VIC Notice to vacate as selling, but then re-renting

Hi All

I understand in VIC if you serve a notice to vacate on grounds of selling, and then that sell does not happen you can re-rent, however you have to wait 6 months before doing so. Does anyone know when that 6 months starts?

I have seen general guidance online which seems to indicate that the 6 months starts after the tenant moves out, but I found the following section from the rental tenancies act which indicates that the 6 months starts from the date you "notify" the tenants.
RESIDENTIAL TENANCIES ACT 1997 - SECT 91ZZH Prohibition on letting premises after notice

The reason why we want to re-rent is because we now want to ride out the property market for some gains and actually sell in the future. And I rather not offer the tenants to keep staying as they have been an absolute pain in the ass to deal with, to the point that my PM left.

To make things even more complicated, because I am a NSW resident, VCAT is not able to assist me.

Thanks in advance

 

Reading the section, it appears to run from the date of the notice.

But are you talking about giving the notice and not actually selling or listing immediately afterwards? I'm pretty sure that's an offence under the Act.

 

Based on the words in the act, I read them exactly as you are: it's 6 months from the movement you gave the notice.
I don't think nothing stops you from giving the notice 6 months before the end of the agreement, as the act defines minimum notice not maximum.

However, bare in mind that as soon as you do issue a notice, the tenant can, from the moment of the notice, to give you a notice of intention to vacate which 14 days (as far as I understand):

RESIDENTIAL TENANCIES ACT 1997 - SECT 91ZB Reduced period of notice of intention to vacate in certain circumstances

and

Renters giving notice of intention to vacate

I'm not sure it's an issue, as you'd like to get rid of them, but should be taken into account.

 

It's from when it's served, however if the renter is still in occupation of the premises and you have no plans to sell the property immediately after they vacate the notice would be invalid.

 

For a couple of $ list the property on a for sale by owner website & pay for a sign. Price by negotiation.

Pull the advert a week or two later.

Satisfies the criteria. Tick.

 

I'm not the OP, but I'm sure many in VIC are now interested to know their options, given the "no reason" vacate notice is gone, let's assume the OP has an intention to sell in the form of engagement with a REA (whatever deemed as proper documentation for this kind of notice).

But then, after the tenants leave, couple of weeks later - the OP decides the market is hot and they wanna ride it, so they are waiting with the sale.

The OP can then re-let the property as they served the notice 6 months before.

It's cheeky, but would that work?

 

I guess that's what we're trying to establish.
If the act is written that way, and someone uses it as a loophole - then it's totally legal.

Totally agree.
For me, this and the 3 times the tenants can be in rent arrears without any conciseness, are the worse parts of the new rules.
Giving so much rope to those tenants who'll for sure use it.

 

No my case is genuine. I wanted to vacate them late last year because I felt it was not worth the headaches and just wanted to sell. Now that I am seeing some capital gains, I want to hold it longer. My PM did not give a formal notice last last year which I found out early this year, and shortly after I gave a formal notice. This was well before me seeing the property market heating up.

Although I do see that this could be a loophole for landlords to get tenants out.

 

Already done early this year as I was genuinely looking to sell the property.

 

I'm not sure what you mean? A genuine change of mind?

Why does that matter?

 

@Lil Skater @thatbum - as the OP does not reside in Victoria, can VCat take any action against them? IIRC VCat was barred from dealing with interstate matters.

 

It does not matter. I was just clarifying that I am not going out of my way to give the notice to vacate on the basis of selling just to kick them out. It just happens to be the case for me that I wanted to sell, genuinely, and now I have changed my mind.
I understand the law is the law and there are loopholes for the taking, and no one really cares about genuine intent.

 

Shrug, I think there's some legal relevance to having a genuine change of mind. Maybe for prosecutorial discretion and sentencing. It doesn't seem to be a defence though.

Does this mean you're going to tell your tenants you've changed your mind and you're withdrawing your notice?

