Delay settlement - Tenants refusing to vacate

[Shattered]

Hi all,

Our settlement date for our first home was to be 6th August, however on July 31st we had the call we were both dreading.

Apparently the tenants (who are behind in rent) are refusing to leave.

We are only settling on Vacant posession and have been informed they have a VCAT hearing on 11th August.

We just basically want to know how long this will all take. Has anyone been through it? What will happen to the vendor due to this??

I am very frustrated as we have 4 children 5 and under and will be homeless due to this as we have given notice to vacate and they have new tenats signed.

Thanks in advance.

 

[Perp]

Apparently the tenants (who are behind in rent) are refusing to leave.

We are only settling on Vacant posession and have been informed they have a VCAT hearing on 11th August.

Welcome to the forum; sorry for the circumstances.

Fortunately, I've not been in this situation, but we have several forumites who have, and several PMs who've been through this process many times.

1) Stick with your guns and don't settle; be prepared to walk away if necessary, rather than inherit this tenant.

2) You should turn up at the Tribunal hearing with your own 4 children. Unfortunately, Tribunals have a reputation as being suckers for a sob story - usually from tenants - so make sure you, as the prospective owner, are there putting forward your own sob story. If this situation is causing problems for the vendor (as I'm sure it is), see if they can turn up and put forward their sob story, too. (Sorry if "sob story" sounds flippant; I know you're truly in a bind.)

Good luck; you've been very unfortunate to have such an unpleasant first home-buying experience.

 

[Shattered]

Thank you for your reply.

So we can attend the VCAT hearing?

Also the REA just called and said that they have also made another hearing for 17th August? In case they can't get the warrant?

Is it a hard process getting an eviction warrant???

Also how long does it usually take to get a hearing with VCAT as we think this is such a long time to wait for a hearing.

Also apparently the tenants have told the REA that noone is allowed to go to the property as they feel harassed??

I am so confused now as the REA told my conveyancer that the tenants would be out by warrant by 24th August. However I have been googling and it seems if they don't turn up to court they can then go and ask for another hearing etc etc.

 

[INVSTOR]

Be very thorough when you do your final inspection.

 

[pully]

this is an awful position to find yourself in.
can anyone with legal knowledge inform us if we purchase a property with vacant posession as a condition, at settlement, surely if that condition is not met the contract would be invalid?

if you purchase a property as your PPOR i would expect you would not want any dealings with the tenant/occupants?

presumably the tenancy would be a matter for the vendor but disclosed to the purchaser?

what would be the legal steps to ensure if purchasing in such a situation, to avoid being in this unfortunate mess?
regards

 

[Perp]

can anyone with legal knowledge inform us if we purchase a property with vacant posession as a condition, at settlement, surely if that condition is not met the contract would be invalid?

Not a lawyer (not that I like to brag boom boom), but yes, you can either request a delay or postpone settlement. If the vendor can't provide vacant possession, you can't be forced to settle. That stops you having to "inherit" this tenant, but it doesn't help poor Shattered get into his/her home.

what would be the legal steps to ensure if purchasing in such a situation, to avoid being in this unfortunate mess?

Buy a property that's either owner-occupied or vacant. If you buy a property with tenant in it, both vendor and purchaser are really hoping that the tenant will play by the rules. If the tenant decides not to play by the rules, there appear to be no consequences for them, so it is indeed a horrid situation.

 

[skater]

We had friends go through the exact same thing. Only their problem was that the vendor could not settle as the proceeds from purchase would not pay out his loan. He had to find funds from somewhere else so that he could sell the house & this took some time. This all came out about a week before settlement when my friends had already given notice at their rental and new tenants were signed to move in.

The first thing they did was see the PM for the rental property and let theim know the situation. They then contacted the new tenant and let them know that there would be a delay. Although it was inconvenient for all parties, it sorted itself out and they are now in their new home.

In saying all this though, it could have gotten nasty. They were prepared to morph into tenants that refused to vacate as they had nowhere else to go.

Best of luck the tribunal can be frustrating, but if it comes to it, I'd seriously do what Ozperp suggested and go there yourself. The more you speak of the detrimental effect all this has on your children the better.

 

[Dazz]

If you buy a property with tenant in it, both vendor and purchaser are really hoping that the tenant will play by the rules. If the tenant decides not to play by the rules, there appear to be no consequences for them, so it is indeed a horrid situation.

