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Tenant denied access for Photos

Discussion in 'The Buying & Selling Process' started by Jigmeister, 24th May, 2016.

  1. Jigmeister

    Jigmeister Member

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    Hi All,
    I wanted to put my IP on the market. We gave 2 weeks notice to the tenant about our intentions to sell the property. After that, my agent contacted the tenant to arrange time for photos, he has blatantly denied!
    Since then I had no choice but to give them a 90 days notice to vacate. I appreciate that the tenant does not want to be disturbed etc, however its my damn property!!
    Wondering whether any of you have experienced such a situation before or can suggest any other creative way of getting them out quicker than 90 days.
     
  2. JacM

    JacM VIC Buyer's Agent Business Member

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    The rules are different in each state. Which state is the property located in, @Jigmeister ?
     
  3. thatbum

    thatbum Well-Known Member

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    Depending on the circumstances and the state the property is in, you might be lucky to even get them out at all.

    It could be seen as a retaliatory notice towards a tenant that was enforcing their own rights, for example.
     
  4. Jigmeister

    Jigmeister Member

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    NSW
     
  5. Jigmeister

    Jigmeister Member

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    Wow really?? Even after the 90 days you mean?
     
  6. thatbum

    thatbum Well-Known Member

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    Yeah, potentially. Firstly, is the tenant on a periodic lease?

    Even if they are, and the notice is valid on the face of it, the notice could still be deemed retaliatory depending on what demands were made of the tenant, and subsequently refused.

    I hope either you, your property manager or your selling agent is across the legislation. In my experience, selling agents especially are fairly poor in this area.
     
  7. Jigmeister

    Jigmeister Member

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    The lease is expired. I agreed to give notice as per my managing agent's suggestion so hopefully they are across the legislation. My understanding is that the 90 days notice is a "no cause" notice anyway. Eitherways, how do you think this situation can be resolved without any extra headaches for both parties?
     
  8. thatbum

    thatbum Well-Known Member

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    Yes it is a 'no grounds' eviction notice, but it is subject to the provisions of retaliatory evictions as well.

    Personally I'd be cutting a deal with the tenant. You need a tenant on side if you're trying to run a sales campaign during the tenancy. Depends what your aims are with the sale though I guess.

    First preference for me would have been not to sell until the tenancy was over.
     
  9. Bran

    Bran Well-Known Member

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    Yeah, I just went through all this. Ended up taking the property off the market. I will make sure they are out before listing it again.

    Obstructive tenants
     
  10. Marg4000

    Marg4000 Well-Known Member

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    Are you even allowed to photograph possessions owned by the tenant without specific permission? It would be hard to get good photos without showing furniture etc.
    Marg
     
  11. JacM

    JacM VIC Buyer's Agent Business Member

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    If the tenant will not allow photos it is likely they will be problematic with allowing access for prospective buyers to view the property, keeping the place presentable to help show it in its best light etc. I have seen some follow buyers around disallowing lights to be turned on, refusing that the appliances be tested, denying access to some rooms because someone is sleeping in there etc. Best to find a way to wind up the tenancy and go from there.
     
    Last edited: 25th May, 2016
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  12. sanj

    sanj Well-Known Member

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    forget about what you consider to be fair, remove the emotion and make a commercial decision. it doesnt need to be antagonistic at all, both parties can be well served here.

    are you in a specific hurry to sell the property? keep in mind that if thwy move out 90 days from now it could be anywhere up to 6 months before you get your cash once you finish up with them and any potential bond issues, give the place a tart up if needed and stage it for sale, them put it on the market, get and accept and offer and progress to settlement. could of course happen earlier but youd rather budget a realistic timeline and then beat it if possible.

    if you have any [plans to use the money for other endeavours prior to the 6 month period then id come up with some agreement with them to move out earlier and you might compensate them in cash, free rent, contribution to moving costs, whatever.

    eg even 1k is realistically nothing when you consider the value of the asset youre trying to sell and a difficult tenant would almost certainly cost you more than that in terms of sale price achieved if done while theyre in there. to them however it might be a significant amount and 2/3 weeks rent free.

    this would also mean no risk of impinging on the rights of the tenant by trying to find ways to get them out earlier etc. also, if yoiu both end up hating each other youre only increasing the risk of them not looking after the prpeprty as well as before, be it consciously or subconsciously. the last thing you want is to then lose 2 weeks and more money to fix the garden and any other issues.
     
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  13. Jigmeister

    Jigmeister Member

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    Technically, no. Its a grey area apparently. The selling agent & photographer should do everything possible to not include any of the tennants personnel belonging without permission. Having said that most tennants cooperate since it is in their best interest if they would like to stay on incase an investor purchased it.
     
  14. Jigmeister

    Jigmeister Member

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    I agree.
     
  15. Jigmeister

    Jigmeister Member

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    No real rush to sell. I will wait it out. Possibly change the carpet and a fresh coat of paint before putting it on the market.
     
  16. Lil Skater

    Lil Skater Well-Known Member Business Member

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    Definitely get the tenants out before trying to sell, some people can be a real PITA and will cost you $$ on the sale price.

    Is there a notice in NSW for a NTV for sale? I would've served this one instead of the no reason NTV - but to be honest I'm not across the NSW legislation.

    I can see that the tenant may have a case for retaliatory actions by you/PM, so I would work with them as much as possible until they can no longer challenge the notice.
     
  17. wylie

    wylie Moderator Staff Member

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    If a tenant is told the house will be sold, doesn't cooperate and is then left alone to finish out the lease, isn't it a stretch to say you are finishing the lease to be retaliatory?
     
  18. Lil Skater

    Lil Skater Well-Known Member Business Member

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    @wylie IMO not in this case as NTV was served at a time in which would easily be seen as retaliatory and tenant is on a periodic lease.

    Again, not across NSW legislation, so could be completely wrong.
     
  19. wylie

    wylie Moderator Staff Member

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    Wow! So is wanting to sell the property vacant not good enough as a reason for ending a lease for some states?

    If these tenants were cooperative, they could have stayed there and the house sold to an investor. They've shot themselves in the foot. I cannot imagine them getting anywhere at tribunal, but I guess there is a risk it would be seen as retaliatory. Crazy.
     
  20. sanj

    sanj Well-Known Member

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    i suspect if the landlord had given tenant the 90 days notice upfront due to wanting to sell there would be no real retaliatory argument. in this case, if you try to take photos to arrange a sale first, which indicates youre happy to sell with tenant in place and then give them their notice when they do not behave as you would like them to the whole retaliatory angle becomes easier for the tenant to argue should they wish.

    im not saying i agree with it or that theyd automatically be successful, just that you would go from a very minimal chance to it being a possibility.

    eg, for perth "If the lessor acts to end the tenancy after you have tried to enforce your legal rights (e.g. you have issued the lessor with a breach notice) the Magistrates Court may find this to be retaliatory eviction. It may declare a termination notice to have no effect and/or refuse to make a termination order. If the lessor gave you notice of termination within 6 months of you trying to enforce your legal rights, the lessor has the burden of proving that it was not a retaliatory eviction."

    in perth you would have to give a periodic tenant 60 days notice to terminate without reason given or breach etc. in the event the property has been sold, as opposed to will be sold once tenant moves out, that notice period drops to 30 days.