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This is my tale of #winning against a dodgy landlord and agent.

Discussion in 'General Discussion Forum' started by Dan, May 4, 2011.

  1. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    So on top of doing all of this stuff for the website, working full time, dealing with a pregnant wife, referring lots of Oz tag, doing some coaching of a junior state cup Oz tag team and a million other things. My wife and I have been going through some hell with a recent rental we were in after selling our house last November.

    It has been a bit of a crap ride and a lot of stress. It was finally completely resolved today after the final meeting to decide our Bond(which we of course won)

    I have outlined mo
    - We moved into this house in November 2010 everything seemed ok though there were a number of minor issues
    - We noticed leaks dripping from the ceiling in one bedroom in early December and reported it verbally
    - No action was taken
    - We went away for XMAS and when we came back noticed water damage in several locations
    - There were major leaks in several locations and mould in places where the leaks occurred
    - We reported this again both in emails and on the phone
    - We were told both verbally and on the phone that "The owner had had the leaks looked at before we moved in, but they can't be fixed"
    - We again stressed that there was a significant amount of mould, it was affecting my wife's asthma and we are expecting a baby in May and do not want to bring the baby into a house with mould problems (all in emails)
    - Again we were told they can't be fixed.
    - We continue to inform them of significant water damage and leaks all the way through February until in Early March we sought advice from the Tenants union as my wife had to go to the Doctor due to her Asthma playing up. He told us mould was the likely culprit here.
    - We were told by the real estate in writing "Due to all the rain we have had, all the houses in the area have problems with mould" (as if this is supposed to help us)
    - The tenants union told us our options, we could submit a notice to remedy breach and if things were not rectified in 7 days we could move. Though we would need to go to the tribunal to get our bond back
    - we decided to start the process so again informed the real estate of our issues and that they and the owner had told us that they had had the issues looked at (prior to our tenancy) and they weren't going to fix the issue (Note this is important. the owner had pre-knowledge of the issues and refused to fix them)
    - We said that therefore we were not happy to live in a house that had leaks and clear issues with Mould, and therefore were notifying them of our wish to leave, and that we would work with them to find a tenant, but due to the problems with the property felt they should not be charging us any re-letting fees etc.
    - All of a sudden they swung into action and that very next day we had the principle of the real estate here, a plumber, a handyman and a carpenter
    - They spent the better part of about 2 hours putting Selleys No More Gaps on the various locations and the roof
    - The Principle left and the plumber told us "It probably won't fix it, you will just have to wait and see, it really needs a new roof". He then also said to us that the insulation was completely soaked through in several areas
    - We also had other issues with the oven on the remedy breach
    - They did not send anyone to look at the oven
    - we were not happy with what they had done to fix the issue and we told them this in emails and on the phone
    - It rained more and the roof leaked. We informed them of this and asked them to fix this. We also told them in emails no attempt had been made to address the issues with leaks.
    - We submitted a further notice to remedy breach due to more mould and another new leak that was found, we never heard a thing from them.

    - We decided that it would be best rather than move out, to just wait for the tribunal date and then we would be out without issue and without too much cost to us
    -So we submitted and urgent request for a hearing due to the problems and the health concerns, we also asked for compensation for cost of moving and rent reduction due to the decline in the standard of the property.
    - This was accepted and we had a hearing set for 2 weeks, which we had yesterday.

    So Now for the actual Tribunal Case and some Handy hints.

    The tribunal case at least in our circumstance was heard in front of a magistrate, they try to make it informal, have you sit down in front of the magistrate where the prosecution and defense usually sit.

    The magistrate will seek to clarify the case before them and establish common ground. Once everyone agrees on the common ground he will ask you the complainant to give evidence. In this case, my Wife went first.

    Once the first of you have given your evidence, he will ask the respondent to cross-examine you. It is important to note that when cross-examining. although this is an informal setting, the cross examination must be in the form of Questions

    If you make a statement the magistrate can and will pull you up.

