in short:
A Canberra couple have been ordered to pay $1500 in damages by the Australian Capital Territory Civil and Administrative Tribunal after the woman was woken up by a real estate agent who was carrying out an inspection in her bedroom.
Deputies said they used a key to enter the property and knocked on the door to speak to the occupant, but the tenant disputed this.
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The court found that the incident amounted to trespass and that consent to the continuation of the inspection was obtained under duress.
A Canberra woman has been awarded damages by the Australian Capital Territory Civil and Administrative Tribunal (ACAT) after being woken up by a real estate agent conducting an inspection in her bedroom.
ACAT heard the woman was in bed with her young son when investigators entered the room and both men later testified they were “shocked” when they saw each other.
The woman testified that she was “scared” because she “heard voices coming from the apartment” and was not wearing a Muslim headscarf, so she hid under the bedsheets.
Footage received under subpoena shows that investigators did not ring the doorbell before entering the home for a scheduled inspection, despite it being “standard practice.”
The agent claimed he had knocked on the door and called out to gain access to the property using a master key, but the tenant disputed both claims.
The investigator told ACAT that after entering the bedroom he identified himself, told the woman he was there for a routine check-up and asked for permission to continue his investigation.
In her testimony, the woman agreed that the agents identified themselves to her and explained why they were there, but denied asking for permission to continue the search.
She told ACAT she might have replied, “Oh, I understand,” but that was simply a response to the investigator describing who she was and why she was there.
The real estate agent claimed he had knocked on the door before entering the apartment, but the woman disputed that. (Getty Images)
During oral testimony, the investigator stated that after receiving permission to continue the examination, he left the bedroom, completed the examination quickly, thanked the woman and left.
But the woman claimed the man returned to the bedroom and provided video evidence filmed from under the sheets that showed the man's two legs and shoes walking around the room for about three minutes.
“I didn't know why he came back into the room,” the woman said in her oral testimony. [her] It's safe, he says, because “he's a great man.”
“I found myself defenseless under the bed covers and unable to get out,” she said in a statement.
“Feeling trapped and concerned for my safety, I began recording from under the bed covers when agents returned to the bedroom a second time to take photographs.”
The woman and her husband, who had been the only residents of the apartment for more than five years, terminated their lease and left, telling the real estate agent that they would not move in unless he apologized for the incident.
One decision on two related issues
The ACAT decision involved two issues relating to the same lease agreement: one brought by the tenant and one brought by the landlord.
The landlord had previously demanded and received the couple's full $2,000 security deposit to cover “significant damage” to the property.
The tenants sought damages for economic loss from relocation and additional rent, an order to “ensure compliance with rental laws and regulations in future dealings with tenants,” $25,000 in damages for invasion of privacy and religious discrimination, and return of their security deposits.
The ACT Civil and Administrative Tribunal heard that the real estate agent used a master key to gain entry without ringing the doorbell. (Pixabay: Sephelonor)
ACAT found that the agents’ entry into the apartment amounted to trespass and violated the occupants’ peaceful existence, and that consent to the inspection continuing was not given or was obtained under duress.
“Even if consent was verbal, such consent can only be classified as consent obtained under some degree of coercion, regardless of whether this was the actor's intention,” the ruling said.
“In the view of this court, it is not fair for a woman who was fearful of an intrusion into her home, who felt embarrassed by her lack of modesty as she repeatedly testified and who was vulnerable and hidden under the sheets to suddenly have such a conversation with a large, unknown man standing in her room.”
ACAT said it had no power to rule on the issue of discrimination because the Human Rights Commission had not referred the application to it, and also failed to establish evidence of financial loss associated with the couple's relocation after breaking the tenancy.
The landlord was ordered to pay the tenant $2,135, consisting of $1,500 in damages and $635 in filing fees.
In regard to the landlord's motion for the return of the couple's entire security deposit, the court determined that the property was damaged “although not to the extent asserted by the landlord” and ordered the return of $1,155 of the couple's $2,000 security deposit.
“Photos of the damage to the walls requiring repair and painting show that it is difficult to imagine that more than a quarter of the damage is anything other than normal wear and tear from the several years the tenants lived there,” the ruling read.