tenant bonds, some of which previously funded TAAS, is somehow tenants’ money...Under the Act, interest earned on tenant bonds is to be used for the provision of rental advisory services or on establishing schemes for supplying residential accommodation’. Just because one can do something, does not mean it’s necessarily right. If we do not question these things, women still might not have the right to vote, to an education, or to equal pay.

 

Generally, the acts of the Newman Government in cutting funding to tenant services has brought attention to the issue of interest derived from tenant bonds. Tenants definitely have an interest in how these funds are allocated by state and territory governments.

 

Is there an ulterior motive behind the axing of tenant services? The implementation of the three-strike policy in public housing may be a sign of more disturbing developments to come. And who exactly is going to question these policies and advocate for tenants?

See More:

• Amy Remekis, ‘Tenant group faces eviction’, Brisbane Times, 12 April 2013
• Amy Remekis, ‘Tenants groupsfear homelessness after funding cut’, Bayside Bulletin, 3 April 2013
• Koren Helbig, ‘Protesters to rally against funding cut for Tenant Advice and Advocacy Services’, The Courier-Mail, 28 August 2012
• ‘Disgraceful Newman Government Confirms TAAS Axed’ My Sunshine Coast, 12 April 2013
• Mark Butler MP, ‘Feds say Newman Government to leave tenants out in the cold’, media release, 11 April 2013
• Stephanie Smail, ‘Qld Govt slammed for dumping rental advocacy help’, The World Today, 12 April 2013

 

Expose: Terrifying Home Invasion by Landlord

What do you do when your landlord breaks in? That’s the question Audrey had to ask herself last week when her landlord staged a terrifying home invasion. This story is very real. Do not think for one minute this didn’t happen. I have used fake names to protect the victims. Audrey is a 48 year-old woman from the western suburbs of Sydney. A writer herself, even she has struggled to put her shock and disbelief into words. What makes this story even more outrageous is that her special-needs son was home when the landlord attacked.

 

Audrey rented a first floor unit from one Robert Khourey two months ago. It all started when her ten year old son, Ben, fell down the stairs. No proper railing in place, there was just a plank of wood. When Audrey arrived home at midnight, after spending hours at the hospital Mr Khourey made them relocate with no notice whatsoever. Mr Khourey should have issued a no-ground eviction notice giving Audrey 90 days notice to vacate. But the law doesn’t matter to this landlord.

Then the harassment started. Mr Khourey objected to Audrey being friends with another tenant and did not like that she was friendly with the neighbours. Another tenant has alleged that Mr Khourey subjected her to unwanted sexual advances. Audrey says, ‘This guy just can't let go. He was using me as a way of trying to get to the other ex-tenant, when I wouldn't talk her into sleeping with him...’ Although Audrey has always paid rent on time and has never damaged the premises, he started finding fault with everything. He came to her home and said she had 12 hours to vacate the premises. He justified his action by citing the Innkeepers Act 1968 (NSW). Totally irrelevant, of course. Luckily Audrey knew her rights. She stood her ground and refused to leave. What an amazing lady.

The terrifying ordeal started the next morning when Mr Khourey broke into Audrey’s home. He picked up her belongings and started throwing them around the unit. He even threw her own ironing board at her. Mr Khourey finally left after Audrey managed to force him out. Audrey called the police straightaway for help. The attending police officers informed her the landlord’s behaviour merely constituted a ‘civil assault’. Furthermore she had no rights without a written lease and Mr Khourey could enter the premises at any time because he was the landlord. Wrong, wrong, wrong. No matter which way you look at it, this was a criminal assault. A residential tenancy agreement does not need to be in writing. See section 13 of the Residential Tenancies Act 2010 (NSW). A tenant possesses the right to quiet enjoyment of the premises without interruption by the landlord. Moreover, on my reading, assault is not a permitted ground for access to leased premises.

The police did nothing to help Audrey. They facilitated the return of Mr Khourey a second time. Mr Khourey assaulted Audrey again in her own home while her disabled son watched on in fear for her safety. Increasingly erratic and delusional, Mr Khourey started calling her by her friend’s name. She says it was ‘bloody scary’. Desperate and alone, she called the police again for help. Police officers attended the scene. Mr Khourey stated he had had rights of entry under the innkeepers legislation. And they believed him. Yet again, they left Audrey and her disabled son to the mercy of a crazed landlord.

