Guide to Handling Complaints from Neighbours CEHL March 2008 Version 1.1
-2- List of Contents Introduction 3 Responsibilities of the CERC in settling neighbour complaints 3 Responsibilities of CERC tenants 3 Overview of Process 4 1. Check if the neighbour has tried to solve the problem. 5 2. Ask for the Complaint in Writing 5 3. Informing the Tenant - Hearing the other side of the story. 5 4. Determine the legitimacy of the complaint 6 5. Taking Action 6 6. Writing to the Neighbour and the Tenant 7 7. Follow-Up 7 Serious Matters 8 Owners Corporation 8 Important Contact Numbers 9 Appendix 1 10
-3- Introduction Handling complaints from neighbours about CERC tenants can be difficult. Care needs to be taken to handle the matter well, within the limits of being a landlord. Responsibilities of the CERC in settling neighbour complaints In the case of neighbour complaints or disputes, the CERC is only the landlord, and does not have a legal duty of care to neighbours of CERC tenants. Most neighbourhood disputes are not the concern of the CERC and often neighbours will need to try and solve the matter themselves with the tenant. They may need to contact the Police or local council. However, once the matter has been drawn to the attention of the CERC, it can advise the parties to consider resolution through mediation at a Dispute Settlement Centre. The CERC could also offer to organise the mediation on behalf of the parties concerned. The CERC is obliged to take action in disputes where a tenant has been indentified as failing to meet their tenancy obligations under the Residential Tenancies Act (RTA). For example, the CERC has a responsibility to take action in circumstances where a tenant has been identified as causing nuisance or interference with the reasonable peace, comfort or privacy of neighbours (Section 60 of the Residential Tenancies Act (RTA)). Responsibilities of CERC tenants Tenant-members of the CERC have an obligation to adhere to their tenancy agreement which outlines their rights and responsibilities under the RTA, and to the general principles and spirit of co-operation. This includes a willingness to resolve conflict and to sort out problems as they arise.
-4- Overview of Process (details on following pages) The following steps will assist CERCs when notified of complaints made by neighbour/s against a tenant. Check if the neighbour has tried to solve the problem e.g. Police, local council, Mediation, Solicitor etc. If not ask neighbour to take own measures. Get the Complaint in Writing, as well as supporting evidence Once formal notification of the complaint has been received, inform the tenant of the complaint and organise a meeting with Directors. Give the tenant a chance to give his/her side of the story. Check the facts. The Directors consider whether the complaint against the tenant indicates a breach of the RTA or tenancy agreement. Take action Advise both parties in writing as to the Directors decision(s). Recommend mediation to both parties if appropriate.
-5-1. Check if the neighbour has tried to solve the problem. It is important to ask the neighbour how she or he has attempted to resolve the situation. If the neighbour has not attempted to solve the situation themselves, ask him/her to: a) Try speaking with the tenant b) Try contacting local council, police or other relevant authorities c) Try a mediation session by ringing the Dispute Settlement Centre of Victoria. This is a free service often used to help solve neighbourhood complaints. d) Neighbours can take the tenant to the Residential Tenancies List (VCAT) in some circumstances under S 452(5) of the RTA. Suggest they contact Consumer and Business Affairs Advisory Helpline, on 1300 558 181 for more information. e) If the neighbour has attempted to look after his/her own interests and tried to solve the problem, ask that details be included in the letter to the Directors. 2. Ask for the Complaint in Writing If a complaint from a neighbour is received verbally, ask the neighbour to put the complaint in writing and forward it to the Directors so that it can then be considered. Ask the neighbour to include specific details of the problem, particularly dates, times and whether or not there were witnesses, and any other supporting evidence. 3. Informing the Tenant - Hearing the other side of the story. If the complaint is received in writing, let the tenant know and organise a meeting with the Directors. At this meeting, give the tenant details of the complaint and allow the tenant to give his/her version of events.
-6- The Directors may then want to make further enquiries to satisfy themselves about what has happened and check details that have been given. This should be done with caution and awareness of legal issues. 4. Determine the legitimacy of the complaint It is necessary that the CERC tries to determine the legitimacy of a complaint if it can, and ensures that it falls within the jurisdiction of the RTA before taking any action against a tenant. Complaints from neighbours can be substantiated by: An affidavit from a witness A police report. 5. Taking Action If it is determined the complaint falls outside the RTA, the CERC must advise the neighbour in writing that the CERC is not under any obligation to be involved in the dispute between them and the tenant. Responsibility for sorting out the issues lies with the parties concerned. It should be suggested that the tenant is approached about any concerns the neighbour may have and if there is a failure to have the matter resolved then advise mediation through the Dispute Settlement Centre (which offers a free service). If it is established there is reasonable evidence that the tenancy agreement has been breached and the complaint falls under the RTA, the CERC must take action. a) Two Directors should meet with the tenant to clarify where the breach has occurred and ensure that the tenant understands what responsibilities he or she has under the RTA. The tenant should be given the opportunity to resolve the situation without a formal breach notice being issued. As well, the Directors may suggest to the tenant to consider entering mediation to resolve the dispute with the neighbour to avoid future problems. b) A formal breach of duty notice should be issued after a tenant has been given the opportunity to resolve the situation informally.