    In our case my Wife finished her evidence and then the Property manager was asked to cross examine, she started to just give her evidence. The magistrate pulled her up and informed her that they need to be questions. She said "Well I dont really have questions, I can't do that"

    The magistrate then said "I must warn you that, if you do not question the evidence or cross examine then you are saying that you agree completely with the evidence provided and that is not in dispute"

    Obviously this prompted the Property manager into 3 rambling questions that actually did not refute the fact there were still leaks and mould

    Each of her questions were actually false in their assertions and my wife said "no that is not true' to them. My wife was nervous and over explained on one question without clarifying correctly.

    You can not assist, provide information to your wife or answer for her, I was warned for this, so I apologised and kept my mouth closed.

    I was then asked if I wanted to give any evidence. I wasnt going to but wanted to clarify a few points so provided my evidence with saying that the evidence provided by my wife I agreed with but wanted to add information about the report from the plumber and his statement. The Principle of the real estate is a registered builder and I included a statement from him where he also said the roof was not sealed correctly and the tie-downs were not correct including the corregated roof not being overlapped correctly.

    I also used direct quotes from the principle and tradespeople and referred to photo's we had and the emails which were in front of the judge.

    They were asked to cross examine me but declined. They must have forgotten what the magistrate had said.

    He then asked them to present their case.

    They came in very very poorly prepared, they had not counter evidence and their argument basically was "Well they have said they want to move out so we didn't bother trying to fix anything else"

    The property manager presented about 8 minutes of evidence, much of it was irrelevant, including saying "The house is 80 years old, you should expect issues"

    It was our turn to cross examine, my wife was quite flustered as there were some blatant untruths in the evidence provided by the property manager. She couldn't put her questions together, so i asked for permission to take over the questioning and the Magistrate agreed as long as my wife did not say a word.

    So I spent about 30 - 40 minutes questioning her 8 - 10 minute evidence. Pointed out all her contradictions.

    Some of her statements and my questions were

    - PM: They told me about the leaks in December, but I thought they were just informing us of an issue, and they didnt want it fixed, I didnt think the issue was serious

    - Me: Do you believe a leak is a serious issue?

    -PM: Yes

    - Me: In your experience, do tenants usually only tell you about serious issues with a property and not want them fixed

    - PM: No

    - Me: Did you ever ring us, email us or seek clarification on that in anyway?

    - PM: You send us 3 emails a day (She kept trying to have a dig at us here)

    - Me: That is not the question that I asked and is irrelevant, Dd you ever try to clarify with us, yes or no?

    - PM: No

    - Me: After the plumber left, did you ever ask us whether the issue had been resolved?

    - PM: That isn't our policy......

    - Me: That is not what I asked you, please answer my questions, yes or no?

    - PM: No

    - When I rang (name withheld) on the 15th and informed her of the issues not being resolved and that the roof was still leaking and no attempt had been made to remove or address the mould, did you respond, or take any action to continue to fix the issue?

    - PM: no

    - Me: Have you sent anyone to look at the issues with us since we have reported they are still not addressed so we can see them

    - PM: No

    - Me: So you agree there is still an issue, but you have failed to check it

    - PM: When I showed a client through it was raining and the leak wasn't coming through

    - Me: Again that is not what I asked you, do you agree there may still be an issue but you have failed to check

    The property manage refused to answer this question.

    - Me: You mentioned in your statement that the house was 80 years old and that we should expect leaks, do you agree you made that statement?

    - PM: I didn't say you should expect leaks

    - Me: I put it to you that you did in fact say 5 minutes ago, in front of everyone here the house was 80 years old and we should expect mould and leaks

    - PM: no I didn't

    - Me: Your honour, I don't feel (name withheld) is being truthful in answering this question and believe the above was said, I will change my line of questioning though

    (the magistrate thanked me and agreed it had been said)

    - Me: Do you agree in your evidence, that you mentioned the house was 80 years old, has high ceilings and tongue and groove?

    - PM: Yes

    - Me: Can you please clarify for me the relevance and point of telling us the age of the house?

    - PM: What do you mean clarify?

