Legal Issue – PM approving repairs without Landlord consent

Nice one Freckle, useful stuff! 

the agent is your agent. you have given them permission to act on your behalf. if they have done something exceeding their power then they can be personally liable. but what are you seeking in this? was the hotwater system too expensive and do you want a reduction? legal fees will exceed the cost of the hws.

the plumber probably has clauses in his contract that he retains ownership of the items until paid. he may also be entitled to go onto the property to take his items.

i would suggest you be very careful how u proceed.

Interesting..

This is largely contract law (tort) unless specific legislation covers aspect of this disagreement. In the main during a contract dispute an installer of (whatever) can't simply walk in and reclaim the goods even if it states he can on a contract. He still has to get a court order to clarify the situation and where the dispute is at. This was tried some years ago in Auckland by a joinery company that had installed doors, windows, shutters, cabinetry etc in a luxury house. They rolled up early one morning and began removing all their product. A few days later they were ordered by the court to reinstall everything until such time as the matter was resolved in court.

The small claims process is by comparison almost costless. Here in WA I simply file online when I have a client withhold payment or not pay for whatever reason. Costs about $120 which is added to my claim and the papers are served via registered post. Two weeks later I'm usually paid. Some try to hold out to the death but they always cough.

The great thing about small claims court is no legal representation if you don't want it and no awarding of legal cost either way. Judgments are usually final so no appeals rubbish etc.

In a claim the defendant usually gets a few options prior to committing to a tribunal namely; defend, pay part or pay all of the claim. The time frame is usually 4 weeks to respond so that leaves time for the RE and parties to negotiate a settlement.

If I was Jo I would encourage the plumber to take the action against the RE and then act in a supporting role (no cost) and then go with whatever happens after that.

sorry freckle. i disagree with almost everything you have written above. the poster should think carefuly about this as it could be costly and time consuming.

torts is a different area of law to contracts. a tort is a civil wrong such as negligence etc. whst we have here is a contract dispute. nz law doesmt apply. the poster entered into an agreement with the plumber via the agent. the plumber can sue the poster. the plumber has done the work and is entitled to the money so he would have a strong case. losing would mean a judgme t on the credit report and this would affect all future finance applications for 5 years. the plumber may be entitled to the items as they belong to him. the agreement entered into could allow him to enter the premises to do so. it would not be stealing and the police are unlikely to want to charge him or to even become involved. trespass is a tort so you could possibly sue him if u hadnt given him permission, but this would be costly and unlikely to get you anywhere.

i would suggest you just pay the plumber and forgetabout it.

I've never found small claims tribunals costly or time consuming but that may be a matter of opinion.

My mistake. Contract law and tort law used to be fairly similar 20 odd years ago although they do deal with different aspects of civil disputes. Contract law is increasingly being supported by actual legislation although not completely yet. I see this as both a contract dispute (plumber Vs agent) and a tort (agent acting beyond authority)

My understanding is that within the British realm legal precedents are transferable between jurisdictions. The Auckland case was a bank (who owned the mortgage) moving to protect the asset assigned to the mortgage. My guess is that it may well set a precedent acceptable in Australian courts.

Agree

Yes definitely a risk to some extent. Judgements can be excised from credit reports with a Consent Order or Notice of Discontinuance. Messy though if it comes to that.

Agreed but exercising ones rights in this case could be difficult for the plumber. This kind of thing is unusual and the plumber probably understands he's potentially walking into a minefield if he did follow that course of action.

Agreed. Escalating the issue over such a small amount would be crazy.

Not me. Personally I'm over turning the other cheek. I would pay the plumber (its the likely outcome of a small claims tribunal anyway as I suggested earlier) and sue the RE in the small claims. It's a few dollars and a bit of time. Well worth the exercise just for the learning opportunity.

The honorable thing to do is pay the plumber.  He has presumably done a good job and completed the task as requested.  It is unfair he should wait 12+ months to be paid and be spending his time chasing payment!  

This dispute is between the property owner and Agent.  Fix it between you without affecting a 3rd party.

It may be possible to take the agent to a small claim court and it may be very cheap to do so without much financial risk. But consider what could happen if there was an appeal to a higher court. Things can escalate.

When you go to court you generally lose, even if you win

I would also lodge a claim with the State RE Board with a claim that the agent exceeded their written authority. You should be able to get back the difference from the amount that you authorised and the amount spent.

In any new contract, I  would also set out what is defined as an 'emergency'. An item of repair may be urgent (repairing a water heater but it is not imperative that it be attended to immediately (like a roof being torn off in a storm).  

Also ensure that ant PM has several contacts for you (land line phone, mobile, fax, emails [work and private]).

Also make sure that the agent records EVERY action as a file note on your property, including date, time, discussion points etc on phone calls, fax sent reports from the fax machine (as a matter of course, attached to every attempt to send a fax).

Review every file note by ensuring that the RE agent sends PDF copies of EVERY event/action they deal with in regard to your property.

Get a copy of the previous repair report and the current report that required the change to a new hot water system.

Trust BUT Check (everything!).