 

Exactly; law is law.
If the act is asking for the LL to present specific proof for their intentions, and the LL fulfil those, if later down the track the LL change their mind (after 2 weeks on the market or after 2 months - the act has no definitions) - not much VCAT can do.
VCAT cannot override the act, they can only use it in their decision.

How exactly the member is going to substantiate the LL didn't genuinely sell the property if they put it on the market (realestate.com or whatever) and even accept an offer or two?

Don't forget that for VCAT to even deal with it, the ex-tenants would have to apply to VCAT.
That means opening a case, pay for it, wait for months for hearing (with the current backlog) and then get nothing in return, but maybe get their ex-LL in trouble.
That means someone with lots of time on their hands, money to throw away and huge sense of revenge.

 

Why would they get nothing in return? A tenant that was unlawfully induced to leave on a false notice could potentially claim for damages arising from that conduct. The claim could be in the tens of thousands because of things like moving costs, general damages for loss of enjoyment and inconvenience, and the financial loss from having to pay more to live somewhere else comparable.

Separately, the conduct could also be reported to CAVs who could prosecute the offence on a criminal basis - so there might be fines and legal costs on top.

 

Sounds very scary.
Since you're in the trade, teaching and all - do you have a link to such case to show that it's not just things you claim can happen, but really DID happen?

 

You don't believe me? Why not?

 

Cause you never hide the fact you're advocating for tenants, and both here (to lesser degree) and on WP (much more) - you are tend to present the law or rather the interpretation of it in xCAT as being to the tenants side.
I have no doubt your legal knowledge is better then most, but it seems you tend to use it in a way to scare LL (sorry, "rental providers").

That got a reassurance when you responded to my own posts, where I describe my own ordeal with my tenants and your response was "I'm not sure he's telling the truth. Sounds strange".
I don't know what tenants advocates do, but if they can somehow claim that tenants who punch a hole in the ceiling to install coonara without asking permission is an ok modification and that LL should accept it, then I guess such advocates are not a reliable source for anything.

I don't subscribe to the scare campaign and take your posts with grain of salt.

when I had to delve into the act due to the fact I'm self managing and my tenants are trying to use the act against me lately, I thought, based on posts similar to the ones you did, that VCAT is gonna be all over me to save the poor tenants.
So I went and read VCAT decisions and found that it's far from reality.

VCAT tend to not evict tenants, mainly families and venerable ones if they have other way - yes.
However, they do not side the tenants nor they will always look at the LL as the one who's at the wrong.
There are many cases that VCAT provide possession orders or rule against the tenants. And many that it was the other way around.

In most cases - it was pretty clear who's doing the wrong thing and most of the times - the member got it right.


If we go back to the topic here, yes - it is a loop hole and if someone resort to serve a notice to vacate due to sell, 6 months ahead, to be able to just evict without selling - it's not what the act meant to happen, but since the act removed the option to remove tenants without specific reason, in some edge cases - I'm not going to be surprised if someone will sacrifice a month rent and some $$$ to present it as if they mean to sale, but change their mind.
It'll be cheaper then using the "moving in" and be banned from re-letting for 6 months.

At the end of the day, when you have ****** tenants - you will do whatever you need to get rid of them and move on. Even if it means losing rent.


Hence I asked if you have some source others here can look at to see that your scary outcome is something that happened or is it your hypothetical interpretation of the law.

 

Yes I recall your thread and remember thinking you were either exaggerating or leaving out facts to make yourself seem more hard done by.

Yes one of my day jobs is regularly acting on behalf of tenants in court. It seems pretty odd that you somehow take that direct job experience as somehow making me a less credible source of tenancy law information.

So putting 2+2 together... are you someone who's willing to fudge the facts or law to support a personal bias of yours - and assume that I'm the same?

I don't think a lawyer that did that would last very long. And an academic teaching law even less so.

No cases exist on that specific provision. It should be pretty obvious why.