Abuse of the legal system

[cad]

Hi all,

Thought I’d share one of my bad experiences.

I had a tenant that decided to break their lease with six months remaining,
The tenant rang to notify the PM (who was inexperienced) and she rang me.
Timing was bad as the tenant was due for a for a rent increase of approx $75pw
I thought that it was a bit rude to put his rent up if he was going to move out, so asked his permission to advertise the property at the new amount, to secure a new tenant at the increased amount, which was agreed to verbally.
As soon as the first ad went in the paper he informed us that this was illegal and wanted to be let out of the remainder of his lease which we obliged, accepting our mistake.
This tenant moved out 18mths ago, shortly after we secured a government tenant with a 3 yr lease.
A month a go I had a phone call from my PM, informing me that the old tenant had been to the residential tenancies board over this incident and wanted his rent reimbursed from the time he rang the PM to advise them verbally of his intent to move out, until the time he moved out over one month later.
The residential tenancies board contacted my PM to inquire about the incident and get our side of the story, once they had all the facts they told the old tenant that he did not have a case.
So you would think that would be the end of it.
Would you believe that this man went to the Local court himself, paid a small fee and began civil proceedings against us?
This is the bit I just can’t understand, My PM turned up to two hearings that had been set and the applicant did not turn up, but sent a note in his absence.
Yesterday, he did appear & the case was dismissed.
My PM spent approx 55 hours on this case
At the end of the day we have had to do a lot of preparation for a hearing that should never have been allowed to take place.
Why should it be so easy for fools to use our legal system, Impose rather onerous demands that need to be defended then walk away without having to pay compensation for their actions?????

Cad

 

[Aceyducey]

Cad,

Sounds like a bad experience to have.

But you have to admit that while it cost your PM some time (covered in their normal payments I would assume) and you some stress, you got everything you wanted - higher rental & claim was thrown out.

So the outcome wasn't so bad after all

And the learning experience will probably save you millions in the future!

Cheers,

Aceyducey

 

[MF35]

Did you (or property manager) apply for costs??

It's my understanding that especially in a civil hearing the losing party is more than likely to have to pay the legal defence costs of the other party. Especially I would imagine if they were the ones that bought the action in the first place and were found not to have a case. So in short he should have paid your legal costs IF you applied for them and they were granted by the court. If he made a ridiculous claim against me in these circumstanes he would be paying my costs!

My knowledge with courts is however in criminal matters so any solicitors etc with civil court experience might wish to clarify this point of who pays, when and why? Can costs be applied for after the case is finished if not done in court?

A person of the type you described here Could quite esily be called, "A lowlife pathetic scumbag!". And there are plenty of them don't you worry. It Could also be suggested that there is a chance of a person of this type being a Fraud Offender in his spare time, or at least a Serial Complainer. Just a possiblity though! And not that there is anything wrong with people making Reasonable complaints.

Good luck in the future anyway.

MF

DISCLAIMER - note the comments about "a lowlife pathetic scumbag" etc and alike are purely an opinion about people of this general type and are not based on specific personal knowledge of the individual (who I don't know) and should not be taken as suggestive of a factual statement about this particular person in any way.

 

[cad]

Hi MF35

I really appreciate your thoughts on this one, but have decided it’s easier just to let it rest, easy way out I know........ Grrrrrrrr!

Anyway, you’re spot on with your comments about him being a “serial complainer,” because apparently he is well known at the court house.

Kind regards cad

 

[Nimee]

MF35

I realy like your disclaimer

Cad

How about sending him a letter asking for costs etc stating if not you will take him to court - just to give him a bit of his own medicine;

But on second thoughts it might give him another reason to claim harresment etc,etc

 

[MF35]

CAD, I understand if it's not worth pursuing now from both a time and effort perspective. Just something to keep in mind next time you deal with such a person that's all. (hopefully never again!) If you had a solicitor engaged for example they would have been almost duty bound to apply for costs and from your side of the story it sounds like you would have had a very good chance of being awarded them. I just don't know for sure the civil court rulings in relation to this but it wouldn't be that hard to find out if you really needed to know. Just ask a solicitor or for free in NSW you can speak to the Chamber Magistrate. There would also be basic educational books / leaflets available from courts or the Law Society, Legal Aid etc.

Nimee, thanks! I like the disclaimer too. Also I don't think there would be any harrassment issues if Cad decided to send him a 'letter of demand' which is an accepted legal practice for monies owed. But it sounds like it's over and done with. Just important not to be bluffed by such people. They often work off the fact that they seem to know what they are doing and talk up how you can't win, or they're going to sue you for all you've got. I hear it all the time. Alot of the time it can be compensation for their lack of a really strong case or their lack of 'a life!'. Don't be bluffed. However if you come across such people always treat their threats as real and take necessary precautions to defend yourself and seek professional advice. Get second opinions on advice that doesn't sound right to you.

