Tenant in arrears

Hi everyone,
We've got a tenant who has been late in paying his rent for the past few months & as at now he's one month in arrears.
I understand that we are required to send him notice by registered mail. Will this be the same as mail with tracking number or it has to have his signature upon delivery. If it's the latter, it's impossible as he has been avoiding. What else can we do to communicate with him & prove that he has got the message?

Also he never sent back the condition report where he's required to sign. Will the condition report be valid without his signing it? I took photos but lost them when my phone was broken. Should I request for another inspection asap?

Thanks all.
Tina

 

Tina and Alex
This sounds very much like self managing!!

A breach notice does not need to be registered mail, email is ok too. It just needs to be done correctly with appropriate time frame given - or it will be invalidated by tribunal.

A breach notice should be sent on day 15 and should include all areas plus 2 weeks in advance plus any outstanding water usage payments.

Legal action after the end of the term given to remedy the breach

Condition report - after 14 days, what is stated on the report is deemed to be correct if tenant has not sent in their comments.

 

Thanks so much for a clear instruction, Xenia.
It will be end of 14 days notice by end of this week. If no payment is received I guess we will take him to Vcat after this date? With the wait of 2-3 weeks til court days, does it mean we will be deeper in arrears? And if tenant plays his game paying just b4 court day (which happened before) do we then have the hearing cancelled at our cost?

 

Hold up. If this is in Melbourne DO NOT send your notice by email!

If you're issuing a NTV for rent arrears send it registered post. This at VCAT is considered "served". Legally you can issue by email, but email communications need to be agreed upon in advance and written in the lease agreement with the email address specified. There are also other methods, but when trying to win a case I would always go with the preferred method so it's done, rather than having to jump through hoops with the member.

In terms of the condition report, the tenant has 3 business days to return the report. You should always chase it up after the 3 days if it's not returned. I always have tenants sign the report with just my comments, that way it's on them to return the one with any changes as I have one regardless - it will be up to the member whether they deem it as acceptable. You cannot do another inspection for this and the onus is on you to prove the condition of the property prior to the tenants moving in - ie. always back up photos.

Yes, the tenant will get further into arrears before you reach the hearing. You calculate the amount owed as of the hearing date, if they pay before this date you can still go to VCAT and request a payment plan or adjournment. I'd go for a payment plan/order as if the tenants breach it you can skip the first steps and go straight to VCAT.

VCAT charges can be claimed back from the tenant, but they must be stipulated in the application.

 

Sam the consummate professional, always there with the accurate advice

 

Sorry, I get kind of blunt sometimes (all the time).

 

Thanks heap, Sam, such a learning curve for self managed landlord like me.
With registered post, does it mean signature on delivery? If so will a tracking number from PO be sufficient as I don't think the postman has any luck getting tenant's signature, he's been avoiding.
Also what did u mean with NTV please?

Re condition report, tenant never sent back his comments. I followed up with him email once. Not sure what I should do now?
Does it help if I had a witness with me during inspection? Photos, another problem as my phone went dead so lost them :-((. What should I do now?

 

If you intend to continue self managing you really must thoroughly understand regulations. There are specified time frames for issuing notices correctly and other Paperwork.

You really cannot afford to put yourself in a situation where a tenant knows the rules better than you do. Some will inevitably use this to their advantage.

If you end up at the tribunal, failure to have acted correctly will almost certainly go against you.
Marg

 

Me too, you need to be, property managers are not willy wonkas, we don't sugar coat things
ok - yes some landlords need a bit more hand holding and appeasing - sigh!!!! - I hate it but part of the job too

 

