Help me evict!

From: J Parker

OK all- here is the situation. I have just purchased a nice little house, which comes with tenants who are a third of the way through their 3 mth lease. When we first looked at the house, they were not yet there but had already signed a lease with the vendors. Fair enough, as the vendor didn't want to miss out on any rent and the previous tenants had moved on.

The trouble is that when I did a recent inspection of the house (to meet the tenants, check the place out etc) I was horrified. Not only are the tenants the biggest slobs I've ever seen, their 18mth old Pit Bull Terrier is living inside and wrecking the newly polished boards, making the place smell like a kennel and devouring the poor plants in the once neat backyard. The tenant tried to keep the dog outside, making it seem like that's where it lived, but the enormous dogbed in the lounge kind of gave it away!!

By the time we settle on this house, the tenants will only have one month to go, so most would say leave it and give them notice as soon as you become the owners. However, I am concerned that, by settlement, the house will not be in the state that we purchased it in at all. I have rung the property manager (same company as the selling agent) and discussed this with her, but she is pretty unconcerned. Where do I stand here and what steps should I take to ensure no more damage is done? (and don't anyone suggest shooting the dog! The stupid animal jumped all over me in the house and put holes in a new pair of pants......)

Cheers, Jacque :)
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Reply: 1.1
From: Joanna K

Hi Jacque,

If the place is in Sydney, and if the lease only has one month to go, you can give them at least 14 days notice any time prior to the expiration of the lease to move out.

Or, have a look at the lease agreement and see if it says anything about pets. If they are keeping a dog and they are not allowed to, that is a breach, and you can serve 14 days notice.

Kind regards

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Reply: 1.2
From: Tibor Bode

Take out Landlord protection insurance (if you have not done so) immediately. You can't change existing lease conditions, but check it for any clauses regarding to allowing animals and the tenant's responsibility for fumigation (flees) as well as for damages. Also ensure that bond is paid. Then if you are still really concerned use Duncan's idea and pay them to get out.

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Reply: 2
From: Tony Dixon

Jacque wrote:
>However, I
>am concerned that, by
>settlement, the house will not
>be in the state that we
>purchased it in at all.

[I'm going to follow Sim's advice and jump in here where I don't necessarily have a lot of knowledge. However, to promote discussion...]

Aren't you permitted a pre-settlement inspection?
And if the house has deteriorated in the time between your accepted offer and settlement, then can't you make the vendors fix up the property?

cheers, Tony

[Disclaimer: not a RE agent, not an accountant, not a lawyer, ...]
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Reply: 2.1
From: J Parker

Yes, I know you are right Tony and isn't it funny how sometimes just writing the problem out helps to crystallize the solution?

I have written a letter to the managing agent, outlining my concerns and rights and put a deadline date on it so that they don't keep fobbing me off with "I'll get onto that and let you know" as has been happening.

Will let you know of my progress. Thanks all for your quick and very helpful responses!
Cheers, Jacque :)
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Reply: 2.1.1
From: Nigel W

To ratchet up the pressure why don't you call the principal of the agency in question?

One of the cardinal lessons I've discovered in problem solving is to identify who has a vested interest in the potential outcomes, particularly financial ones.

The owner of the agency (and probably the relevant salesperson) will lose commission if you pull out from the purchase. The property managing agent won't have the same commission based imperative driving them least until the principal gets the clear impression from you that unless this is resolved then you'll buy from some other agent and starts kicking some butt to save his commission...

Generally speaking, sales agents will just about walk on hot coals if they think it will get the deal done and commission in their pocket (I guess they've gotta make a living too) so why not work on the sales agent to make the managing agent get going?

You could always have your lawyer call - but the downside is that adding lawyers just makes everybody cranky! :^)
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Reply: 2.1.2
From: J Parker

Part 3 of my saga.......

I sent a fax to the PM and she rang me to say that there was nothing in the lease to allow pets to be kept. It was just an understanding between the landlord and the tenants that they could have one (very vague on this, actually).

Am I within my rights to give notice to the tenants before I take possession of the property or do I now have to wait until settlement to give them 14 days notice? I guess I could get the vendor to give her notice so that she's out by settlement....
Any ideas?
Cheers, Jacque :)
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Reply: 3
From: Kristine .

Hi Jacque

It doesn't matter if it's a dog, a baby, or lots of garlic cooking, you are entitled to receive and settle on property which is in essentially the same condition as when you offered to buy it.

It is up to the vendor to provide you with vacant possession if that is what is stated in the contract. Not yours to try to evict anyone for anything. By now, the vendor should have gone through the technical process of issuing notice to quit, giving the tenant formal notice of not less than 60 days.

No vacant possession, no settlement.

You, by law, can inspect the property within seven days prior to settlement. If any 'material' difference exists then you can insist (through your solicitor) on delaying settlement until the situation is made good either materially or financially.

Assuming that you have engaged a conveyancer or solicitor to handle the sale, it is they who should be contacting the owner, not you, and you should certainly not be contacting the selling or managing agent. Their actions are within the professional engagement between them and the owner/landlord and is confidential.

Jacque, take a step back, talk to your legal representative and quietly discuss your options. There is a solution to every problem and this is not as uncommon as you may think.

Good luck

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Reply: 4
From: Chris G

Hi peoples,

Just a few questions/ideas....

When you sign the contract it should include a condition report and a listing of all included fittings etc? If it does this is then the report that you compare the property to when you inspect 7days before settlement as Kristine mentioned.

Are contracts ever negotiated without this condition/fittings list being in place? (presume you would be unwise to do so) If so how do you go about proving what has been removed/damaged from the time of contract to time of settlement?

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Reply: 4.1
From: Justin FarKew

Sounds like a nightmare! to say the least.
Was your contract subject to 'vacant possession'. If it was you are laughing. Not vacant, no settlement and claim out of pocket expenses against the vendor (if any).
If the contract is not subject to vacant possession, you need to get the advice of your conveyancer or solicitor depending on who is handling the transaction for you. Only in extreme circumstances can you hold up settlement. However, the tenants insurance as talked about earlier is a must.
Seek advice now from your representative.

Good Luck.
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Reply: 4.1.1
From: Manny B

Hi Jacque,

Make sure u do that final inspection you mentioned as early as possible (basically don't leave it for the last day)... arrange to go around 5-7 days before settlement so that it gives you time to hassle the vendor to get things right prior to settlement...

I'll give u an example on what happened to me on my last IP purchase, I left the inspection till the day of the settlement & found that the vendor had left a big pile of ASPESTUS in the backyard (in a corner)... as settlement had to be done (conveyancer said we had to settle, but with a condition that we would take legal action unless they removed the asbestus)... There was a huge rush on the day (many phone calls), which could have been averted if I had inspected the place a few days earlier... At the end they did remove the asbestus by the end of the day as I was going to sue for damages (of the removal of the asbestus & the delay if any from the loss of rent)...

I should probably mention that another mistake I made was that I went to a conveyancer to settle, who had no solicitor in the office, so on the day of settlement my conveyancer couldn't give me legal advice, therefore I was forced to look for a solicitor at the last moment (lucky my mate is a solicitor for Legal Aide & gave me some pointers)... Next time I would use a solicitor for any further purchases (even if they cost a couple of hundred dollars more)...

Good luck with that...

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From: Wendy Bergsma

With Gladesville, I gave the vendor the 14 day notice for them to serve on the tenant, this worked fine and should work okay here, that way you have them out before settlement and then if there are any problems you can sort them out before settling. Look forward to seeing you friday.
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