Going to the Tribunal - will be interesting.

[wylie]

My mother is being taken to the tribunal this week after holding back a few hundred dollars for cleaning of an IP. I know she is concerned about stories she hears about tenants winning cases that appear to be wrong decisions. And there seems to be a general concern that the tribunal rules in favour of the poor, downtrodden tenant.

I know there are two sides to every story, but this is only the second time she has been to the tribunal (first time she has been taken there by the tenants).

The tenants left the house filthy and we decided enough is enough. We were not going to clean up after a grown woman, husband and their family and overseas students. This is not a case of grubby students, but a business woman and her family. Don't think the bathroom had been cleaned for a looooong time and the grease in the kitchen had to be seen to be believed.

I believe there is no way the tenant will win this but realize the tribunal can be a funny place. We have taken photos which clearly show the filth, so even if she wins and my mother wears the cleaning costs herself, she will have the satisfaction of the "judge" seeing how this family lived and the filthy way they left it. If I had left a house like this, I would be humiliated if anyone saw these photos, so I am looking forward to her reaction when my mother plonks them down as evidence (though I will not be in the room to see it).

Will be very interesting to see how this pans out.

I would be curious to hear anyone else who thought they had a really good case, but lost the case.

Wylie

 

[Xenia]

Wylie,

Sounds like everything is stacked in your mums favour for winning the case. However the tribunal is a funny species and can be unprodictable at times. Touch wood we have won all cases we have ever presented for landlords (and there have been quite a few) but I have heared of 2 cases where I was just totally amazed that the landlords lost. These are:

1. After being given a cleaning bill of $100 from a property manager the tenants take the manager and landlord to the tribunal and counter claim the cost of 2 $700 USA basket ball tops stollen from thier clothes line.

The claim was that they had asked the landlord to fix an automatic device on the garage roller door and the landlord had taken 3 months to get it fixed. This part was true and the landlord and pm admited to this.

Tenants claimed that in the 3 months, somone had entered the backyard and had stollen these expensive garments from the line. The evidence presented was this:

The roller door could be locked manually from the inside allthough the automatic devise was not working. The tenants had chosen to leave it unlocked during the eleged robbery.

There was no police report for the robbery and the tribunal case was the first time that the landlord and pm had ever heared of this, it was never reported to them either.

There was no evidence (reciepts of purchase) that the tenants even owned these expensive garments.

The tribunal rulled that the landlord replace the cost of the garments
I think this case has now been taken to a higher court by the pm due to the unfairness of the situation and lack of evidence.

2. A tenant who was in rent arrears was taken to the tribunal for eviction by a pm. The judged asked how much the rent was which the pm replied $400 pw.

Without even questioning whether the rent is right for the area or where the property was located the judge apparently said

"What!!! How do you expect someone to afford $400 pw in rent, I certainly can't afford that on my salary"

The tenant was not evicted allthough he was in breach of the contract he had signed

Absolutely shocking and both rulings were by one judge who is known amongst pm's in Adelaide as being notoriously against landlords!

 

[Dazz]

"What!!! How do you expect...."

....fantastic case histories Xenia - we are lucky to have you contribute.

Yes, expectations are a wonderful thing, and this is what it all boils down to.

I suppose there is a general expectation when a tenant signs an application form for a house advertised at $ 400 p.w., and then subsequently enters into a legally binding contract (Lease) where they obligate themselves to pay $ 400 p.w.....well you know, I suppose it's OK for the Landlord to expect the tenants to be able to afford it....and not just afford it to start with, but continue to afford it for the complete tenure of the Lease.

Perhaps this expectation is amiss and the tenant actually meant to pay something else on a sliding scale from $ 400 down to nothing over the tenure of the Lease....who knows ??


It's the same with cleaning. When the Lease states that the Tenant shall keep the premises in a clean, habitatable and tenant-like fashion....well, that has many and varied meanings, but it doesn't include soiled nappies strewn everywhere, junk blocking the front door requiring two hours of digging to actually walk through it, or a kitchen and bathroom that require the usage of shovels and rakes to enter prior to using chisels and paint scrapers to see the benchtops.

