Mistakes in the tenancy agreement

[Ivan McIntosh]

Variations of leases and other property rights are supposed to be in writing too, but all sorts of ways have developed in the law to get around people playing games, and one of those is part performance. In a competent court, the fact that you paid $550 would be enough to lay the groundwork for acceptance of the variation. If the landlord gives an invoice for $550, the court might find that was sufficient for the purposes of "writing" when coupled with your payment.

In essence, the law asks why are you paying $550 if you haven't agreed to it?

What I was basically saying was don't make yourself a test case where the court is liable to be against you....and that would be great advice for courts where you are liable for costs and have to have a lawyer represent you. But, having thought about it....this is the tenancy tribunal, and there may be very little if any downside to having a go.

[Keys]

I don't think it's a right or power conferred by the Act.

Rather clear Ivan. The tenant has the right to occupy the property for $480 for the term of the TA (12 months?). That is a given as they have a signed tenancy agreement. The tenant now signs a new tenancy agreement because they have committed to the property and find that the stress is unwarranted to find a new home. This second tenancy agreement (which the tenant happily (?) signed) is not the legal one and is unenforceable as it conflicts with the tenants rights under the law to occupy the property under the original tenancy agreement at the original rental rate. As such, the tenant may claim the money back. The tenant has 12 months from the date of the breach of the Act to claim the money back. That is why I suggested the claim be lodged at 11 months.

[Keys]

What I was basically saying was don't make yourself a test case where the court is liable to be against you....and that would be great advice for courts where you are liable for costs and have to have a lawyer represent you. But, having thought about it....this is the tenancy tribunal, and there may be very little if any downside to having a go.

I suggest you bone yourself up on Tenancy Law.

Lawyers would be specifically excluded in this case.

[grip]

In essence, the law asks why are you paying $550 if you haven't agreed to it?

Perhaps from the tenant's perspective: I thought that was the only way to prevent myself from being thrown out, as I cannot afford to move.
Somewhere down the track I realised it's not right to be bullied and hence coming to TT to enforce my rights.

Btw, can the OP say who the PM is?

[Ivan McIntosh]

It's a cute argument, but I don't agree, Keys (but see below). The right to occupy for a certain price is conferred by the contract, not by the Act. The Act confers many rights or powers on tenants over and above the bare bones of the contract, and it is only those rights and powers cannot be waived. That clause is supposed to prohibit things like waiving the right under the Act to have 90 days notice from the landlord, or the right to have the bond lodged.

Just thinking, though: If you really wanted to use that argument, you perhaps argue that the increase contravenes the right under the Act not to have rent increases more than six months......that could have more traction.

[Ivan McIntosh]

What I was basically saying was don't make yourself a test case where the court is liable to be against you....and that would be great advice for courts where you are liable for costs and have to have a lawyer represent you. But, having thought about it....this is the tenancy tribunal, and there may be very little if any downside to having a go.

I suggest you bone yourself up on Tenancy Law.

Lawyers would be specifically excluded in this case.

Keys, I just finished specifically saying it is the tenancy tribunal and there may be very little downside to having a go......for that exact reason. It's even in your quote : p

However, that very reason does mean you have much more experience in the Tenancy Tribunal than I ever will, having only been in there a couple of times as a trustee. If you think they'd go for the rights and powers argument, then I'll defer to your accumulated wisdom about what they will or won't do.

[Ivan McIntosh]

Perhaps from the tenant's perspective: I thought that was the only way to prevent myself from being thrown out, as I cannot afford to move.
Somewhere down the track I realised it's not right to be bullied and hence coming to TT to enforce my rights.

Btw, can the OP say who the PM is?

Good point. That would be an excellent way to spin it.

[Wayne]

I say give it a go and let us know how you get on. Grip's argument would be the way to go.

[Ivan McIntosh]

Question for Keys:

In your experience with the Tribunal, if the OP rejected the variation, and the landlord tried to give them 90 days notice to vacate, could you not then argue that this represented retaliation on the landlord's part and resist the termination?

It's a little hard to shoehorn it into the provisions of 54(1), but perhaps could argue it was in retaliation for the tenant exercising the right not to have a rent increase within the first six months....

[td91]

In my opinion it's all pretty black and white.

You agreed to $480p/w you paid the relevant fees and signed a contract for $480p/w. You could dispute that you have signed to that amount and that rent cannot be increased until the relevant time period set in the tenancy laws. However, in the interests of maintaining a good tenant/PM/landlord relationship paying the $550 is probably the best way to go.

Question is do you think $550 is worth paying for the house and can you afford it. If your answer is yes then go with it, if it's no then cut it loose and find somewhere else.

Sounds a bit strange in all honesty..

[Leftette]

Not strange at all. Just because something is worth a certain value and you can afford that amount doesn't mean that unexpected changes such as this make it ok.

[Keys]

Question for Keys:

In your experience with the Tribunal, if the OP rejected the variation, and the landlord tried to give them 90 days notice to vacate, could you not then argue that this represented retaliation on the landlord's part and resist the termination?

It's a little hard to shoehorn it into the provisions of 54(1), but perhaps could argue it was in retaliation for the tenant exercising the right not to have a rent increase within the first six months....

Easily claimable. However, I suggest that we are talking a fixed term tenancy (one year). In which case termination is not an option. If the tenant is on a FTT for that long and disputes the rent all the landlord has to do is bide their time and bump it more in six months. That is why I suggested the earlier way to go.

[DazRaz]

That is if the FFT has a rent increase clause in it.

[cube]

Sounds to me like it is a Periodic (Post 5)

My 2c

Agree now (in writing) to an increase to $550 in 6 months time - if you have the owner's details (available at the council), suggest the disputes tribunal may be a good place to go for the missing $1820 caused by the PMs incompetence.

There is a chance that you get a conflicting increase notice in 4 months; at that stage I would 'retaliate' with a 3 week notice of my own.

If you get a 90 day termination, it may be worth going to the TT, in case is is something they are trying on regularly.

[speights boy]

If you get a 90 day termination, it may be worth going to the TT, in case is is something they are trying on regularly.

Good point.

As td91 says;

Sounds a bit strange in all honesty..