The couple claimed that the nature of the agent’s entry and continued presence caused “trauma and humiliation” and “discriminated against their religious faith”. Photo: GC Shutter.
An ACT Civil and Administrative Tribunal decision might make Canberra’s real estate agents think twice about how they enter a rental property for routine inspections.
A Muslim couple has been awarded $1500 in damages after a woman found an agent in her bedroom where she was sleeping with her infant child.
The couple claimed that the nature of the agent’s entry and continued presence on the property was a “breach of privacy”, “a violation of our right to quiet enjoyment”, caused “trauma and humiliation”, and “discriminated against their religious faith”.
ACAT had no power to adjudicate the discrimination matter but found the agent exceeded his authority, and staying on the property after finding the wife in bed amounted to trespass and a violation of the couple’s quiet enjoyment of the property.
The couple had lived in the Kingston apartment for five years, and a six-monthly inspection was notified by email to take place on 31 August last year between the hours of 8:30 am and 3 pm.
The agent arrived at 12.21 pm and, according to video evidence, did not ring the doorbell to enter the lobby of the apartment block.
The agent said he knocked several times on the door of the apartment at about 12:25 pm but did not receive any response. He then entered using a master key, shouting out to inquire if anyone was home.
The wife denies the agent shouted out, saying she is a light sleeper and would have heard him knocking and announcing his arrival.
After walking through the kitchen and bathroom, the agent entered the main bedroom and came upon the wife in bed with her child, with both parties telling ACAT they were “shocked”.
The agent identified himself, informed the wife why he was there and said he requested approval to continue the inspection. The wife agreed he identified himself but said, “I was confused.”
The wife denied that he asked her whether he could continue the inspection or not, but conceded she may have replied, “Oh, OK”, but only in acknowledging who he was and why he was in the apartment.
She claimed that at no time did the agent seek approval to continue.
The agent said in his witness statement that he left the bedroom, continued the inspection and left the apartment at 12:34 pm.
But he omitted that he returned to the bedroom, where the wife videoed him with her phone from under the bedsheets.
She told ACAT that she was “unable to emerge promptly due to not wearing my Islamic scarf to meet strangers” and “felt trapped and concerned for my safety”.
She did not know why he was back in the room and was “terrified because he was a big man”.
The tribunal found the agent’s testimony lacked credibility due to inconsistencies between his written and oral evidence and lack of recall, while the wife’s evidence seemed consistent and believable.
“On the evidence provided, it appears unlikely that consent was given by the wife and certainly not the words afformed by the agent,” the tribunal said.
“Even if some consent was verbally uttered, such consent could only be classified as consent gained under a degree of duress, whether intended or not by the agent or not.
“In this tribunal’s view, a woman fearful of someone who has entered her home, embarrassed by her lack of modesty as she repeatedly testified, and in a vulnerable position hiding as she was under sheets, is not in a fair position to conduct such a conversation with a large male, a stranger to her, standing unexpectedly in her room.
“Consent granted in such circumstances, in the view of this tribunal, could not possibly be described as freely given or constitute lawful consent.”
The tribunal said that continuing to conduct a routine inspection in these circumstances appeared to be inconsistent with prevailing community standards and would cause distress to a significant number of the community in the same situation.
The couple broke their lease and left the property the next month after not receiving an apology.
The real estate agency claimed the property was damaged and retained the $2000 bond, which the couple also sought to recover.
After viewing photos from the exit report, the tribunal found that “it is hard to see more than a quarter of this is anything other than reasonable wear and tear in the years that the tenants have been there”.
It ordered $1155 of the bond be returned to the couple.
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