Are you sure Ozperp ?? I think it is the very fact that the Tenant does play by the rules that causes the grief. Ipso - the rules are always in their favour. Indeed - if they do decide to play by "the rules", usually it is far worse.


Let's not forget that sometimes, dare I say it quite often, that Vendors warrant things to Purchasers on Sales Contracts (like vacant possession) that they simply cannot deliver on.

Of course, the Vendor often keeps the Tenant completely in the dark, accepts a 30 day offer to purchase and then decides to tell the PM that they want the Tenant out pronto. Well good luck !! They've just made life a misery for the PM, the incumbent Tenant and the starry eyed Purchaser.

Usually the Tenant finds out what is going on (via word of mouth as they still aren't privy to the Sales Contract) about 10 days prior to settlement. Then it's sometimes a case of the PM leaning on the Tenant, hoping they get scared and simply skedaddle out of there, or as in my friend's case, he finds out what is really going on the day before settlement when he arrives home to find the PM and the Purchaser walking through his house and backyard.

The Purchaser was doing her 'final inspection prior to settlement' and he the sitting Tenant was completely unawares. The REA was told to bugger off, and the Purchaser sat down over a pleasant cup of tea and the truth came spilling out.

He chose to exercise his right to fair notice and delayed settlement by 60 days. The Vendor made death threats to him (both written and verbal in the face and over the phone numerous times).

It can get very very ugly when the Seller doesn't tell the whole truth to all parties and completely mucks with everyone's lives. The Sellers are always in charge of the operation and therefore must bear the brunt of the costs due to their lack of proper formal notification.

 

[Perp]

Are you sure Ozperp ?? I think it is the very fact that the Tenant does play by the rules that causes the grief. Ipso - the rules are always in their favour. Indeed - if they do decide to play by "the rules", usually it is far worse.

Quite right! I should have said they're relying on the tenant "to do the right thing" (provided they've been served appropriate notices etc) and cooperate, rather than used the term "play by the rules". I was thinking of "gentleman's rules", not the dog's breakfast that is the tenancy law.

 

[wylie]

Why the emphasis on "female" lawyers?

 

[Shattered]

Are you sure Ozperp ?? I think it is the very fact that the Tenant does play by the rules that causes the grief. Ipso - the rules are always in their favour. Indeed - if they do decide to play by "the rules", usually it is far worse.


Let's not forget that sometimes, dare I say it quite often, that Vendors warrant things to Purchasers on Sales Contracts (like vacant possession) that they simply cannot deliver on.

Of course, the Vendor often keeps the Tenant completely in the dark, accepts a 30 day offer to purchase and then decides to tell the PM that they want the Tenant out pronto. Well good luck !! They've just made life a misery for the PM, the incumbent Tenant and the starry eyed Purchaser.

Usually the Tenant finds out what is going on (via word of mouth as they still aren't privy to the Sales Contract) about 10 days prior to settlement. Then it's sometimes a case of the PM leaning on the Tenant, hoping they get scared and simply skedaddle out of there, or as in my friend's case, he finds out what is really going on the day before settlement when he arrives home to find the PM and the Purchaser walking through his house and backyard.

The Purchaser was doing her 'final inspection prior to settlement' and he the sitting Tenant was completely unawares. The REA was told to bugger off, and the Purchaser sat down over a pleasant cup of tea and the truth came spilling out.

He chose to exercise his right to fair notice and delayed settlement by 60 days. The Vendor made death threats to him (both written and verbal in the face and over the phone numerous times).

It can get very very ugly when the Seller doesn't tell the whole truth to all parties and completely mucks with everyone's lives. The Sellers are always in charge of the operation and therefore must bear the brunt of the costs due to their lack of proper formal notification.

We waited over 60 days for settlement as we had to wait for the right amount of notice!

It seems the agent is not allowed to contact the tenants as the are claiming it's harassment. GRRR

I am going to court tomorrow (however scared I am) but not with the kids as I am worried for their safety as these people have had trouble with the police of late.

Just reading everything on VCAT and other sites and it basically tells you that you don't have to move on the landlords request

Skater- I was told by the agent who sold us the property to NOT move out of the current rental due tot he situation. I told him that I couldn't do it as 1 I would feel bad and 2 it would wreck our good record. His response "well you're buying, so it doesn't matter", I was gobsmacked!

