Unconscionable Conduct

Unconscionable conduct is generally understood to mean conduct which is so harsh that it goes against good conscience.

Conduct may be unconscionable if it is particularly harsh or oppressive.

To be considered unconscionable, conduct it must be more than simply unfair—it must be against conscience as judged against the norms of society.

In the renting of houses, a landlord’s behaviour may be deemed unconscionable if it is particularly harsh or oppressive, and is beyond hard commercial bargaining.

For example, Some courts abroad have found certain landlord conducts to be ‘unconscionable’ when they are deliberate, involve serious misconduct or involve conduct which is clearly unfair and unreasonable.

Determining whether a landlord’s conduct is unconscionable

There are a number of factors to consider when assessing whether conduct in relation to the renting of a property to a tenant is unconscionable. These include:

The relative bargaining strength of the parties

Whether any conditions were imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party

Whether the weaker party could understand the documentation used

The use of undue influence, pressure or unfair tactics by the stronger party

The requirements of applicable industry codes

The willingness of the stronger party to negotiate

The extent to which the parties acted in good faith.

How to avoid engaging in unconscionable conduct

The following practical tips may assist landlords and their agents to avoid engaging in unconscionable conduct:

do not exploit your tenant when negotiating the terms of an agreement or contract;

take care to be reasonable and fair when exercising your rights under a contract;

Consider the characteristics and vulnerabilities of your tenants. For example, use plain English when dealing with customers from a non-English speaking background;

Make sure your tenancy agreement are thorough, easy to understand, not too lengthy and do not include harsh, unfair or oppressive terms;

Ensure you have clearly disclosed all important or unusual terms or conditions of the tenancy agreement;

Ensure tenants understand the terms of any agreement associated with the tenancy and give them the opportunity to consider the offer properly. If the tenancy agreement is long, you may decide to provide a summary of the key terms;

Give tenants the opportunity to seek advice about the agreement before they sign it;

If things go wrong, be open to resolving complaints;

Do not reward your agent for any unfair, pressure-based conduct.

Advice from the Commission

All landlords are reminded that the Commission supports the renting of properties in Fiji to tenants, but strongly condemns their ill-treatment and exploitation of the current short supply of housing to benefit through unfair and unreasonable conducts.

Below are some common examples of unconscionable conduct against tenants that can be referred to the Commission for investigation.

Deliberate disconnection of utilities

Promising repairs to the property to a tenant at the negotiation stage to lure his interest and failed to fulfill them when the tenant resides there

Evicting a tenant with reasons for renovation and engage another one immediately after the subject tenant has moved out minus the work articulated

Locking the tenant out without proper orders from the court

Demanding another rent from a tenant when the period of the last rent payment has not been exhausted

Failing to disclose known defects inside the property to a tenant

Imposing additional terms to the tenant during the course of the tenancy

Having onerous or oppressive terms in a tenancy agreement

Demanding utility payment without showing the tenant the actual bill –etc

Engaging bogus bailiffs to threaten the tenant to vacate a flat

How to avoid becoming a  victim of  unconscionable  conduct

The following practical tips may assist tenants to avoid becoming a victim of unconscionable conduct

Ensure all agreements between you and the landlord are in writings

Make sure you fully understand all the terms of the tenancy agCent and seek expert advice from the Commission or a private legal counsel to assist you

Do not sign any agreements without reading them carefully
Ask for plain language explanations and obtain independent professional legal or financial advice if unsure
If you think you are being treated differently, ask why

Do not allow yourself to be talked into a deal that is wrong for you by high pressure sales tactics. Be wary of tight decision deadline

Look for the best deal and try to negotiate the outcome you want.

Be prepared to walk away from a deal that does not ‘feel’ right. It could be an unreasonable or oppressive deal