Rent Arrears - Why isn't agent sending Notice to Leave?

Average tenants have been in nearly 3yrs. Not sure how but the rent seems to gradually fall behind every year or so by a week or two and I queried agents and was told they had sent breach notice to tenant. A few days later I was told they had arranged a payment plan with the tenant of $100/wk to catch up. I have been in touch several times since and I think the agency is confused about the arrangement they set up without my knowledge, as they refer to it as both fortnightly and weekly in different correspondence...I'm assuming it hasn't been followed up as a weekly payment as they are always mixing it up. October seemed to be on track, then got another msg from Agent saying the tenant hadn't even paid normal weekly rent last week (due Fri23/11) and wasn't responding to any messages etc. They were then approx $800 or 2wks in arrears....apparently they were sent their third breach notice in past couple of months. Finally paid 1 wk rent only on Wed 28th after I had instructed agent send them a 7 day Notice to Leave, so agent rings me back and tells me it's there and everything is ok so they don't need to send it. I told them I wasn't happy about the pattern, they've been getting worse/increasingly unreliable and it was time to move them on (periodic lease). Agent says we'd be better off waiting for a 7 day Notice to Leave opportunity than doing the 60 day Notice and says to wait until the next Extra payment is due, if any further payments were missed they would immediately be given the Notice to Leave, and I asked her to make this clear to the tenant.
So, tenant has paid the extra payment of $100 for last week over the weekend....but did not make another weekly rent payment last Friday 30/11. The Agent tells me he made a payment last week though so this is ok?? Wasn't his payment on 28th the missing rent/towards arrears for the week before, not to mention the arrears he already had!? Does he not still have to pay the amount of rent due each week?? He is now 2 days further behind than what he was when the payment plan started 2 months ago and I pointed this out to the agent......so why is the agent telling me it's all fine, he's made his extra payment, is *only $650ish in arrears now (11 days as of today) and that they told him again any more missed payments from now he'll get a notice. to leave.....why would they be so reluctant to pursue this, am I missing something??

 

Queensland

 

Hi Pipsal,

As an outsider looking in, I would say the P.M has a somewhat friendly relationship with the tenant given the flexibility they have been shown. Either that or the P.M is somehow intimidated by the tenant or is very new to the industry.

I would contact your PM and CC in the business owner instructing that they issue a formal breach notice if rent is 7 days overdue, then following that period issue a Notice to Leave. Make clear that this is non-negotiable. If they fail to do that, I would terminate management with the agency and find a better P.M.

You must be so frustrated with this agency, but I can assure you that any P.M worth their salt wouldn't let this fly. Rent is either paid or its not, if you don't pay you don't keep the home= simples.

 

Hello? Whose property is this?

Instruct the PM that the tenant must bring rent owing up to date immediately otherwise a notice to leave will be issued. Follow up to check this is done. It is amazing how some tenants can suddenly find money when they realise there are consequences for not paying on time.

Agree with @Bradley Peet, the PM is putting the tenants’ interests ahead of yours, for whatever reason.

Or get another PM.
Marg

 

Sometimes tenants are smart (or broke, i guess) and sail underneath the amount of days needed for a notice to be sent. Eg if its 7 days in your state, they sit on 5-7 days late and you can never get a breach notice out. If this behaviour carries on, you're best to just do an end of lease notice instead so you can get someone better in.

This is why i like WA's rules, can send a notice after 1 day there.

 

It sounds to me like the tenant seems to know how to avoid staying far enough behind to receive a Notice to Leave. It's worth mentioning as well that on this pattern, even if they do fall far enough behind to send the notice- if they pay up while you're waiting for a tribunal order, you've got next to no chance of being awarded vacant possession.

If you're not happy to continue pursuing payment plans and you want them out, the best option at this stage is two months notice to leave without grounds. This does come with the risk that the tenants might stop paying altogether, but it's really your only option out of limbo right now.

 

In QLD can you issue a NTV concurrently?

Ie. Here in Victoria we can issue a notice to vacate for one reason (in your case that's 60 days' notice) but we can also issue a notice to vacate for a breach of the lease, such as rent arrears at the same time.

That way you get possession of the property back, irrespective of which notice is the one that actually does the job. Does that make sense?

As @Tom Rivera said you run the risk of issuing the 60 day notice and they stop paying rent, but isn't that effectively the same position you'd be in anyway? Might as well make sure they're out one way or another. Also Tom feel free to correct me if you can't issue two notices at the same time like you can here.

 

Thanks for the replies....I wanted to be sure a Breach notice meant the tenant should be paying all rent arrears owed, and that a part payment by one week's rent didn't count as a remedy (which is what agent has been implying) before I went back at her again!

To make things more interesting I have received another email from agent late this afternoon asking me what time I will be there for the routine inspection! First I've heard anything about it, despite all our contact over the past month....but I'll probably have to do my best to get there and check the condition now....might not be the best day to have agent send a notice to leave?? Leave that till after I've gone!

 

I've found it tough explaining/getting the message through to some Lessors that a Tenant under the Act is permitted to stay between 1-7 days in arrears and there's nothing the Lessor/Agent can do about it (short of send "reminders" about being in arrears), and also the Lessor/Agent cannot ask the Tenant to pay for rent for a period in advance save for at commencement. This is straight from my website on how we deal with Rent Arrears:

 

T

These tenants have been inarrears by up to a week (usually about 3-4 days) for 2 years and I've said nothing....now they've been continuously in arrears by 10 days minimum, and up to 15 days arrears since end of September....

 

If you're not ok with that, time to drop the hammer...

 

Speaking of dropping the hammer;

https://www.solutionsproperty.com.au/2017/02/11/dealing-rent-arrears-repeat-offenders/

RESIDENTIAL TENANCIES AND ROOMING ACCOMMODATION ACT 2008 - SECT 299 Application by lessor for termination for repeated breaches by tenant

Repeated breaches of an agreement | Residential Tenancies Authority

Very rarely used because its rarely understood. I've only gone down this road once in the last 10 years & successfully gained possession. In this case, the property was privately rented and the tenant had constantly been breached for the same offence for 12 months.

 

doesnt this simply mean, if the tenant has breached multiple for the same things in qld you can terminate them

so rental arrears, not pay water,
as long as its the same thing multiple times?

 

Not sure i understand you here. Paying a bit extra each week definitely counts as a remedy

 

Yes, if the adjudicator thinks it is severe enough.

 

SA has a similar thing with 3 breach notices and you're out... but tenants either sail under the radar by keeping 1 day short of a breach notice, or tribunal listens to their sob stories and keeps them in.

 

This is a good question- the answer depends who you ask. The most recent advice I've received from the REIQ is that I should NOT be issuing multiple F12 Notice to Leave's. Multiple F11 Notice to Remedy's are okay.

 

Interesting, I wonder why that is? They're for separate issues and should be treated as separate matters, no? I am always amused at the differences between states. Pros and cons of each I suppose!

 

I'd be doing it simply to cover bases lest the insurer says you didn't follow procedure and won't pay out etc. I don't believe it's a detriment, for example I've currently got a case where QCAT terminated the lease for repeat breaches under section 299,315 (@Bradley Peet this is one of those where 2 x Form 11's for the same breach had been remedied within a 12 month period, applied to tribunal to have lease terminated and it was granted, was actually very straight forward), whilst we're waiting for the termination they've fallen behind again, probably because they can't afford to pay rent + come up with new bond and 2 weeks in advance for their next place, so I'm following the normal breach procedure anyway just to safeguard against the LL insurer not paying out or not being able to list on TICA due to technicality/all those sorts of things.