Utilities arrears and eviction qld

Discussion in 'Property Management' started by TMNT, 27th Nov, 2017.

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  1. TMNT

    TMNT Well-Known Member

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    Just a few pointers please

    We have tenants who have recently over the year pay their rent just barely on time.
    It he meantime their utilities arrears have hit 1k
    Theyre not following the payment they agreed to

    Agent says they cannot be evicted for utilities unless we give them the 60 or 90 day notice.

    If this is true. What can be done.
    It's gotten to a point where our threats for eviction are getting old :)
     
  2. DaveM

    DaveM Well-Known Member

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    By utilities do you mean consumption like water usage, or is the rental inclusive of power etc?
     
  3. Tom Rivera

    Tom Rivera Property Manager Business Member

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    Can you clarify what you mean by utilities- are you talking water?

    They can be breached for items like overdue water, but the courts don't like it, especially if the rent is being kept up to date. In addition, you can only receipt funds to invoices other than rent if the tenant specifically indicates that is what the funds are for.

    You also have to keep in mind if the tenant is really clever they'll argue that you're being vindictive when you issue the two months notice to leave without grounds (assuming end of lease), in which case the tribunal may overturn your notice.

    It's a potentially difficult situation and you may need to rely on your agents expertise to navigate the best possible option.
     
  4. TMNT

    TMNT Well-Known Member

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    yes, the utilities are water in question,

    im not an expert in PM in QLD, however shouldnt this be a clear yay or nay situation?

    I find it odd that you have to go to court and it may be overturned or approved, especially depdning on the member,

    at the moment, the tenant is alwys a few days over due on rent, water invoices have not been paid and are slowly building up,

    they get breach notices for rent all the time,

    we even had the agent sit them down and chat with them,and they gave their usual sob story followed by an agreement to pay, however they only paid once , and havent paid any extra, I got quite angry with the agent saying their getting paid to monitor and a t the very least let me know if they dont follow,

    im tryign to work otu what to do from now, im happy to give them the stupidly long notice to evict however, thtis will mean they will probably stop paying anything including rent,
     
  5. thatbum

    thatbum Well-Known Member

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    The legal test is whether the breach is serious enough to justify termination.

    Rent (and its arrears) is a fundamental core component in a lease agreement, so breaching it in most cases is serious enough.

    Utilities are somewhat less 'core' to the agreement, but I think a very similar argument can be mounted in most cases. I've seen cases where it was enough to terminate according to the court, but the main problem for a landlord is that one of the relevant circumstances is that the tenant is paying the rent, and so a landlord is getting 'most' of their money.

    See the problem?
     
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  6. TMNT

    TMNT Well-Known Member

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    fair enough , I just see things in life as black and white for the most part or at least start with black and white, and thats why like in vic i strongly feel that utilisties should be in the name of the tenant....
     
  7. Scott No Mates

    Scott No Mates Well-Known Member

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    • Does the property have a water efficiency certificate?
    • Was it issued prior to the commencement of the current lease?
    • Are the premises separately metered?
    • Does the lease state that the tenants are responsible for the utilities?
    • What does the lease say in respect of the application of funds?
     
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  8. GapPhantom

    GapPhantom Active Member

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    Pretty simple...
    Water bill gets issued to tenants, and if it's a water compliant property, and it's listed as such in the tenancy agreement, they have 28 days to pay it..
    Fail to pay it in the 28 days, plus a 7 day leniency (due to RTA BS), then issue a Notice to Remedy!
    If it isn't remedied within 14 days, issue a Notice to Leave based on the un-remedied breach...
    Or, if there is multiple Remedy Notices within 12 months, issue a Notice to Leave for the repeated breaches...

    Rent is similar... Late by 7 days, then issue a Notice to Remedy!
    If it isn't remedied within another 7 days, issue a Notice to Leave based on the un-remedied breach...

    Your PM should be all over this process, and clearly follow it????
     
  9. Tom Rivera

    Tom Rivera Property Manager Business Member

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    That is the black and white process as such, and very well put too, but there is a clear tendency for tribunal members to ignore due process and throw water payment matters out of court, the reasoning excellently explained by Thatbum.

    If I were in this situation and had fulfilled all the criteria laid out by Scott No Mates (another great post), I would have still done my best to get the tenants onto a payment plan. Upon failure of that strategy, I'd have briefed the client on the next step and -depending on all the surrounding circumstances- likely proceeded to a tribunal claim for payment and/or termination, knowing that there was an unavoidable risk involved either way.

    That all being said, I can understand the agency's hesitation to move in that direction.
     
