What types of conduct may be considered unconscionable?

When determining whether a person is in contravention of s 21, s 22(1) of the ACL outlines the types of conduct that may be considered unconscionable by the courts which includes the following:

(1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

(a) the relative strengths of the bargaining positions of the supplier and the customer; and

(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f) the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

(i) the extent to which the supplier unreasonably failed to disclose to the customer:

(i) any intended conduct of the supplier that might affect the interests of the customer; and

(ii) any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j) if there is a contract between the supplier and the customer for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer acted in good faith.

Can a dealing for registration be possible if there is a caveat in place?

Generally, a dealing lodged for registration may not be able to go ahead to register if there is a caveat in place restraining the registration of the dealing on the title.

There may be some notification requirements to the caveator that a dealing has been lodged for registration. Depending on the jurisdiction, a caveator has between 14 to 30 days to agree to the registration of the dealing, or to commence proceedings to establish the right for the caveat to be maintained – or the caveat may lapse.

If a caveat is defective in form, it may not be considered. Alternatively, if an extension has been granted, the court will allow for a period of time to ensure the matter can be appropriately dealt with.

What must the vendor disclose in a contract for the sale of residential land?

Vendors under a contract for the sale of land should attach all disclosure documents, conditions, warranties, along with disclosing, and describing any serious defects in the title of the property that the purchaser must accept.

The documents that may be attached include:

  • zoning or planning certificates;
  • plans showing the position of sewer lines in relation to the land;
  • a copy of the property certificate and the official plan of the land such as a deposited (subdivision) plan, or if the property is a strata title, a copy of the whole strata plan;
  • any documents creating easements, covenants, and any restrictions shown on the property certificate;
  • notice conforming to the legal requirements in relation to the wording and print size outlining the rights available to the buyer, and also the cooling-off notice;
  • a certificate of home warranty insurance should also be attached to the contract by the owner, developer or builder.

Failure to include all the required documents may grant the buyer the right to cancel the contract within the specified time period which may differ according to the jurisdiction.

How are financial contributions concerning repairs and maintenance dealt with in relation to strata property?

Issues relating to financial contributions towards the maintenance and repairs necessary to the common property tend to be an area that is particularly fraught. In Julian-Armitage v The Proprietors Astor Centre [1988] QCA 111, the issue before the Court was whether the owner of the lower ground unit (the appellant) had to share the maintenance costs in relation to the operation of the lifts servicing the other units in the plan – despite having no use for the lift.

The Court held that the appellant was responsible for contributing to the body corporate for the upkeep and maintenance of the common property. This included the sharing of the costs of the electricity used to operate the lifts, despite not having any personal use for the lifts.

What happens if a repair is urgent and the tenant is required to pay?

There’ll of course be circumstances where repairs are urgently required and there is no choice but for a tenant to arrange for repairs to be made immediately. Looking towards s 72 of Victoria’s Residential Tenancies Act 1997 for example, a tenant may arrange for urgent repairs to be carried out to the rented property if the tenant:

  • has taken reasonable steps to arrange for the landlord or the landlord’s agent to immediately carry out the repairs; and
  • is unable to get the landlord or agent to carry out the repairs.

If a tenant does have to use their own money in undertaking any urgent repairs, in New South Wales and Victoria, tenants can be reimbursed for up to $1000 or such other prescribed amount, and within 14 days, must provide written notice to the landlord about the costs associated in organising for the urgent repairs to be undertaken.

Can a person still be liable for the injuries caused by a trespasser?

How a person enters into the land may not determine whether they are owed a duty of care (see Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479). However, the situation that gives rise as to how a person entered into the premises may still be a consideration.

How can a tenant end a leasing agreement?

At the end of the lease period

A tenant wishing to end the agreement at the end of the fixed lease period must generally provide 14 days notice to the landlord in writing on, or before the last day of the lease period. Failing to do this, the rental agreement becomes a periodic one, requiring 21 days notice to the landlord. In the case of a share house, an individual tenant can separately give their 21 days notice to end their lease.

Before the end of the fixed period

In the case of financial hardship to the tenant, they can apply to the relevant tenancy tribunal for an order to end the agreement. This may come with the requirement of paying the landlord compensation for lost income from rent.

A tenant ending their agreement early without an order, may be liable to pay for the costs of breaking the agreement, such as the landlord’s lost income. However, the landlord must try to find a replacement tenant as soon as possible. The break fee for ending the tenancy early can be six weeks rent for the first half of the fixed term, and four weeks thereafter such as the case in NSW for example.

However, if the tenant provides the statutory notice, the tenant is not obliged to pay any compensation if:

  • the tenant has accepted an offer of social housing;
  • the tenant is going into aged care;
  • the landlord gives their first notice of intending to sell the house;
  • the tenant has been excluded from the premises by virtue of an Apprehended Violence Order.

For tenancies lasting more than two years where the landlord has issued a rent increase, the tenant does not need to pay compensation if they give 21 days notice in certain jurisdictions.

