Welcome to Sisters In Law, news.com.au’s weekly column solving all your legal problems. This week, our Resident Solicitors and Real Sisters Alison and Jillian Barrett of Maurice Blackburn advise you on your rights in the event of damage occurring during home care.
I moved away recently and a friend of mine stayed in the house to take care of my cat and my dog. I’ve known her for about six months and thought I could trust her – but I was so wrong!
I was away for six weeks and she managed to destroy my apartment causing $10,000 in damage.
She wore high heels on my new hardwood floor, causing hundreds of bumps and scratches. I told her not to wear shoes in the house.
She took a shower with the window closed so a lot of mold formed in the bathroom and somehow she also made a hole in the sofa and I have to buy a new one .
She apologized a bit when I got home, but also said it was “wear and tear”. I would like to cover some of the damage. What are my rights ? – Tanya, New South Wales
Sounds like your trip turned into an expensive exercise Tanya, not to mention the strain it undoubtedly put on your friendship.
The first thing to determine is the nature of the relationship between you and your friend. Was she considered a guest, tenant, or contracted pet sitter?
To be decisive as to which category your relationship falls into, we would need a lot more information, but we will give you some general advice to help you identify your rights.
We’re assuming no money changed hands and your friend stayed with you at no cost in exchange for pet sitting.
We also assume that you have not entered into any written agreement.
In general terms, the law states that if a person pays rent, they are a tenant and tenancy laws apply.
If the person does work or gives something of value to the landlord, that can also be considered rent.
You could say that your friend providing pet sitting services could be categorized as “rent” because it is value provided.
However, a more detailed analysis would be required to examine the market value of the rent versus the value of the pet sitting performed.
Such an analysis would also look at any other tasks your friend did (such as caring for plants and gardening), whether they contributed to utility costs such as electricity and internet, whether they used food from your kitchen and whether she paid a deposit. .
The discussions you had with your friend before you left and any evidence of these (such as text messages) will be important in classifying the nature of the agreement.
Given the short-term and relatively informal nature of the arrangement, we anticipate that the law will deal with the relationship using general principles of contract law.
As such, you have hired your friend to provide a service in exchange for staying in your house rent-free.
One of the conditions you specified as part of this “contract” was that she didn’t wear high heels in the house – and she didn’t comply.
Also, an implied term of an arrangement like this would be that any accidental, reckless, or intentional damage would be covered by it.
As for the hole in the sofa, if the damage was caused by normal wear and tear or if the sofa was weakened due to age, your friend should not bear the cost.
Expecting your friend to cover the cost of a brand new sofa is also probably unrealistic. You should first explore the cost of repairing your couch.
Assuming you can’t resolve this issue with your friend just by having a conversation and asking them to pay you back your losses, you should put your request in writing.
This will be a demand letter which should include quotes to repair the damage and any relevant evidence, such as proof that you asked her not to wear her heels inside and to open the window when she take a shower.
In the letter, you should ask for the amount of money you think should be paid to you by a certain time or contact you to discuss another method of payment.
If there is no response, you can file a claim with the NSW Civil and Administrative Court (NCAT) to help resolve the dispute.
The Tribunal is not a court, but its decisions are legally binding.
For disputes like yours, most people represent themselves in court. The NCAT website will guide you through the process and tell you what to expect.
You should also review your own liability or home and contents insurance as it may cover accidental loss and damage.
However, most insurers have exclusions for willful or reckless damage (and theft) caused by people you allow to enter your property, including your guests.
To avoid this problem in the future, you should always put the details of your arrangement in writing so that any pet or house sitter fully understands their obligations and responsibilities. Then, if things go wrong, getting back what’s owed to you will be a smoother process.
This legal information is general in nature and should not be considered or relied upon as specific legal advice. Persons requiring specific legal advice should consult a lawyer.
If you have a legal question you would like Alison and Jillian answered, please email [email protected]
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