I have discovered after several years that not all mediators are equal. I recently had a mediation regarding the inevitable rent arrears. The tenant was paying rent fortnightly and has been paying at least one week late for the last year. Of more concern the major issue was she owed over $600 in water.
When working out the amount that the tenant owed the mediator said the debt was taken up until the date that the tenant “says” she pays the rent being in this case a Wednesday even though the rent period runs Saturday to Friday. Well on the day of the mediation the next period ended in fact 13 days off and not 5. I had a little “chat” with the mediator and her argument was that because she had been a mediator for the last 20 years she must be right. I offered to supply other mediator’s orders for her to see what other mediators are doing. I forwarded four to her one of which was hers from six months ago. Would you believe it but she had done the same thing in that earlier mediation. That is she had made the same mistake and worked out the arrears to the day the tenant pays the rent instead of the day the next rent period started.
The other three mediated orders from of course other mediators all had the arrears to the end of the current rent period. The “discussion” carried on post the mediation in a one to one technical discussion and a compromise was made by the mediator that she would change the order to take the amount owed (as apposed to arrears) to the end of one week and not the two as should apply when the rent is being paid fortnightly. Her argument/justification being that the tenancy agreement specified that the rent was to be paid weekly. Now the RTA specifies in section 23 (1) (b) that the landlord shall not require the payment of any rent before the expiry of the period for which rent has been paid already.
Also section 23 (1) (a) specifies a landlord shall not require the payment of any rent more than 2 weeks in advance.
In other words rent can be paid fortnightly in advance and the mediator should have specified on my order that the rent owed calculation should have gone to the beginning of the next rent period that being two weeks off. In my case that amounted to a difference of $487 this being not an insignificant amount that would likely as not be used in enforcement proceedings.
So, fellow landlords, do not let old hands bully you into agreeing to a lesser amount than you are entitled. If however you end up in tribunal in front of an adjudicator they mysteriously work out things differently. This is because they do not do many conditional orders. They generally do an immediate termination order unless the landlord pleads for a conditional order then in the flurry and lack of ability to negotiate you usually only get the arrears to the actual day of the hearing.
Glenn Morris is the owner of Nelson property management company, “Glenn’s Vacancies”, managing residential and commercial investments. He is the current secretary of the Nelson Property Investors Association. He was active in the review of the RTA and is a well-known figure in the property investment community. He has a reputation for effectively managing difficult tenancies.”