    - Me: What relevance does that have to do with the issues at hand?

    - PM: The house is old, there may be water marks and previous leaks

    - Me: On the entry condition report in front of you, is there any mention by you or myself of water damage or leaks?

    - PM: No

    - Me: So you agree the age of the house is irrelevant and the leaks are still present

    - PM: yes

    Things went on like this for a while. I was attempting to get her to admit that the house leaked, there is mould and they had failed to address things and basically failed in their duty of care. I was pretty successful in this and even though I went around in circles for a while my point was very well made and they had contradicted herself and admitted exactly what we were disputing

    The magistrate found some of this amusing by the way

    The principle was then asked to give his evidence.

    His evidence by and large consisted of bad mouthing my Wife and I.
    Saying things like

    - "They send us 3 emails a day, they obviously have a lot of time on their hands"
    - "We bent over backwards to get them in there, and now they want to leave"
    - "We have found a new tenant and now they wont move out"
    - "I attended the property and they showed me all these insignificant marks of water on the walls that would happen if windows were open"

    And so on.

    Nothing that actually countered the dispute that was there.

    I wrung my hands together, smiled and dug in to him with glee, without being nasty and without rising to his jibes and snide remarks. I did once or twice look to the magistrate for assistance as I said "He is not answering my question, and is just coming out with nasty remarks" The magistrate agreed :)

    I provided a photo to the principle and the magistrate and asked the principle if that looked like a mark left from a leak.

    He replied it did.

    I asked him "Does that look like an insignificant mark or does it look like a major leak and issue"

    He agreed it looked like a major leak but then carried on about other leaks I had pointed out. I cut him off and said, that is not what I asked you, please stick to the questions I am asking you.

    This backed him into a corner. I then showed him a photo of the same place taken on the 15th of March and on last Sunday, date stamped.

    I asked him if it looked like the same location, he said it did

    I asked him to compare it to the first photo taken on the day of the attempted repair, I asked him if the damage or mark appeared to be better or worse.

    He said it looked worse :)

    I asked him when they found a new tenant, and they said yesterday. So I said, when did you tell us you needed to know a date we would be moving by, he said Wednesday. I asked him what today was and he said Tuesday.

    I also asked him, if in his opinion, 24 hours would be enough time for someone to find a new place to live. of course the answer was no

    Anyway clearly we had their measure and I felt like Columbo. I was on a role and angry at them for the whole situation so I didn't let up.

    The judge asked them if they wanted to clarify any of their answers to my cross examination. He said he did, which involved snide remarks. I bit my lip and the magistrate rolled his eyes.

    The magistrate then summed up.

    He said. I agree that the complainants have proven their case. There are still issues that have not been addressed and there are mould. He read out information from the emails with statements from them saying there are issues and they wont fix them.

    He did say that he could not see why we were asking for so much compensation or how we came to that figure. Important: If you go through the same situation, make sure you come up with why you arrived at this figure. i.e. comparible properties, a room is unusable, you spent money trying to fix it etc

    He therefore granted a lesser amount of compensation and terminated the lease immediately. He also said we only have to pay the reduced rent price until we leave.

    he brought up that it didn't matter if the house was 80 years old or 5 years old, if it leaks and has mould, it must be addressed, they didn't like that statement but it was true

    They asked when we would have to be out by, and he first said whenever they are ready. They complained and we said we will be out by the 11th.

    They said they had a new tenant and if he can't get in by the 11th he wont be able to move in and we would need to pay double rent.

    The magistrate clarified that the lease no longer exists so we only need to pay until the day we hand in the keys :)

    They said "well that will be hard with the new tenant"

    he said "yes I acknowledge it will"

    Pretty much saying "too bad so sad" which was funny. We stepped in at this stage and said, look we have been fair through the whole nightmare and will still be fair, we can be out of the property by the Friday the 8th.

    They still complained and wanted us out today. The judge said no they have up until the 8th if they are still there, we can issue a warrant for them to be evicted and he chuckled at this. We laughed too and said we are looking for a place now and are confident we will be out within a week so agreed on the 8th.