And then Mr Khourey returned again a third time. He started bashing the front door down. At this stage, both her and her son were in hysterics fearing for their lives. Audrey dragged a wardrobe over and pushed it over on its front to create a barricade. Taking shelter under a flight of stairs, Audrey managed to call 000. She says, ‘The third attack was the scariest as that wardrobe just wouldn't fit against the front door (I could not slide it across quickly enough - just like in a horror film) and he was crashing into the door and I was convinced we were dead. Ben was screaming and I was screaming too. The triple 000 operator stayed on the line with me but I was terrified and screaming and could not stop shaking for hours. It was only later I realised that both my wrist and my ankle were sprained’.

Fed up, the police finally charged Mr Khourey with assault. The police finally arrested Mr Khourey just after 4pm that Friday. The attacks had started from 6.30am in the morning. Audrey had called the police on all three occasions. She had made contact with the Consumer, Trader, and Tenancy Tribunal. They told Audrey to speak with the sergeant and demand that he watch video footage she managed take with her phone. Here is a video Audrey shot of Mr Khourey being arrested.

Mr Khourey spent a mere 24 hours in lock-up. Despite Audrey’s terrifying ordeal, the NSW Magistrates Court accepted his application for bail. What happened next, you ask? He returned to Audrey’s home. Yet again, Audrey called the police. And finally, he left her alone. But no remorse. This is what he has to say for himself on Facebook - ‘After 24 hours of entertaining the bullshit bureaucracy and its rogue minions it's good to be free and thundering. May Gods glory shine through people and purify the dark souls of those who hope against hope’. Clearly, this dude is a few cans short of a six-pack!

There is absolutely nothing in the Residential Tenancies Act 2010 (NSW) that could have helped Audrey in this situation. I only found one provision remotely relevant. Section 92 says the tribunal can terminate an agreement when a tenant subjects a landlord to harassment, abuse, intimidation or threats. The bias is unbelievable. The Act does not address the safety of tenants in situations they are being abused by their landlord. There is simply no procedure for police to follow. The courts have considerable discretion making protection orders. But it is not really clear what a court can do to protect tenants when a landlord is abusing their tenants on premises in which they have a proprietary interest.

What else can we take away from terrifying tale? In my view, the response of the police just was not good enough. The police should have the appropriate knowledge to deal with such a situation in the most appropriate way. There needs to be adequate policy and procedures. Police officers need to be trained so that this situation cannot happen again. This kind of thing should not happen in a country like Australia.

This story will not end here. Court proceedings are on foot. I will update as developments occur. The public has a right to know about the dangers of renting from this landlord. So tenants be warned, think twice before renting from this man. Please note this photo was taken from a Facebook page available for public viewing.

A Cautionary Tale: Tenant has Last Laughs

When it comes to tenancy disputes, there is usually more than one issue at play. And so, this is the case in this tale – everything from cleanliness to repairs. Wonder Woman and her partner Superman relocated to Victoria, Australia from the United Kingdom for work purposes. It is often very easy to draw the dichotomy of tenants against landlords. But in life, things are not so clear cut. This very professional couple own their own home in the United Kingdom and let it out during their stay in Australia. As landlords, they are familiar with the kind of issues that crop up during tenancies. They are definitely not dead-beat tenants, the picture so often painted by advocates of landlord rights. 

Cleanliness

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.

 

Removalists aren’t going to wait around. Simple as that. And then you have other people that don’t want to commence a tenancy with a complaint to the property manager. And if the situation is really that bad, what if the tenant does not have relatives to stay with? And moving house can be very pricey, what if they don’t have the funds to stay at a hotel. The landlord certainly has no obligation to compensate frustrated tenants in this kind of situation.

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).

 

In Defence of Pets

I have previously talked about the right of tenants to keep pets. I am returning to this topic once again. A case handed down by the NSW Supreme Court has been brought to my attention. The case of Allkins and Ors v Consumer Trader and Tenancy Tribunal and Ors provides an interesting insight into judicial treatment. I have spent some time reflecting on this decision.

This is what happened. A couple moved into a Caravan Park with their dog. They had obtained permission to keep Jacko. The dog passed away and the couple replaced him with Ruffy but did not request permission before doing so. The Caravan Park denied later applications for approval. The tribunal decided in favour of the Caravan Park. The couple was ordered to remove Ruffy from the premises. 

The tribunal decided that the resident’s medical need for a companion dog was not relevant. It said,  "...the fitness or otherwise of the respondent as a pet owner or her medical need for a companion dog are not sufficient reasons for an order in her favour". This seems like a pretty big call to me. I think it would have been entirely appropriate to explain this aspect of the decision. In a more general sense, is it acceptable to deny tenants with disabilities the opportunity to keep pets?

