Lease Dispute with PM

Hi Everyone,

Not sure if this has been covered before but I had look through the forums and I couldn't find anything similar.

I have a property in VIC and currently having an issue with my PM. Lease was setup about 6 months ago with incorrect clauses. I had requested for and offered monthly pool maintenance. PM acknowledged this in writing and setup a lease agreement on these terms.

Only more recently I discovered that the tenant has taken me to VCAT already as a result of failing to maintain the pool fortnightly per the lease (even though I only agreed to monthly). I'm guessing the agent represented me as I had no knowledge of this VCAT case until the VCAT order was already issued. The VCAT order requires "fortnightly pool maintenance" as it's stated on the lease (which the agent signed and not me). I only approved monthly pool maintenance and never agreed to fortnightly pool maintenance.

Now I need to submit a new VCAT case against the real estate agency. I'm just wondering during this period do I need to maintain the pool monthly or fortnightly per the lease agreement?

Thanks

 

The agent is your legal representative who has agreed (on your behalf) that the pool will be maintained in accordance with the lease ie fortnightly. You have to comply with the lease obligation to maintain the pool 26 times/yr (as opposed to 12 times).

Your issue is with the agent who has not followed your direction and your claim against them is the additional 14 pool service charges which you will now incur due to their incompetence.

 

Wow, your agent went to VCAT and orders were made without your knowledge?

I think its time to get some serious legal advice.

Is this a serious question? Not only is it on your lease, but you have been ordered by VCAT to do it fortnightly haven't you?

 

When does the lease end?
Assuming you have a copy - did you read it when you received the tenant's signed copy? Unfortunately, this part is your responsibility - you need to check that the PM has included the clauses you agreed to.
When negotiating the new lease stipulate monthly maintenance.
Advise your PM that you wish to sign all leases rather than them signing on your behalf.
Ask the PM why you were not advised of the VCAT hearing
Depending on the response from the PM - finding a new PM may be in order.

I don't have any IPs with pools. Can I ask why you are offering to maintain the pool? Is it the tenant's responsibility or the landlord's? Either way - is monthly maintenance sufficient?

 

Wow! I can't believe you had no idea about an entire VCAT case!

As per the lease and VCAT order you will need to maintain the pool every fortnight.

I would be forwarding the evidence you have agreeing to monthly maintenance to the agency Office in Effective Control/Director and having them reimburse you for the additional charges as a result. I would also be making a complaint that you have no communication about a VCAT hearing and reporting this to Consumer Affairs, plus take your business elsewhere! Really poor form, they should've found the mistake the first time the tenant complained and rectified it at their cost before it got to VCAT, and also be upfront about the error and what they've done to rectify it.

 

Its pretty serious professional misconduct by the PM on the face of it. I don't often tell people to complain to the regulatory authorities, but for this sort of thing I probably would.

If a lawyer did something like that, they would probably be struck off the roll.

 

100% agree. CAV is the way to go with this, it's a serious issue and what would happen if the tenant had been claiming thousands in compensation?! How can you be certain they're acting in your best interest to ensure the property is effectively managed and mitigate your loss in the event of a painful tenant? How can you know they're passing on and completing maintenance to avoid a compensation claim?

In my experience the situation needs to be pretty prolonged for most tenants to take it to VCAT. Complete negligence on behalf of the agent, both with the error, but mostly with no communication, action or responsibility on their behalf.

 

let me guess, if the OP complained to the principal, they will get brushed off, and ignored

I would highly recommend taking them to tribunal

 

As others have stated, need to follow VICAT order and issue a seperate case against agent for not following proper instructions.

Case against agent would be through magistrates court or relevant body.,

What you can’t do is go to VICAT and argue that you told the agent something else, they go with what is written on the lease

 

The extra 12 times of pool maintenance is a financial loss directly caused by the agent and if you have email evidence of instructing otherwise then it’s a clear case

 

Good luck with this - it is really surprising that you weren't notified about the VCAT hearing - double check they're not charging you for their attendance on your behalf as well (if they did go - maybe they didn't go, didn't pay any attention to it and the order was made in the absence of defense? What area is it in?

 

FLICK the PM and meet up with the tenants if you can to work something out.

If the tenants know you are a caring landlord, they are more likely to take care of your property and maybe even do the pool maintaineance for you in the future.

For the tenants to have gone to VCAT, the PM must have left the pool in a mess despite repeated request by tenants.

Just call the tenants and find out the real story. It could be that the tenants just had a change of plans and want to end the lease early but are afraid of having difficulties reclaiming their bond etc.. and went to VCAT as a "pre-emptive" move.

 

Yes I tried asking VCAT if the case can be re-heard, they said sit's already closed... Have to open a new case.

 

Sorry never had a VCAT case before and it's my first IP. Technically the agent did notify me but they notified me the evening prior to the day of the hearing via email. By the time I read the email it was already too late. I don't even have any documentation of the allegations/claims made against me.

 

There's still 7 months remaining on the lease. I only received a copy of the lease agreement recently which showed the error. I never signed the lease agreement (I guess the agent signed on my behalf with incorrect clauses). Will definitely be looking for new PM once this is all over.

 

I only had very short notice (less than 12 hours). I don't even have any documentation regarding the VCAT application the tenant made against me. Currently in the process of asking VCAT for a copy. I'm also in discussions with the director of the agency but he's only offering to waive re-letting fees for a future lease which doesn't even address this issue.

 

Yes I have evidence of it (email confirmation from the agent when setting up the lease). In hindsight, I probably should have requested a copy of the lease agreement to sign but this is my first property so I thought the agent would write into the lease the terms I offered given this is what they acknowledged.

 

I think the agent went but didn't act in my best interest and that's probably why they notified me so late. The PM basically said that this is what's been written into the lease so that's what VCAT followed. This is actually a different PM to the PM that initially setup the lease but they are from the same real estate agency (I haven't changed real estate agencies yet), I still think I should have been notified to be given an opportunity to present my case.

 

I certainly hope you did get charged for the VCAT apperance

 

You wouldnt have had a case to present . The correct outcome happened on the day which is that the lease should be followed. Case closed.

You having instructed something different to be in the lease is a separate case / issue. This is between you and agency, it doesnt involve the tenant. You can take it up with the principal or if you dont get a satisfactory response take it to regulatory bodies.