    It was a good experience and now I know, everything in writing all the time.

    Write down the points you want to raise and the timeline and just go through those. Stick to the facts, take a notepad and write down what they are saying and questions as they are brought up.

    don't bite when the other side get nasty.

    Spend time and go through their entire statement with them. Pick out all the holes in them and make the holes bigger. If you believe they are not telling the truth. Put it to them that the statement is a lie and ask for evidence of it. If they don't have it they have to accept they are not being honest :)

    There was more too it but any questions let me know
  2. Fro

    Fro Well-Known Member

    +301 /0
    Principal, not Principle :)

    but good work, i know its been an issue for you guys for a while, bt you are all happy its sorted.
  3. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    yeah we had the bond meeting this morning and surprise surprise they all of a sudden found another $220 worth of things that they wanted to take. Clearly retaliatory and clearly false so they obviously didn't get it.

    You know at one point in the entire thing they actually said

    "We don't read your emails, they are too long and we are very busy"

    That made me very angry so I yelled at them that they have a legal obligation and I put things in writing because if I didn't they didn't get done, and there was now a legal record of the things they asked.

    At the same time I informed them of certain other failures on their behalf as they "don't read our emails"

    We didn't bring this up in court but they tried to be very very nasty and said "They send us sometimes 3 emails a day and some of those are over half a page long, they mustn't have much else to do"

    I didn't bite and didn't want to tell them I can touch type at a very high speed, and half a page takes somewhere around 2 minutes at most.

    They tried to avoid my questions several times and were nasty, each time I kept asking them to answer the actual question and reminded them that wasnt the question I asked.

    When they were being rude, nasty or trying to basically make us look badly. I simply looked to the magistrate and said "Your honour I don't think there is any need for me to respond to him, or for this to degenerate into a slanging match, I hope you understand he has not answered my questions and the point I am trying to make"

    The magistrate was obviously quite receptive to this approach.

    All in all a good and bad experience to go through. I learned a lot and am wiser for it. Would certainly not hesitate to do it in the future though there was a lot of stress we did not need whilst my wife is so close to giving birth
  4. Fro

    Fro Well-Known Member

    +301 /0
    They said that in a hearing???

    That'll do me, i can't believe some people can stay in business sometimes :)
  5. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    No they weren't dumb enough to say it in the hearing. But I had it ready to throw at them if we needed to because I had a diary of who said it and when already prepared.

    They did make a similar suggestion by saying that we sent them up to 3 very long emails a day.

    We decided we didn't need to bring it up because thing were already going our way and adding more to it just seemed pointless
  6. codewana

    codewana Active Member

    +58 /0
    I'm sure there would have been stress, but at the same time, you have to agree; There's nothing like arguing with someone when you know you're in the right. Especially when the adjudicator knows you're right too! :)
  7. Fro

    Fro Well-Known Member

    +301 /0
    yeah code, your second point is spot on.

    if the boss knows who is right and wrong it makes it a lot easier :)
  8. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    Honestly though they had no idea about the laws, regulations or anything. we could have left a lot earlier and left them high and dry as they failed to remedy a breach. However we stayed and allowed them to find a new tenant.

    When I went back through with them to do the final bond inspection, they indicated that everything was fine and there were no issues. All they were trying to claim was

    - $125 for refilling one of the gas bottles

    We were fine with this as we just wanted it over and done with, however then she had the audacity to say

    "Oh and the $396 for the re-let fee"

    So I told her that, she is not entitled to charge us the re-let fee as we did not break the lease, the lease was instead terminated by a magistrate.

    her response

    "But we agreed"

    my response "That is irrelevant, what you agreed to was the lease being terminated, as it was therefore terminated on the 29th by a court, you can not charge a re-let fee, the lease had not been broken"

    She had lots of trouble understanding a simple order that was in front of her. So I told her I am refusing to sign anything and I will just take it to court or the RTA. We had to head back to court anyway to seek clarification on part of the order where there was a slight error, in that the magistrate released the rent reduction from our bond which was our money anyway.

