Legal Aid Have Advised Me to Get Solicitor to Get Bond Money Back I Paid as a Lodger

LPentoPa on 18/12/2017 - 20:04
Last edited 18/12/2017 - 20:12 by 1 other user

Hi everyone,

Kinda my first time posting on the forums and would appreciate it if anyone could provide me some advice on my situation.

I used flatmates to find a place after moving interstate. First time I ever share housed with someone.
I am defined as a lodger in the tenancy agreement laws which means I paid rent to a tenant who paid rent to the landlord.
Due to being what is defined as a lodger I don't have any rights to go to the Tribunal as I am not covered by the act.

The tenant currently held 4 weeks of rent as a bond. I recently moved out due to their circumstances as a couple within about a week. The tenant however has kept 3/5 (~500) of my bond for damages and miss rent. However I can prove with my bank statements that I have paid all my rent and the accused damages are fair wear and tear as it is an old house. The damages are little cracks in the inbuilt cupboard which have been there before i moved in as it is quite an old house.

I basically want to dispute this but the tenant is not returning any calls/messages even though they have been read and I have tried going in person to resolve the issue.

I have been advised by legal aid to go and seek legal advice from a solicitor on my situation and take it to a civil law court.

Has anyone been in a similar situation and should I take it to civil law court? or will it cost me more than what it's worth.

Thanks for taking the time to read my issue, this is the first time I've ever run into an issue where I would need to go to court.

Poll Options

• 18
  Drop it, not worth it
• 9
  Go to a solicitor and proceed with civil law court
• 0
  There is nothing you can as a lodger

• 

  whooah1979 on 18/12/2017 - 20:52

  the accused damages are fair wear and tear as it is an old house.

  how long did you live there?

  • 

    PentoPa on 18/12/2017 - 20:58

    I lived there for a year.

• 

  mskeggs on 18/12/2017 - 21:08

  +1

  Does SA have a small claims tribunal where people represent themselves, like NCAT or VCAT?
  Is it worth a day off work to pursue this? If you end up getting an order, it can be difficult to get it enforced.
  I think you should take low cost further steps, but recognise the chances of getting all you want are slim, but you will make life hard for the person who wronged you, and might get some money back.
  But I would certainly be writing letters of demand and be prepared to take them to a tribunal or court if the costs to do so were low.

  • 

    PentoPa on 18/12/2017 - 21:25

    Ah sorry, I am actually in Sydney now.
    I am unable to use the small claims tribunal over tenancy matters due to being a lodger from what I've read. the tenancy act only covers tenant, co-tenant and there is an act for I believe boarding houses.

    thanks for the advice, I am planning to write a letter of demand.

    • 

      mskeggs on 18/12/2017 - 21:34

      It might cover you for civil claims (i.e. breaking your contract, not a lease). I would give them a call.

      • 

        PentoPa on 18/12/2017 - 21:41

        would it still be considered breaking a contract if there was no official signed contract. It was just a piece of paper with name/date of when I would be staying there with rent/bond cost signed by the tenant.

      • 

        esosite on 18/12/2017 - 23:27

        @PentoPa: Thats a contract with a signature; even easier to prove.

        You would have to have a free day and present your self at the NSW equivalent of QCAT/VCAT (is it NCAT lol?). We did it with our real estate agents and they sided in our favour, from memory you have to pay a fee to present at the civil admin tribunal

      • 

        PentoPa on 19/12/2017 - 00:03

        @esosite: oh I see thanks! That helps. Yeah a free day is easy to do works flexible enough. I'll give NCAT a call again to see if I'm eligible.

      • 

        pndl on 19/12/2017 - 00:35

        @PentoPa: In NSW, as a boarder, you will need to make a claim at the Local Court (Small Claims Division). NCAT is limited to tenancy claims, while the Local Court has broader jurisdiction. The setting is informal similar to NCAT. You can file your Statement of Claim online, filing costs are awarded to you, should you win your case. Your statement of claim should include key facts such as -
        1. Dates which you were a boarder
        2. Amount paid as bond
        3. Reason stated by tenant that bond should not be
        4. Reason you believe bond should be paid back

        In the best case scenario, the tenant won't respond, in which case you can apply for default judgement, meaning you automatically receive an order for the amount you claimed for.

        https://onlineregistry.lawlink.nsw.gov.au/content/representi…

      • 

        PentoPa on 19/12/2017 - 07:33

        @pondlet: I read about the boarding act but sadly I'm not covered as a lodger. So this one probably isn't viable to me…

      • 

        pndl on 20/12/2017 - 10:27

        @PentoPa: My response relates to boarders/lodgers NOT covered by the boarding act. Boarders/Lodgers covered by the boarding act can go to NCAT.

• 

  zonra on 19/12/2017 - 01:37

  +1

  Warning: very long post

  I was in a similar situation many years ago.
  I’ll say though that I’m in WA so the laws and procedures might be a bit different to where you are.

  TL;DR:
  Yes, I got most of my money back for not much trouble, just the $4-something to send a registered letter of demand. No small claim court happened as landlord gave in, but had it gone that way, the court fee would have been around $80 and a working day.