  10. GapPhantom

    GapPhantom Active Member

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    Well put Tom...
     
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  11. TMNT

    TMNT Well-Known Member

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    well think about it,
    I posed the question, 2 well know and respectable members in the PM industry have come and said it depends, and its not a clear cut situation,

    I am not 100% sure of hte competence of my PM as I am new to dealing with her, has said that a notice cannot be issued for utlities, and the only way is to go ttribunal, she has also said that she has just been to tribunal for the same issue for another property and they ruled against her,

    To be fair, I dont know her competence, so hence why Im asking here.
     
  12. Tom Rivera

    Tom Rivera Property Manager Business Member

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    That's an odd response from her, assuming you haven't misunderstood. It's a bit backwards.

    She can't go to tribunal without first issuing the breach notices.
     
  13. GapPhantom

    GapPhantom Active Member

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    Actually, it is clear cut... The process is Black and White, and that's what your PM should be following in order to minimize your losses through this period... If they aren't doing each step at teh correct time, with the correct notice periods, then you're already losing the battle!
    What's not clear cut is how the tribunal decision is made and it's basis... It never is, and never will be while members play in the grey!!! I've had tenants swear on the bible they didn't make the damage during their tenancy, despite clear evidence ofphotos on entry, and photos on exit... The tribunal member looked at me, and said "Oh well, looks like you need better security of the property to stop people wandering through the house...."

    If you're not sure of her competency as a PM, then as a owner and landlord I'd suggest educating yourself on the process and requirements so you can challenge the PM... You'll find some PM's avoid "confrontation"!!!

    Check out the RTA website..
    They have some good information on the Notice to Remedy (Notice to remedy breach (Form 11) | Residential Tenancies Authority)..
    And Notice to Leave... (Notice to leave (Form 12) | Residential Tenancies Authority)

    Even more apt to your situation.. Repeated breaches of an agreement | Residential Tenancies Authority
     
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  14. dabbler

    dabbler Well-Known Member

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    No, I don't see the problem.

    If a TV at Wally world is 1200 dollars, but on the way out I throw down 1000 and walk away out of the store, you would likely be charged for theft, no matter what story you came up with.

    It is about time this so called user pays system, actually makes users pay, they are using the water, they pay.

    Water is something may tenants seem to think is optional, or start arguing over, even when they sign a lease agreeing to pay for what they use.

    I say breach them as per regs, and take it from Bond when they leave, I would not be renewing lease for anyone who thinks they can opt out and have owner pay for what they use.
     
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  15. Tom Rivera

    Tom Rivera Property Manager Business Member

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    That's all well and good to say, and is correct in theory, but the point we're making is whether this will stand up in tribunal.
     
  16. dabbler

    dabbler Well-Known Member

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    Yes, I understand that, I would not be so scared of tribunal, it could go either way. Inviting people to take the view that paying is optional is not something I am ok with.

    At the end of the day, I still say breach and the tenant is working toward being out of the property, it is not optional, and I do not like PMs to talk to me saying it is optional, otherwise the whole lease contents must be optional.
     
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  17. wylie

    wylie Moderator Staff Member

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    They are struggling to pay on time.
    They owe over $1k in utilities.
    They are not following payments they agreed to.

    I'd be breaching them and if they take you to tribunal, what have you lost?
     
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  18. dabbler

    dabbler Well-Known Member

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    Yep, or become a door mat.

    Seems they are not struggling, just taken the view paying is optional or not important.
     
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  19. TMNT

    TMNT Well-Known Member

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    Thabks everyone I've been chatting to my pm today.

    I can update later but

    I've been told that if it's not rent arrears. You can't evict based on utilities arrears. You can go to court but but you will lose.
    My reply was "what's the point of a rule/law if it can't be enforced?"

    So here I am scratching my head and wondering what to do

    So as long as the ren this up to date. The water can be in arrears by $10k and we can't do squat.

    Doesn't sound right to me
     
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  20. GapPhantom

    GapPhantom Active Member

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    What absolute rubbish you've been dribbled... Take a look at the links I put up previous and it's a "general" breach... Send them to your PM as ask them to explain their taking on all of this? Then ask them if it was their property, and if it was them out of pocket, what would they do?

    The RTA classify a significant breach by a tenant a matter which will cost more than the equivalent of 1 week’s rent to fix/resolve... Issue a Notice to Remedy, give them 14 days to resolve, then issue a Notice to Leave.. End of story!

    You need a new PM!!! One that isn't working for the best interests of the tenant, but has your investment as priority!!