    I also told her, that as I don't think there was any mention of gas on the Rental agreement, I will be checking that also.

    Leanne chimed in and said look, you can't charge us that, so we will simply submit our bond form, you then have 14 days to respond or it defaults to us. The Principals wife came back with a smart ass comment so Leanne said, don't you know the laws?

    The woman said "I am sure she knows them" to which Leanne said "Well it sure doesn't seem like it and hasn't been right on anything thus far"

    I said "see you guys back in court and walked out."

    When we got home we pulled out our Tenancy agreement and lo and behold the part where it says "Tenants are responsible for" only had Phone and Electricity

    We sent them an email listing the timeline of events and the outcomes of the day, which they ignored. We submitted our bond request.

    About 10 days later we received a letter in the mail from them which was trying to now only claim "Re-let fee and water"

    Whilst we were responsible for water under an annexe of the agreement, they had never sent us a bill or invoice for this, however I am happy to wear that cost even though I can clearly see it is inflated, just not worth arguing.

    We went back to court for a renewal of the order, which is basically a clarification of the original order as it was unclear. They failed to even seek why we went back to court and didn't even realise they didn't need to be there.

    However the owner of the house turned up and had a god at Leanne in court for Leanne explaining to them the evidence that they already had.

    The magistrate explained to them several times that it was not a re-opening and the matter had already been decided, we were only there to make the points clearer.

    They still tried to argue points and the Magistrate explained to them literally 6 times "I terminated the lease" in several different ways until they asked a final time and he lost his temper and patience, though was still fairly calm but firm in informing them that "I can't make it any clearer, I have written here, that I terminate the lease due to section 309"

    We were discussing all the sections we thought were most relevant with the magistrate and similar points, the lessor looked dumbfounded and had no idea what was being spoken about.

    Honestly, if I find out someone is taking me to court, or tribunal, the first thing I do is look at what I am being taken for, the relevant laws, the actions taken and study the sections. I would make clear records of my evidence and have pre-written in point for my evidence.

    They honestly though turning up was enough.

    At first I thought they were being stubborn but I have come to realise through the process that they are actually just not very bright. They thought that we had no rights and just turning up was enough, but I am surprised their business stays afloat to be honest.
  9. Fro

    Fro Well-Known Member

    +301 /0
    Welcome to Queensland. :)
  10. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    yes indeed. Honestly, I am seriously dumbfounded at how little they had an understanding for the laws that govern their own business.
  11. Mark from Brisbane

    Mark from Brisbane Living the dream Premium Member

    +19,666 /383
    I only have one word to say


    Sorry that was three!!
  12. Fluffy

    Fluffy Well-Known Member

    +5,625 /204
    glad you got through it Vid.. i mean Dam, sorry, posts that long and all.

    Real estate agents seem to try and bully many based on my experience and usually only win due to others believing that they know what they are talking about and hence not bothering to refute it.

    I have a handy and knowledgable legal team to call on and as soon as challenged the agents have backed down in all cases. (the company letterhead doesnt hurt). Costs me a lot though, would be cheaper jsut getting a lawyer ;)
  13. Rodo

    Rodo Goldmember 2017 Tipping Competitor

    +692 /20
    Dan, a great read with some excellent advice. It's good to hear that everything has worked out well. I hope your baby hasn't been affected too much and the stress of moving isn't hard for your wife with it being close to the birth.

    Your story sounds so familiar, too familiar. About 5 years ago my wife and I went to the tenancy tribunal for a similar incident- mould and all. I was a bit overwhelmed by the hearing and did not expect it to be so formalised. And although I had kept a diary of the events with photos, I did not prepare for the hearing and just thought it would be cut and dry and we would win it easily. I was wrong however and even though we won, I came out feeling as though we had lost. We got most of what we asked for but I should have asked for more. The best thing I got from it was the experience in that I now know what to do if I ever need to go back to the tribunal again.