  Steps you should take:
  Ensure that you record all communications with the landlord (including conversations, though make sure they know it is being recorded as you can’t use it in court otherwise)
  Try to get proof of these fact:
  * Landlord (or in your case, tenant) has taken 4 weeks of rent as bond from you.
  * You have been up to date with rents.
  * Sufficient notice has been given.
  * Accused damages are reasonable wear and tear (not always black and white, but I guess take load of photos)
  Also don't forget to take photos of your room prior to moving out, just to be safe.
  * Send a letter of demand, outlining the fact and the terms you want, indicate that you are willing to take all the steps necessary to reclaim your money
  (My issue was resolved by this step, but if yours isn't, just take it to small claim court)

  Anywho, here’s my story:
  * Stayed at a place for just over a year (4 weeks bond held, 2 weeks notice required, dodgy contract signed at the start - I was young and stupid, also didn't receive a copy of said contract, again, young and stupid)
  * After a series of questionable deeds, we decided to move out.
  Questionable deeds: mainly re shared bills, eg bills were given to me written on pieces of scrap papers, and requests to see actual bills were met with not-too-friendly "Do you not trust me?"; when it's me, the landlord and her dad were in the house, I paid 1/2 bills because her dad stays in her room, but when my gf moved in, and it's me and my gf in one room, and the landlord (her dad went back to his country), we paid 2/3 bills, go figure.
  * Gave my 2 weeks notice and was ordered to move out straight away (I can’t stress how dodgy the landlord was enough).
  * Upon reminding her that it is completely illegal to kick us out on the spot (2 week rent has been paid in advance), she proceeded to make our lives hell there, etc. ordered us to clean the whole house (yes, the whole house, even though we rented a double bedroom) by Thursday of the first week, and then called the police on us when we were cleaning well into the evening (I worked full time, gf had uni), citing we "made too much noise cleaning the bathroom and the all the neighbours were complaining", police didn't give us any trouble and ended up helping us getting our stuff back that was locked up by landlord in the garage.
  * We decided to move out by the end of the first notice week as landlord was giving us a severe case of stink eye and followed us like hawk every time we stepped out of the room (to the toilet, kitchen etc.)
  * Refused to give us her real name.
  * We came back once to discuss repayment of bond, I got her to confirm the following on recordings (with her knowledge): bond amount paid, the fact that she kicked us out, her refusal to give her real name, her refusal to provide us a copy of the contract.
  * I did manage to take photos of the contract though, and boy did she doodled on it. Texts were crossed out and added in with pen. One prime example was: "Tenant are not responsible for reasonable wear and tear", yep, you read that right, she crossed the "not" out with a pen. Upon seeing that, I was sure of the outcome.
  (Note: contract said "tenant" even though we were technically lodgers, I guessed she just copied and pasted stuff from the net to make a contract)
  * I left the meeting telling her that we'd see her in court.
  * Later that afternoon, her friend (who was present in the meeting), rang us and said that the landlord will pay us back the 4 weeks of bond, and kept the second week of the 2 weeks rent paid to cover unpaid bills (since she kicked us out on tape she can't use that for the notice period). The one week of rent for bills was utterly bull but I didn't care to push it further, that was good enough without going to court.
  So we agreed to that, landlord's friend promised that the we would be contacted for the bond repayment.
  * You guessed it, we weren't.
  * Two weeks passed, I sent a letter of demand via registered post to the address, for the "Home owner" as I don't know her real name.
  * A few days later, landlord ring us to meet at KFC and returned the bond, signing a couple of contract terminations in the process.
  * Case closed.

  FWIW, I'm satisfied with the end result and wouldn't have done it any other way. Had I decided to forgo that money, I would've been pissed till this day.
  Some may think it wasn't worth the stress and the hassle, but for me the stress and hassle were already given to us by the landlord regardless of what we would do.
  So to fight back so-to-speak and receive a favourable result gave me immense satisfaction, even to this day.
  I hope this long story help you with yours.

  • 

    PentoPa on 19/12/2017 - 07:32

    Thanks for the advice, can't really record any conversations as they are unwilling to communicate back with me at all. They sent the reasoning of why bond withheld and then stopped all communication even if I called within 10 mins of their message.

    How about do you get a registered letter of demand. What I've read so far is there isn't a registered one. Unless u just keep your copy.

    • 

      mskeggs on 19/12/2017 - 08:02

      Registered just means registered post so you have evidence it was delivered to them. Make sure you keep a copy and the Auspost receipt/card saying it was delivered.
      Basically, the idea is when your old flatmate gets a formally worded letter they have to sign for, warning them to pay you or expect a court date, they realise you are serious and just send you the money.

    • 

      zonra on 19/12/2017 - 10:48

      Yep, registered post.
      That was what Legal Aid advised me to do, and no need to involve a solicitor, the cost will get out of hand.
      Personally I think most people would fold upon recieving either the letter of demand or the court paper (provided that you are in the right for your money)
      Keep the log of calls and messages to show that tenant is refusing to communicate.
      Don’t stress too much about the cracks in the cupboard as the tenant would have to prove that it was specifically you who damaged it as you both lived in the house.
      One final thing is that if you go to court and win, the court can only order the tenant to return your money, if the tenant keeps refusing to pay back, a 7-year bad credit history will be threatened and imposed on him/her. Basically they can’t forcefully take the cash from his/her account to pay you, they can only order him/her to pay it back.
      That is off the top of my head, the law may have changed or be different where you are.

      • 

        PentoPa on 19/12/2017 - 14:10

        Thanks for your advice it means a lot. I will definitely be writing a letter of demand to them. The 7 year bad credit is still better than them getting away for free.

      • 

        zonra on 19/12/2017 - 17:32

        @PentoPa:
        No problems.
        All the best and keep us updated.

• 

  Darry71 on 22/12/2017 - 10:35

  We usually have one lodger to help pay the bills. Four weeks rent for bond sounds very steep. We only ask for one week just to cover us if they leave without giving a weeks notice.