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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42659
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Tenancy dispute between four tenants, one a former tenant.

Customer Question

Tenancy dispute between four tenants, one a former tenant. Real estate has applied to claim the entire amount of bond, with the signatures of two co tenants. Apparently they've made an agreement that when the agency claims the entire amount, that it would be split by the agency to go into three of the tenants accounts. One of the tenants had no idea that a claim was being made, and the claim was made well before the lease had ended. I am the former co tenant and my name is ***** ***** the bond form and would like my share of the bond back, so I've applied to the tribunal to stop that claim. The two tenants who signed the claim form have applied to the tribunal to dispute my claim. I'd like to know what could happen; the tenants who applied for the dispute have lied on their application about where they live. The agent who is in charge has also done some illegal things and I'd like to know what could happen to her license if I pressed charges (she claimed bond before lease had ended and withheld information from tenants).
Submitted: 1 year ago.
Category: Australia Law
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Have you stopped the bond being released?

Are you still in possession?

Customer: replied 1 year ago.
Ive stopped the bond being released twice, as the first time it was done before the lease had ended via an online service and I randomly called the bond board to be told to put a freeze to it. I then got called 18 days later to say that a new claim had been made for the entire amount of the bond, and to apply to the tribunal To stop that as well.
Customer: replied 1 year ago.
The lease was also terminated early because the tenants and land lord agreed to put the house on the market, however, I had to pay a break lease fee when I left within three months; wouldn't it have just been a change of tenancy and not a break lease as they'd already found tenants (the former other tenants)?
Expert:  Leon replied 1 year ago.

Good Afternoon

If the lease has been broken and new names are ***** ***** the lease then it has to be paid.

If the lease had finished and then you left then there is no fee.

This only applies if there is a fixed term lease and the tenant leaves early, ie before the term finishes. .

You can file a complaint about the agent and have the disciplinary part of Fair trading deal with him.,

In relation to the tenant you have to raise these issues in the tribunal. They will not do much to them because they never invoke the disciplinary powers.

Customer: replied 1 year ago.
you're saying to just go to the tribunal, make my case and that's it? As for the agent, what disciplinary part of fair trading would hear the complaints?
Expert:  Leon replied 1 year ago.

Yes you have to proceed and make your case.

The agent has acted inappropriately and should also be reported and teh tribunal should also be made aware in your evidence.

What state are you in?

Customer: replied 1 year ago.
NSW. I think I might have to find someone to represent me at the tribunal on the 17th. It's way too much info for me to handle right now
Expert:  Leon replied 1 year ago.

Good Afternoon

It would cost you more than the bond to have them represent you.

The tribunal prefers no solicitors to be involved.

Here is the link and you choose the first one and lodge a complaint with the Department of Fair Trading about the management of the tenancy

http://www.fairtrading.nsw.gov.au/biz_res/ftweb/General_complaint/index_tenancy.htm

Is this the first time in the tribunal for this matter?

Customer: replied 1 year ago.
First time yes. I've also now been told, that it was actually illegal to write your own clauses into an agreement. Which means that I'm now owed a lot more than just my share of the bond but also my 6 weeks break lease fee.
Expert:  Leon replied 1 year ago.

If they have breached the act and you have suffered loss you have to make sure that you set that out.

If you have not and need to then you seek to have an adjournment to amend your application.

They will grant that and give new dates and until this progresses the bond is frozen.

Customer: replied 1 year ago.
The agreement that was made through emails, is that still in affect? Or does it not apply to the tribunal because the tribunal only looks at the contract.
Expert:  Leon replied 1 year ago.

Good Afternoon

It is valid. Even a verbal agreement is valid under the act.

The tribunal has jurisdiction.

You should have all the emails in sequence to show what you are saying.

I hope this all assists and makes sense.

Customer: replied 1 year ago.
what jurisdiction does the tribunal have? I thought only the high court of Australia had that power? To impose fines and penalties against someone's name?
Expert:  Leon replied 1 year ago.

