Eviction of tenant - condition report

A friend of mine is about to be evicted from his unit in Victoria. It seems that everything has been done according to law. Point 9 of the Reason for notice to vacate says:
"268(1) Notice by mortgagee. I am the mortgagee and am entitled to possession of, or to sell, the premises under a mortgage entered into before the tenancy agreement was entered into."

The 28 days is fine, just over five weeks.

The issue I have is with the REA PM, who have done a few things that are suss. The property had a number of condition items that I photographed and detailed in a report, which I had witnessed. My friend likes to do things on his own and could not see that having another person review the condition report would be good.

I expect the PM to cite damage and claim part or all of the bond. However, there are indications that the property will be demolished and a new block of flats will be built. If so, the condition report is irrelevant.

Does anyone have any idea how the RTBA will go on this? We could go to court, but it's a pain. Also, is there a public record of approved plans or permits that I can see, and if so, where do they live? Local council I expect. TIA.

 

Mortgagee possession? Can't say I've ever seen a mortgagee give a toss about arguing the condition of the property.

Is the PM even party to the situation anymore?

 

If the ingoing condition report varies to how your friend left it, there's a case to dock his bond regardless of what happens to the property.

However, the civil tribunal may take this into account if your friend files an application to contest the bond deduction. Also if you have evidence that damage existed before and the property condition has in fact not changed.

Agents hate going to tribunals, lots of paperwork (an inch worth) and a time hole from my experience on the other end as a landlord.

dunno if this helps.

 

I do not know. I'm attempting to cover as many options as possible.

This is my hope. I'm familiar with the court process, and can make it as painful as possible for the LL. However, if I can show that the place is going to be demolished then it adds weight to our case.

 

No point speculating endless scenarios without finding out more. Tell your friend to get in touch with the mortgagee - find out if they are effectively the new owner.

Not sure if Victoria has specific mortgagee possession provisions like WA does off the top of my head, but maybe start looking there.

 

What Zoolander said.

Tribunals will take all factors into consideration and may discount claim costs owed by tenant to landlord based on demolition and repossession.

This should not stop the agent from backing up the landlord as much as possible.

 

Council website usually has a record of DA/CC lodged and approved. Some council's sites are better than others.

Does the council usually put a notice on the property to advise of a DA?

 

Thanks for the posts. I'm going to contact council tomorrow. Their website has developments awaiting approval, but I cannot locate any list of ones that have been approved.

 

The notice that's been served isn't for demolition/development, but for the mortgagee taking possession.

If the condition report was filled out and returned to the agent within the 3 business days this will be the copy on file. If the condition of the property is the same, less wear and tear your friend will be fine. If the PM takes your friend to VCAT, just make sure you take the condition report and they can decide on whether the property is up to a reasonable standard or not.

 

This. @Burramys do you understand this part and the implications?

Depending on the exact circumstances, the owner might not be the owner anymore, and the PM therefore not the PM anymore. Your friend might have to deal directly with the mortgagee (so the bank or lender).

I don't know what this talk about councils and DAs is about.

 

At this stage I'm attempting to gather facts and see what the situation is. Until then there's too many options to consider. If the property is to be demolished and the owner denies part or all of the bond, then there should be a good case in court to have the holding of the bond overturned. The lease with with a REA PM, acting for the LL. If there's a new owner then the contract aka lease should still be valid. Council did not return my call today.

 

Why do you think the property might be demolished?

 

This might not be true at all. Its not true in WA, and not at common law either.

 

Something the agent said. Also, it's in a prime position and the rooms are not well laid out. This is a big block, 1-200 rooms on two levels, many stairs, courtyards, walkways and corridors.

I hope to clarify this point.

 

But why would the agent even be acting anymore? You don't seem to have told us the whole story...

Who is the original owner anyway? Did they own the whole complex? Otherwise I can't see how a mortgagee possession would in any way equate to a sudden demolition.

Quite the opposite - every single mortgagee possession I've seen has taken at least a year or multiple years before anything was done with the property.

 

Why would the lease still be valid? The landlord that the tenant contracted with no longer has the power to grant a right to live at the premises... because they don't own the premises anymore.

Meanwhile the tenant has no contract with the new owner of the land.

Genuine question here - do you understand what "mortgagee taking possession" means? It doesn't sound like you do because really its quite a simple solution to this matter I've suggested (talk to the new owners).

 

You need a new abacus.

 

I'm still gathering information, and am unsure of several aspects. All dealings were through the PM. I do not understand what "mortgagee taking possession" means; perhaps someone could enlighten me. The notice was dated 24 April, 7 days to 30 April, plus 28 days in May. Five weeks.

 

99% of the time, it means that the bank is foreclosing on the property and now effectively 'own' it, probably with a view to selling it at auction in the medium term future. The bank being the mortgagee.

Does that all make sense now?

Its kind of suss that the dealings on the issue are through the PM. Why would the PM be issuing the notice? They represent the 'former' owner after all.

The mortgagee matters I've seen, the solicitors for the bank dealt with these sort of things.

 

The notice to vacate was signed by a person who is with an investment organisation. It's unclear how this organisation relates to the PM. I'm not sure that it matters.

CAV has advised that the Act is quite long (which I knew) and that the CAV renting booklet has only the main reasons for giving notice to a tenant. I suggested that a line be added stating that the list cited only the main reasons and that more are in the Act, but this is too hard. Pity.

CAV conformed what I thought to be the case - the notice is legal.