Vacate notice?

Hi there, I’m a landlord (located in VIC)

Can someone please confirm the following:

• I have asked the agent to provide a 120 vacate notice (no reason) to the tenants.
• The expiry date for the vacate had passed and the tenants needed more time.
• I was happy to provide an extra 14 days
• 14 days has passed and the agent has stated that the 120 days has been voided since I had agreed to the 14 days.
• I was not informed about this at any stage when being asked if I want to accept the 14 days.

Is the void part correct ?

 

I don’t see how this is correct at all

 

Neither, the agent mentioned about a legislation, however I’m waiting to hear back .

 

@Lil Skater will be able to let you know the legislation in Vic.

 

+1 for @Lil Skater - I wish she could cover my area of Melb as the available PM's are making heaps mistakes.

We approved for 6 months lease in March and PM arranged the extension however end date on the form is Sep 2020 instead of Sep 2019.

We recently issued 120 days no reason to vacate too and identified above mistake. We got it in writing from PM that they will use their funds to fix this issue via Vcat if tenant decided not to move out due to next year numbers.

We have also told PM that if tenant can find anything earlier and want to move out before Sep 2019 then we won't charge any lease breaking fee etc.

120 days is a long time what was the reason for extension @Michael19 ?

 

If the agent is stating this, they should be able to very clearly back up their position. If this is what they believe, and they didn't tell you this at the time of the extension, it is a major stuff up! It sounds to me like their is a bit more to the scenario they are not telling you.

The notice periods are a set time or by mutual agreement. If the extension was in writing and both parties have agreed, you essentially have a mutually agreed vacate date. If they haven't vacated, you have the agreed extension in writing, and you don't want to extend any further, then instruct you PM to begin the VCAT process to gain possession.

- Luke

 

Do you have a copy of the notice they served? I’ve never heard of the notice being voided unless you withdrew the said notice. Delaying the VCAT application for possession out of compassion is not the same as withdrawing the notice.

I would have provided different advice- apply for possession (always) because once you have a possession order, you actually have 6 months to execute / pay for the warrant. They might have been out by the time you had the possession hearing anyway given it takes a few weeks to get a hearing.

Instruct the agent to make the application for possession - VCAT online won’t allow them to do it if the notice has expired.

 

+1 to all the above, it's not voided unless formally withdrawn.

Get PM to apply to VCAT for possession immediately, it'll take a few weeks and make sure the place is monitored for movement in that time.

 

Hi @Lil Skater , is it normal to ignore the wrong date (mistake) and just use duration (6 months) as a key timeframe to issue no reason to vacate 120(+) days notice?!

 

Huh?

 

How do you have a basis to issue a no grounds termination notice while a fixed term tenancy is afoot?

 

It is end of fixed term lease -no reason vacate notice. March 19 to Sep 19. However RE has put march 19 to sep 20 and term states 6 months.

They have agreed to pay the fee for vcat application to fix it IF tenate will make a fuss about it. I am not a subject matter expert and guided by RE. My only condition is that we want property possession back in September or earlier (if possible) as RE will assist tenant to find another place.

 

If they're on a fixed term lease, then you can't issue a 120 day notice to vacate that asks them to move out in the middle of the lease, you can issue the notice almost straight away, but the vacate date must be on the last day of the lease or after for it to be valid. Or, has your agent issued an ' end of fixed term lease ' notice - if that's the case, then the date must fall on the last day of the lease for it to be valid.

Two different notices - 120 day no reason notice or, - end of fixed term lease notice to vacate (for which there is a reason, the lease has ended and you wish to terminate... 60 days notice required for a lease of less than 6 months, 90 days notice required for 6 month leases and over.)

I'm starting to think that they issued the wrong notice / the date was wrong and this is why it's invalid. What area is the property in? If you need help, between Lil Skater and myself I'm sure we can recommend someone.

 

They have sent Notice to vacate under 261(1) and (3)(a) with atleast 90 days notice to vacate

 

I think if the mistake has been identified, the agent would be liable for any costs - which they've already agreed to. If there's another written form (email even) that confirms 6 months and the correct period you might be okay

 

I've had to give legal advice on a few of these lease duration mistakes before. The answer usually turns on the wording of what is in the contract first (parol evidence rule etc).

Many of the leases I saw in WA had the end date expressly put, but no clear or proper reference to the duration on the lease - so the end date was probably what would be held to be valid.

Only where there is a genuine clear ambiguity in the contract wording itself would there be the possibility or need to go to extrinsic evidence such as emails or negotiations at the time.

@Never giveup your PM doesn't seem to know what they're doing - I'd be getting your own legal advice if I were you.

 

Hu @thatbum , thank you for the input just want yo clarify couple of things:-

Do I need to consult legal advisor from Vic and will it add value if following are the key steps we have taken:-

1. We advised PM to sign 6 months lease from March 2019.

2. PM prepared the paperwork and send to tenant.

3. As per our discussions and advised from PM - no reason end of tenancy is the notice to serve and we agreed as PM is the subject matter expert and all we want possession back.

4. PM identified the mistake she has made in the lease document and we told her to rectify this on the phone and in writting. She said she will get back to us once discussed internally. She also discussed with tenant that vendors thinking to serve the notice (we didn't agree on this).

5. According to PM when she discussed internally her agency head told her to touch base with tenant.

6. PM told us that issuing end of tenancy no reason under 261(1) and (3)(a) is the way forward without fixing the dates and if there be any issue they will pay to fix this via Vcat and will also help tenant to find any other property.

7.I requested to send in writting however I wrote to them and they agreed.


Legally where do we stand ? In all honesty, we haven't done anything wrong?

@Lil Skater

 

If you want a halfway reliable answer, I would get legal advice. There's really no other alternative unless you're happy to flail in the dark with a VCAT application.

1. Okay. Irrelevant to interpreting the contract.
2. Mistake made by the PM, okay.
3. Still don't understand this move, especially if its the wrong notice for terminating a fixed term tenancy, which is sounds like it might be (although that might be you misinterpreting what the PM has told you)
4. So? It seems odd the most important part of this part you haven't actually mentioned - what the tenant's position is.
5. Cool. As above.
6. That appears to be the correct section for terminating a fixed term, but I don't see how its anything more than the PM taking a punt at VCAT on your behalf. I don't know what "pay to fix this via VCAT" means either.
7. I'm not sure what this means.

Legally I have no idea where you stand because I haven't seen the contract. You don't seem to have seen it either. Why haven't you asked to look at the contract?

In effect, you are now relying on legal advice from someone who isn't a lawyer, and who caused the problem with their sloppy contract preparation work in the first place.

How do you feel about that?

 

I agree with @thatbum here. I'm not a lawyer, but like to think I have a pretty darn good handle on things, but without seeing the lease or being part of the negotiations from the beginning it's really hard to say. Added to that it's a public forum and I really don't want to tell you, or anyone else that might be poking around the wrong advice.

Why are you issuing the notice? If the contract needs to stay in place until 2020 but you need them out prior, is there any other option? Hardship, breach of duty etc