Landlords and real estate agents are a pox, sucking up our energy with an unquenchable thirst. They’re experts at steamrolling renters with legalese and threats, screwing us out of our money and dignity every day.
Sick of this shit, I wanted to know how to punch back, so I asked a property lawyer what traps to watch for, and how to get out if you fall in.
Listings
VICE: Before you even saw a rental, real estate agents got pretty creative with the listings and they’ll kind of exaggerate and say something is, you know, a built-in robe when it’s just a tiny cupboard. What are the rules around that?
Zoe Chan, principal lawyer at Anika Legal, an organization that provides free legal assistance to Victorian renters: Trust what you see. If something is in the listing like aircon and you can look around and be like, there’s no aircon, don’t then be like, ‘I’m sure it exists somewhere’.
Whatever you signed the contract for, that’s what you are abiding by. They don’t owe you an aircon if there clearly wasn’t one.
However, there are new provisions in the Residential Tenancies Act saying that agents and landlords can’t engage in misleading and deceptive conduct to induce someone to enter into contracts. So that’s different, because if you go in you can see there’s no aircon and then you sign a contract, that’s not misleading. But if they’re like, “See that random nob there? I assure you that’s aircon,” get that in writing because potentially there could be something you can do about it later.
And then what you can get out of it may not always be money, it could be able to break your lease and that might be the remedy the renter wants.
I would say, as a rule, don’t get too legal about it, but be really clear about what you’re getting. And if there are any concerns or questions, ask the question by email, so you can get the answer in writing.
inspection
In Victoria, a lot of people are not aware there are minimum rental standards rental properties need to comply with. That’s new in Victoria. It goes from things as simple as having doors and windows that open and close, to things that can be really difficult to prove and you won’t be able to see at a glance like the property has to be well ventilated.
When you’re inspecting a property, the first thing is the smell. Does it smell like mould? A lot of real estate agents, even in a mold-infected property, will make it look as bright as they can, open all the windows, turn on all the lights. But one thing they can’t get rid of is the smell. If you can smell it, chances are it’s going to be a bad property. That’s a really big one because that’s got huge health ramifications.
Then go through and look at all the things that might be just looking a little bit worse for wear. You’re well within your rights to go around and open the cupboards. Because ultimately, it is the rental provider’s duty to keep the property and good repairs.
And if, when you are looking, the property is already looking like no one’s painted it for decades, for example, the chances of that rental provider responding to you asking them to repair things is probably lower.
And what about, like – this may be jumping forward a step – if I go and look at an apartment or a house that I really love, it seems like a good deal, but I see some rotting wood in the bathroom or signs of mold . In my head I’m thinking it’s fine, I’ll just apply and hopefully they can fix these things later. Is that possible or likely? Or can the landlord argue I’m accepting it as it is?
So yes, you’re definitely entitled to ask for the property to be repaired later. Because the duty of the rental provider is not to respond to your repair request – their duty is to keep the property in good repair. They’re supposed to be proactively doing it.
It’s awful that renters have to be like, ‘Hey, can you fix your own investment?’ And they’re like, ‘Oh, that’s not enough.’ It’s like, actually, no, that’s totally on you. It’s literally a duty.
Signing contracts
I think, at the moment, there are a lot of things that people feel like they need to compromise on in order to enter the contract because there aren’t very many rental properties out there. Understanding that you might have had to compromise on some things, that’s fine. But also, that’s not where it ends.
Once you’re in tenancy, that contract doesn’t just protect the landlord, it also protects you in terms of what rights you have as a renter, and there are things that you can do once you’re in. So if you compromise, then don’t give up, still be strategic. Because what we often see is people feeling like, ‘I didn’t get the aircon, that’s fine, the place is full of rotted wood, that’s fine, I guess that’s what I’m signing up for I’ll move in and just deal with it’.
But no, you can keep doing something about it.
Are there any key things that people need to look out for in the contracts themselves before they sign?
One really common area of dispute, or gray area, is if there’s a garden because the contract can say it’s fully on the tenants to maintain it or fully on the landlord. Being really clear on that is really important because that will enable the renter to think, do I want to maintain this huge garden?
Or, do I really want my landlord poking his head in once a fortnight to trim the hedges or whatever.
Yeah. And you know, something like that is fully open to negotiation. And maybe the landlord doesn’t want to maintain the garden, he’s got a busy life and you’re like, well, ‘how about I pay less rent, but I’ll maintain the garden?’ So you’re getting a better deal.
And pets are really big. A lot of people have pets. So if they do have a pet in the property, ensure that the clauses in relation to those pets are something they want to agree to.
Rent increases
What about rent rises? Maybe there are certain things that the tenants can say to help them in negotiating?
As a rule, tenants are more than welcome to go to Consumer Affairs to ask them to review the rent increase if they don’t think it accords with market value.
But, unfortunately, the market value for rentals at the moment is insane. There are market forces at play that we can’t do much about from a contractual point of view.
