Articles in Category: Property Management information

Article and information that are of interest to property managers. Note; some articles may be Queensland legislation focused.


The importance of public liability insurance in rental property

Sourced article

Click here to listen to training podcast for PM"s on public liability insurance

 

Slip and Fall Claim Fails - Brother versus Brother - case of the red bath mat

Blood is not always thicker than water as the recent decision of the District Court of New South Wales in Manmi v Manmi1 showed earlier this month.

The plaintiff sued his brother in negligence and breach of contract for injuries allegedly sustained when he slipped on a bath mat in the bathroom of the defendant’s house, fell backwards and struck his head and neck on the edge of the bath tub.

On its face, this is a relatively straightforward case - a slip and fall in a domestic setting heard in the District Court.

However, interesting and complex issues needed to be considered in relation to causation in circumstances where the plaintiff had been diagnosed with muscular dystrophy in the years prior to the alleged incident which the defendant argued was the real cause of the plaintiff’s fall. Also, the plaintiff sued his brother, with each man giving evidence to cast the other in a poor light and the defendant seeking to discredit the case.

The claim

The plaintiff alleged the defendant placed a mat on the bathroom floor that was slippery and he knew or ought to have known the mat was a slip hazard and unsafe. The plaintiff alleged the defendant had specific knowledge of the danger of the mat.

He alleged to have suffered serious injuries and consequent disabilities, but at trial he only pursued damages for an exacerbation to a soft tissue injury to his neck and severe dizziness. A claim for aggravated damages was pleaded but not pursued at trial.

The plaintiff argued that, as the owner of the house, the defendant was responsible for the bathroom where the mat was located. Interestingly, the defendant gave evidence that it was in fact his mother (who also resided at the home) who had purchased the mat as part of her contribution to household responsibilities. The defendant gave no instructions to his mother regarding the purchase of the mat.

The defendant denied liability on the basis that the risk was insignificant and obvious, and did not reasonably require precautions. He argued that the true cause of the plaintiff’s fall was his impaired mobility and balance due to a previous diagnosis of muscular dystrophy.

The plaintiff was living in his brother’s house at the time of his injury. We anticipate liability cover under his home and contents insurance policy would likely have been excluded if the plaintiff was a resident of the home. In those circumstances, the defendant would have been uninsured for the claim, putting him in a position of financial peril at the hand of his brother. Although mention is made of the plaintiff enquiring whether the defendant had insurance, the issue is not discussed any further in the decision.

The evidence

The Court viewed video footage taken by the plaintiff and accepted the mat could be moved easily across the floor using a hiking stick or the toe of a shoe to push it. However, there was no expert evidence about the slipperiness of the underside of the mat or the force involved in walking over the area.

Due to the plaintiff’s extensive pre-existing medical issues from back and neck injuries arising out of a fall around seven years prior, as well as his degenerative muscle condition, a significant issue for the Court to determine was whether the plaintiff’s alleged dizziness was connected to the incident. The plaintiff denied suffering from dizziness prior to the alleged fall.

Despite multiple experts ruling out any vestibular disorder (which would affect the plaintiff’s balance and explain the dizziness), the plaintiff’s neurologist concluded that he had sustained a soft tissue muscle and ligamentous injury to his cervical spine and most likely some dysfunction in his vestibular mechanisms based on the plaintiff’s own account. 

The balance of the expert evidence was quite consistent that the source of dizziness could not be related to the alleged fall and there was no contemporaneous evidence that the dizziness commenced on or around the estimated date of the fall. Neurological testing not only found no cause of the dizziness but often found minimal evidence of it during examination.

The defendant argued that the question of the force that was required to move the mat and the degree of its slipperiness were matters for expert evidence which had not been presented to the Court. He further argued that the duty alleged by the plaintiff that he inspect the mat and deem that it was suitable for the house was beyond the scope of an owner of domestic premises. He said that the plaintiff was in a better position to determine the suitability of the mat, being unable to work due to his back injury, as opposed to the defendant who worked long hours and was home far less frequently.

The decision

The claim ultimately failed.

The risk of slipping was insignificant to a person exercising reasonable care in the bathroom.

