How are intensions calculated in law?

[Xenia IM]

As a property manager, I attend a lot of tribunal hearings.
One of the most interesting things I notice is the intention behind something is considered not just the legal facts - I think this is a great side of the law.

For example, I have a good friend who is renting on a periodic lease through a private landlord. Her landlord has just given her 60 days notice for vacant possession due to needing the property for private use.

My friend requires more than 60 days so she rang me to ask what she can do.
When I looked into it, I informed her that the 60 days will be void because the notice was not served on the appropriate form, it was sent by letter on a piece of paper. Also mail time was not considered so it's less than 60 days - voided twice!

My friend was very happy and immediately started scheming that she could wait until 50 days and then contact the landlords and tell them that she is not moving out and the need to begin the 60 days over again because it is void.

Now this is where intention comes in and will be factored in when in front of a tribunal judge. If she knew it was void and went along with it with the intention of prolonging the time due to someone else's error, it will be taken into consideration at the ruling and she could still be ordered to leave in the 60 days or another negotiated time that may not be the 60 days started over.

My question for the legal guys, as I've seen this intention thing happen often, is what do judges look for and how is the evidence weighed to reach a conclusive decision?

 

[Scott No Mates]

What is the 'appropriate form' in SA? Is this a template document? In NSW there are some suggested template documents but they are not mandatory causing the notice to be void.

What is the appropriate form printed on if it is not paper?

I have seen plenty of instances where the rent review was deemed invalid as it did not provide the appropriate notice period and the 60 days restarted.

Are the tribunal members in SA as inconsistent with their judgements as those in other states?

 

[AlmostBob]

Great question, fascinating question
I don't have an answer, but I wanted to ensure I am subscribed to the thread to hear the answers
I want the judge to find a way to slap the tenant on the wrist, think the chance of it happening are minuscule, but duh, I'm a landlord

have been told by a judge that they had intended to find against us before the hearing, based on the hearsay that floated around the small town.
reality was different at the trial
The judge was inclined to assume the landlord was the bad-guy

@Scott no mates => the appropriate forms for SA (sa.gov.au) that's a given for me. Nova Scotia has required forms, required periods, and defined 'postal periods' too
being the cdo[sup]1[/sup] type that I am, I keep links to most of the RTA for everywhere we go



1 cdo : ocd in the proper order

 

[Terry_w]

As a lawyer I am not sure what you are talking about exaactly, but roughly understand, and don't think 'intentions' is the right word.


Firstly the rules of evidence are generally not adhered to in a tribunal. It would imagine little evidence is need expect a testimony.

 

[Xenia IM]

What is the 'appropriate form' in SA? Is this a template document? In NSW there are some suggested template documents but they are not mandatory causing the notice to be void.

What is the appropriate form printed on if it is not paper?

I have seen plenty of instances where the rent review was deemed invalid as it did not provide the appropriate notice period and the 60 days restarted.

Are the tribunal members in SA as inconsistent with their judgements as those in other states?

Scott yes we print on paper in SA lol
There is an appropriate termination template form and this was not used - it was in letter format - defiantly void.

Yes they are inconsistent and sometimes hypocritical - depending on who you get.

 

[thatbum]

I had this issue come up at work today actually.

I think for this sort of error (failure to use the prescribed form), I think it would be too much of an error to be overlooked by the tribunal member.

So I doubt whatever the tenant does would have any effect. They can wait for the tribunal application really.

 

[Xenia IM]

As a lawyer I am not sure what you are talking about exaactly, but roughly understand, and don't think 'intentions' is the right word.


Firstly the rules of evidence are generally not adhered to in a tribunal. It would imagine little evidence is need expect a testimony.

Hi Terry
Yes tribunals do not rely on evidence. A testimony and oath are fine.

Still when it is obvious that something is void or some law is broken, sometimes it is not the only thing that is considered.

It seems to me over the years that there is responsibility on both sides even when one is breaking the law, not only in tribunals but other parts of the law too.

Ie in my example - void form, but tenant knows about it. The fact that she knows means she cannot wait for the other persons mistake to work in her favour because her intention was to use that mistake knowingly.

I'm probably still not making any sense, difficult to explain - those that get it, can you put into better words???

 

[Terry_w]

Yeah, in a higher court not properly filling in, or dating etc a form could mean it is invalid. But in a tribunal for a residential lease type dispute I don't think they will be too strict in ruling out a form was not served because of X. It is more informal.

 

[sanj]

I think your friend is a bit of a d#ck personally. For whatever reason the landlord needs the property back. Your friend is of course perfectly entitled to whatever the required period is but to want to string it out to 50 days and then claim another 60 is acting in bad faith and could really leave the landlord stranded if they've made plans based on tenant leaving.

Why do that instead of looking for another place?

 

[D.T.]

