A Canberra real estate agency has been ordered to pay damages after an agent let himself into the bedroom of a sleeping, "confused" and "fearful" woman to conduct a routine inspection.
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"Feeling trapped and concerned for my safety, I began recording from under the covers when the agent returned to the bedroom for the second time to take photos," the tenant submitted.
Her infant child was also asleep in the bed.
In an ACT Civil and Administrative Tribunal decision published this week, Property Partners Canberra Pty Ltd was ordered to pay $1500 in damages to the woman and her husband.
The agency was also told to cover the former tenants' $635 filing fee.
Video footage indicated the agent arrived at the couple's apartment for the inspection in August last year and let himself in with a master key without ringing the doorbell in the lobby.
The agency's lawyer told the tribunal it was standard procedure for agents to announce their arrival by ringing the doorbell before entering.
"This may not have occured on 31 August because the agent may have been distracted by a very busy day," the lawyer submitted.
According to tribunal member Mark Hanna, video footage showed the agent in question appearing relaxed and unhurried for the midday inspection.
While the agent gave evidence he knocked three times and called out with a loud voice to see if anyone was home, the woman testified tp being a light sleeper, nearby, and hearing no such knocks.
She described being shocked to see the man enter her bedroom, and explain why he was there, before closing her door again to inspect the rest of the apartment.
Her evidence clashed with the agent's, who told the tribunal he was himself shocked to find the woman, apologised and got her permission to continue the inspection.
She said he identified himself, to which she responded "oh, ok", but he never asked for that permission.
"Meanwhile I found myself in a vulnerable position under the bed covers, unable to emerge promptly due to not wearing my Islamic scarf to meet strangers," she said in a written statement.
Asked why he continued the inspection, including in the bedroom where the self-described "terrified" woman was, he said he "had a job to do" after receiving permission and had "seen much stranger things than a person in bed in my inspections".
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The agent would later testify he did not remember the day well among several inspections and that while calling out to announce himself was his usual practice it was possible he hadn't done it that time.
The couple had not responded to a text and email informing them of a multi-hour window in which the inspection was set to take place.
Ultimately, the tribunal found, on the civil balance of probabilities, it was more likely the woman did not give direct consent for the inspection to continue.
"There must even be some doubt if she was even directly asked," Mr Hanna said.
It also concluded that while the agent did have the authority to initially enter the apartment, his failing to gain further authority to continue the inspection after finding the woman in bed constituted trespassing.
Even had the agent sought consent, the woman's position of vulnerability while faced with an unexpected stranger in her bedroom was "not a fair position to conduct such a conversation".
"The evidence indicates that the distress the applicants felt due to the events of the August inspection and the failure of the respondent to apologise for what occurred led to the break of the lease before the end of the fixed term," Mr Hanna said.
The couple unsuccessfully sought $25,000 in compensation for violation of privacy and religious discrimination.
The tribunal also made separate findings about the partial return of the couple's bond relating to fair wear and tear.