In terms of wiggle room, just consider things other than just how much you pay. There are other things that you might be able to negotiate to make a good deal for the landlord.
Renters should also keep in mind that if the landlord needs to look for another tenant, they will also have to incur costs in advertising.
At the moment, landlords are taking advantage of the fact that everyone’s desperate for property to be like, ‘I don’t care, I’m sure I’ll be able to get someone else’.
But you can explicitly point out: even if you were able to get someone immediately, you would need to incur advertising costs. So add up all the costs they’re likely to incur and be like, ‘well, with that in mind, maybe let’s go for like a $5 increase instead of a $10 increase because, with those costs, they actually cancel each other out’ . You can use that to go for a midway compromise, as opposed to just a straight-up yes or no.
negotiating
I think that is a really good approach, to acknowledge what costs the landlord is up to and come in with that as your negotiating power.
The cost goes both ways. And anytime there are disputes, the agent wins because the agent just gets paid.
Sometimes I wonder if the landlord is even aware that they’re incurring costs in a really bad claim, because they’re paying the agents to do this.
So to get around that, write really clear letters of offers to negotiate, and explicitly note ‘Hey, I think I can save you the cost of engaging your agents to do this particular piece of work’.
For some landlords, that might be persuasive because you’re actually giving them information their agent is not getting.
Would that require that direct contact with the landlord, though?
No, so if you already have an agent in place, you have to liaise with the agent, right? But instead of shooting them like random texts or making a phone call here and there, write a proper letter outlining the situation and address it to the landlord, but send it to the agent. The agent has an ethical duty to show that to the landlord.
Love that, pit them against each other.
Repairs
If something is broken in your home, and you ask the agent or the landlord to fix it, the most common thing is that they just ignore you for months. But if they come back and say, ‘No, we’re not going to fix it, the cost is too great,’ what can a tenant do in that situation?
In Victoria, they can go to Consumer Affairs at the first instance. Consumer Affairs can send out an inspector to decide and often they are like, ‘Yeah, you’re right, fix the thing’. You can send the CAF report to the agent and sometimes they just fix it. Sometimes they don’t, in which case, you can go to VCAT.
I know a lot of people are scared of going there, but technically, you can go there without a lawyer. If you do want a lawyer, there are lots of tenant’s services, like ours, available for legal advice, and sometimes representation. So it’s always worth trying to get advice or support.
But if you decide not to do that and just ignore the broken thing, that’s fine, just make sure you keep really good documentary records of you so the agent is aware. Because when you vacate the property they can be like, ‘Hey, what happened to this oven? Okay, we’re asking you to replace it from a portion of your bond.’
invoices
With the repairs issue, what we do sometimes see is the landlord eventually fixes this thing and then sends an invoice. Now, that’s their duty to incur the invoice to maintain their own property. People do not need to pay that invoice. say no. If they want to fight about it, they can go to VCAT.
Threats
We often see renters asking for their rights, like repairs, and then instead of repairing the thing, the landlord or agent might say, ‘Well, I might evict you if you ask for this’.
So firstly, that’s shit. It’s retaliatory. Also, that’s not a notice to vacate. They haven’t actually started to try and evict that person. And people get really scared and come to us. But you can tell them ‘Okay, if you wish to evict me, send me a notice to vacate with the proper reason and a proper notice period and I will seek legal advice,’ and often that’s where it takes for the person to back off .
Eviction
A practical consideration needs to come in if you’re evicted, but you’ve got nowhere to go.
So when the landlord says, ‘Sorry but I’m taking the house back, this lease is over, you need to be out on the first of April’ –
– Yeah, obviously you have to keep paying rent until they’ve literally convicted you, but technically speaking, if the person really has nowhere to go, in order to be forcibly removed, the landlord needs to go to VCAT or NCAT and get a possession order, which pushes the timeline out.
So even if the landlord goes, you have to be out on the first of April. Technically speaking, if that person continues to stay in a property for just a few more weeks, it’s legal for them to do that because no one can forcibly remove them yet.
But I’m not telling people to actively do that. And of course, you don’t have to be honest with people if you’ve got nowhere else to go.
But it’s not like that email from the landlord is legally binding – like the cops aren’t telling you to leave.
Yeah, the cops will come once a possession order has been purchased by the landlord. And that costs money to go to VCAT, it costs money to purchase the order. It’s a cost that the landlord would have to take if they wanted to forcibly remove someone, instead of negotiating with them in good faith.
It does seem like it’s all on the renters to do most of the legwork a lot of the time.
I think, ultimately, in Australia, we don’t see housing as a human right, we see it as an investment. And many renters don’t see it as they have an entitlement to their housing as a human right. We can change the way they think about that. through RAHU or Better Rentingwe can have a better grassroots grounds well of renters joining their power together.
Aleksandra Bliszczyk is a Senior Reporter for VICE Australia. Follow her on Instagramor on Twitter.
