27 March 2013

Being taken to ACAT by Real Estate. Good lawyers?

| Leiulu
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We have just been served a notice to attend ACAT for dispute resolution for breaking a lease. They have lied througout their application (the real estates).

Looking for a lawyer in Canberra who is good with ACAT matters.

Does anyone have any recommendations?

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My suggestion is to ‘compromise’ being the key message in my previous post avoiding all legal avenues and strategies. A waste of money costing you more than reaching a compromise and once in the legal arena; may go against your future rentals. They all make money out of the exercise once a legal practitioner is involved.

Attend ACAT if a compromise cannot be reached prior to the ACAT date representing yourself (I agree with other Posters viewpoints) in relation to self representation.

Its a minor matter so enjoy your Easter break and God Bless!

If this is in relation to your earlier post (21 Feb 2013 – http://the-riotact.com/real-estates-bullying-ways-2/95473), I’d suggest you just save yourself the time and hassle and pay up what’s due for breaking the lease.

It seems to me that the agent is not claiming anything unreasonable, and while I could be wrong, I expect you’d have to have an extraordinary circumstances (ie. you broke the lease because you became a quadriplegic and will never be able to work in your current capacity again) for ACAT to make a decision ‘in your favour’.

Further, unless you’re done renting in Canberra, you’d be better off making a settlement directly with the agent without involving ACAT (even if it costs you a little more in the short term) because once you’ve been through ACAT, it will impact on your opportunities in the local rental market – although it may be too late if you’ve already been served a notice to attend.

you must have really annoyed them for them to start such an action. Any thinking property owner will wear a small loss to get the rent flowing again. Tribunals can give uncertain outcomes. My advice, tell the truth, keep calm, no name calling and you will get a fair outcome.

You can get plenty of free advice from the ACT Tenants Union, and a one-off consultation with the ACT Law Society. I recommend you use both, but use the Law Society first (and request someone who actually knows residential tenancy legislation), summarise what your position is, and then test the advice from the Law Society when you speak with the Tenants Union.

Also, read previous ACAT decisions from the ACT Courts website. They’re published, and use “RT” in the heading, so that’s how you can tell they are from the ‘residential tribunal’.

Lastly, do not expect your argument to win, even if you’re right. I had a dispute, and the mediator was a top-shelf idiot who didn’t understand the compensation sections in the ACT Residential Tenancies Act 1997. I had to go through that and go for a hearing, and push my argument, which I knew was right (and the mediator was flat-out wrong). You should recognise that ACAT does not exist to deliver “justice” and “law” – it exists to cut down on more formal court processes which cost the ACT much more than this stripped-down process.

Good luck, God bless, May The Force Be With You, kick their asses, and tell us how you make out.

And if you reckon the estate agent is a filthy liar, I look forward to reading your Riot Act post naming and shaming them.

scorpio63 said :

I would be definitely requesting the Homeowner/Landowner’s mobile number to contact them directly as they may be totally unaware of the Real Estate’s intentions taking you to ACAT and/or any offer by you to meet half way and compromise?

As a landlord, if a tenant called me on my mobile, particularly one who has cost me money by breaking a contract, I’d probably not be in a mood to ‘negotiate’.
I’ve a low tolerance, having been burnt by tenants who didn’t pay their rent, bailed on their lease and left the property in disrepair, dirty and with a fair amount of junk inside. I now pay for specialist tenant insurance for Court and debt collecting costs. Your landlord may have similar insurance, so after the initial weeks rent, everything else is covered for them…Then you’re effectively going up against the Insurer.

Not suggesting the OP is in the same category, but when there’s money involved, some people (like me) will fight for what they believe is theirs.

I’d seek legal advice – even through legal aid (every ACT resident is entitled to a free 30 minute consultation, regardless of income). That session may give you an indication of what you’re up for and whether or not you can do it on your own.

Good luck. I’d be focussed on proving the real estate agent is lying. It’s hard to do, even from the landlord side.

My suggestion of seeing a lawyer first went to the fact that without a clear case being mounted the mood of ACAT can swing against you – a first timer can very easily find ACAT daunting.

Most real estate agencies are very experienced with ACAT; the process and the personalities.

An initial consult with a lawyer is usually free and the subsequent cost of an outline of what to present (not necessarily legal representation within ACAT) might mean the difference between having a judgement recorded against you or not.

Real estate agents review ACAT decisions and tenants with judgements against them may be perceived to be ‘problems’ and impact future rentals.

Weigh up the costs, if may be worth it to negotiate an outcome and avoid ACAT all together.
If representing yourself, don’t underestimate the need to do preparation.

The question is, is it worth fighting or just put it down to experience?