It has the jursidiction to deal with residential leases

Which is what you are looking at

No each court has its own jurisdiction.

The high court is the highest court in the land and it is the only court that can challenge government policy under the constitution.

Customer: replied 1 year ago.
My property manager is telling me that what has happened is highly illegal. The agency has claimed the bond, all of it, to go to the landlord. Two tenants have signed it out of three/four and the two that signed made an outside agreement with the agency, for the money to go back into their accounts only. THAT is illegal as once the agency claims the money, by law it is supposed to go to the land lord, as the agent acts on behalf of the landlord NOT the tenant. Is this correct?
Expert:  Leon replied 1 year ago.

Good Afternoon

They cannot claim the bond themselves it has to go to the landlord.

They have committed an offence and they can be struck off. It is misappropriation of funds.

Customer: replied 1 year ago.
Can I ask which law/act/legislation that falls under please?
Expert:  Leon replied 1 year ago.

This is the act that governs Real Estate Agents

http://www5.austlii.edu.au/au/legis/nsw/consol_act/psabaa2002385/

Customer: replied 1 year ago.
I'm not really sure where to look within the act; what is a compensation fund? Where am I to look specifically in regards ***** ***** and landlords and the bond?
Expert:  Leon replied 1 year ago.

In your case there is no need to claim on the compensation fund because the money has not been taken by the agent.

If the agent had received the money and did not pass it on then you can apply to have the compensation fund reimburse you.

Because the bond is not released there is no such claim.

You have to proceed against the agent so that the bond is not released to him.

Customer: replied 1 year ago.
If I were to press charges against the two tenants and the agent/agency for misappropriation of funds, would it stand?
Expert:  Leon replied 1 year ago.

You cant press charges that is a police matter.

You can try and report it as fraud to the police and they will deal with it

You would only be a witness.

Customer: replied 1 year ago.
I've been told that the break lease fee shouldn't have happened as there were tenants already found, and the break lease fee is the only reason why a landlord would request it because it's a loss of compensation of rent.
Expert:  Leon replied 1 year ago.

That is incorrect.

If you have asked for the lease to be terminated early you have to pay it.

If you were looking to have new tenants take over the lease for you to move out then that is a different case.

But this is all to be decided by the tribunal after it has heard evidence from all parties.

Customer: replied 1 year ago.
I asked to leave the lease and leave the other three where they are. I was told it was a change of tenancy and would be charged $35 and that was it. Two days later I was demanded of $1035 for the break lease fee.
Expert:  Leon replied 1 year ago.

Good Afternoon

It is not a simple question to answer. You have broken the lease and the tenancy is bein changed early. If they have not had a new lease signed with the others then they have not changed the lease and you can argue you should not be charged.

Customer: replied 1 year ago.
Sorry, that didn't make sense to me
Expert:  Leon replied 1 year ago.

If you asked for the lease to be terminated early and for you to leave then you have broken it and cna be charged.

If they have not then entered a new lease with the other tenants and left it as it was, you can argue that the lease was not broken as the old lease remained in place and there was no lease signed.

All of this would be decided in the Tribunal.

You have to set out what your evidence is and show that the lease was not changed and you should not have to pay the break fee.

Customer: replied 1 year ago.
They've made an agreement outside the contract that if the agency put the house on the market and someone wants it, they'll leave early; is that a termination of lease and do they need to pay the break lease fee?
Expert:  Leon replied 1 year ago.

Good Afternoon

That is a substitution of tenant.

You requested that you end the lease. That is an early break. But because the lease remained in place I would suspect that it was not a legitimate break because the balance of the tenants stayed.

Customer: replied 12 months ago.
How do I say that in the tribunal
Expert:  Leon replied 12 months ago.

Good Morning

Do you have evidence if a new lease was entered?

Customer: replied 12 months ago.
my partner sent me the new one without my signature or name on it
Expert:  Leon replied 12 months ago.

Good Morning

Was the rent the same and did it continue from when you left?