What staggers me is that people with different definitions of clean always present reasonably well in public, reasonable car and reasonable clothes for example.

I think it's a mental disease personally, and having done my fair share of cleaning up after characters like this, I honestly can say that the offending tenants don't blink an eyelid and think it perfectly fine. If your mother is looking for some sort of reaction or remorse, I think she'll be surprised how nonchalant the tenant will be. Water off a duck's back.

Of course, these type of tenants expect the place to be just tickety-boo, clean and presentable when they move in.....it's just a different definition takes over when the onus is upon them to deliver up clean and vacant possession.

The value of the Bond also comes to the fore at this stage of proceedings, and typically the 4 weeks doesn't go very far, especially if they thought the last four weeks of rent were optional.....I mean you already had their money - right ??

Swimming through other people's domestic woes - shudder the thought.

 

[Pushka]

Wow, so does that mean that people with mortgages of more than $400 a week don't have to pay them anymore because they cant afford them?

 

[lizzie]

i've been taken to the tribunal twice over the years, and both times - after pre-tribunal vigorous and angry threats by the tenant - neither of them bothered to turn up.

 

[wylie]

i've been taken to the tribunal twice over the years, and both times - after pre-tribunal vigorous and angry threats by the tenant - neither of them bothered to turn up.

Actually, I would not be surprised if they don't turn up, in which case, we will have a nice cuppa in the city

She knows that we have photos (the conciliator told her, and is on my mother's side in this, just quietly) but I don't think she quite realises that with modern day cameras and computer programmes, what would just look like a grainy photo, comes up very, very nicely and shows every little bit of dirt

During the conciliation phone call process she changed her story from agreeing to eight hours' cleaning, to $100 worth of cleaning to "their builder made it dirty" The builder came in after they vacated, so that is very accomplished of him to make the place dirty before he ever got there

I really don't think this tenant has a snowball's chance, and my mother is not expecting any remorse or anything, but just wants to show this woman that she is not a pushover and make her point.

To be honest, I am kind of looking forward to it. It should be a bit of fun I reckon.

Wylie

 

[natmarie73]

So if you don't get a fair solution at the tribunal as in Xenia's case where the tenant was not evicted can you then appeal to a higher court? If the tenant has breached the contract surely they can be sued for that and made to rectify the breach or the contract is terminated.

I can't believe tribunal judges are so out of touch. They should be aware of everything in the current situation and not just be able to say that $XXX is too much so tenants shouldn't have to pay it and they shouldn't be so blatently on the side of tenants. Did the tenant ever pay the rent after or is he still living there rent free?

 

[LynnH]

wylie

Hope all goes well for your mother at the tribunal this week - let us know the outcome.

Cheers
LynnH

 

[wylie]

Thank you Lynn. I will post the results on Friday. Fingers crossed.

Wylie

 

[cgw]

Good Luck Wylie

 

[urban cowboy]

best wishes Wylie!!!

have been there a few times myself as an agent - i love it!!! great fun - especially when you know the odds are stacked well and truly in your favour.

try and get an order to have the tenant listed on TICA if there is enough there to do so - call me vindictive but vexatious complaints etc really tick me off as they waste a lot of time and money.

cheers
UC

 

[wylie]

Thanks cgw & urban cowboy. No good getting them on TICA because they have bought their own pigsty..... I mean house.

The really funny thing is that though they kept a grubby house, there was no animosity at all until the last day, when they realised they couldn't leave the house like a sty and get away with it. They were paying $100 under market and still want things their way. Unbelievable (My mother was slowly creeping up the rent, but they were long term tenants, you know the story.....) I have told her she must keep on top of it now and raise the rent regularly, but she is a bit of a softie.

I will be gobsmacked if they win, but stranger things have happened so I am not counting the chickens yet.

I'll definitely report back.