I would offer to pay half out of your Bond for breaking the Lease agreement due to unforseen circumstances, many of which are financial to Tenants which is fully understandable.

For example, offer to pay them up for the next fortnight while they find new Tenants (if you are unable to recommend any) out of your Bond.

Despite being a homeowner and leasing to Tenants I still believe it is unfair and morally wrong to squeeze money out of people, in particular Tenants who have cared for my property and paid regularly/on time, for 3, 6, and 12 month periods if or when they break their Lease.

If the Property has been kept decent, tidy, clean and well maintained, there are a surplus of Tenants to quickly apply for the property, which in turn, should not be a problem to the Homeowner/Landowner financially nor to the Real Estates.

I would be definitely requesting the Homeowner/Landowner’s mobile number to contact them directly as they may be totally unaware of the Real Estate’s intentions taking you to ACAT and/or any offer by you to meet half way and compromise?

Any Property Management Real Estate Manager working in Canberra should be able to Tenant a home or townhouse within a fortnight’s notice and thereafter should be lenient and compromise with good previous Tenants in relation to broken leases.

Compromise whenever possible is the key.

unless there are big $ on the line, i wouldnt seek representation at an ACAT hearing. i have been to VCAT before on a property matter and to ACAT against a builder and did not have representation for either….just good preparation

what i suggest is doing your research and coming prepared. the burden of proof for damages will be on them so you need to know what they are entitled to…the ACT tenants tribunal (or whatever it’s called) will give you all that info as well as closely looking at the lease you signed

as a quick guide, the following:
– a landlord (or their agent) must mitigate their losses in the event that a tenant breaks a lease. this means they must move to readvertise and re-lease the property as soon as possible. if they fail to mitigate their damages, a court will usually award them a nominal/fair fee and no more.

– you will be eligible to pay the lost income as a result of you breaking the lease. this includes the time the property was vacant before a new tenant moved in and the re-advertising/re-leasing fees

– as usual, you would have needed to leave the property cleaned and tidy

– in the canberra market, i doubt they could prove it took more than a month to lease any property…but you never know.

– they can not apply your bond to any rent etc and if they failed to outline taking the bond to you within a certain timeframe (i think within 30 days but you’d have to check), they must return it to you

you won’t usually be able to break a lease without any costs but you can’t be charged a specific fee for doing so, only the loss of income as described before and any additional costs

good luck! do some research, know your rights/their rights, and come prepared.

watch some judge judy too ;)p

Talk to the tenants association. They are really helpful in these matters.

ACAT is like Judge Judy. No lawyers needed.

If you engage one it’ll cost you a small fortune. As most are around $500+ an hour.

If you’re not confident to represent yourself, research further online or post your side of events on here and the RA hive mind can give more accurate advice.

obamabinladen11:43 am 27 Mar 13

A friend of mine went through the same thing and even though they were in the right it all came down to the other party was willing to take the matter further into the legal system which would end up costing both parties more money. A better system is needed where the person in the wrong has to pay the legal fees and court costs of the other party.

Kurrajong said :

Without predjudice, I offer that two ‘names’ in real estate law matters I have heard widely mentioned in Canberra are Alfonso del Rio of Clayton Utz, and Keith Bradley of Bradley Allen. I’d call both and arrange a consult to discuss circumstances, remedy and fees.

I totally agree, but I know that both are in the region of $500+ per hour. Even with juniors at 1/2 that rate, it might be cheaper just to pay the other side!

As VicePope said, or try the ACT law society’s pro bono program (in which case you may end up with one of the aforementioned as both firms are involved in pro bono)

While I agree with Jiivrashia that this is a tribunal, and understand that it is pretty good at simple processes, the question is whether the OP feels up to the task and that depends on the kind of person and the amount at stake. Some people do self-representation better than others, and most of the skill is administrative (get your documents in order and understand them, know that your opinions and arguments are not the same as facts that need to be proven) with some capacity for standing up and talking. If the OP is not good on his/her feet or feels disadvantaged, ask if the ACT will consider deciding the matter on the papers. Does the OP have access to any form of legal aid or tenancy advice?

gentoopenguin10:31 am 27 Mar 13

I’ve been before the tribunal for a bond dispute. I didn’t need a lawyer. It’s just you, the real estate agent and an adjudicator. You each state your case, the adjudicator offers a compromise and then the negotiate a resolution from there. If no resolution is forthcoming, then it goes further into the legal system.

It’s a tribunal.

As long as your facts are clear and you are confident that it is better than theirs then you don’t need a lawyer.

Without predjudice, I offer that two ‘names’ in real estate law matters I have heard widely mentioned in Canberra are Alfonso del Rio of Clayton Utz, and Keith Bradley of Bradley Allen. I’d call both and arrange a consult to discuss circumstances, remedy and fees.

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