WA Ownership responsibilities?

[1966AJW]

Hi Any and All,

I have posted up questions regarding a case I am involved in based on Part Performance attached to a family property dispute.

I have been trying to resolve the matter through mediation prior to any court action, and so far not so good.

We have clearly defined our case and objectives, answered all their objections, received no answers to our objections. validated all our evidence, received no evidence from them etc...

Part Performance is fairly well defined under Australian Law in that it needs to meet specific criteria, reliance on a promise, and establishing that what was agreed can be legally defined as a contract.

And we have done both of these things in our statement of findings / evidence.

But we haev reached a sticking point. That being what defines ownership responsibilities?

Because essentially that is what Part Performance relies on, that we accepted ownership duties and responsibilities and enacted them accordingly based on the reliance of the promise that was made.

And that they happily received and allowed us to perform those functions based on the promise that we relied on and that they made.

But my problem is that they are claiming that we performed those functions without any promise existing.

So not in reliance on any promise.

However they are also claiming that we rented rather than what we claim which is that we were buying.

So what I have done is to look at the WA Tenancy Act says would be their responsibilities as a Lessor, and this clearly defined what they should have done, but did not do.

So my question is if there is any other legal Act that clearly defines what responsibilities apply to a property owner? ie. payment of rates, insurances, maintenance etc?

Any assistance would be appreciated.

Many thanks,

 

[Rob Legat - SBPL]

This is a guess, but I would expect it come down to an objective observation of what actions you've taken (that's part 1). Part 2 would be to look at those actions and differentiate them between what is commonly done by anyone/tenant, and what is done by an owner. Note that things done by a tenant are relevant in that if they're not there, that could be seen as detrimental to you claim. Throw all this in together and then look at the totality of the situation.

For example, looking at the actions (based off my opinion):
- Cleaning/occupying: tenancy
- General maintenance: could be either. Mowing the lawn - more tenant. Fixing the plumbing - possibly more ownership
- Capital maintenance/improvement (things like renovation, repainting, landscaping): ownership
- Payment of rates: ownership
- Payment of insurance (on structure - not 'contents'): ownership
- Payment of strata levies (where relevant): ownership
- Paying 'rent': tenancy
- Paying instalments: ownership

On the last point, it may come down to you taking the relevant actions under an instalment contract consistent with your legal rights at the proper time.

 

[1966AJW]

This is a guess, but I would expect it come down to an objective observation of what actions you've taken (that's part 1). Part 2 would be to look at those actions and differentiate them between what is commonly done by anyone/tenant, and what is done by an owner. Note that things done by a tenant are relevant in that if they're not there, that could be seen as detrimental to you claim. Throw all this in together and then look at the totality of the situation.

For example, looking at the actions (based off my opinion):
- Cleaning/occupying: tenancy
- General maintenance: could be either. Mowing the lawn - more tenant. Fixing the plumbing - possibly more ownership
- Capital maintenance/improvement (things like renovation, repainting, landscaping): ownership
- Payment of rates: ownership
- Payment of insurance (on structure - not 'contents'): ownership
- Payment of strata levies (where relevant): ownership
- Paying 'rent': tenancy
- Paying instalments: ownership

On the last point, it may come down to you taking the relevant actions under an instalment contract consistent with your legal rights at the proper time.

Thanks Rob, exactly in line with my thinking.

I think the clincher on my side is the WA Tenancy Act, it clearly defines what the cost responsibilities are of Tenants and Lessors.

In our case the people claiming to be the Lessors did not act in accordance with what was required under law in the Tenancy Act.

And us defined by them as tenants did all of the things defined as the responsibilities of the Lessor. All based on an oral promise to be jointly listed on the property title as Tenants in Common which they are now denying was the case.

So we are challenging under Part Performance and also Unconscionable Contract.

All claims that they make result in what would be classified as Unconscionable Contract outcomes due to them not having any consideration (item of value) to account for the contributions both physical and financial that we made over 12 years.

Additionally, they have not performed any of their legal responsibilities attached to their claimed position of Lessors. No declarations of income, no declaration of CGT, no conformance to Tenancy Act, no fulfilling of ownership obligations in accordance with the act, no proofs, evidence, facts or validation to back up any of the claimed positions.

And given this it would show that their claims are contrived to protect an unjust enrichment that results in Unconscionable Conduct and Contract outcomes. Let alone the potential for charges of criminal fraud attached to what they seek to maintain as their defense, the position of Lessors.

So I would suspect that if they can not validate any claims, and show conformance with any acts, and with resulting outcomes being unconscionable then their case for defense would be summarily dismissed?

Just guessing that one, but it seems a logical conclusion, why would a court waste it's valuable time accepting or listening to hollow claims?

Thanks again for your perspectives.

 

[Rob Legat - SBPL]

As the saying goes - "that's a matter for the court to decide". But I'd say it appears to be an argument you could make.

 

[1966AJW]

As the saying goes - "that's a matter for the court to decide". But I'd say it appears to be an argument you could make.

Yeah "that's a matter for the court to decide" is the scary bit.

It's going to cost me a years salary to pay a lawyer to bring the case, and then if it does not win I'll also be lumped with defence and the court costs.

I don't have that sort of money to appoint a lawyer because I put it all into the property that I believed we were buying.

It seems that civil law favours the rich, even when the poor man knows he is right.

So unless I can figure out how to bring my own case and prove the matter, then I got screwed over big time.