Tenant Sues Landlord

[jfchan]

It is distressing to landlords who have been paying insurance to find that the insurer is not there to support them when required.

I would suggest persist in making the insurer accept its responsibility. Go to the supervisor, the general manager and failing receipt of satisfactory response, go to the Consumer Affairs and Office of Fair Trading in your State.

As for the tenant, why tolerate him any longer. Send the hypocrite packing under the 'termination without cause' terms of your tenancy and after the non-retaliatory period.

If the wretched tenant takes the landlord to the Tribunal, get the whole sorry saga recorded in the judicial system. If you lose, write to the Minister about the whole lousy system and where it should be revised.

On various occasions, I have done the above - with reasonable outcome and mental satisfaction.

 

[Savanna100]

Having read these posts I quickly whipped up a special condition to be added to a tenancy agreement. It is based on Nigel's post and I built it out of the judge's quotes (presumably the 'ratio decidendi' of the case for all you lawyers out there) in the case mentioned.

Here it is :

·The tenant acknowledges that there is no such thing as absolute safety and that all residential premises may contain hazards to their occupants, tenants and/or to visitors.

·The tenant also acknowledges that the fact that a house may be able to be made safer does not mean it is dangerous or defective.

·The tenant also acknowledges that any safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality.

·The tenant further acknowledges that they take full responsibility for informing the landlord, in writing, in a timely manner, of any safety hazard within the subject premises, if and when such a hazard arises.

·The tenant undertakes to do all things to ameliorate any danger to themselves and others from any safety hazard which may be discovered by them (or others) at the subject premises.


As I am no longer practicing as a soliciter (I only had a very short experience and this wasn't the field I practiced in anyway), could any solicitor on the board give me some idea if this will fly.

thanks

 

[warreng]

Your insurer is certainly dragging their feet. They should be determining if you as the landlord are negligent in anyway. That's the unfortunate issue these days. Very few claims are proven negligent. It seems to be that if injury or damage occurs regardless of whether the injured person was an idiot and should not have been there or taken that action. Like the skateboard example. Not negligence - but still got a payout.

You need to get stuck into the insurer. What investigations has they conducted? Has the part of the ground been advised as being unsafe? Should the landlord have been aware of the unsafe nature of the ground? What work had the landlord done at the property before letting it? Was there a agent involved who should have notified the landlord? These and many more should be your insurers concern.

You pay the premium so they can act on your behalf. Get on their backs and annoy the proverbial out of them.

 

[NigelW]

Originally posted by Savanna100
Having read these posts I quickly whipped up a special condition to be added to a tenancy agreement. It is based on Nigel's post and I built it out of the judge's quotes (presumably the 'ratio decidendi' of the case for all you lawyers out there) in the case mentioned.

Here it is :

·The tenant acknowledges that there is no such thing as absolute safety and that all residential premises may contain hazards to their occupants, tenants and/or to visitors.

·The tenant also acknowledges that the fact that a house may be able to be made safer does not mean it is dangerous or defective.

·The tenant also acknowledges that any safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality.

·The tenant further acknowledges that they take full responsibility for informing the landlord, in writing, in a timely manner, of any safety hazard within the subject premises, if and when such a hazard arises.

·The tenant undertakes to do all things to ameliorate any danger to themselves and others from any safety hazard which may be discovered by them (or others) at the subject premises.


As I am no longer practicing as a soliciter (I only had a very short experience and this wasn't the field I practiced in anyway), could any solicitor on the board give me some idea if this will fly.

thanks

Hi Sav

Think your clause is OTT. I wouldn't bother including that clause as it just replicates what is the position anyway. In my experience excessively long conditions just turn people off.

They're just trying to rent a house from you - don't give them a hundred page treatise to read!!!!

What you should do is give the tenants a guidebook which says, amongst all the other practical things..."Please immediately advise [me/my agent Bob] of any problems/breakage/potential hazards at the property and we'll investigate them straight away."

And then you must do that. If you rent a house in reasonable condition to your tenants, promptly have repaired anything that needs repairing and are responsive to any issues raised (and fully document by diary notes etc everything you do) then you'll be in very good shape to resist any claim of negligence if someone is injured on your rental property.

Good luck
N.

 

[Gill Bates]

>>> They keep telling him they are "still investigating".

I would ask
1) Exactly what are they still investigating.?
2) When will they have finished their investigation.

also look at http://www.iecltd.com.au/index2.html

 

[natmarie73]

Just because a tenant threatens to sue dosn't mean they'll win. After reading the transcript of the Hole in the Carpet Case, it seems as if damages were only awarded because of the negligence of the owner in not fixing the hole despite being asked to on many occasions. The judge still took 15% off to cover the plaintiffs own negligence in not looking where she was going.

I would think that if someone just trips over and breaks their ankle and there is nothing wrong with the surface they were walking on, they are 100% at fault and therefore won't get a cent.

I used to work at Maccas, people were trying to sue them every day due to slip/fall accidents and never got anywhere.

Nat