What happens when tenants don't hand back posession

So what you described actually is the proper process. There's no need for anything further legally if you're confident that vacant possession has been given - because the vacant possession itself (along with the termination notice presumably) is what has terminated the lease.

 

What if;
1. The property is not empty- the sorts of furniture and things left could have been left behind on purpose (no longer wanted), but they could also be intended to be removed?
2. The house is empty but not clean. The PM organizes cleaners and attempts to claim it from the bond, but the tenants respond by saying they had not finished cleaning and didn't give vacant possession.

 

If its just furniture, and not so much personal possessions, it still arguably vacant possession. You can still offer vacant possession while leaving behind *some* items for example.

Empty but not clean is almost certainly still vacant. The argument that they didn't finish cleaning doesn't hold up legally, if the termination day is passed and vacant possession has been offered.

I've heard anecdotally that some tribunals say that tenants should be given a chance to clean things after the termination date, but legally there's actually no basis for this.

 

On a side note, don't take me as being argumentative for the sake of it here- I'm curious to see how your proposal would play out in different (common) situations.

As far as an overall understanding of what is technically required to establish vacant possession, I'm glad you've challenged/corrected my comments. Your explanation suggests an option that has the potential to save clients a good amount of time and money.

I've emailed off to the REIQ to get their standpoint on this. I'm reasonably confident that my understanding is in line with the majority of Property Managers and the varying educational organisations around here, but it wouldn't be the first time that 'general knowledge' in the industry has been quite wrong. I think my pride wants to make sure I'm not the only idiot

On that point- can you quote any section of regulation or legislation that clarifies the requirements to establish vacant possession, or is it one of those "unwritten understandings"?

 

No I didn't take it as argumentative at all - its a good genuine question on what can be a contentious issue.

Yes I wouldn't be surprised either. In a lot of ways, that might be the very conservative approach.

The truth is "vacant possession" is a definition that falls along the spectrum of varying degrees - so it can always be a bit grey. Its probably not as far along the spectrum as some industry professionals think though.

The term is more often judicially considered in property sale and settlement cases where there have been issues with vendors not offering vacant possession.

As you can imagine, a vendor who doesn't hand back the keys, or leaves piles of stuff and furniture at settlement hasn't necessarily not offered up vacant possession. But strangely property managers assume the same in a tenancy termination context.

Often the correct legal solution is to accept the vacant possession, but deal with the furniture or keys as a separate potential breach of agreement, rather than attempt to go through a redundant abandonment process.

Does that help?

 

It depends whether the court or tribunal determines that vacant possession had been given or not. "Halfway through moving" might not be a good enough excuse to avoid having a finding of vacant possession if its say, a scenario where its past the termination date and the tenant hasn't actually said anything to the LL/REA asking for more time.

When then I would expect a tenant to expressly communicate their intent to the LL/REA beforehand. Otherwise saying nothing and letting the REA/LL come down into an empty house would probably mean its a pretty safe basis for vacant possession to have been granted.