Real estate inspections, invariably conducted in the absence of the owner or occupier, are often exploited by thieves, voyeurs and even the estate agents who control them. Owners and occupiers of residential properties should always be present when an inspection is conducted, whether or not an estate agent is also present.
"As the story begins I had been renting the unit in Sydney for about three years. I had first met David Agenti about 18 months earlier when he had come to do a "valuation inspection" as the unit's owner was interested in selling at that time.
Agenti insisted on having "Open House" inspections which I objected to but I was told I had no choice.
During the week of the 2nd of April 2007 I was called by the selling agent and told there would be an open house that weekend. I told them that was fine as I would be away for the Easter long weekend but would tidy the house before I left.
I arrived back in Sydney on Monday afternoon and immediately noticed things were amiss. There was a book splayed open on the floor just inside my front door. Maybe the agent had bumped it off the shelf on their way out, no big deal. Also, a couple of pairs of my underpants were on the floor next to their drawer in my bedroom. Odd, but conceivable I could have left them there in my hurry to pack on Friday morning.
After that I went to put on a load of washing and found the mug of $1 coins I kept for the washing machine to be missing from the drawer in my lounge room. At this point I thought someone had been opportunistically rifling through the drawer when the agent was in the other room and pocketed my $35-odd of washing machine money; annoying but no big deal.
I immediately called the agent and left a message on his phone. It was after this that I discovered some other items missing: my phone charger, my digital camera and watch (also in the drawer with the coins) and the camera's charger. I called the agent back and eventually talked to him; he was very apologetic but could not say how this might have happened as it was a different agent conducting the inspection for that weekend as he was out of town.
Over the subsequent week I found items with a "depreciated value" of almost $1500 missing from my unit, including my passport, film camera kit and a bottle of scotch. The items were missing from all over the unit and other documents, drawers and cupboards had been rifled through. In total these items cost me over $3000 to replace.
By Tuesday afternoon I had spoken to the agent who had actually conducted the inspection once, but getting to that point was difficult. Nobody would ring me back. In frustration I called David Agenti directly to expedite the matter. He told me to stop accusing his staff of thieving my stuff. I told him I was doing no such thing and I had no idea how this happened but as I was away for the weekend it was certainly connected with the open house inspection. It was obvious from his response I was going to get no more assistance from him.
I called the police, but they were unable to isolate any prints. I emailed Agenti the police incident number.
On that following Wednesday I got a call back from the agent. "Finally, a response!", I thought. It was the selling agent telling me they were holding another open house that weekend.
I do not believe that I swore but I made it abundantly clear that there was no way in hell they were ever having another open house inspection in that property as long as I was there. And if he or anyone from that agency entered the property without my knowledge and express permission there would be hell to pay. And I ended the conversation there.
By this time it was clear to me that Poncey & Agenti Real Estate had no interest in compensating me for the goods I'd had stolen from my home (and less likely would I receive an iota of empathy for having had strangers ransacking my house and personal belongings).
On August 16, I sent Poncey and Agenti Real Estate a letter outlining my complaint. I told them I believed they had a duty of care for my apartment and belongings while they were conducting inspections at my home and that as they had not fulfilled their responsibilities I wished to claim compensation for the missing goods. I said that if I did not receive satisfaction I would take the matter to the Tenancy Tribunal. I included a detailed list of the missing items and their replacement costs.
Two days later I received a response from David Agenti. In it he claimed the bona-fides of the people who had been through the house that day had been verified, questioned the fact of the theft (and thus, in writing, accused me of lying), and disclaimed any responsibility.
I made an application to the Tenancy Tribunal, requesting an order for compensation for the goods stolen.
While all this was going on, the selling agent was still pressuring me to allow more open house inspections. I kept telling him that there was absolutely no chance I would allow it. They threatened me with eviction under section 9.6 of the Tenancy Act. I was careful to note, several times, that I would be happy to host individuals or couples for pre-arranged inspection appointments and I would endeavour to be very flexible as to times. But I would not have a parade of strangers marching through my house. I believed that to be in accordance with the Act.
I attempted to assess my legal position by calling the NSW office of Fair Trading.
The NSW Office of Fair Trading were unequivocally useless. It is not their fault, but as they are unable to give legal advice, or even attempt to interpret the law, they fundamentally could not help me. When I asked if the Tenancy Act compelled me to allow "Open House" style inspections I was told that I must allow "...reasonable access on a reasonable number of occasions". I said that I could read too, but asked if that meant I had to allow open houses. They said I had to allow "... reasonable access on a reasonable number of occasions".