    It seems to me though that there are a lot of landlords that want to do as little as they can to make their investment houses liveable. And they don't care at all about their tenants.
  14. WAMF

    WAMF Well-Known Member

    +408 /0
    Dan, I hope you don't pay for the gas, even if it's only $100 or so.
    The owner/agency should wear that cost for being so dumb as to not specify that the tenant is responsible for ALL utilities and associated costs, in the lease agreement.

    Do not pay the water bill until they show you the actual USAGE component on the official invoice from the water co.
    If they can't provide an invoice for this, don't pay them a cent.
  15. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    Hey mate, we didnt pay Gas because it was in the lease. We were going to argue the water and wait for the invoice but for the sake of $60 we just couldn't be bothered, Leanne is far too pregnant and we have bigger things to worry about so we will let them have that small victory
  16. fLIP

    fLIP UFO Hunter

    +1,324 /37
    I once was docked $349, yes $349 for garden maintainance on my bond.

    First of all you dont pay $349 to have a garden fixed.

    Secondly it was an entire dirt block (from start of lease to finish). No amount of disputing got my money back. Real estates are great and lying through their teeth. All i can suggest is, as dan did, take photos. **** LOADS of photos the very second you sign the lease.
  17. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    You could have fought it at the tribunal or through the RTA.

    If they don't provide you with an opportunity to rectify it before spending the money then you are not liable and they can actually get in a fair bit of trouble for it.

    I was aware of this and the agent tried it yesterday and reminded them they never provided us with an opportunity to rectify anything.

    I noted that the lawns were unmowed and the gardens were full of weeds and a mess when I moved in as they were. When I moved out they couldn't argue but during my tenancy I did mulch all the gardens at a cost of $50 to me and a good days labour but it was something I wanted to do as I hated looking at it.

    The best advice I can give when moving into a place is be absolutely anal about every little thing you see, note every mark and you should be fine. Photos help too.

    If they have generlized in areas then you should too by putting "Marks on all walls" in each room, if they don't ask for specifics then they have not a leg to stand on.

    What struck me as funny yesterday was that the point they were arguing was on the entry report :)
  18. Rodo

    Rodo Goldmember 2017 Tipping Competitor

    +692 /20
    Yes Dan this is exactly how you should approach the condition report. It can take much longer to complete (at a time when all you want to do is unpack boxes and settle in) but it will cover your arse just in case they try to accuse you of making the place worse than when you moved in. When I've filled out the condition report I've often written more information on extra pages to clearly define any small defects or issues in the house that we're present before we've moved in.

    Flip, you should have taken them to the tribunal...I've had the agents try and get money for steam cleaning when we've moved out when there has clearly been no need for it but as long as you can argue the case well enough then there's no way they can legally get the money for this.
  19. SeaEagleRock8

    SeaEagleRock8 Sea Eagle Lach Staff Member Premium Member 2017 Tipping Competitor

    +10,554 /215
    Well done to stick up for your rights, I'm glad this was one instance of the law being on the tenants side (usually its on the landlords side). I haven't read the entire thread or even your initial post in full as yet because it resembles a High Court judgment, or one of Vidmar's posts (ie very interesting and informative but a lot of words to plough through. Not even sure thyat I spelled plough properly but the main thing is that whether renting or owning or even squatting your home is your home and any dramas with your home have a daily impact on your life, so well done.
  20. Dan

    Dan Kim Jong Dan Staff Member Administrator 2016 Tipping Competitor 2017 Tipping Competitor

    +7,736 /120
    SER8 the short version

    - House leaked and had mould
    - Agent refused to fix it
    - Told them we were leaving
    - They made a basic attempt at fixing it but was not fixed to our satisfaction
    - We took them to the tribunal to get out of the lease and won

    In that place the Agent actually missed an entire room on the entry condition report. I filled it it, went up there and said "You missed an entire room, and I don't know which room is which"

    They had said there were blinds and curtains in places there were none, said blnds were white metallic when they were brown wood and so on.

    I honestly think that it was for another property. Had they tried to take it to court they would have lost anyway but the fact they got so much wrong on the entry condition report and I had to correct it would have just shattered their case anyway

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