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Getting some legal insight regarding a tenant that wont leave

Discussion in 'Property Management' started by Tenex, 21st Oct, 2015.

  1. Tenex

    Tenex Well-Known Member

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    I have a tenant currently that has a standard NSW fair trading type contract via my PM.

    His original contract finished at the end of August. He is a builder and he is building a house for himself which has been delayed apparently.

    I spoke with him regarding a development project before the end of his lease and while we were on the phone he asked me if he can stay until the end of October once his lease has expired. I told him I will have a think and come back to him. After thinking about it that day I personally SMSed him and told him it is unlikely I can allow him to stay as I have paid a builder to do some renovations for me on this property. This SMS went in before the end of his lease.

    He then complained to my PM as to why I am SMSing him about his expiry while there is a PM. The PM asked me not to sms him again which I complied.

    The tenant then asked to stay until the end of October and when we said no he said because his lease has already expired he has 3 months notice any way. We agreed that he stays until the end of October as long as he will definitely be leaving and he agreed to this (all of this happened back in September).

    Now October has come and he has said he needs until the middle of November as his house is not ready. After a few back and forth the PM asked him to agree to staying until middle of November as long as he pays rent all the way till end of December and also he puts it in writing that he will definitely be leaving by middle of November.

    Tenant initially agreed to this but now again he has come back kicking a fuss and says he will want to stay and within that 3 months period of time notice that he is apparently entitled to he can leave at any point.

    He is also apparently in default in terms of paying rent and he says he has called electricians and plumbers to fix things etc which we have never heard about.

    The PM has been proactive and he has asked me to send him a copy of this SMS (that I explained above) and he is saying in the best case scenario we may be able to take action within a month before we get anything legal to get him out of there.

    I am frustrated as I have paid deposit to a builder and these renovations must happen as soon as possible. Also as we are approaching December, finding another tenant is going to be a pain. Also anything that the builder does will require the private certifier to inspect and issue occupation certificate which delays things even more.

    I am insured with EBM for landlord and building, not sure to what extent they will cover me.

    Looking back, I probably would have taken action when he decided not leave to start with, but now I have to find the best possible way to salvage this situation.

    Any thoughts, especially in terms of the legal parts of this situation and what can be done to speed up the process would be appreciated.
     
  2. DaveM

    DaveM Adelaide Buyers Agent & KFC Strategist Business Member

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    If you have given him 90 days no reason termination under a periodic lease that is correct, the tenant can move at any time and pay rent until possession is handed back only.

    Issue a 14 day arrears notice and terminate the lease, this is a seperate notice period to a 90 day ntv and can be served in conjunction (and timeline overrides)

    If he has had issues and not reported them nor claimed them as emergency repairs, then you have no liability for these costs nor can they be used as a reason to withhold rent.
     
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  3. Tenex

    Tenex Well-Known Member

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    We have not given him a 90 days notice in writing, the notice we sent to him in writing (a few days after lease expiry) stipulated that he has a month to get out based on the verbal agreement we had made with him. He then decided to change his word on this. Will the one month notice that was posted to him hold as a 90 day notice or should it specifically stipulate 90 days?

    We are trying to see how many days he is in arrears and based on that issue the notice however the concern is if he pays the rent between now and when Ncat reviews the case

    I was also hoping that based on the fact he is saying he has called plumbers and electricians to fix things, perhaps we can take action that he has made alterations without informing us.
     
  4. Scott No Mates

    Scott No Mates Well-Known Member

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    You missed the boat. If you served notice during the lease 21 days notice would have sufficed but notice was sent post expiry so 90 days is required.
     
  5. DaveM

    DaveM Adelaide Buyers Agent & KFC Strategist Business Member

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    To be honest your manager should know this, and if he/she doesn't, then they should be sacked. The governing legislation is the tenancy act, someones word means nothing unless documented. Your agent, when push comes to shove, has not given correct notice and it is void. 90 days starts from when you serve correct notice.

    Now you are on periodic, you can do one of three things

    1) Issue a 90 day notice to vacate, during which tenant can move any time (works for you)
    2) Issue a 14 day breach notice for arrears and then apply to NCAT for possession
    3) Wait until you get a 21 days notice to vacate from the tenant
     
  6. Tenex

    Tenex Well-Known Member

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    @DaveM

    Makes sense, not the best situation to be in. I trusted the tenant because I thought he was a man of faith. He had no previous tenancy history. Ah well.
     