The Court found the risk of slipping on the mat was an obvious risk within the meaning of s 5F of the Civil Liability Act (2002) NSW. It therefore did not require a warning.

The Court accepted the defendant’s evidence that he had no prior knowledge that the mat was slippery, contrary to the plaintiff’s allegation. 

The Court agreed with the defendant that video footage of the mat being easily moved around the floor is different to establishing that the mat was dangerous or posed a slipping risk. There was no evidence of the slip of the tiles or the bottom of the mat, nor any evidence of the force involved in a foot strike upon the mat when walking through the room as compared to moving it in the manner shown in the video taken by the plaintiff sometime after the alleged incident.

The plaintiff’s version that he slipped and fell due to movement of the mat rather than weakness in his legs caused by his muscular dystrophy or any other pre-existing health concern was accepted by the Court. However, the Court did not accept that the mat was unreasonably or dangerously slippery when used in normal day to day activities in the bathroom.

There was no evidence the plaintiff had suffered from or complained of dizziness prior to this incident occurring. The Court accepted the plaintiff’s dizziness symptoms had only begun since his fall but found a causal link between the fall and the dizziness was inconsistent with the expert medical evidence.

It follows that, had the claim succeeded, the Court considered there was no contributory negligence because the risk was not foreseeable and it was insignificant. However, if the claim were to succeed on appeal, the Court considers the claim ought to be discounted by 30% for contributory negligence because the plaintiff was in just as good a position as the defendant to assess the characteristics of the mat. A higher discount of 50% sought by the defendant was rejected.

Damages were assessed despite the claim failing. Given the plaintiff’s pre-existing medical history and inability to work, the judgment was very modest. General damages and out of pocket expenses totalled $7,300.

Conclusions

This decision can be distinguished from the decision of Oakley v Collins & Anor2 where a guest at a home slipped and fell while dancing on tiles which had recently been mopped. In that case, expert evidence regarding the friction on the tiles was obtained which showed the tiles were not adequately slip resistant for normal pedestrian use when wet. That claim succeeded. However, in this case, the floor was not wet, so the question of slipperiness came down to the mat and whether a reasonable person would foresee a risk in stepping on it.

Although the claimant had a degenerative condition which the defendant argued caused the plaintiff’s fall, ultimately this case came down to the cornerstone principals regarding reasonableness and foreseeability. 

The plaintiff was in just as good - if not a better - position than the defendant to identify any risk associated with the mat. Even if he had been able to get over the hurdle of causation, the plaintiff ultimately could not demonstrate that he had suffered a significant injury from the fall, resulting in a very modest assessment of damages.

Sourced from www.carternewell.com.au April 30 2019

QCAT appeal - water leak and high water bill

Day & Anor v O'Sullivan & Anor [2019] QCATA 43 (8 April 2019)

 

Last Updated: 23 April 2019

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:
Day & Anor v O’Sullivan & Anor  (2019) QCATA 43
PARTIES:
HARRY DAY and KAREN ANDERSON

(applicants/appellants)

 
v
 
ANGELA and FRANCES O’SULLIVAN
(respondents)
APPLICATION NO/S:
APL221-18
ORIGINATING APPLICATION NO/S:
MCD136-18
MATTER TYPE:
Appeals
DELIVERED ON:
8 April 2019
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member King-Scott
ORDERS:
Leave to appeal refused. Appeal dismissed.
CATCHWORDS:
APPEAL – general principles – right of appeal – LEAVE TO APPEAL – mixed fact and law

LANDLORD AND TENANT – liability for water usage

Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154

APPEARANCES:
Applicant:
 
Self-represented
Respondent:
Self-represented
   
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

[1] This is an application for leave to appeal the decision of an Adjudicator sitting at Holland Park. The claim before the Adjudicator was for water charges incurred at a residential property occupied by the Applicants as tenants. The Respondents are the landlords of the property situated at 55 Green Street, Yeerongpilly. In issue before the Adjudicator was who was liable to pay water charges, levied by Urban Utilities, which for a period, were unusually high.

[2] An appeal in minor civil disputes can only be brought with the leave of the Appeal Tribunal.

[3] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant will obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?[1]

Evidence and Findings

[4] Urban Utilities levied charges for water for the period 10 November 2017 to 15 February 2018[2] of $3,092.18 for water services. That amounted to 737 kilolitres or usage of 7,598 litres per day.

