Carpet cleaning and out by 12pm. Exemplary damages?

[zapsta]

Hi all, my first post here. Keys has mentioned the possibility of an action that I'm about to describe in another thread so I'm interested on any input.

Just ended a rather terrible tenancy.... (as a tenant) - mouldy house, a viewing nearly every week for most our tenancy...

I'm well aware that the carpet cleaning provisions are not enforceable (greater standard than s40) same with the leaving at midday provision.... Both happen to be in my former tenancy agreement - I managed to leave the place without the landlord trying to enforce either of these (likely due to the landlord knew that they couldn't enforce these) - S11 is the nail in the coffin regarding the unenforceability...

I'm wondering and curious as to whether anyone has any experience with this... Do both of these provisions likely amount to unlawful acts per S137(1) (that's the defeating, evading, or preventing the operation of the RTA one..) - as essentially the landlord is asking for a standard higher than the act and asking to leave before the end of the day.

It then follows that S109 (if the above are considered unlawful acts) is possibly open for exemplary damages...
I'm more than satisfied that the criteria for the award exemplary damages can be fulfilled should an unlawful act be found per S137.

What I really want is to get to the point of applying for S109A - the order to prevent these getting provisions such as these in other agreements by the same person... - On the grounds that not all tenants are as aware of their rights and it seems to be a general consensus that people abide by these clauses despite not necessarily needing to have the carpets cleaned or having to leave at midday (which deprives the unorganised tenant of last minute cleaning....)

Look forward to your replies!

[TheLiberalLeft]

Could you please repeat the question?

[Keys]

You need to succeed on a 109 claim first. You have 12 months from the end of that tenancy. Good luck.

[zapsta]

Could you please repeat the question?

Do 'professional carpet cleaning' and 'leave at midday' provisions in a tenancy agreement amount to unlawful acts per S137(1) for attempting to evade the standards in the RTA.

If these do, my logic is that exemplary damages apply (providing the criteria are satisfied) - per S109...
Which then opens up S109A as well...

Sorry it's a bit of a difficult thing to try to explain. I'm just after peoples thoughts on this.

[zapsta]

You need to succeed on a 109 claim first. You have 12 months from the end of that tenancy. Good luck.

My logic would be that you would first need to satisfy the S137(1) (prohibited transaction) - which makes the declaration that a transaction of that nature is an unlawful act S137(2)

And then move on to the S109 claim - what makes you say the S109 would need to be satisfied first?

[Keys]

In order to enforce a restraining order 109A first the defendant must have committed an unlawful act.

[NIK]

Well I do have the carpet cleaning provision under the special terms...and have appeared in tt....all i had to show was a proof the carpet had a stain on. Plus most ll/pm have the clause in not with intention of breaking the law but because it makes tenants to look after the carpet a bit more. Adjuficator further made a comment that to reward exemplary damages for such thing tenant would have to proove that he/she suffered a loss and/or disadvantage.
Same with the move out time....would you get a cheaper rate if you moved at 11pm???

[zapsta]

Well I do have the carpet cleaning provision under the special terms...and have appeared in tt....all i had to show was a proof the carpet had a stain on. Plus most ll/pm have the clause in not with intention of breaking the law but because it makes tenants to look after the carpet a bit more. Adjuficator further made a comment that to reward exemplary damages for such thing tenant would have to proove that he/she suffered a loss and/or disadvantage.
Same with the move out time....would you get a cheaper rate if you moved at 11pm???

I don't really see how such a clause could make tenants look after the carpet more... I'd argue that any tenant who professionally cleaned the carpets prior to vacating had suffered a loss (providing that the carpets were reasonably clean per the act).

[skid]

I think the vacating by 12pm hinges on whether you have paid for the rest of the day-to put it simply you should get what you pay for.
Alot of landlords have a carpet clause and if you knew about it when you moved in is it really that unfair?[if the place is an absolute pig sty,with dirty carpets to start with,than thats a different matter]
Its all about fairness in the end--one side of the coin is landlords trying to take advantage of tenants and exploiting them,and the other is tenants playing the system to get something for nothing.
Guess you just have to ask yourself if one of you fits either category.
Its possible some will interpret this as trying to cash in on a loophole. Going for damages is normally for things that are a bit more serious than these things with all due respect.