Yes we are fully aware and thus trying to bring ourselves up to speed. We will probably get a PM involved next time but will need to sort this tenant out first and start fresh.
In a nut shell, lease ends 8th May and we sent him notice to leave in post (with tracking number) over 90 days in advance.
He has been arrears in rent for one month and 3 days now. A notice of breach was sent with registered post this time (the one required recipients signature) two weeks after rent was due. We will wait for another two weeks which is end of this week until we can take him to Vcat.
After hearing from others on this forum, I understand that we can take him to Vcat after another two weeks. If we allow for wait time til hearing day, he will be further in arrears, and we can go to court with calc up to hearing day and request for a payment plan.
Just want to be prepared for possible situations:
- if tenant denied receiving notice to leave, we have post's tracking number to back us up. In case court denies, can we then give him notice to end the lease on the same day. Given its month to month, only 30 days notice is required? Worst case he is in arrears but he can't stay beyond 30 days past end of fixed lease?
- if tenant is still not paid til hearing day, we can request him to leave and terminate lease before end of fixed lease?
Can I pls confirm if I understand the regulations correctly?

 

Sounds like you have 2 separate notices in play
1. Notice to vacate - end of fixed term tenancy
2. Notice to vacate - rent arrears
Provided both have been correctly issued (notice period correct & postage time calculated correctly) both can be acted on

If the tenant fails to vacate at the end of the lease you can apply to VCAT for a possession order

If the tenant has not paid rent since you issued the NTV - quickly make a VCAT application for possession based on this notice today, you dont need to wait another 14 days to make the VCAT application. Once the postage period has passed and the tenant has not paid rent you can make your application then just wait for the hearing date. Waiting the 14 days will delay the hearing date.

Are you sure the tenant is still living at the property? They may have vacated as per the NTV - rent arrears. This happens, your notice states you must vacate by XX date or pay rent. They may have taken the option to vacate?

 

Yes 2 notices and yes he is definitely still occupying the property.
We checked the NTV for rent arrears and it is still waiting for collection after 14 days since we posted. If tenant doesn't want to collect the notice, what can we do to serve this notice to him?
I will check where the notice to end lease is at. It was sent out in February with tracking no but no signature on delivery required. Can it still deemed to be served?

What can we do to end this lease at the earliest?

 

Maybe try express post as well. That is definitely trackable and I've had letters left in my mail box before.

A courier could be a back up option. Maybe put it in a box to confuse him into accepting it

 

It will be deemed served once the legislated postage period has ended irrelevant if the tenant chooses to collect the registered mail or no. Provided you have the proof of postage. VCAT will want to see the proof of postage (registered mail document)
We also send a copy via normal post & email but the registered mail document is the evidence VCAT will ask to see
So no need to wait until the tenant has collected or signed for the notice

 

Thanks Sharyn. Will it be sufficient to give Vcat the tracking number tag (seller to keep)?
Cheers

 

Yes they just need to see the registered post slip that has been stamped by Aus Post for proof of postage

 

I would do both, plus SMS and phone call & put it in notes For any state....

PS Oh, I am not a PM........yet.......

 

I don't think there's much to add to the above, nice to see another Melbourne PM knows what they're doing - hi @Sharyn C!

Just make sure you have your bases covered when you get to VCAT and have your summary of proofs up to scratch.

If you're not sure what you're doing, you might be best to have a PM help do the VCAT process. It'll cost you a little bit; but will save stress. Otherwise if you find a PM to use going forward I'm sure they'll be happy to help you through the process.

 

thanks everyone for chimming in, it was much appreciated.
Just an update from Vcat session we went to over a week ago, we went to court with all supporting evidence of communications as suggested; tenant was given an order to pay rent and he did have his payment up to date by now.
His fixed lease will end in a weeks time and we have given him sufficient notice to leave (120 days), also got a tracking number here in case he's not leaving on the day.
I believe we don't need to give him any other notice closer to the date?
Given all the incidents going on, what would be the best way for us to get our key back from tenant, ie. in person or instructing him to leave it in an agreed spot?

cheers
Tina

 

You won't need to give him another notice, unless he fails to give vacant possession - but you cannot apply to VCAT before the end date on the notice anyway.

For what it's worth, be careful when issuing 120 day notices as they're for "no specified reason" and VCAT do not like retaliatory notices. The tenant has 60 days to apply to VCAT should they feel the notice was served incorrectly.

I would just ask that the key is left inside or in a designated area as I would suggest changing the locks regardless.