[5] The Applicants denied that they were liable to pay the said sum as they maintained it resulted from a leak in the swimming pool, the water level of which, from time to time, they were required to top up. They did not report the alleged leak to the Respondents but rather to the pool service company that regularly attended the site and maintained the pool. It was in issue before the Adjudicator whether there was a leak. The filter was found to have a minor leak which was repaired, it was not sufficient to explain the substantial usage over the period. An alternative explanation was that the Applicants left hoses running which was observed by some of the pool service men.

[6] The liability to pay water charges is found in Clause 17 of the General Tenancy Agreement executed by the parties. The period of tenancy in the agreement was from 18 August 2017 to 1 January 2019.

[7] The Applicants engaged Poolwerx to maintain the pool and Poolworx were their agents.[3]

[8] The water usage for the period was substantially above previous and subsequent readings. However, there was no other explanation for the high reading other than the two versions I have referred to.

[9] The Adjudicator found that the Applicants were liable for the water usage and ordered them to pay the said sum to the Respondents.

Grounds of appeal

[10] The Applicant alleges that irrespective of whether they breached the rental agreement the Respondents would have still suffered loss. They say the breach arose from a failure to advise the landlord's letting agent of the problem with pool level dropping. They advised the pool contractor Poolwerx but not the Respondent’s agent.

[11] Their argument proceeds on the basis that a party may not recover damages to place them in a better position than they would have been, had the contract been performed correctly.

[12] If the Applicants had informed the agent of the problem with the poor level dropping (as distinct from informing Poolwerx), the agent for the landlord would have told Poolwerx as the Applicants did, as early as 23 September 2017, and the same set of events, thereafter, would have unfolded. They say it would have made no material difference to the way Poolwerx managed the pool from that date up to mid-December 2017.

The Respondent’s submissions

[13] The respondents say that the Applicants’ argument based on the judgement sum being an award of damages for breach of contract is misconceived. They say the order was not based on any breach of contract or any loss arising from that breach. The judgement sum is not compensatory or punitive damages but rather monies due under a lease agreement to pay water charges.

The Adjudicator’s decision

[14] The applicant Mr Day said he had the hose in the pool for days running constantly, allegedly because the pool was leaking.[4] He said the water never went over the top and was leaking from some other point.[5] There was speculation by the Adjudicator as to how that occurred but in the absence of expert evidence that was not a matter that the Adjudicator could determine.[6] In fact, he made no determination as to the cause of the leak. In an exchange with the Adjudicator, Mr Day conceded the water had to come from the hose.[7] There was other evidence from the Poolwerx employees that a hose ran constantly into a dogs water bowl and other incidents where the hose was found to be running.[8]

[15] The Applicants did not dispute that they failed to advise the Respondents of the suspected pool leak but rather advised the pool contractors.[9]

[16] The Adjudicator found that the water usage was due to the Applicants leaving the hose on all night. He found that there was no reason why the Applicants should not pay the water charges.[10]

Disposal of the Appeal

[17] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[11] As was stated by the Tribunal in Bradlyn Nominees Pty Ltd v Saikovski[12] the appeal process is not an opportunity for a party to again present their case. It is the means for correcting error made by the Tribunal which decided the proceeding. 


[18] It is tolerably clear that there was evidence on which the Adjudicator could make his decision. There is no demonstrable error in the Adjudicator’s findings. The Application for leave to appeal is dismissed.


[1] Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154 [7]

[2] These dates represent metre readings on those days.

[3] Transcript 1-25 line 40

[4] Transcript 1-10 line 25

[5] Transcript 1-10 lines 35 - 45

[6] Transcript 1-11 line 35

[7] Transcript 1-18 line 42

[8] Transcript 1-28 line 45

[9] Transcript 1-15 lines 12 - 18

[10] Transcript 1-34 line 20

[11] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126.

[12] [2012] QCATA 39

Property Management Excellence (PME) system podcasts (Member offices only)

Online training podcasts for member office (PME system)

PME system members;  the existing training videos which form part of the system, are going to be replaced with podcasts - the podcasts will be at Member Online and can be listened to via Audio (M4a files) anytime when completed. They will not be on the Apps listed below as it is a membership benefit. Members could login on their smart phone and play whilst travelling and or remote. The audio training can also be heard on your PC in the office.  The future training podcasts will marry up with the chapters of the PME manual (38 chapters). 