What information must be included in a loan contract?

For an equitable right of redemption to be enforced, all of the terms of the loan contract must have been complied with, and compliance may mean the following:

  • the mortgagor tenders payment on the contractual date for repayment, therefore, they will be will exercising their contractual and legal right to redeem;
  • the mortgagor has money payable on demand, which means they can repay the amount at any time a valid demand has been made;
  • upon the passing of the contract date for repayment, the right to redeem the secured property can only be enforceable in the equitable jurisdiction.

Can landlords prevent subleases from being created?

A common law right does exist which allows for a tenant to sublet their interest, however, it is common practice for a covenant in a lease which does not allow for, or restricts a tenants ability to create a sublease.

Therefore, if a common law right does exist for a tenant to create a sublease, can a landlord prevent a tenant from subletting their interest? Unless there is an absolute prohibition preventing a tenant from assigning a sublease, there is no impediment for a tenant to sublet a possessory interest in regards to the rental property.

On the other hand, if there is an agreement between the landlord and the tenant which contracts out their common law right to sublet the property, then any action in which the tenant sublets their interest in the property will be considered as a breach of the covenant.

How do I determine my tenancy status?

Trying to determine who is a boarder or lodger is somewhat a legal grey area. Broadly speaking, borders and lodgers receive meals from a landlord – with the landlord also retaining a position of authority over the property.

Meanwhile, a sub-tenant is classified as someone who lives with a head-tenant – the person whose name is on the lease – with permission from the landlord. A sub-tenant has to pay rent to the head-tenant. Furthermore, the landlord exercises no legal control over a sub-tenant, and it is the head-tenant who is seen to be the landlord in such a scenario.

To complicate matters further, if a head-tenant sublets the property without permission from the landlord, the action may be a breach of the tenancy agreement and the landlord can potentially terminate the lease. However, if a tenant takes in a boarder or lodger, they don’t require the permission from the landlord as long as the number of people staying on the property does not exceed the maximum number outlined in the tenancy agreement.

What is "ownership" in property law?

Possession and ownership can be seen as two sides of the same coin, and that assumption is both correct and kind of incorrect.

Arguably, the biggest distinction between possession and ownership is that of permanence – which has more of an association with ownership. Additionally, a person can have possession of something but not necessarily ownership. For example, if you borrow a pen from someone you have possession of the pen, but not ownership, because in this example, possession is temporary, therefore, ownership cannot be claimed. However, the most important part of the example is that the owner has the better right to possession.

Although there may be slight differences between the concept of possession and ownership, the law generally treats both in a similar manner. Turning back to our pen example, if someone interferes with the possession of the pen by wrongly and directly interfering with the person’s right to possession, the owner can recover possession because they have a better right to the property – even where ownership is absent.

Our pen analogy can be extended to renting property. Sure, the tenant has possession, while the owner temporarily gives up their ownership rights. However, the owner still possesses residual rights and can bring a lease to an end provided the legal requirements have been adhered to.

What should a landlord do if a tenant stops paying rent?

It may be frustrating for a landlord when a tenant stops paying rent, and you may want to evict the person from your property as soon as it happens, but remember, tenants also have rights and there are a number of requirements that need to be followed before a tenancy agreement can be terminated.

In some jurisdictions, if a tenant has failed to pay rent for 14 days, then notice can be provided to the tenant outlining the fact that rent there is owing. Landlords and tenants can agree upon some sort of payment plan, or set a time period of when rent must be paid. If all of the aforementioned actions have failed, landlords can then apply to a state tenancy tribunal to have the agreement terminated and compensation may also be provided.

Can a landlord physically remove a tenant, and change the locks to the rental property?

Landlords cannot physically remove a tenant. Only a person, such as a Sheriff, who is acting under the authority of the relevant body are able to enforce an order of possession.

Some landlords may also think that changing the locks, or adding additional security measures denying entrance into the property, may be an available option. However, it is generally against the law for the landlord to lock out a tenant.

What disclosures are to be made before a rental agreement has been reached?

Prior to signing an agreement, either the landlord or an agent acting for the landlord must not induce a potential tenant to sign a tenancy agreement via false, misleading or deceptive statements, representations or promises.

Furthermore, before a landlord is able to enter into an agreement with a tenant, either the landlord or the agent must disclose the following:

  • if the property is to be sold, or there has been preparations made for a contract of sale in relation to the rental property;
  • if a mortgagee is undertaking action for possession of the property, or has commenced proceedings in a court to enforce a mortgage over the rental property.

Beyond the disclosure requirements, certain material facts in relation to the property must also be made, which can include whether the property has been subject to flooding or bush fire damage over the preceding years, whether the property has been subject to any health and safety risk not apparent to a reasonable person upon inspection of the premises, or the property is part of a shared driveway or walkway, may be some of the material facts that must be made to a tenant before an agreement has been reached.

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