Customer: replied 12 months ago.
Rent was the same and the end date was the same as well
Expert:  Leon replied 12 months ago.

You can argue that the tenancy has not been ended and the early break fee should not be paid. But in the end it is up to the Tribunal to decide.

Provide the copy of the new lease showing all other tenants are on there and if you have their consent to leave and be taken off provide evidence of that

Customer: replied 12 months ago.
I was told they'd only sign the new lease without my name if I paid the break lease fee, which is my 'legal right' according to the tenant who wrote the email
Expert:  Leon replied 12 months ago.

The tenants said that?

They would not sign the new lease unless you paid?

Customer: replied 12 months ago.
The tenant wrote in an email ' we will only sign the new lease without your name on it if you provide:
- 6 weeks rent as break fee lease as per your legal obligation to do so, I've contacted fair trading and They've said I'm correct'
Expert:  Leon replied 12 months ago.

Good evening

Do not pay it and run the hearing

Keep all the documentation it assist you.

This is all rubbish and you are on the right track.

Good luck with it.

Customer: replied 12 months ago.
I already had paid it, 3 months ago when I left the property/lease. I want it back after realising that it was illegal, and would like to know how to approach the topic and say it so that I prove my point
Expert:  Leon replied 12 months ago.

Good Morning

I cannot say it is illegal. But you need to lodge a complaint about the agent.

The Department will investigate them and deal with them.

If you believe that she has committed fraud report her to the police.

Customer: replied 12 months ago.
What law or act agrees with with what I've said? Sorry, I've been at work all day.
Expert:  Leon replied 12 months ago.

Good Evening

What state are you in?

Customer: replied 12 months ago.
Nsw
Expert:  Leon replied 12 months ago.

The Crimes Act would be the fraud charges to the police.

and the act that deals with them

PROPERTY, STOCK AND BUSINESS AGENTS ACT 2002

http://www5.austlii.edu.au/au/legis/nsw/consol_act/psabaa2002385/

Report them to the department of Fair trading and collect the emails etc and report them to the police.

Customer: replied 12 months ago.
Just asked police. They couldn't do anything as its a civil matter
Expert:  Leon replied 12 months ago.

The report them to Fair Trading and they can prosecute them

They have to the power as well

Expert:  Leon replied 12 months ago.

Good Evening

Are you still in need of assistance?

Customer: replied 11 months ago.
What am I to say to fair trading in regards ***** ***** as one is a real estate agent and the other an accountant
Expert:  Leon replied 11 months ago.

Good Evening

I cannot tell you what to say to Fair trading. You have to stick to the facts of what happened.

You also ask them to make a finding in your favour.

Customer: replied 11 months ago.
I've now had to resort to a free 20 minute session at legal aid because no one is helpful enough.
Expert:  Leon replied 11 months ago.

Good Afternoon

It is not possible to tell you what to say in the Tribunal.

That would be negligent of me.

In matters where I represent clients I spend over 1 hour in conference and look at documents and communications and then we draft the application

I hope you understand this is not possible here.

Can I ask what Legal aid have told you?

Customer: replied 11 months ago.
That the break lease fee was illegal and not needed; that the claim of bond before the lease was up was illegal; that the claim of the bond for a unilateral agreement between Shannon Sam and the agency was illegal
Expert:  Leon replied 11 months ago.

I have told you that as well.

This is why you lodge a claim with the Tribunal

Customer: replied 11 months ago.
Terms making the tenant liable for additional payments for breaching the agreement" is classified as not allowed under NSW law; what part of the legislation is that? As under the 'special conditions' on my contract, it says 'letting fee($15), advertising fee ($35) and one weeks rent for breaching the lease'
Expert:  Leon replied 11 months ago.

Good Afternoon

Here is the link form Fair Trading that sets out the option of having a break lease fee in the lease

http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Renting_a_home/Ending_a_tenancy/Breaking_a_lease_early.page

It is legal but what you have described does not appear to be a break of the lease