The tribunal is one of the scariest places I have ever been. For as little as $35, you make a claim of up to $10,000. That’s scary if you’re on the receiving end, as many landlords would know.
BY EMILY SIM
The purpose of the tenancy tribunal, known as something different in every state but effectively the same, is to resolve disputes of a residential tenancy nature for landlords and tenants. What’s interesting about dispute resolution is that it takes many forms at the tribunal. It starts with mediation but can end in an order which actually contravenes the residential tenancy legislation.
Upon attending a hearing with both parties present, the tribunal strongly advocates that the parties settle the agreement between themselves in a private mediation room. The parties have the assistance of a roving conciliator knowledgeable on the legislation, who acts as a mediator should they not be able to reach agreement on their own.
If the parties agree, the conciliator writes up the orders and has them determined by the member sitting for the hearing and everyone leaves reasonably quickly. But, if the parties can’t agree, the matter will go before the member in the hearing room.
Now, this is all kinds of scary. Firstly if the parties can’t agree, for whatever reason, this is usually looked down upon as people being uncooperative and taking up the tribunal’s time.
I agree, there are clear-cut situations that shouldn’t even make it to tribunal, but if you’ve paid your $35, then you’re entitled to a hearing.
Back to the scary part – the member will listen to all of the claims and take special interest in the evidence presented. Where clearly defined legislation exists to support the case, the member will make a decision. Where it’s not, well this is going to take some time to comprehensively understand the case, the evidence, listen to witnesses and then take into account the ultimate bottom line, who has the greater hardship?
Pretty tough question with vacancy rates of less than one per cent in capital cities and climbing interest rates for landlords.
It’s reasonable to accept the advice that says stick the legislation, provide comprehensive evidence and wait your turn to speak, but all of this is no good if there’s one party who will trump the other with the greater hardship argument.
What can you do?
One of the biggest reasons conciliation fails is that a property manager doesn’t know how far they can negotiate for their landlord. Prior to the hearing, spend some time discussing with your property manager where you’re comfortable negotiating to.
At this point you still have some control. Should the matter go before the member you’re completely open to their discretionary powers, which means a member can consider the specific circumstances of the application, taking into consideration the level of hardship on the line and make a decision exclusive of the legislation. You see? Scary.
It can appear that your evidence is watertight and that the law is on your side but at the end of the day if the other party proves a greater hardship – and it’s usually the tenant because they’re the one losing the roof over their head – then tribunal isn’t where you want to negotiate these outcomes.
In my experience the landlord who has tried to resolve an outcome of their own accord, can demonstrate some empathy with their actions and goes to the tribunal as an absolute last resort, is the only kind of landlord who wins.
Emily Sim is the brains behind property management online community – www.apmasphere.com. With a career that includes senior roles at McGrath Partners and the Ray White Group, Emily is dedicated to finding new ways to deliver wealth to property investors.
Email: emily.sim@apmasphere.com.au