The following podcasts (audio training) are currently available for PME system member offices (with many more to come)

# Understanding the PO Act and regulations

# The management agreement PO Form 6 – the law, best practice and completion 

# Scripts for lessors who ask "Why am I paying the management agreement for?", "Why am I paying a letting commission?" and "Why am I paying an administration fee?"

# PO Regulations – what all property managers and salespeople should know 

# When do staff need a certificate of registration

# The Sales Excellence manual (part of the PME system) – an overview

 Click here for information regarding the Property Management Excellence podcast series

 

 

Time management tips for property managers

Notes below from chapter 23 of the Property Management Excellence manual (PME) - Queensland PME system

23.1 Property Management tasks

Property management involves many tasks and it is quite easy to feel overwhelmed if tasks are not clearly understood or not clearly set out. It is recommended property managers write out the following;

• What are daily tasks that must be done? These are the non-negotiable tasks such as rent arrears.

• What tasks must be done weekly?

• What tasks must be done at certain times of the month?

• What must be done each month?

Once the above tasks have been written down, create an ideal week and ideal month plan. A template is available online in the time management folder 23.

Ideal means ideal, not perfect. Property managers should have a guide and goals to carry out their required tasks successfully. If a plan is not followed, there usually is a crisis reactive management environment; as opposed to a proactive controlled management situation. It is very easy to feel overwhelmed in property management which leads to frustration personally and is also is a significant risk factor to the agency in general. There are only a handful of matters that should defer property managers from their ‘ideal day’. These matters include the following;

An emergency maintenance situation that requires immediate attention;

A notice of claim from the RTA whereby the tenant has claimed their rental bond and the agency does not agree (whilst there is 14 day time frame to dispute the claim, best practice is to complete the dispute form immediately);

A lessor or tenant who comes into the office without appointment;

In these cases, try not to avoid the tenant or lessor, welcome them (remembering that customer service is the primary service in the industry). However, advise them that you are currently committed at present and will the matter they wish to discuss take longer than 5 minutes? If so, they may wish to make an appointment so that the required time can be provided to them to assist with the matter.

An entry condition report that is returned by the tenant and items/matters listed by the tenant is not agreed to;

A tenancy application form that requires processing;

A new lessor enquiry for management if this is part of your role.

23.2 Planning tasks Examples

The follow are examples only and the list is not exhaustive.

Daily tasks include

• Rent arrears management

• Receipting of rents

• Application forms

• Tenancy sign ups

• Emergency maintenance

• Incoming phone calls and emails

• Checking entry condition report returns

• Follow up of matters as required

Weekly tasks include

• Checking work orders to ensure works have been completed accordingly

• Checking lease renewals and appropriate follow up

• Payment of invoices

• Follow up of lessors regarding routine maintenance and or tenant requests

• Filing

• Vacates (final inspections)

Fortnightly tasks include

• Renewing contractor appointment forms accordingly

• Scheduling for the next period

• Mid-month

Monthly tasks include

• End of month

• Scheduling routine inspections for the next period

• Scheduling lease renewals for the next period

Fail to plan generally means plan to fail. The following matters should be the only interruptions that Property Managers would allow deviation of their ideal schedule;

• Emergency maintenance

• A rental application from a prospective tenant

• An entry condition report that is returned that is not agreed upon

• A new lessor enquiry

• A lessor or tenant who arrive at the office without appointment

• A tenant who has claimed their bond and the RTA have notified and requested the agency to dispute the claim if the agency does not agree to the bond refund.

In situations where people arrive at the office without appointment, a suggestion is to politely meet and greet the person and make them feel welcome. Property managers may wish to advise the person that they only have a couple of minutes due to other commitments and is what they are going to speak about going to take longer than that? If so, an appointment can be made or a phone call at a later period?

Property managers should try not to let ‘others’ control their day; maintain as much discipline as possible. Whilst providing superior customer service is a priority; maintaining the schedule and completing required tasks is also as important. Balancing the two requirements is a must do in property management.