You'll get your chance to respond. And if you are in the right it will normally come out in the end. Alot of the time court action is not worth the expense or the stress though. Depends what is involved. Anyway I've rambled long enough. Take it easy.

MF

 

[cad]

Hi everyone,

I think I've become the serial "defendant"..........Hehe
Would you believe that TODAY, I received a summons from a neighbor next to a development that we are doing, she built a brick fence at a cost of $6590 and asked that we pay half......of course we said NO.
After numerous requests from her for us to pay........today I was served with a summons.
I have no concerns about appearing at this hearing as I don't believe she has a leg to stand on........but these type of BULLIES are starting to irritate me!

All a learning experience I suppose..........Grrrrrrrr

Regards cad

By the way MF35, Thanks for you advice.

 

[geoffw]

cad,

May be time for legal backup.

My advice, when a neighbour wanted an expensive fence which I could not afford, was that I was only obligated to contribute 50% of the cost of a standard wood fence.

The neighbour agreed with that.

 

[Aceyducey]

Cad,

Check with the council (if you haven't already)...they may have some quirky rule which means you have to pay...

Probably, though, this lady didn't know the council regs herself

Is the wall on the boundary line? Totally on her side? on YOUR side?

If it is on the boundary line & you did not approve it being built, you may even have a legitimite case to have her demolish it - that would have her retract her claim quick - before wasting court time!

Cheers,
Aceyducey

 

[chrislaw]

fences

Hi Cad,

I once had a neighbour build a 4ft chainwire fence while I was at work. We had discussed it a week before and I said I wanted a 6ft wood one so we left it at that, all friendly etc.

So imagine my surprise to come home to a builder finishing it. I said to the neighbour that I didn't want that and he said bad luck it's done, so I said I will come in 3inches on my land and build mine, which I did. So my side looked great, his side looked bloody stupid.

Then he comes over with the bill and wanted me to pay 1/2, the nerve of him. Told him where to go, so he comes back a few days later with a Statutory Declaration from his builder saying I said I would pay his 1/2 of his fence!!! What a load of Sh_t.

Solicitor said because it was a dispute it should have gone to the council for resolution and that he can't just build the fence and charge. He wrote a nice letter and that was the end of it.

Neighbour used to come out when I had people over and tell them I owed him money and wouldn't pay. I always laughed at that.
He told my dad one day, to which he replied "Owes you money! I'm still waiting for money I lent him 20 years ago"
He stopped after that.

Chris

 

[MF35]

Isn't it funny how these type of people continue to rear their ugly heads!

Cad, I'd check the council regs and/or speak with the local town planers at council as they should know this one back the front you'd imagine. I bet it comes up alot. And if that fails no doubt there will be some case law in civil courts or mediation hearings for this stuff. I don't personally have any experience with this stuff other than a similar dispute my Father had. His problem was dealt with informally and low key however.

My Father's fences were falling down at a new PPOR he had purchased. And I mean wooden fences in very poor condition on both sides of the block. He approached both neighbours and asked if they would be interested in contributing half of the cost for new colourbond fencing with quotes. One neighbour (who were a low income earning couple with children) said they could only afford one third of the cost. Dad appreciated their efforts and said that will do. The other neighbour flat refused from the start saying "if you want to build a fence pay for it yourself". So Dad did and had it built. But the neighbour who contributed got double sided colour bond fencing and the other neighbour got raw metal on his side of the fence. The fence on this side was also built on Dads side of the property line and this neighbour was instructed he did not have permission to improve the fence in any way. After all it was on Dads property and he paid for it. Needless to say they don't talk much to this very day.

Chrislaw, sounds like you sorted out your problem pretty well. But did you persue the builder?! It is an offence to make a false declaration. At very least I would have reported him to his licensing authority and Fair Trading. There is also some potential for this to become a police matter (the false declaration). Although most police commands are so busy they may decline to investigate due to workload for such a matter. Still worth keeping in mind however if you want to point out to such people that you believe such offences to be criminal / fraud offences and intend to report such to the police. Might have people who are lying thinking twice about this type of behaviour.

It would be good to report him to Fair Trading and his licensing authority though. At least if it happens again people who may be investigating him (the builder) will be aware of a previous complaint of this nature. This can be more important than you think for investigators down the track even though it only seems fairly insignificant now. All a matter for yourself though.

Until the next dispute. Bye for now.

MF

 

[cad]

Hi everyone,

I found all your stories interesting and realise that dividing fences often create tension between adjoining land owners.......bit of a shame really!

