Evicting a difficult tenant WA

We have a tenant who is currently in arrears and we are looking to evict her. She was not paying rent as soon as she moved in. We sent a breach, she paid the amount owing and we had to cancel the breach. She has now been in the house for 8 weeks and is behind again by 4 weeks (and counting) and we have issued a termination notice.

Ever since she moved into the property, she has been trying to find faults with the house. I see it as a reason to blackmail us.
- She claimed the house has no fire alarm, which I disproved. The alarm is there, but when she moved in the old tenant has taken it down to replace the battery and didn't install it back.
- She then sent me messages about the trees needing pruning saying the neighbours complained and is a hazard issue. We've had various tenants in there for many years and never heard of neighbours complaining.
- She sent another message saying the (old) water tank has collapsed and is a hazard.
- Another message saying she needed a pest inspection to be done as she is having problems with ants. According to her, this needed to be done before she moved in.
- She claimed the house is not clean enough when she moved in. But I've given a PCR when she moved in, I chased her multiple times to return it to me, but she didn't.

We self manage and this is the first time we needed to evict a tenant. Can any of the above be used against us in court and give us difficulties with the eviction process? Some of the messages have only been sent to us AFTER we issued termination (ie. the tree and the tank). Is there anything we should do to ensure the eviction process is smooth sailing ?

Because she didn't meet her obligation with the rent since the very beginning, we weren't sure if we had to oblige to her requests.

Please advise.

 

I don't understand what you mean by this. Her obligation to pay rent has little to do with your obligations to the tenant as a landlord.

So ignore the rent issue and do what you would normally do about the other issues.

Similarly, ignore the other issues, and do what you would normally do in response to rent arrears.

That's the best way to think about things.

 

Are they separate issues in court ? Is what I want to know.
I do consider them separate issues, but the tenant keeps harassing us with these maintenance issues ever since she knows we're being strict about the rent arrears.
From my pov, as we are looking to terminate her, there is no point doing maintenance works now as there will be more works to do when she leaves. We will, however, plan to do maintenance before the next tenants move in.

 

Under no circumstances can you refuse to do basic maintenance. The tribunal may view this as vindictive and a deliberate action to try to get rid of the tenant.

From your post, it sounds as if the property has become run down over the years and is overdue for some maintenance, pruning, removing old tank etc.

Not sure about WA, but in other states it is illegal to rent out a property without tested and functioning smoke alarms. A fire alarm without a battery is useless, and your tenant is correct in saying there was no (working) alarm.

These matters can be considered by the tribunal. No doubt your tenant will justify withholding rent on the grounds you refused to maintain the property. It's a "chicken and egg" situation where you are both claiming your actions are the result of the other person's actions.
Marg

 

Point 4 in "Form 1A"
https://www.commerce.wa.gov.au/sites/default/files/atoms/files/restenancyagreementform1aahelp.pdf

The tenant must not withhold rent because the tenant is of the view that the lessor is in breach of the agreement

 

Almost certainly the wrong attitude to have. If you're meant to fix it, fix it.

Its probably even more important to fix it now if you need to go to court shortly.

 

In terms of maintenance, there are urgent ones that can't wait and there are some that can be postponed. The maintenance mentioned above are ones that don't have to be done NOW, it doesn't mean that we refuse to do them. As mentioned, tenant has not been paying rent from the very beginning. It's a lesson for us to screen tenants better next time.

In WA, landlord responsibility is to ensure smoke alarm is installed and is in working order. If it's only the battery needs replacing, there is no reason why tenants can't do it themselves.

Despite what the perfect world scenario should be, the reality is when tenants are not paying landlords are in a really difficult position. Rent money is not coming in, but mortgage payment needs to continue. The court process takes time as well and in the meantime, the rent is going further back in arrears. It is unreasonable to force landlords to decorate the house when the tenants aren't even meeting their obligations. Surely the court understands that landlords are not the reserve bank.

 

Your maintenance issues are one thing & if non urgent or they took the place as is, then that is that.

Rent, well they must pay, if it is second time in arrears, I would be dumping them too if legal, your or your PM need to work this out and follow the procedure, it sounds like it will be in tribunal to me.

 

Honestly, you need to separate the two issues because you will get a blasting in court if you take that attitude in there.

It is completely irrelevant whether a tenant is paying rent or not when you're talking about the maintenance issue. The court is not going to give you any slack. You need to figure out whether the maintenance is required under your obligations or not - leave the rent stuff out of it.

Btw, if your smoke battery needs replacing, the court will likely expect you to do it rather than the tenants.

 

If the previous tenant removed the battery, how could you ensure the smoke alarm was working at the beginning of the new tenancy?

Even if hard wired, checking that the backup battery was working would be part of fulfilling your legal obligations.
Marg

 

From lessor's guide "The yearly changing of batteries as they run out is likely to be considered household maintenance that the tenant may be responsible for if it is reasonably accessible by your particular tenant." The previous tenant only stayed for a short-term, but I will definitely keep a note for next time

I'll take your advise and we shall proceed as we see fit knowing the risks.

I'm merely trying to state facts, not giving attitudes. In such a downturn, having to meet mortgage repayments while receiving no rent is tough, let alone having to do non-critical maintenance that a non-rent paying tenant requested according to her rules and timeline. Most landlords in WA are already under water as it is, even with rent paying tenants.

There were multiple interests on the house, so surely the house can't be in that bad a condition. Unfortunately, in such a bad market none of them are quality tenants. Our mistake was to choose to sign up the "best" one out of the lot rather than having the house empty for a bit longer.

 

In the long run it would of been better to have had a Property Manager wouldn't it ?

Sounds like it's not your tenants first , she seems experienced to me.

She will win as she seems very sneaky and probably has much more experience in this than you.

Might be best now to hand it over to a PM, not sure if they will touch this now though.

 

I can see you are not from Perth. My mate just went through something very similar with a Property Manager, reputable company, Perth.

- tenant refused to pay rent
- PM moved to evict
- tenant paid enough to stop the eviction process
- tenant fell behind again
- PM moved to evict
- tenant paid enough to stop the eviction process and so on
- tenant fell behind again
- PM moved to evict
- court threw out the case as documents had not been filed in the right order at the right time
- PM moved to evict again
- tenant damaged the property
- PM finally successfully evicted the tenant leaving unpaid rent and a damaged property.

So in Perth, even having a Property Manager from a reputable firm is no guarantee of a good outcome. My mate does have landlord's insurance but not all of the costs were covered because of mismanagement by the PM. He had to recover the shortfall from the real estate company directly.

We don't know but @chibs could do a lot better than my mate.