A simple way to run a to do list manually or electronic is using the following method

• To do today

• To do tomorrow

• To do eventually.

At the end of each day ensure the to do today tasks are completed and then plan your next day; therefore, to do tomorrow becomes to do today, some of the to do eventually tasks become to do tomorrow and so forth. Continually check your list and work to it always.

A useful template ‘to do list’ is available at member online folder 23.

23.3 Time diary

If a property manager is experiencing further trouble with time management, it is recommended that a time diary be kept for at one week to identify areas where time is being spent. Solutions to time management problems cannot be created until the problems of where time is being spent are identified.

Once the time diary is completed for one week, identify where most time is being spent and implement changes where possible to rectify the problem.

For example; too much time may be spent on the phone. Most phone calls in property management should be no more than 9 minutes; if the conversations are going longer than this it could mean the conversation is not sticking to the reason for the call and or we are in dispute.

If the conversation is not going anywhere and it is a possible and or dispute, suggest to the caller that it may be best to terminate the call at this time and write an email to discuss the keys point of the matter to progress further. Whilst property management is a customer service focused business, it must be remembered the call should mainly always be business focused and the next tasks must be attended to. Property managers should learn the art of ‘cutting people off’ in a professional way but still deliver superior service. This can be done and must be done to manage time. A time diary template can be found at member online folder 23.

(C) www.realestateexcellence.com.au

Queensland property management half day PM education and training July August 2019

Property Management training - the property managers main laws

All training and education events are presented by Stacey Holt, and focus on best practice, compliance (legislation), risk management and time management.

All upcoming events can also be found here and register online here, and or email us names and email address of attendees and the event you wish to attend.

Please review terms and condition prior to booking for events.

Click here to review the September, October and November property management half day education events - Rent arrears. 

Session outline

Stacey Holt will present the following during the event;

The Property Occupations Act and regulations; the main law covering property managers and what all property managers should know including conduct standards. This part of the study will include best practice complete of the agency part of the RTA Form 11

The Agents Financial Administration Act and regulations; the property managers 'second main law' and a refresh of what all property managers should know

Trust account law - important reminders on key operational matters plus end of month and the law

Kickbacks and benefits received from third parties - is your agency disclosing?

Record keeping and the law (including electronic record keeping)

Electronic signatures and Electronic transactions law (consent, when received and more)

The PO Form 6 - best practice and compliance tips

The Privacy Act; key reminders and compliance guidelines

An update of the RTRA Act review.

PLEASE NOTE; if the RTRA Act amendments are released prior to any scheduled event, the session will be changed to cover the amendments. All attendees will receive a study guide book electronically which address the scheduled session.

All sessions 9.30am to 12.30pm with morning tea included.

Bundaberg – Tuesday 20th August 2019 | Bundaberg Enterprise Centre Register online here

Brisbane North – Tuesday 9th July 2019 | Kedron-Wavell RSL - Chermside Register online here

Brisbane South – Wednesday 10th July 2019 | The Glen Hotel – Eight Mile Plains Register online here

Cairns – Tuesday 27th August 2019 | Shangri-la Hotel Register online here

Fraser Coast – Wednesday 21st August 2019 | Hervey Bay Coat Club Register online here

Gladstone – Wednesday 7th August 2019 | Yaralla Sports Club Register online here

Gold Coast – Wednesday 17th July 2019 | Parkwood Golf Club  Register online here

Mackay - Thursday, 29 August 2019 | Ocean International Hotel Register online here

Rockhampton – Tuesday 6th August 2019 | Rockhampton Leagues Club Register online here

Sunshine Coast – Thursday 11th July 2019 | Oaks Oasis, Caloundra Register online here

ToowoombaThursday 18th July 2019 | Clive Berghofer Stadium Register online here

Townsville – Wednesday 28th August 2019 | Mercure Townsville Register online here

 Terms and conditions of events - Please read here or email us prior to booking.

All sessions are subject to change at the discretion of Stacey Holt (Real Estate Excellence) and or cancellation. Registered attendees will be advised of any changes to any event they have registered to attend via the email address used for registration.

Membership information

If you would information about the membership options provided by Real Estate Excellence for Queensland agencies, click here or please contact us