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Boarders and Lodgers

Discussion in 'Property Law Forum' started by rebeltrooper, 30 April 2014.

  1. rebeltrooper

    rebeltrooper Member

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    Sorry everyone, but I think I posted this to the wrong place earlier...lol.

    My best friend was boarding with friends she’d known since 2010 in share accommodation, after she broke off a bad marriage. She paid $100 in advance when she moved in, (Friday 7th Jan 2011), and an additional $300 two weeks later, (Thursday 20th January 2011, and remained in board/lodging to just short of 10 weeks, when her unit was approved, and she moved out, (Wednesday 16th March 2011).

    Her board/lodgings were still in advance payment to Thursday 17th March, with zero debt to the head tenant, neither for board/lodgings, nor property damage, and yet, the head tenant demanded that she pay a further $300 for the next fortnight to Thursday 31st March….the amount of time she would never get to use at that address, and under the Criminal Code ACT Qld 1899, this action is called fraud.

    Albeit, when my friend paid the extra $300, she did so under duress, and left her with very little for the next two weeks thereafter. Just like everyone else in the community, she has other bills to pay, including food.

    Also, the reason she didn’t report this to the appropriate bodies earlier, was that she was so afraid of adverse repercussions by the head tenant. She is a very shy person and unable to confront stand-overs in such a situation. She has only brought this to light recently, which prompted me to action.

    I find that the actions of the head tenant to be deplorable, and my friend, and others who have undergone the same misdeals, need to be afforded due process

    Given that a boarder/lodger is not covered by the “Residential Tenancies and Rooming ACT 2008”, we need to keep in mind that as far as this part of the ACT goes, I feel there is no need for a boarder/lodger to forward any amount of notice to exit.

    If “notice to exit” is a necessity under section-32, which I doubt, then this ACT is operating on a one-way street so to speak, and deprives the person of his/her basic human rights. Further, my friend was under an implied contract in this case.

    Residential Tenancies and Rooming ACT 2008

    Section 32

    Boarders and Lodgers

    Sub section (1) This Act does not apply to a residential tenancy agreement if

    the tenant is a boarder or lodger.

    Let it be known that I have intentions of representing my friend at the tribunal.

    Any positive feedback on this matter would be greatly appreciated. I’m trying to ascertain as to whether or not she has a right to pursue this and have her money returned to her in full, and I am open to constructive criticism.
     
  2. Tim W

    Tim W Lawyer

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    A few thoughts (bearing mind that I am a lawyer in NSW, not Queensland)
    1. Above all, and before you "start anything",
      you will need to be certain that your friend
      actually wants you to go to all this trouble.
      Remember, no matter how put out you might feel,
      she is the person with the problem, not you.

    2. Your friend may find it helpful to speak to Dispute Resolution Service
      provided by the Queensland Residential Tenancies Authority.
      http://www.rta.qld.gov.au/Dispute-Assistance/Resolving-a-dispute
      It may be better to do this before going to QCAT.

    3. And, if it does turn out to be a criminal matter,
      then neither QCAT nor the RTA will be able to help your friend,
      because neither of those bodies has a criminal jurisdiction.
     
  3. rebeltrooper

    rebeltrooper Member

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    Hi Tim
    Thanks very much for your response. I've been in contact with Qld RTA and QCAT. RTA can't give any legal advice and QCAT has a 6-month limitation on such cases.

    Given that this is close to 2 years old would my friend still have a case in the matter?

    As I mentioned previously, my friend doesn't have what it takes when it comes to confrontation or bullying. She has only brought this to someones attention very recently, and at least I know about it now.

    For other parties to demand monies or other private property from any person is fraud under the Criminal Code, and I feel she has the right to due process regardless of her former status as boarder or a lodger of 2 years passed.

    Tim, if there's any further advice that you could give me, it will gladly take it on board.

    Many thanks you for your previous letter, and I hope to read from you again.

    Michael
     
  4. Tim W

    Tim W Lawyer

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    Like I said above, I am a lawyer in NSW, not Queensland.
    That being the case, I am not in a position to give you any useful advice
    about making an application to QCAT once the time limit has passed.

    Going by (and only by) what you have said above about the dispute,
    I am not confident that what has happened to your friend
    amounts to fraud as it is described in the Criminal Code.

    I am more confident that this is a civil matter.

    Horse, water, drink.
     
  5. rebeltrooper

    rebeltrooper Member

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    Hi again Tim
    Yes, I do concur. The more I look at it, a civil case seems more obvious. To that end, would I personally be able to rep her case in a higher court other than the small claims tribunal?
     
  6. Tim W

    Tim W Lawyer

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    Do you mean on appeal or at first instance?

    In any event, looking at the amount of money involved,
    I think this dispute's best venue (if DRS is unsuccessful) is QCAT.
     
  7. Tim W

    Tim W Lawyer

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    ...assuming, of course, that your friend is not barred by the six month time limit.
     

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