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NSW Lease - Obligated to Comply to Document That is Updated Anytime?

Discussion in 'Property Law Forum' started by Flee, 28 September 2016.

  1. Flee

    Flee Member

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    I've got some question about my lease contract that refer to an extra document that could be updated at any time.

    I am now renting a room with one property agency.

    - The lease contract I signed was the Standard form Residential Tenancy Agreement.
    - This contract also has an additional term that refers to another document called Annexure A.
    - This Annexure A document has one obligation stating that:

    "The tenant must all times comply with the Resident Handbook and any rules or policies issued by the landlord or the landlord's agent from time to time"

    I've been staying in this property for a while with no problem until one day I accidentally breached the agreement by bringing a pet into the room for a few hours, which is not permitted by the contract. The landlord found out and wanted me to use their organised cleaning service to clean the room to remove the pet smell at my expense and they will not kick me out of the property.

    I cooperated with that and used their service to clean the room. Everything looks fine and the landlord seems to be happy with the cleaning at my expense. Not long after that, the landlord sent me another email saying that I have to also pay for the Penalty Fee of bringing a pet into the room as stated in the Handbook. And it's not a cheap Penalty Fee at all.

    I checked my Handbook. It doesn't contain this Pet Penalty fee in the handbook, but I have found that they also have an "updated" version of this Handbook issued after I have been staying for few months, and this updated Handbook has this pet penalty fee.

    At this point, I'm a little bit curious and would like to know whether I should always comply with this kind of Handbook that could be updated at anytime? Is this a even legal?

    If it's actually legal, I think I will eventually have to pay for this penalty fee but it just doesn't seem right to me as they could have put anything into the handbook at anytime and I have to always comply with that.

    Please do help me with what should I do in this case...
     
  2. Danny Jovica

    Danny Jovica Active Member

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    In my view that contract is unenforceable. An essential element of a contract is certainty, for without certainty there can be no meeting of the minds nor agreement reached as whatever was agreed is changed without notice nor consent of the parties.

    The question is not whether it is legal, but what do you want to do about it? Assume that it is unenforceable, even if you refuse to pay the penalty the landlord can ask you to vacate the property within the statutory period in your state without reason. On the flip side this action by the landlord is done in trade and commerce and could be a violation of Australian Consumer Laws.

    Unfair contract terms make the agreement void however in this case the agreement could arguably be classified as misleading and deceptive conduct and unfair practices conducted in trade and commerce. You can not have a situation to entice a tenant to sign you show them a rule book with one set of provisions that they agree to (that has no penalty provisions) and then later change that after the fact.

    So there may be argument that the landlord if in violation of Australian Consumer Laws could have significant penalties for engaging in such conduct. You may also be able to bring the matter to NCAT seeking a declaration that the provision in question is void and unenforceable,

    So my opinion is to bring in the lease document along with the various versions of the rule book to a Lawyer in your area (many offer a free initial consultation these days) and discuss the above issues if you want to contest this.
     
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  3. Rod

    Rod Well-Known Member

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    I am watching and waiting for a knowledgeable answer as well :)

    My limited understanding, which may be wrong, is that changes introduced into the handbook after you signed your lease is not binding.

    ^^ This is the problem phrase. It is a unilateral term and is often deemed invalid by courts. Depending on subsequent effects courts can invalidate the whole contract (eg lease) or just the offending clause. In your case I suspect it would be either the offending clause or just the phrase 'time to time' they would deem invalid.

    Also penalties (ability to fine) are jealously guarded by courts as one of their functions in life and frown on private persons trying to fine other individuals, and rightly so in my opinion.
     
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  4. Rod

    Rod Well-Known Member

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    Curious about this. Is one individual renting premises considered to be acting in 'trade or commerce'? If so do you have a case reference for this statement? I know a few tribunals have ruled it is trade of commerce but haven't found a good reference case in a Supreme Court.

    Even if ACL doesn't appy, as I mention in first post, contract law would likely protect the tenant.
     
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  5. Flee

    Flee Member

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    Just an update for anyone interested in this, the agency finally tried to claim this penalty fee from my bond when I am moving out.

    I told them that I am not liable for this fee and this part of contract is unenforceable. After my reply, they then decided to reverse this fee, so this should be ended happily ;)

    They still tried to claim other dodgy things from my bond but that's separate issue I have to deal with.

    But thanks all the replied here as they boosted my confidence in dealing with this issue. Really appreciate it.
     

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