-7- The correct form to use is Giving Notice for Breach of Duty to Tenant(s) of Rental Premises - s60(1) for Nuisance and s60(2) for interference with peace (refer Appendix 1). It is expected the tenant will stop the nuisance within 14 days. 6. Writing to the Neighbour and the Tenant Let both parties know what action the Directors have decided to take in writing. In particular advise the neighbour of the other options he/she has of solving the problem. If appropriate recommend mediation to both parties. 7. Follow-Up a) If after serving the Breach of Duty Notice, the tenant does not rectify the situation within the 14 days, the CERC can issue a second Notice and apply to VCAT for a compliance order. b) If repeated complaints are received and a minimum of three notices for the same complaint are issued to the tenant, the CERC may apply to the Residential Tenancies List for Vacant Possession. c) This is very rare, and it is advisable to contact CEHL or Consumer and Business Affairs on 1300 558 181 before taking this step. d) Again, neighbours can take the matter to the VCAT themselves without CERC involvement.
-8- Serious Matters If the complaints received are very serious such as Endangering the Safety of Neighbours, the CERC may apply to the Tribunal for immediate vacant possession under s244(1) - Danger- of the RTA. The correct form to use is Giving Notice to Vacate to Tenant/s of Rented Premises. Please seek advice from CEHL and Consumer and Business Affairs before taking this step. The Tribunal requires a lot of proof of the danger so neighbours will need to be prepared to be called as witnesses and it may be necessary to involve the police or obtain police reports. Owners Corporation (This only applies to CERCs that have apartments or units which are covered by an Owners Corporation, or an existing Body Corporate) The Owners Corporations Act was passed in 2006, and came into operation in January 2008. The name Body Corporate was changed to Owners Corporation, and the new Act involves changes to many aspects of the operation of Owners Corporations, including dispute resolution and grievances. The new Act sets out a three steps to dispute resolution: 1) Owners Corporations must have an internal dispute resolution process, with a default process set out in the model rules. 2) At any time, a person who is not satisfied with the internal process may contact Consumer Affairs Victoria. CAV can conciliate or mediate between the parties in a dispute. 3) Parties can apply to VCAT, which has with broad powers to resolve disputes and make binding determinations. However, the Owners Corporation cannot take a matter to VCAT unless the dispute resolution process outlined in the rules and the complaints procedure in the Act has been exhausted. For more information about the Owners Corporation Act 2006, Complaints and Procedures, and who may apply to VCAT in relation to a dispute, refer www.consumer.vic.gov.au
-9- Important Contact Numbers CEHL (03) 9851 8100 Freecall: 1800 353 669 Consumer and Business Affairs Advisory Line for the Residential Tenancies Act. 1300 558 181 Dispute Settlement Centre of Victoria 9603 8370 1800 658 528
-10- Appendix 1 Notice for Breach of Duty tenant/s of rented premises Tenant details 1 This notice is given to (tenant/s names) Tenant s Name 2 Regarding the rented premises at (write address) Tenant s Address 3 Tenant/s address (if same address as 2, write as above ) From the landlord to Reason for breach of duty notice 10 I believe you have breached your duty as a tenant because (write the section number and words from the opposite page) s60(1) for Nuisance and s60(2) for interference with peace - See the inside cover of the Notice form for the exact wording. 11 The loss or damage caused is X Landlord details 4 Landlord s name (cannot be an agent s) Name of CERC Ltd. 5 Address for serving documents (can be an agent s) CERC s Address 6 Contact telephone numbers BH Service details 7 This notice is given by hand by registered post by ordinary post on (date) 8 Signature of landlord or agent AH Write as much detail as possible if needed, attach another page 12 Compensation or compliance required a For breach of S60, S61, S63, S64, S70 or S89[S86(1)(a),(c),(f)] I require you to remedy the breach within 14 days after receiving this notice by Date or pay me $ compensation. OR b For breach of S89[S86(1)(b),(d),(e)] by refusing to permit entry I require you to remedy the breach within 3 days of receiving this notice by permitting entry; or pay me $ compensation. 13 You must not commit a similar breach again. If you do not comply with this notice the landlord may apply to the Victorian Civil and Administrative Tribunal for a compensation or compliance order or, if S249 applies, may give notice to vacate. 14 Details are attached to this notice (eg receipts, other evidence) Signature of CERC Member yes no 9 Name of landlord or agent signing this notice Name of CERC Member Tenant please note If you want help with this notice, then ring the Consumer Affairs Helpline on 1300 55 81 81 or visit the Victorian Consumer & Business Centre at 113 Exhibition Street, Melbourne.