On May 1 an eviction notice arrived, claiming that as I had breached the terms of my tenancy I must vacate the premises within 21 days. I responded saying that as I had not breached my tenancy, they were required to give me a 60 day "no cause" termination notice. I reiterated my amenability to arranging inspection times for individuals or groups and restated that if they came onto the premises without my permission there'd be trouble.
The initial Tribunal hearing date (May 17) arrived and myself, David Agenti and the two agents involved were present. The sitting member heard our statements; Agenti tried to get my complaint dismissed on a number of technicalities. The member gave us an opportunity to mediate. This was, unsurprisingly, unsuccessful. The member decided he'd hear the case and set a date for us to return.
By this point I managed to speak to a helpful person at the NSW Tenant's Union. They advised me that the tribunal would only allow claims for the "depreciated value" of goods (basically, what you'd get for them on eBay). But they also told me I could claim for "non-economic loss" (i.e., stress) up to a total claim of $10,000. So I did some research on the "depreciated value" of the goods I was claiming and was given leave by the member to amend my claim from over $3000 to $1477. And I added an amount of $8503 for "non-economic loss".
On May 30, Agenti received the amended claim and called me. He told me that if my action in the tribunal was unsuccessful he would take steps to recover his expenses and time. I asked him if he was threatening me. At that moment, with him still on the phone, I arrived home to another eviction notice from his agency citing "no cause" and giving a date sixty days hence. I immediately thanked him for the progress we seemed to be making (finally, they apparently agreed that the first eviction notice was unlawful) and asked him if he had any more to say. Then I hung up.
That sixty days gave me the time I was expecting to arrange other accommodation and before it was up I handed in my notice to quit the property. Just before I did, I sent Agenti a "without prejudice" letter offering to settle the whole matter for the "depreciated value" of the stolen goods only, $1500. I did not receive a response.
On the day of the hearing the member (a different one this time) again heard our statements. The member expressed disdain for Agenti's tactic of trying to get my case dismissed on technicalities, shot down his accusation that my recalcitrance had prevented them from selling the property for, by that time, six months ("If you can't sell the property, you need to lower the price!") and disgust at the blatantly intimidatory and unlawful first eviction notice.
At the end of the proceedings the member had basically said that she was going to side with the applicant (me); we had two choices. We could take the time she used to write up her decision to come to a settlement and she would make that binding or we could wait for her judgment and that would be the final word. The money or the box, in effect.
Agenti and I once again went out into the corridor and he asked what my offer was. I was surprised by this, as the tribunal member had just said, on the record, that I'd won. Wasn't he supposed to be making offers? In any case, I told him that subsequent to my initial offer of settlement I'd had to do a whole lot of preparation for the hearing (including getting my friends, family and colleagues to sign statutory declarations asserting my high stress levels). Therefore the amount I would be happy to settle for had increased to $2000. After more attempts to negotiate (I had serious trouble working out what was going on here — he had already lost, why did he think he could negotiate?) I was offered $750.
I was speechless. I pointed back into the hearing room.
The judgment was then read by the tribunal member, with explanatory comments indicating that inner city real estate agents who dealt with educated, articulate, well-spoken, tidy professionals who always paid their rent on time should count themselves lucky and treat them well. Where good treatment does not extend to negligently allowing their possessions to be stolen, then attempting to illegally evict them when they have the temerity to complain.
I was awarded $1477 (the full amount) for the goods, plus $3000 for "non-economic loss". I thanked the tribunal member. Agenti asked a question about the appeals process and turned on his heel and left.
This hearing was August 15. I expected to find a cheque in the mail when I returned from an overseas holiday. Instead, I found a letter from the tribunal indicating a stay of the order to pay had been granted until such time as an application for a re-hearing could be organised. This took another couple of months. The re-hearing application was (obviously) denied.
I once again called Agenti to ask him if he was going to send me a cheque or if I had to call the Sheriff. He told me he was seeking legal advice and I should "Do what I had to do". I did, and registered the judgment with the Downing Centre local court and got a writ issued against my landlord, care of Poncey and Agenti Real Estate. The cost of registering the judgment and issuing the writ was added to the amount to be recovered. Plus interest.
The writ came back to me shortly after Christmas marked not served as the person the Sheriff spoke to in Agenti's office said that my landlord (to whom the writ was addressed; his name was technically on my lease) was not at that address.
Undeterred, I found an address for my landlord (difficult) and went to the Sheriff's office to find out if I could simply change the address and get the writ served again. To my surprise they told me that they had received a cheque in relation to that matter already and I would get the money when it cleared!"
So on January 29, 2008 I was finally able to bank the cheque from a judgment issued in mid-August, the consequence of a dispute arising in mid-April.
by Peter Mericka B.A., LL.B