2 wrongs don't make a right

 

[Perp]

Just reading everything on VCAT and other sites and it basically tells you that you don't have to move on the landlords request

Yep, sucks a big one, doesn't it?

I was told by the agent who sold us the property to NOT move out of the current rental due tot he situation.

That is indeed charming, isn't it? How very ethical of him/her.

Good luck with the Tribunal today; play it up (if you get the chance), and we'll wait with bated breath to hear how it goes.

 

[skater]

Skater- I was told by the agent who sold us the property to NOT move out of the current rental due tot he situation. I told him that I couldn't do it as 1 I would feel bad and 2 it would wreck our good record. His response "well you're buying, so it doesn't matter", I was gobsmacked!

2 wrongs don't make a right

I agree! It isn't right! But you are stuck in a bad situation. If you explain to your current Landlord what is going on, they may just be able to help you. You don't want to end up with nowhere to go through no fault of your own, do you?

 

[Belu]

have you spoken to your current landlord? Have they found someone to come in? There may be something because this tenant doesnt look like they are going to be out for at least 14 days...

 

[sash]

If you can prove incidents with the Police....particularly if it involves violence or drugs you have a good chance of getting them out. I had a similar situation...in Adelaide.

My agent took my tenants to tribunal for being late with payments. The tribunal ruled that they could go on a payment plan...so long as they paid it would be difficult to get them out till the lease expired.

Anyway...3 mths later I get a call from the agent saying that the police had been around and said that they suspect the tenant of criminal activity. Took it to the tribunal....and they were out on their ear with a 48 out notice to get out. I made a claim on my landlords insurance for rent and damage.

So the end result was good.

I am going to court tomorrow (however scared I am) but not with the kids as I am worried for their safety as these people have had trouble with the police of late.

 

[Shattered]

Hi all,

An update after taking them to court for the rental arrears the tenants said they would pay and that was that.

So we took them again under another application for eviction and they got it however in the mean time the selling agent got them a house.

They have moved out as of today but left mattress', fans, furnitures 7 dining room chairs. etc Every bin is filled with black bags of rubbish in the wrong bins.

The house is a pig sty and I am not a clean freak. I mean filthy. Every door handle is missing or broken.

Holes in the toilet walls etc.

Also they have removed every single curtain. We were planning on replacing them as they were not that good but the back rooms we were going to leave until we had more money available.

So now I have no idea where to go from here...

We are going to our pre settlement inspection tomorrow. I only got to look as the handy man was there doing a tally sheet for their bond. I just hope some of it comes to us. Actually NO I just want it to be fixed

Feeling so angry about everything

 

[wylie]

Without reading back through the thread (because I am a bit tired) I wonder why the handyman is tallying up the bond details. I would make sure that you get the notice in to keep ALL the bond and that will give you time to ensure that the handyman has tallied up enough.

It sounds like they won't get anything back, so make sure you don't short change yourself.

Let them fight for any bond.

 

[skater]

Get onto your solicitor quick smart and let him know that you won't settle until the repairs are made good, or you have been reimbursed enough money to cover the repairs.

 

[Perp]

Another vote for "don't settle until it's cleaned up". The bond almost certainly won't be enough to cover the clean-up, so if the owner says "take it as it is and I'll give you the bond", I think that would be a bad deal - and a horrible way to take occupation of your first home.

Make sure you're happy with the condition of the property before you settle. Once you've settled, you've lost all bargaining power, and even things they've contractually agreed to do can be extremely difficult to enforce. The only thing you have on your side is that you haven't handed over your money yet - so don't do it until you've got the property in an acceptable condition.

Pity the poor landlord that the agent's passed them on to, though. I can't imagine that anybody took them with full disclosure of their rental history, so whilst I'm glad for you, Shattered, I feel sorry for the new landlords, and angry with the agent who almost certainly did something shonky in installing these tenants elsewhere.

 

[wylie]

Pity the poor landlord that the agent's passed them on to, though. I can't imagine that anybody took them with full disclosure of their rental history, so whilst I'm glad for you, Shattered, I feel sorry for the new landlords, and angry with the agent who almost certainly did something shonky in installing these tenants elsewhere.

Surely a good agent would not do such a thing .