Wylie

 

[skater]

Good luck! Should be plain sailing.

 

[Debt Junkie]

Back in my student days I took my landlord/real estate to the small claims tribunal in Brisbane.

We (me & flatmate) claimed damages of about $800 after (would you believe) the toilet cistern fell off the wall and then continued to fill - and spill - all day long - by the time I got home that afternoon (about 2ish) water was gushing out from under the door to my flat Anything on the floor in any of the carpeted rooms was damaged, including phones clothes book shelves etc ...

I had noticed a problem with the cistern and had called the real estate in the morning to organise a plumber urgently. The real estate claimed (in court) that I had refused to allow entry to the flat without my being present - I don't remember saying that! To be quite honest, if the plumber had called and mentioned that water was coming out of the flat, I'd have told him to break the door down ... not sit outside having a smoke and waiting for me to arrive!

The problem was fixed, although we had to live with great big carpet fans blowing away for about three days and I personally think the flat should have been considered unlivable during that time.

In small claims court, the damages were split and we got half of what we had sought. The judge stated that we could have mitigated the problem by turning off the tap under the toilet. The really annoying thing was, I knew about the tap, and I should have bloody turned it off! That would have solved everything. Sigh.

I didn't feel the judge leaned particularly towards the landlord or the tenant in this matter, and was fair. But then, I don't think our claim was as high as it could have been either. I then moved into a house managed by the same real estate agency and stepped through the rotting deck, so I suspect the small claims had met my real estate agent before ...

Be confident! I'm betting they won't show either ...

DJ

 

[Tania]

Hi Wylie

The Tribunal can be a funny place where if you are not positive and well informed the Registrar can make some wierd and wonderful rulings.

I would suggest that you accompany your mother or even get your managing agent to go with her to act on her behalf.

Whilst some of the information to collate may appear obvious I would strongly advise you to look at the RTA website link

http://www.rta.qld.gov.au/preparing_for_the_hearing.cfm

Wish her all the best and please let us all now how she goes.


For now


Tania Ph: 3262 4533
Mayfair Property Management Brisbane
[email protected]

 

[kathryn d]

We had a tenant last year burn our IP last year. We took them to tribunal and the officer was inexperienced and basically stopped the hearing after I refused to say how much I paid for the house.
We lost...was told we didn't prove our case, insufficient evidence!!! We had all the receipts and Fire Marshall's report stating the couple's son admitted to starting the fire.
We appeal and take them to small claims court.

Presented a great case and really thought we'd win. Last week we were informed we lost.The judge has no clue what tenant insurance is for. She thinks it was to replace the tenants belongings.That is a tiny part, but why we insist on it, as landlords, is for the tenant's liability.The tenant breached their lease and didn't purchase insurance as required.
We are now looking into appealing to the Supreme Court.
The lawyer we spoke to yesterday stated we should have taken our insurance broker and had him testify that the tenant's insurance policy would have paid(if they had a policy).We thought the judge understood what Tenant Insurance was.

 

[Dis]

The judge has no clue what tenant insurance is for. She thinks it was to replace the tenants belongings.That is a tiny part, but why we insist on it, as landlords, is for the tenant's liability.The tenant breached their lease and didn't purchase insurance as required.

Ok I'll put my hand up and ask the stupid question. What is tenant insurance (when purchased by the tenant)? I have building insurance (to cover the builiding) and tenant protection insurance (purchased by me to cover rent loss and damage by the tenant). That would cover the scenario you mentioned I assume.

Also in small claims, liability is what the judge should be ruling on, isnt it? Whether one or more parties is insured re: damage for which they are liable is another matter.....

 

[wylie]

Hi Tania.

Thanks for your good wishes. My mother self-manages and I will be going with her, but don't know if they will let me in the room until I am called (if needed) as a witness. My mother has asked for me to go with her as my dad has Alzheimers so she has asked that I be allowed in. The tribunal staff will let us know when we get there.

