Notice of Termination - NSW - Advice Please

We are currently renting a property with the 12 month fixed term agreement ending on 17/05/2017.
We were informed by the property manager by telephone on 17/05/17 that they would be issuing us with a Notice Of Termination.
We then received an email copy of this notice at 5.11pm on the same day with a message that the notice had been issued by post that day.
We have since received the notice by post.
The notice states that it as been issued by post, plus email.
The notice provides for a termination date on 29/06/2017.
We would like longer to try and find another property.
Can we argue that the notice was not issued before the end of the fixed term agreement as it was issued by post (email is not specified as a recognised format for providing notice under the RTA) and therefore they have to provide 90 days notice?
What do you reckon our chances of success are?
Many thanks in advance.

 

Dear Butler,
I think you will find:
1. that the agent is allowed to issue you three weeks notice in the last month of your lease.
2. registered post is legal.
At the moment I would be looking as hard as I can because going into winter tehre may be more negotiating power for you in your mew home,
all the best
I hope this helps

 

Thanks SS, but not really. Under NSW RTA they must give 30 days or more (which they have given) for a fixed term agreement and 90 days if it is a periodic agreement. I know post is legal - doesn't need to be registered post. I would be trying to prosecute the argument that at the time notice was given by post we were by that time on a periodic rental (as it was issued on the last day and post can't possibly arrive the same day) and therefore notice should be 90 days.

 

If the fixed term ended last Wednesday and they didn't give formal notice until after Wednesday I reckon your on periodic? Guess the courts would see it that way.

However if they want to get rid of you, for whatever reason, is it worth trying to hang-on, they've given 6 weeks, like SS said its winter, best time to be a tenant looking. If it takes longer, whats the PM/owner gunna do about it

 

Thanks WestOz, I'm not trying to hang on for the sake of hanging on, just hoping for more time to find a similar property and they don't come up that often. We are on acreage on the northern beaches of Sydney with a 200sqm shed and two sea containers full of stuff Alot of the rental stock doesn't suit and the longer we have to look the more chance we have of finding a property that suits. In addition I'm o'seas on business for a couple of weeks which doesn't help. 90 days would just take the pressure off. Were happy to buy also and again a suitable prop would be more likely to come up in 90 days than 40 odd.

 

@The Butler - I'd also agree that notice wasn't recieved by post (their selected method) until 4 days after expiry. Email is not accepted as notice unless it is in the conditions. Unless they hand delivered notice on the last day, notice was not served correctly and this is poor form by the agency.

As the lease has rolled onto periodic, confirm that the notice has been received however it was served outside of time and 90 days notice is required.

The agent will need to serve notice in the appropriate manner to get you out by spring.

 

Thanks No Mates, This is where I was going. I will give it a go and see what happens.

 

So to confirm:
Lease expired the day before you were served notice.....
perhaps its net even valid because it only gives you a matter of weeks?
One way or another this certainly is one of the hassles of being a renter...
All the best

 

What is annoying though, to both Landlords and Renters, is the seemingly simple task of following the rules seems to be so hard for many PMs.

I can't see how they can do this and expect it to work, it sets the scene for a poor relationship from now on.

 

My NSW PM hand delivers termination letters so there's no arguing over what date a letter was received and to avoid whether people wish to accept email as a valid form of providing notice.

Whilst I don't know if the Residential Tenancies Act contains a ruling on the use of email as a legally binding form of communication, I do know that in the corporate world emails stand up in court so I'd be surprised if email wasn't deemed acceptable.

 

You can't argue on grounds of not having enough notice.

What you can do is refuse to leave, that will trigger a breach notice for failing to comply with termination of lease. A tribunal hearing will result in a baliff eviction. Doors will be locked and that would be the end of it. Reebtering the premises after that is unauthorised entry and a police matter.

The process of non complience to baliff will give you from a few days to a few weeks depending on how on the ball the agents/ tribunal is.

Btw I'm not recommending this - it will get you in trouble, but it will give you extra time.

 

Re- entering!!!!

 

You're fine - you have 90 days.

Details about giving a termination notice in NSW: Giving_a_termination_notice

How to serve notice: Serving_notice

Specifically:

"
Counting the days for giving notice is set out in the Interpretation Act 1987, which covers all Acts in NSW.

Days in the notice period (eg. 14 days) are calendar days, not working days. All days of the week are counted, including weekends and public holidays. However, the day on which the notice is served is not counted.

Example: If a tenant faxes or hand delivers a 21-day termination notice on 1 February, the 21 days are counted starting from 2 February. The 21st day is 22 February.

If notice is sent by post, an extra 4 working days has to be added to the notice period. Weekends, public holidays and bank holidays are not counted in the 4 days.

Example: If a landlord posts a 14-day termination notice on Friday 4 February, the 4 working days for postage starts on Monday 7 February. The notice is considered to have been served on Thursday 10 February. The first day of the 14-day notice period starts on Friday 11 and ends on Thursday 24 February."

So - your agent posted the termination notice ON the date 17/05/2017. This day isn't counted. Four working days must pass - so today 22/05 is the end of those four working days and TOMORROW is the start of the countdown on 90 days.

Write back, tell them it's 90 days and will need to be served correctly. Go to tribunal if they argue. You have all the evidence you need to win.

 

This isn't so much as inadequate notice but a defective notice. NSW Act provides for specified methods of delivery (Part 12 S223) with the OFT sample letter allowing 4 days for postage. If the notice is defective, the Tribunal will find in favour of the tenant and make the agent serve proper notice ie 90 days (+ postage).

 

Oh, and I wouldn't bother to notify them quickly of their screwup. Give them two or three weeks then drop it on them - get yourself extra time.

Keep the letter and the postmarked envelope for the tribunal.

 

Thanks Emza,
Having read the same webpage this was exactly the way I viewed the situation.
However I was a little worried by the wording in the examples above where it states that 4 days must be added to the notice given if posting. I was unsure whether that meant that simply 4more days must be added to the amount of notice given or whether notice is deemed as given 4 days later and therefore in our position given whilst in a periodic lease resulting in 90 days notice requirement.

 

Agreed this was my plan.
However one small kink. The envelope doesn't have a postmark, making me believe that it may have been hand delivered to the mail box. My understanding is that this still counts as posted - not hand delivered as hand delivered must be to a person. Therefore I believe the the 4 days still applies. I can't tell when it was delivered to the mail box as we didn't check it til Friday evening. So sometime before then.

 

I think it is odd that email isn't included as a notification method - if there is a verified email address.

 

It's not an accepted method of service of notice unless it is prescribed in the lease/legislation (retail leases are the same, varies for commercial leases but fenerally not accepted).

It will need to be determined by the tribunal member who should ask for the postage log (record of all mail sent by agency). If it was hand delivered it may debatable as to when it was served.