I spoke to the Department of Local Government today.....they are the ones that assist with fence queries here in WA.
They told me that I am only required to pay for half of a standard fence.......being around $400 not $3295 as requested by the neighbor.

Anyway, I'm off to the local court tomorrow to lodge a notice of defense........Hehe

Regards cad

 

[geoffw]

cad,

Be careful of de fence.

Before Mr gates comes in doors to ask about de windows.

 

[Nimee]

Originally posted by geoffw
cad,

Be careful of de fence.

Before Mr gates comes in doors to ask about de windows.

GeoffW you have missed your true proffesion

 

[chrislaw]

MF35,

Good point on reporting him, it was along time ago so can't recall his name but I should have at the time as you said it would help others not use him.
I guess I didn't think much about it except it would be both their word against mine. Luckily I have always used a good solicitor which made the difference in this case and many others I have had in the past.
Next time and I'm sure there will be more times like these, I will handle it better.

Chris

 

[geoffw]

Originally posted by Nimee
GeoffW you have missed your true proffesion

Gee thanks Nimee

But fences are a big cause of disputes- and for that, there are standard rules in place.

Usually, the situation here is that you are obligated to share fence costs with a neighbour- only to 50% of the cost of a standard fence. If you want a higher standard fence, that's your cost- unless the neighbour agrees (and it's interesting to see th dramatic increase in colourbond fences in fire affected areas in Canberra).

In England, the situation was a little different. Each property had a fence which was the complete property of one owner. Some of those flimsy fences would not have even withstood the big bad wolf's first huff and puff.

 

[natmarie73]

In regards to fences, each state has a "Fence Act" (yes I didn't believe it at first either). Fences come under state govt regulations not local council.

If your neighbour does not serve you with a Notice to Fence BEFORE building the fence they are not covered by the act and you are under no obligation to pay a single cent.

Check the Act relevant to your state. alternatively in QLD you can also go the the Dept of Justice and Attorney General website which explains each neighbour's obligations under the Act.

Nat

 

[MF35]

Thanks Natmarie73,

Now everyone knows where to find the legislation it should be easy enough for people with fence dramas to work out what they are required to do and what not. Or at least get advice on it and refer your solicitor to the right act.

In your digging did you see any reference to actual guidelines for who pays who is (in the act)? It was suggested earlier in the post that you are only required to pay half of the amount for a basic fence for example. Regardless of the quality and cost of fence built by a neighour (or vice versa). Which sounds about right. Did you see this confirmed in your readings though?

Thanks,

MF.

 

[natmarie73]

Hi,

From memory both parties are supposed to pay for it as long as the neighbour who wants the fence build/replaced issues a notice to fence. if there is any disagreement over costs or if neighbour 2 refuses to pay then the courts will get involved and can make neighbour 2 pay their share.

If neighbour 1 does not issue a notice to fence and just builds the fence they cannot make neighbour 2 pay anything. I would still consult a solicitor though just to make sure as no doubt there may be loopholes.

If the fence borders council or govt land however, the property owner is liable for the full cost of the fence (surprise surprise).

Nat

 

[Elysium-M]

Chris - that's a great story!

Sorry Natmarie - it doesn't work that way in WA. The neighbour can give a notice afterwards, and it still can stick in certain circumstances.

Cad - for your first problem - you should have asked for what are known as "full indemnity costs". The courts sometimes award that where the plaintiff has no reasonable basis for success but still wants to stuff you around. A solicitor would have advised you on this option. It may not be too late to see if you can still pursue this, but I don't know for sure.

As for the fence problem - the law in WA says that it only has to be a "sufficient fence". The courts usually rely on what the council considers to be an adequate fence. Most councils will say that this is a colourbond or wooden fence. Unless your property is in a posh suburb like Dalkeith or Peppy Grove, that is.

Get confirmation from the council, get some advice from a lawyer (even if it's not for them to act for you), and tell the nasty neighbour that you'll seek indemnity costs if she tries to take this further. However, in order to show good faith to the court, you may have to get a quote on a colourbond fence, and offer to pay her half of that quote.

If you want to see what the Dividing Fences Act says, check out www.austlii.edu.au (follow the links to WA, and choose WA Consolidated Acts). This link is also good for the relevant Acts for other States and Territories. The only catch is that it sometimes isn't updated quickly enough. But I know the WA Actis current.

All the best
M

P.S. Sorry, but here's the disclaimer - this post is not intended to constitute legal advice - proper legal advice should be sought from a lawyer who is given the full facts of the situation.

P.P.S. If you want the name of a decent lawyer who won't blow the budget, e-mail me and I'll give you a name. He's quite busy, so there's no guarantee he can help, but he should be able to refer you to someone else.