Join Australia's most dynamic and respected property investment community

Who has a stronger case?

Discussion in 'Property Management' started by Daniel B, 30th Oct, 2015.

  1. Daniel B

    Daniel B New Member

    Joined:
    30th Oct, 2015
    Posts:
    1
    Location:
    Perth
    Hi there,

    I am a property manager and last month I emailed a tenant to say the owner will allow them to continue on a periodic lease after expiry on 16/11/15. The owner has now decided he would like to take back possession of the property when the current lease expires so we issued the tenants 30 days written notice on the 28th Oct which meant their new lease end date would be 27/11/15 to honour the 30 days.

    The tenants have sought advice and believe the email I sent them counts as an official (periodic) lease starting from the 16/11 and the owner will now need to provide 60 days written notice from this date to end the agreement. I do not agree with this because their current fixed lease has not yet lapsed which means a periodic lease cannot begin yet. I also called the Dept of Commerce who advised there was 'intent ' to offer a periodic lease but thats all.

    Can anyone please provide some advice on this or view?

    Thanks,
    Daniel.
     
  2. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,568
    Location:
    Adelaide, SA
    You're in WA i assume?

    Here in SA there's a certain amount of notice we have to give tenants to move out at end of fixed agreement but I don't believe there is such a thing in WA. This prevents those situations here because we send off both a renewal and a termination together. So if they don't sign one they get the other - never allow a periodic due to the crappy notice rules and lack of secure investor income.... but i digress

    If the fixed term lease has not yet ended, they're still on a fixed tenancy so I'd be of the opinion that you play by the rules of a fixed tenancy. Periodic lease hasn't began so you don't play by those notice periods yet.
     
  3. Westminster

    Westminster Tigress at Tiger Developments Business Member

    Joined:
    13th Jun, 2015
    Posts:
    2,936
    Location:
    Perth
    But you haven't given sufficient notice before the end of the fixed term period. You have to give 30 days before the 16/11 - you can't change the date of the fixed term period to 27/11 to give 30 days - it's a fixed term lease.

    So I think the tenant is right.

    You need advice from @thatbum . He will know the answer better than me.
     
  4. bob shovel

    bob shovel Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,373
    Location:
    Somewhere in the land of Oz
    Had the tenants signed the periodic lease form/agreement ? If not then the email isn't the contract as they haven't signed anything.

    I was renting in wa and I was about to go periodic and asked to go periodic but didn't sign the form. 2 days before lease ended went in to give notice rather than sign. Slightly different but the agreement has not been signed by them.

    Why not as a good gesture offer to meet halfway, give them 45 days unless they find a new place sooner. They may just be worried about moving to a new place
     
  5. Xenia

    Xenia Adelaide Property Manager Business Member

    Joined:
    21st Jun, 2015
    Posts:
    2,342
    Location:
    4/136 The Parade Norwood, South Australia
    Hi Daniel
    don't you love it when landlords throw those curveballs and change the goal posts at the last minute?

    It's a tricky one and I'm not sure if the email can be used as concrete evidence of offering a periodic lease agreement but you have no choice here, as PM you have to take landlords instructions and even in the event of ambiguity where you cannot clearly advise a landlord you need to go by their instruction to end the lease by issuing the 30 days from now.

    I would leave the onus on the tenant to argue this out and assume landlord is correct.
     
  6. bob shovel

    bob shovel Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,373
    Location:
    Somewhere in the land of Oz
    There was intent to go periodic and the contract they would have needed to sign would have stated this, but they didn't come in to sign the form prior to LL changing their mind
     
  7. Westminster

    Westminster Tigress at Tiger Developments Business Member

    Joined:
    13th Jun, 2015
    Posts:
    2,936
    Location:
    Perth
    In WA if a fixed term lease had not been terminated by either party then it automatically rolls over to a periodic lease - no periodic lease form or agreement is required.
     
  8. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,568
    Location:
    Adelaide, SA
    I don't think that matters in this situation since in WA there's no minimum notice period to end a fixed term lease on it's expiration date. Since they're still on that fixed term lease they aren't playing by the rules of a periodic tenancy yet.
     
  9. bob shovel

    bob shovel Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,373
    Location:
    Somewhere in the land of Oz
    I was made to sign one. I assumed that they automatically roll over. I got told what @D.T. Said. Either sign periodic or get booted
     
  10. Xenia

    Xenia Adelaide Property Manager Business Member

    Joined:
    21st Jun, 2015
    Posts:
    2,342
    Location:
    4/136 The Parade Norwood, South Australia
    A tenancy agreement reverts to periodic lease whether there is a written periodic lease signed or not
     
  11. Westminster

    Westminster Tigress at Tiger Developments Business Member

    Joined:
    13th Jun, 2015
    Posts:
    2,936
    Location:
    Perth
    Nope https://www.commerce.wa.gov.au/consumer-protection/rental-agreements
     
  12. Blacky

    Blacky Well-Known Member

    Joined:
    25th Jun, 2015
    Posts:
    1,103
    Location:
    Bali
    Would depend largely on the wording of your email.
    There may be an 'offer' or 'intent' made. Or there may only be an invitation - whereby there is no offer or agreement.
    It may also depend on the wording of the lease agreement - as to weather or not you need to give notice prior to the end of the lease (some do some dont).

    Given the timeframes involved, I would think the tenant has a pretty reasonable case. If it went to tribunal you are probably 60days away from moving them on in any case.

    If I was the LL I would issue a notice to vacate, as of today, providing 60days and be done with it.

    Blacky
     
  13. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,568
    Location:
    Adelaide, SA
    Last edited: 31st Oct, 2015
  14. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    893
    Location:
    Perth, WA
    Hello - I'm here to (hopefully) save the day!

    Tenant's not gonna win this one I'm afraid. The owner/PM can issue a 30 day notice to end a fixed up any time before the fixed term is up - it kind of "extends" the fixed term to the new vacate date (so there's at least 30 days notice still). The oddities of the 2013 WA amendment provisions.

    I can't think of any email that would trump the above really - it wouldn't really be an 'offer' of a periodic.
     
    Xenia likes this.
  15. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,568
    Location:
    Adelaide, SA
    Silly western australians :p
     
  16. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    893
    Location:
    Perth, WA
    This is a great point though. The practicalities of obtaining a termination order means that a tenant would almost certainly get that extra time anyway while everyone's waiting for a court date.