'In writing'...email? sms? what have you been told?

[aussieamp]

I had a chat to someone at Consumer Affairs this week regarding whether or not SMS is acceptable as a form of providing something 'in writing' to a tenant.

His response was no, because it can't be printed out and presented in court with dates, etc (though I noticed my phone has a 'print' option for SMS messages - never tried it though...)

I had actually asked during a previous call to Consumer Affairs whether email was acceptable and was told "yes" (and so I subsequently issued all notices to a previous tenant via email!). I decided to ask the same of this guy to double check and his response was "it depends on the magistrate"!!!!!!

So which is it?!?! How is anyone supposed to manage tenants when a). Consumer Affairs clearly aren't sure and b) Magistrates can make up their own rules as they go and it's down to luck of the draw?!?!?!? (before you all say it...I know it appears to happen that way whenever a magistrate is involved anyway...)

Looks like I'll be sticking to Australia Post in future!

Your thoughts?

 

[wylie]

Don't know the legal answer, but at least with an email you can request a "delivery receipt" and a "read receipt" which has more clout, I would think. At least they cannot say they didn't get it, or open it.

Anything important, we either hand deliver, or send registered.

 

[aussieamp]

For some reason, which I can't for the life of me understand, we are not allowed to send things via registered post in W.A....it has to be normal post!?!?

Anyone know why?

 

[Raddles]

HI there
I think the answer is your lease needs to specify what 'in writing' can be - if it says a notice can be delivered by email or sms then it will satisfy a magistrate - particularly if information can be downloaded and produced to a court.

Documents which are being 'discovered' can definately include emails and sms messages. I am currently costing a criminal matter where the police actually relied upon sms messages as part of their evidential material against a sexual predator.

If there is any doubt you can get a copy of the sms certified by the network provider - but probably better to do what Wylie has suggested and get a return receipt for any emails etc

thanks

 

[Perp]

Unfortunately technology is evolving faster than the legal system. There is an option to send "registered post via email". You can buy 100 posts for $79, with 12 months to use credits, if (like me) you wouldn't need to use this very often. I imagine pricing would have to come down as volume picks up and/or competitors enter the market - their variable costs would, I imagine, be near-zero.

 

[sailor]

As far as legalities go in Qld, email is acceptable, and can be used in a court of law.

 

[Alabex]

we have been advised the email/sms is not legally "in writting", however if the sender acknowledges receipt by reply then the tribunal will usually accept it.

We dont risk it - all formal documents for notice etc are issued by post, scanned, photocopied and recorded in an outgoing mail book by hand with no gaps between (so someone can't come back and write it in later). We then also email them and request a read receipt.

We use the rule of thumb if the receipiant communicates via email then we can too.

SMS i dont think are, however we use a computer based system which records SMS as they are sent. I have been to the tribunal with a print out of our SMS system to prove we tried to contact the tenant regarding arrears and the tribunal member accepted it. i guess it depends on the circumstances as to weather it is accepted.

 

[jaycee]

why not just send a letter and aoid any doubt ?

what is the overriding benefit of sending a legal notive which may have to be reffered to in court at a later day, by SMS ?

send a letter which you can sign and trather than a cryptic note saying

"Rents l8, plze pay asap babz"

 

[marg4000]

Just because you send an email doesn't mean that the person receives it (just like the postal system). I guess you would have to get the person to acknowledge receipt to make it legally binding?
Marg

 

[Dazz]

For some reason, which I can't for the life of me understand, we are not allowed to send things via registered post in W.A....it has to be normal post!?!?

Anyone know why?

Aussieamp, I'm not sure what you mean by this, but we send all of our important docs via registered mail, and obviously get a signed and dated receipt from the Tenant acknowledging that they have indeed received it.

Costs bugger all, and in one instance when the sloppy shouldered Tenant kept on arguing about everything, it came in handy.

It brought to light for us the cruciality of timing. When you have a chat with mag's and squirrels, all they are ever concerned about it is the question of timing and when was this notice sent and how many days 'til the next event in the chain. The actual issue that riles everyone they couldn't give a stuff about.

She's all timing timing timing. Get the dated and signed receipt and you'll be well in front.

 

[aussieamp]

Dazz, I say this because it says in 'The Landlord's Handbook' distributed by The Department of Consumer and Employment Protection under 'Service of Notices - How and When to Issue (p.48):

'Certified mail should not be used for sending notices.' ???

 

[Dazz]

Yes well aussieamp, DoCEP hasn't exactly been set up for you, in your position as Landlord has it ??

You are the contractual side of the provider of the product or service. DoCEP has been set up for the consumer's benefit. Hence the C in their title. If they were interested in your contract side of things, they would be called DoPEP.....but they are not.

The consumer of your product and service is your tenant.

Taking advice from DoCEP is akin to doing whatever your opponent's lawyer tells you.

Have a good long hard think about who you take advice from.....including anonymous crackpot's on internet forums......hahahahaha.

 

[aussieamp]

Ooooooh, cynical...

Turns out that the tenant can refuse registered mail whereas normal mail is considered to have been received (whether or not Australia Post actually delivers it!)

I guess the same goes for email, read/delivery receipts don't HAVE to be returned and SMS is difficult to provide/prove (though having the provider certify it is a good option...thanks Raddles!)

I think the easiest and most trouble free option (should it go to court) is the good old regular post as per the act.

 

[ermen]

lost mail

what happens if the mail is lost in the post? how can you prove that you actually sent it? and how is it different from email? that's the irony of it all and i don't really trust the postal system!

 

[Aaron Sice]

email is acceptable as long as there is a read receipt - NOT a delivery receipt as there's no guarantee it was read.

that's why a bailiff comes to your house to sign something in person, or registered post works because it can't be collected without a signature.

SMS is NOT a viable option because you can have your mobile phone stolen, destroyed or just simply lost. there's no guarantee it was even received, let alone read. same with regular post.

 

[redsquash]

Dazz, I say this because it says in 'The Landlord's Handbook' distributed by The Department of Consumer and Employment Protection under 'Service of Notices - How and When to Issue (p.48):

'Certified mail should not be used for sending notices.' ???

This means you can send by certified mail.
If it said must not thats different.
Should doesn't mean must.
Given the competence of bureaucrats and reluctance to take responsibility I bet its an error, which has the word NOT written by error

 

[crc_error]

I don't think a SMS should be considered as a suitable method. I mean you can start to invent other forms of 'in writing'. How about posting a letter in the local paper? or putting up a sign on the street for the teant to read?

In writing is posting out a letter, unless otherwise agreed between you and the tenant. If email is used, then I would suggest only using it as a backup and sending a paper copy as well, as email can be caught in junk mail filters.

 

[GreatPig]

I don't know the legalities, but the potential issues with email are that read receipts can be denied by the recipient, so a smart tenant could always say no to anything from the landlord, and emails can easily be forged - if I know your email address, I can easily send myself an email from you and say anything in it I want, including making up a read receipt (although it's harder to forge the route trace in the header).

So read receipts are potentially useless, if the tenant always denies them, and the ease of forging emails makes them very suspect as far as evidence goes unless proper digital signatures are used.

GP

 

[buzzlightyear]

Aren't read receipts the arrival of an email into your inbox, not necessarily the recipient opening the email?

 

[wylie]

There are "delivery receipts" that it has hit your inbox, and "read receipts" that tell the sender that the email has been opened.