Let’s contrast such superficial treatment with that of guide dogs relied upon by individuals with impaired vision. In New South Wales, people with visual disabilities have access to significant legal protection when accessing public places and modes of transportation. In Australia, it is generally accepted that blind people need to rely on guide dogs and it is not appropriate to discriminate against them on this basis.

So let’s look at housing law. I don’t know what happened in this case, but say we have a tenant who suffers from depression and anxiety. As part of his or her treatment, the tenant decides to adopt a pet. In recent years, we have become more aware of the needs of people living with mental illness. I don’t think we should treat physical disabilities any different to psychiatric ones. Such differential treatment should not happen. I would argue that the effective denial of pets further marginalises people with mental disabilities. Here is picture I snapped of a special-needs man with his beloved pet, Dolly.

Turning to the decision of the NSW Supreme Court. NSW Legal Aid Commission argued that the pet rules were inconsistent with the tenant’s right to quiet enjoyment under section 20 of the Residential Parks Act 1998 (NSW). The Caravan Park argued it could make pet rules under section 62 under which residents had to seek permission prior to pets entering the park. 

Justice Malpass said, "It was first said that the rules were inconsistent to the right to quiet enjoyment provided by s 20 of the Act. The argument put in support of this proposition was done so briefly in the broadest of terms. This was a characteristic of the submissions made concerning validity. I am not satisfied that the rules concerning pets are inconsistent with the provisions of s 20 of the Act (in particular I am not satisfied that they interfere, or cause or commit any interference, with the reasonable peace, comfort or privacy of the resident in using the site)".

I don't think Justice Malpass interpreted section 20 according to its ordinary meaning. Nor do I think His Honour gave sufficient weight to the stated objective of providing protection for residents. To my mind, the concept of quiet enjoyment quite clearly encompasses the right of a tenant to keep pets. Section 20 is expressed in the broadest of terms. His Honour addressed the issue in the most cursory of ways. The opportunity to expound on the meaning of quiet enjoyment was missed. Tenancy laws impact on the lives of ordinary people. What is the point of quiet enjoyment in residential tenancy law if its clear meaning is not given effect?

NSW Legal Aid Commission argued that the caravan park should exercise the power to make pet rules in a reasonable way, and that the caravan park’s policy of phasing out pets was unreasonable. Justice Malpass stated, "Secondly, it is said that a duty should be implied, from both the objects of the Act and the general law, to exercise the power to make rules only in a reasonable manner. There was issue between the parties as to whether or not such a duty should be implied. In the present case, it is unnecessary to address that question. I am not satisfied that the exercise of the power was unreasonable". His Honour decided he did not have to establish whether a duty of reasonableness existed, but then concluded it was exercised in a reasonable way. This is odd. Where’s the reasoning?

Additional considerations not clearly enumerated are at play here. Perhaps the courts are reluctant to expand the rights of tenants over owners of property. I guess then we have to start looking at the value placed by western culture on property. In my view, the system is set up by owners of property to protect rights attached to property. But is this the only thing the law should protect? What about notions relating to self, family and culture? Classical liberal theory focusing on a person's right to life, liberty and property should be understood in light of the human rights age. These rights should be re-interpreted in light of the value placed on all human aspirations, and not just those of the moneyed and propertied class.

One of the first things I learned about the law, was that it was a reflection of culture and society. Is our lacklustre legal treatment of pets linked to some kind of nonchalant indifference? I don’t think so. You just have to look at all the amusing pet-related memes on Facebook! So if our legal disregard of pets is not a reflection of our culture, then the link has probably been interrupted by the considerable power exercised by owners of property. And if the law isn't a reflection of culture, then I think it loses its legitimacy in the eyes of the people.

 

Should we continually expand the rights of property owners to the detriment of tenants who have provided valuable consideration for quiet enjoyment of property? In my view, the concept of quiet enjoyment should be given meaning because western notions of pet ownership are indelibly linked to property ownership. This is something a judge could take judicial notice of. Think about it. The Aussie conception is that of a home, backyard, and a dog tied up in the back. But in other parts of the world, this is not so. I am a strong independent lady. I have backpacked around India and parts of Asia by myself. I realised that in other cultures, pets are everyone’s responsibility. You have street dogs that everyone looks after. Pets are not linked to a person’s relation to property. They are companions and should be treated accordingly.

 

 

 

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!'