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In short:
A Canberra couple has been awarded $1,500 in damages by the ACT Civil and Administrative Tribunal after the woman was woken by a real estate agent conducting an inspection in her bedroom.
The agent said he knocked on the door and called out after using a key to gain access to the property, which the tenants disputed.
What's next?
The tribunal found the incident constituted trespass, and any consent given to continue the inspection was gained under duress.
A Canberra woman who was awoken by a real estate agent in her bedroom conducting an inspection has been awarded damages by the ACT Civil and Administrative Tribunal (ACAT).
The ACAT heard the woman was in bed with her infant son when the agent entered the room, both of whom later testified they were "shocked" to see the other.
The woman gave evidence she "heard a person in the apartment" and hid under the bedsheets because she was "terrified" and because she was not wearing her Islamic head scarf.
Subpoenaed footage showed the agent did not ring the doorbell before entering the home for the scheduled inspection, despite being his "standard practice".
The agent said he had both knocked on the door and called out after using a master key to gain access to the property, but the tenants disputed both of those claims.
The agent told the ACAT he identified himself after walking into the bedroom, informed the woman he was there to perform a routine inspection, and requested approval to continue.
In her evidence the woman agreed the agent had identified himself and why he was there, but denied he sought permission to continue the inspection.
She told the ACAT she may have replied "Oh, okay", but only in answer to the agent stating who he was and why he was there.
In his oral testimony the agent said he left the bedroom after receiving approval to continue, quickly finished the inspection, thanked the woman, and left.
But the woman said he returned to the bedroom, and provided video evidence showing two legs and a man's shoes walking around the room for about three minutes, filmed from under a sheet.
The woman said in her oral testimony that she "did not know why he was back in the room", and that she was "concerned for [her] safety" because "he's a big man".
"I found myself in a vulnerable position under the bed covers unable to emerge," she said in a written statement.
"Feeling trapped and concerned for my safety, I began recording from under the bed covers when the agent returned to the bedroom for the second time to take photos."
The woman and her husband, who had been the sole tenants of the apartment for over five years, broke their lease and left after telling the agent they would not stay without an apology for the incident.
One decision on two related matters
The ACAT decision included two matters related to the same lease, one brought by the tenants, and one brought by the lessor.
The landlord previously requested, and received, the couple's full bond of $2,000 to cover "substantial damages" to the property.
The tenants sought damages for financial losses due to relocation and additional rent, orders to "ensure compliance with tenancy laws and regulations in future dealings with tenants", $25,000 compensation for violation of privacy and discrimination against their religion, and their bond returned.
The ACAT found the agent's entry to the apartment did constitute trespass and had violated the quiet enjoyment of the tenants, and consent was either not given for the inspection to continue or was given under duress.
"Even if some consent was verbally uttered, such consent could only be classified as consent gained under a degree of duress, whether intended or not by the agent," the decision said.
"In this tribunal's view, a woman fearful of someone who has entered her home, embarrassed by her lack of modesty as she repeatedly testified, and in a vulnerable position hiding as she was under sheets, is not in a fair position to conduct such a conversation with a large male, stranger to her, standing unexpectedly in her room."
The ACAT said it had no power to make a finding in regard to issues of discrimination because the Human Rights Commission had not referred the application to it, and was not able to establish any evidence of financial losses related to the couple's relocation after breaking their lease.
The lessor was ordered to pay $2,135 to the tenants – $1,500 in damages and $635 to cover the fee to file the application.
In the matter of the lessor's application to keep the entirety of the couple's bond, the tribunal determined the property had been damaged "but not to the extent the lessor claimed", and ordered $1,155 of the couple's $2,000 bond be returned to them.
"Having viewed the photos of the damage to the walls requiring patching and painting, it is hard to see more than a quarter of this is anything other than reasonable wear and tear in the years that the tenants have been there," the decision said.