  7. EN710

    EN710 Well-Known Member

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    @Tenex

    Sounds like the 14 days notice would be the quickest for you?

    Lesson learnt at the very least. No matter how much you trust the tenant, make sure all formal process are followed. If he is in arrear, issue the notice. This way you will have paper trail of his arrears.
     
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  8. DaveM

    DaveM Adelaide Buyers Agent & KFC Strategist Business Member

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    I recently had business dealings with a man of faith to buy his business. A man who's new calling was to move overseas open a mission in Mexico.

    The amount of lies, deception, backhandedness and evasiveness led me to withdraw my offer. For all his faith and religious doctrine, he was one of the most untrustworthy and unethical people I have ever done business with.

    Moral: trust nobody, and even when its in writing, trust nobody and assume everyone will take the opportunity to screw you over.

    As a side note, his business is still for sale.
     
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  9. sash

    sash Well-Known Member

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    Gold!

    Put everything in writing in business.....money corrupts most people
     
  10. Perthguy

    Perthguy Well-Known Member

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    It wont matter if you have something in writing if the person you are dealing with is unscrupulous. Anyone can breach a contract. The problem is that it might cost more to take legal action against that person than the contract is worth. I had a family member go through this, coincidentally also with a 'person of faith'. It would have cost more to take legal action than the amount that could have been recovered. He ended up losing a lot though. Bad situation all round.
     
  11. sash

    sash Well-Known Member

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    True......and agree about people of faith...some of the biggest hypocrites.
     
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  12. htopg

    htopg Well-Known Member

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    We are all good landlords and we trust and treat tenants well.
    Whether tenants will appreciate and treat us well in return is another story.
    I know there is a caring landlord whose tenant (who is about to be evicted due to constant late rent) is trying to use the mistake in contract to argue that he has paid double the rents.
     
  13. D.T.

    D.T. Adelaide Property Manager Business Member

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    What goes around comes around :)
     
  14. Xenia

    Xenia Adelaide Property Manager Business Member

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    You cannot ever be dependent on the promises of tenants - legal forms, bailiffs use the law not trust.

    How did this end up anyway?
     
  15. dabbler

    dabbler Well-Known Member

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    Why were you speaking to and SMSing a tenant when you have a manager.

    I think you were setup, they had a plan not to leave IMO.
     
  16. ashish1137

    ashish1137 Well-Known Member

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    Hi
    I hope the issue gets sorted out quickly.

    I have a small issue of my own. I was staying in a 3 bedder which i took for 450 per week. When I moved in I noticed a lot of issues in the property.

    I asked the agent to get them repaired. After delaying it by almost a month, agent came back saying owner wants to knock down the house and I have to leave at the en of tenancy. This is also a reason that the owner would not spend anything on repairs. Since I had explicitly asked this question and the agent refused at the start of tenancy, I asked to leave the house in the midst of lease period.

    Owner agreed but i left just before 3 weeks of the lease completion.

    My question here is: one of the many issues were leaking taps, toilet tanks and high water pressure in the taps. This is not in accordance with fair trading conditions and i refused to pay the water charges. The agent proposed if i would like to pay 50% of the usage.

    As per me, morally, I should. MaY I have thoughts of the members here?

    Regards
    sorry for the long post.
     
  17. SeafordSunshine

    SeafordSunshine Well-Known Member

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    leaking taps, toilet tanks and high water pressure in the taps.
    Dear Ashish,
    there should be something in your lease about the Water. It should say something like if the taps flow less that 7 litres per minute the you HAVE to pay... if not,,, well guess! :eek:
    I hope this helps,
     
  18. D.T.

    D.T. Adelaide Property Manager Business Member

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    Hiya
    Presumably your lease suggested you pay for water usage? Were the water issues you mentioned reported to them in writing at time of occurring? If not then you'll be up for the whole bill. Otherwise 50% of water usage sounds fair.

    A tribunal can ultimately decide, but in everyone's best interest to negotiate and agree. They did let you out of the lease early.
     
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  19. Scott No Mates

    Scott No Mates Well-Known Member

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    High water pressure can be solved by turning the stopcock at the water meter.
     
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  20. Azazel

    Azazel Well-Known Member

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    Could be used for problem tenants as well...