I think your friend is a bit of a d#ck personally. For whatever reason the landlord needs the property back. Your friend is of course perfectly entitled to whatever the required period is but to want to string it out to 50 days and then claim another 60 is acting in bad faith and could really leave the landlord stranded if they've made plans based on tenant leaving.

Why do that instead of looking for another place?

Completely agree with this. ^

59 days (allowing for not being posted on the right date) is more than enough to find accommodation and move. The other party probably has a specific reason for wanting to move back in - lost job, lost relationship, whatever, and yet you want to hold them up because it has size 13 instead of 12 font or something silly.

Me, me, me, me attitude.

 

[westminster]

As a property manager, I attend a lot of tribunal hearings.
One of the most interesting things I notice is the intention behind something is considered not just the legal facts - I think this is a great side of the law.

For example, I have a good friend who is renting on a periodic lease through a private landlord. Her landlord has just given her 60 days notice for vacant possession due to needing the property for private use.

My friend requires more than 60 days so she rang me to ask what she can do.
When I looked into it, I informed her that the 60 days will be void because the notice was not served on the appropriate form, it was sent by letter on a piece of paper. Also mail time was not considered so it's less than 60 days - voided twice!

My friend was very happy and immediately started scheming that she could wait until 50 days and then contact the landlords and tell them that she is not moving out and the need to begin the 60 days over again because it is void.

Now this is where intention comes in and will be factored in when in front of a tribunal judge. If she knew it was void and went along with it with the intention of prolonging the time due to someone else's error, it will be taken into consideration at the ruling and she could still be ordered to leave in the 60 days or another negotiated time that may not be the 60 days started over.

My question for the legal guys, as I've seen this intention thing happen often, is what do judges look for and how is the evidence weighed to reach a conclusive decision?

I think the term ethics and good/bad faith rather than intention is what you are probably seeking to discuss.

The landlord acted in good faith/intention to give notice with the appropriate time and manner. However failed technically.

Your friend is acting in bad faith/intention to use that technical fail to her own advantage BEYOND what she needs/wants.

60 days was deemed enough time for a tenant to find another place and is very generous. I don't why your friend needs more than that but I don't think it's ethical for her to play the inadequate notice card in a scheming manner.

I think she should have an adult conversation with her Landlord and explain that she needs more time for xxx reason and that his letter was invalid. They can negotiate a better time (hopefully) then he gives that amount of time in the notice in the proper format.

 

[thatbum]

Ie in my example - void form, but tenant knows about it. The fact that she knows means she cannot wait for the other persons mistake to work in her favour because her intention was to use that mistake knowingly.

I'm probably still not making any sense, difficult to explain - those that get it, can you put into better words???

It makes sense but I doubt it would make any difference. The landlord didn't use the prescribed form. I doubt even a tribunal would bend the rules enough to not dismiss the application.

 

[sanj]

I hope this entitled brat of a tenant pulls their head in, what a terrible way to behave

 

[kathryn d]

It makes sense but I doubt it would make any difference. The landlord didn't use the prescribed form. I doubt even a tribunal would bend the rules enough to not dismiss the application.

But here we have people say it all the time.

"The LL didn't allow xx days for postage."

The intent was for the LL to raise the rent...but because they didn't do it in the prescribed form...denied.

How is this different?

 

[S.T]

Sure hope the private landlord in question reads this forum. You might get your answer if they print this thread out and take to the tribunal!

 

[thatbum]

But here we have people say it all the time.

"The LL didn't allow xx days for postage."

The intent was for the LL to raise the rent...but because they didn't do it in the prescribed form...denied.

How is this different?

?

I'm agreeing with that.

The application for termination will probably be dismissed.

 

[Xenia IM]

But here we have people say it all the time.

"The LL didn't allow xx days for postage."

The intent was for the LL to raise the rent...but because they didn't do it in the prescribed form...denied.

How is this different?

Good point.

 

[Xenia IM]

I think your friend is a bit of a d#ck personally. For whatever reason the landlord needs the property back. Your friend is of course perfectly entitled to whatever the required period is but to want to string it out to 50 days and then claim another 60 is acting in bad faith and could really leave the landlord stranded if they've made plans based on tenant leaving.

Why do that instead of looking for another place?

Yes she sure is a brat and acting unethically using the landlords mistake to her advantage.
This is exactly the "intention" I think will be picked up by a smart judge and it could work against her.
It would be interesting to attend a hearing for this one - assuming off course that the LL knows how to apply for one!

I joked with this friend that she is lucky it is a private LL - an agent would have had her butt on the street on day 60 - no arguments!

 

[Xenia IM]

Sure hope the private landlord in question reads this forum. You might get your answer if they print this thread out and take to the tribunal!

Hopefully - they would be smart enough to just issue the correct form NOW!
They would have lost a week but that would put an end to it.

 

[westminster]

It's also not a nice position for this person to put you in.

Having seen the letter I would be tempted to contact the private LL to let them know that it was incorrect. But it's such a can of worms

I don't like to think of anyone being taken advantage of. Grrrr