Anyway, I would not be surprised which way it goes, but the photos are doozies, and show how grotty this family left the house. All cleaned up of course by several hours of cleaning, which they should have done, which we paid for and which is in dispute.

Even if Mum loses, we will have the satisfaction of this couple knowing that someone else has seen the photos. Small consolation, but very satisfying for us because I would be so embarrassed if it was me, but maybe they just don't care.

Anyway, thank you for the link. We had already taken a look when we knew we were being taken to the tribunal, and I think the RTA website is really helpful, as are the staff whenever I have had reason to call.

Will certainly post the outcome tomorrow when we have an answer.

It is not a lot of money in dispute, but more a principal we are fighting for, that tenants have obligations, not just landlords.

Wylie

 

[kathryn d]

Ok I'll put my hand up and ask the stupid question. What is tenant insurance (when purchased by the tenant)? I have building insurance (to cover the builiding) and tenant protection insurance (purchased by me to cover rent loss and damage by the tenant). That would cover the scenario you mentioned I assume.

Also in small claims, liability is what the judge should be ruling on, isnt it? Whether one or more parties is insured re: damage for which they are liable is another matter.....

You have to remember I'm referring to the Canadian tribunal here and our Insurances.
Here, Tenant insurance is mostly to cover their liability. Usually policies start at $1 million.That covers any damage , whether it be accidental etc.If a guest trips over the marbles their kids left on the floor, ends up injuring themself, and can't work.....the liability insurance would protect them from a lawsuit.A small part of Tenant's Insurance is to protect the personal belongings.Another part of the insurance is for living expenses should the dwelling be uninhabitable (flood, fire, other tenant in building starts a fire etc).Otherwise the tenant pays for these things out of their own pocket. A landlord here is not responsible for a tenant's personal belongings or emergency lodging.

I always try to explain it to people this way.
If I lend you my car and you smash it, I would expect you to cover my repairs.If I put it thru my insurance, my premiums are increased for the next 5-8 years.

We don't have the type of landlord insurance many of Somersoft mention.We received (separate insurance policy)3 months of loss rental income even though it was 6 months for repairs. We didn't even ask to be compensated for that. All we wanted was the cash difference between what our Insurance Policy paid and what it actually ended up costing, because of the new building codes we now had to apply to a 100 year old house.
Not a lot of money, but $19,000 we shouldn't have pay, since we didn't start the fire.

 

[wylie]

We Won, We Won, We Won

What an interesting morning. Tenants lied through their teeth about everything.

Saving grace was the fact that I took photos the morning they vacated which proved how dirty they left the house. We had about 20 photos of filthy power switch in the kitchen, filthy grill tray, filthy tiles and grout, filthy everything. When the judge asked my mother for the receipt for the cleaner, she offered him the photos. He took them and I could see by his face as he looked through them that we had a good chance.

The last page of four photos was the bathroom in its clean state, looking beautiful and clean and the contrast "before" and "after" could not be denied.

Tenant said they had been asking for four years for my parents to come and get rid of the mould in the bath/shower recess . Judge said "wouldn't that be your job to clean it, it is just cleaning" or similar. Put them right in their place.

He asked the tenants to have a look at the photos. They said "these could have been taken any time" and said they didn't leave the house like that . Judge asked were they suggesting the landlords were committing fraud? If so, tenants had to prove it. I think they were getting on pretty thin ice by this stage. Judge asked them why a landlord would pay for cleaning if it was not necessary. He said the photos spoke for themselves.

Tenants said the single builder who was changing wardrobe doors made it dirty

They denied that they left it like that, but photos don't lie.

The judge was fantastic, firm and fair, kept proceedings on track and nipped it in the bud when things started to get a bit heated. I feel sure he can see through the lies pretty early on in each case. I believe he had us all sussed out within half a minute.

When he issued his judgement, they didn't even stay seated until he finished, which was just rude. They were very angry, slammed their folder down, and walked out, but stuff 'em, they deserved to lose the rest of the bond.

Score one for the landlords, yeay!!!

Wylie