Selling my IP vacant possession, tenant doesn't want to leave, buyer wants to take me to QCAT

Discussion in 'Legal Issues' started by Jat, 29th Jan, 2019.

Join Australia's most dynamic and respected property investment community
  1. Jat

    Jat Well-Known Member

    Joined:
    6th Jul, 2015
    Posts:
    91
    Location:
    Sydney
    All notices to the tenant were sent properly and on time. We have the hearing in a few weeks, this is Beenleigh, my PM says that it may take 2 weeks from the hearing that the police will kick the tenant out. Not sure about Beenleigh times though. I'm hoping they don't exceed from that timeframe.

    Thanks
     
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,667
    Location:
    Australia wide
    I get it now. You meant to write 'can you sue the tenant'???!
     
    qak and The Y-man like this.
  3. iloveqld

    iloveqld Well-Known Member

    Joined:
    11th Jan, 2017
    Posts:
    905
    Location:
    Brisbane
    Yes, or is there any ways to protect the investor in the OP’s case?
     
  4. D.T.

    D.T. Specialist Property Manager Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    9,189
    Location:
    Adelaide and Gold Coast
    I think sue is the wrong word. Assuming all notices are legit, tribunal may award outstanding rent, rent for the time overstayed. Could potentially ask for the late settlement costs incurred as a result of non compliance with notices - no idea if that would fly as i haven't seen that before. Also keep in mind tribunals are tenant biased and / or random.
     
  5. Yson

    Yson Well-Known Member

    Joined:
    4th Jan, 2016
    Posts:
    361
    Location:
    Sydney
    That's why when I sell, I always put a clauses stating in case the tenant didn't move out by the settlement, we will take active action to resolve and if still cant resolve by x weeks, then can negotiation again etc.
     
  6. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,414
    Location:
    Gold Coast
    Tenants can have a funny mindset!!! :D

    With our first IP (bought in 1992), our first tenant was there for 8 years and were the ideal tenant - paid rent on time, looked after the property, etc.

    Then one day, they decided to stop paying rent. When asked why, they said they had paid enough (over the last 8 years) :eek:.

    We turfed them out ;).
     
    qak and TMNT like this.
  7. TMNT

    TMNT Well-Known Member

    Joined:
    23rd Jul, 2015
    Posts:
    5,572
    Location:
    Melbourne
    To claim for lost potential business opportunites, seems a big stretch of imagination,
    Maybe a lawyer could advise
     
  8. d_walsh

    d_walsh Well-Known Member

    Joined:
    23rd Mar, 2018
    Posts:
    164
    Location:
    Australia
    Ambit claim. Yes damages / lost earnings notoriously difficult to prove and then to quantify (even with expert reports), but fails at the first leg anyway - nothing OP did caused damage/lost earnings to the business. It was purchaser’s choice. Also needs to be a direct nexus or a reasonable or foreseeable indirect one.

    That potential claim was not an original contract term, business was not even a party to contract & claim seems an unreasonable link.

    From my experience, but seek legal advice if you want to be sure. Or commercially - get tenant out ASAP and try postpone negotiation of damages claim to the end. Or offer to return their deposit as full and final settlement if you feel resell risk is acceptable once tenant vacates?.... don’t forget it will also cost purchaser money to go to QCAT...
     
  9. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,788
    Location:
    Perth, WA
    I don't agree with this - I can see a real risk. OP is potentially in breach of contract in a big way and on the face of it, loss of income from not having use of the premises doesn't seem too remote to me.

    Still a lot of variables, but I wouldn't be discounting the risks so easily.
     
  10. d_walsh

    d_walsh Well-Known Member

    Joined:
    23rd Mar, 2018
    Posts:
    164
    Location:
    Australia
    Agree OP’s in breach of contract. But claim from business is an ambit. It’s not loss of income from not having use of premises, purchaser turned away work so has time to renovate. That’s a material difference. I’m addition to prior post, other significant issues I see:

    1. Renovating the house doesn’t generate income so purchaser didn’t expect income during this time anyway, meaning no income actually lost.
    2. Purchaser would need to prove work was actually there and he would have won it, and then quantify the profit (challenging + expert reports are expensive, min $15k for a very basic one. Basic by nature is easily open to rebuttals).
    3. There are also rules about notice. Seems purchaser didn’t put OP on on notice of potential business claim until conveniently after the fact (aside from proving business is entitled to claim in the first place).

    I see lots of problems with the claim.
     
    D.T. likes this.
  11. Jat

    Jat Well-Known Member

    Joined:
    6th Jul, 2015
    Posts:
    91
    Location:
    Sydney
    Thank you all for your answers it helped me to have better idea on the different options.
     
    TMNT and D.T. like this.