Is it illegal to collect rent on a property deemed illegal by council?

Hi all

Many thanks for your responses.

One of the reasons I’ve stayed is/was because I foolishly had a glimmer of hope that perhaps they would put through a DA to have the property renovated to make it ‘habitable’ (one of the options outlined in the notice from Council issued at the beginning of April), in which case I could continue my tenancy post renovation (they had only just issued me with a rent increase notice prior to the council knocking on my door, so clearly had no intention what so ever of ceasing the tenancy).

It was only after the lawyer had an independent building inspector come over, who confirmed in front of us both that they house indeed needed demolishing that that glimmer of hope was completely shot down in flames. That inspection was back in May and it’s taken them all this time to issue me a termination notice (31 July).

To add insult to injury and most annoyingly, the termination notice the lawyers have issued me says ‘Termination of Periodic Tenancy ‘without a reason’, presumably to make my claim even more difficult. As if the injustice of it all hasn’t been enough.

Oh the joys. I have continued to pay my rent in good faith and to maintain any future relationship, but now it would seem that has all been in vain.

The other reason I’ve stayed, is because – as mentioned, I have no money (while again, not their problem – it certainly doesn’t help matters).

And yes, I of course am and have been looking to move out (stat!), however with over a dozen people lined up to see each and every property I’ve earmarked/can afford, without a job at the moment (yes, I am trying frantically on this front too), the task is arduous and daunting to say the least. The fact that I am an excellent tenant by all other accounts isn’t helpful without a healthy bank account or job.

I actually made an enquiry to Council yesterday to see if there had been any movement/development since the notice was issued, and although it stipulates the owner had to respond in 10 days and they had to vacate the premises in 60, Council said they couldn’t see any evidence of communication with/from the owner since then, and admitted they hadn’t done anything further. So it would seem that notice will be little more than a slap with a soft tissue! And even if action is taken, it dare say it won’t hurt them as they’ll no doubt pay using my ‘illegally gained’ rent money anyway. So again it would seem the owner is going to get away with this. Not good enough!

Aren’t there criminal proceedings for people who make money off illegal activities in every other corner of our society? Well, this would appear to be loophole. A very large and lucrative one.

Aside from the landlord’s clear lack of moral compass, it would also appear that there are a lack of consequences for agents who act unlawfully and are knowingly complicit. I’m thinking a call to the Real Estate Institute of Australia to ‘enquire’ about the rogue operator should be at the top of my list of things to do.

In fact, on reading the fine print of the termination sections of the RTA 2010, there doesn’t seem to be anything at all about what rights the tenant has when the landlord has done something illegal: it all seems to relate to events being the other way around (ie: the tenant is in the wrong).

Of particular interest to me however, is Section 26:

26 Disclosure of information to tenants generally

(1) False representations: A landlord or landlord’s agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations.

(4) Information statement to be given A landlord or landlord’s agent must give a tenant an information statement in the approved form before the tenant enters into the residential tenancy agreement.

This I think could be my saving grace. It’s just a [little!] matter of proving it.

But other than that, with legislation as it currently stands, offering little to no support for hard done by tenants, all I (and others who find themselves in my position) can do is move on. Literally.

Update: Fortunately, I have also remembered that a very close friend of mine’s sister is a top barrister (local), and with good karma in mind – has said she will happily help me here. She has advised I stop paying rent immediately, and is coming over today to check out the place and pick up the 300 odd pages of emails, documents and photos I’ve printed out for her to facilitate a friendly ‘chat’ with the owner’s lawyer. There is a lot of meat here, so she is fairly confident. Thank goodness for her.

Oh dear – I will also need to add some hair dye to my list of things I would like to claim, as I’m sure a few of these grey hairs weren’t there a few months ago??

Any thoughts on any of this?

Other than that, I will keep you posted. Thanks again for your support. Much appreciated.

This is not legal advice, but I believe there would be an implied term in any residential tenancy agreement that the premises are habitable.  That sort of thing goes to the heart of the contract. Even if they had renovated, the premises are not habitable in their current state, once you had notice of that you should have moved out.          

Agree completely with your first point.

And with your second. However, while the council came and visited in April (and the Health and Building Compliance Officer had a conversation), and the lawyer’s building inspector in May – I was not formally privy to the council’s findings until just recently (only got copies of the council notices last week through Freedom of Information Act, after my eviction notice was issued on July 31). Since then, my whole being has been focussed on getting out of here, trust me..

I can’t help shake the feeling that I’m the one being punished here, and not them

@Whale said:
Mojo – glad that you’re on track for the resolution of your problems.

By the way, there’s nothing sinister in the ‘Termination of Periodic Tenancy Without Reason’ as that’s just the legal terminology used in the RTA to cover situations where the “premises is being destroyed or wholly or partly uninhabitable, or ceasing to be legally usable as a residence” – and that’s the situation in your case.

Don’t be a victim – it’s time to move on; good luck. 

Thanks for that Whale. Yes, I am clear on it’s meaning and intent from a legal perspective, but you can’t argue that the wording itself is not inflammatory! “Without Reason”?? There’s clearly a very good reason! 

And yes – I do rather sound like a victim below (poor me – unwell, no job, no house.. wah wah. Could further describe for you the type of person I sound like here (in very few syllables), but I don’t think I need to..).

Rest assured, I am not ordinarily that/this type of person. Far from it: I am an extremely capable, hardworking professional who has a good dose of Scottish blood and no doubt some Viking in there. Fighting for what is right is in our genes: brother is a barrister – though unfortunately (for me) resides in another country, so of no [hands on] help.

So while I might sound like a victim here (because I am!), I clearly do not intend on being the victim. I will not be taken for a ride by this fat cat, nor walked over. I don’t think wanting ‘justice’ here is out of order, or without cause.

No doubt this happens to others less fortunate than me – left, right and centre (have you seen how many dodgy looking granny flats there are out in Blacktown??). You can read all about it on Australian property investment forums – owners/investors asking questions about how to get away with renting out their unapproved dwellings after they’ve been busted by their council.

It’s taking the mickey, it’s un-Australian (‘fair go’? I think not), and – it’s unacceptable. If nothing else, I hope that if I am successful in winning this battle, then it will set a precedent to help win the war for others.

Right. Now – where did I put those rotten eggs?