Help - tenants taking me to VCAT

[Ed Barton]

All of the paperwork needs to be supplied on sign up and the only thing which is left at 14 days is the fully signed lease which is I think why we all make that assumption. .

Unfortunately tenants who pull these stunts are USUALLY reasonably well informed by way of the tenants union (who I have had some disagreements with due to them supplying incorrect information). If the tenant is confused and has the wrong paperwork that is good because then the member hearing the case with throw it out right away!

We can only hope the tenant doesn't know what is going on and the PM does

(Our book is red, it goes faster [?]).

thanks.

your book says stop, ours says go - to the tenant or the LL i'm not sure?

 

[tom32]

The judgement is not against a PM but against you as the owner, likely the only penalty which would apply would be not supplying the tenant with a fully signed copy of the lease within 14 days. You could of course chase up this amount from your PM as it is a law which they are aware of and should have spoken to you about.

Good to see a PM who understands their rights and responsibilities!

So just to summarise over the 14 day issue; the tennant probably can walk but the PM will be responsible for the costs should it be due to their ommission of not giving them back a copy of the lease?

 

[Sez]

Good to see a PM who understands their rights and responsibilities!

So just to summarise over the 14 day issue; the tennant probably can walk but the PM will be responsible for the costs should it be due to their ommission of not giving them back a copy of the lease?

Thanks

Over the 14 day issue, I would be very surprised to find a member who would allow a break lease over this issue as the act allows for a penalty if the landlord doesn't meet this obligation. So a penalty may be applied but again, letting the tenant break the lease over this??? As the tenants are supplied with a blank lease on their day of sign up would consider a VCAT ruling in their favour to be absolutely one of a kind. The only couple of times I have seen a break lease be allowed was generally due to the tenant moving into care or government housing (doesn't tend to go to VCAT as the break lease is always awarded in these circumstances) and once when the tenant was able to provide evidence of severe financial hardship if they were to continue on the lease.

Currently the legislation dictates the penalty for failure to supply the tenant with a fully signed lease within 14 days at 5 penalty units, this equates roughly to $610.70 (as the 2011 - 2012 penalty unit rate is $122.14 per penalty unit)

Just for peace of mind the act actually says (in regards to an application to reduce the term of the tenancy agreement, or break the lease)

"The Tribunal may only make an order under this section if it is satisfied that, because of an unforeseen change in the applicant's circumstances, the severe hardship which the applicant would suffer if the term of the agreement were not reduced would be greater than the hardship which the other party would suffer if the term were reduced"

So in other words, the tenant needs to have a really good case to prove they are more hard done by than the landlord. I would find it more likely that the tenant may be awarded some compensation for the premises being unclean and a penalty MAY be applied due to the lease being late.

In regards to the property not being resonably clean, yes, the act states the landlord must supply a reasonably clean house, however, it also states that a tenant is not required to take occupation if the house isn't clean enough - if it was a huge issue they should not have moved in.

Finally the act allows that the landlord to enter at any time the tenant has agreed to so they can carry out their legal obligations as a landlord.

If required I can send you the sections but hey, who would've though a residential tenancies act working in the favour of a landlord !!

 

[cails]

Hi All,

WELL, I finally received the entire application today...all 41 pages of it

It has been enlightening.

1. They say they have sent a letter to the PM telling them they are breaking the lease (and say we have failed to readvertise the property).

2. They are seeking the bond+months rent back as well as unspecified other compensation. They also want the tribunal to rule they are not liable for the break lease fees.

3. On move in, they did sign the condition report (and added their own extra comments as they are entitled).

4. They acknowledge that we have paid for numerous items to be checked and cleaned/repaired but say it is not enough (e.g. paint run marks on a wall, a loose catch on a gate etc etc etc).

5. That we should not have entered the property. As I said I presumed the PM had permission, looks like not. However I would have to say, I was trying to be a good landlord and address their issues asap.

So bad news....VCAT it is....good news, whatever happens they are gone

Kind regards,
Jess

 

[Lil Skater]

Well, I was going to elaborate - But Sez beat me to it!

Good luck at VCAT, as Sez stated, I would be very surprised if they let them out of the lease without break fees.

By the looks of it all, seems your PM has done you no favours either. Maybe considering a new one after the hearing is a good move .

 

[Sez]

I have to agree with Lil Skater 100% - doesn't appear your agent has done the right thing by you in their handling of the situation.

If indeed they did send a letter stating they were breaking their lease and they have a copy of it then that could complicate things a bit.

With regards to the access, it is quite possible that the PM sent a notice of entry which if they did and it is documented then that shouldn't be an issue.

Shop around, this Forum has heaps of recommendations for good PM's for almost every area so I'm sure you will be able to find someone who is a little more aware and careful in handling sticky situations.

Good luck, let us know how the hearing goes, you will find that the hearing is scheduled quicker than any application you've made against a tenant, tenant applications always are!!!

Lil Skater - Sorry !!

 

[Lil Skater]

Haha, not a problem Sez - at least we're not saying different things.

I look forward to hearing what happens at VCAT - be sure to update us Jess. Here's hoping you also get a good member that takes both sides of the story into consideration.

 

[cails]

Hi Sez and Lil Skater!

The "letter" breaking the lease a week ago was a little strange and vague, in that they said it was their intention to break the lease and requested compensation from us....to be honest it was not as clear as it could be, in that it did not say. We are breaking the lease from X date. Anyway the property has now been readvertised.

I had a meeting with my PM yesterday. Simple answer it depends on the member on the day. We may win all costs, pay all costs or a share. She believes they have no case on which to break the lease but I do know after doing some research that means little if you have an unsympathetic member.

I have reflected on the thoughts here on mediating the situation but simply they are not interested (even though they say in their app they are). They want me to pay all their demands, so no mediation there! And therefore there is nothing for me to "lose" for going to VCAT. Btw, the hearing is less than 2 weeks, so you are right...very quick!

This has been an eye opener, I have only 2 properties and have only had them for 18 months. I knew it would be tough but didn't think some of these things would occur (my other house the tenant wants a new rangehood as it now doesn't match the new oven I bought )

Depending on what the VCAT outcome is, I may then have to go after the PM for costs. Do VCAT supply a written ruling? ie. will i be given a document outlining which breaches were proved (or not) and the associated penalty or do I just have to rely on the PM telling me.

I just want to again genuinely thank everyone who has provided feedback. This place is a fantastic resource and somewhere I will continue to visit. Perhaps when I learn a little more I may be able to pay it forward!

Kind Regards,
Jess

 

[Sez]

Hi Jess,

I really do hope it all goes well for you. A VCAT order will be issued (ask your PM for a copy of this) and they tend to list a total amount of compensation awarded and then a break down of that compensation for the amount ordered for each 'breach' of responsibility.

If you are available on the day and it is at one of the courts which are local to you then it would definately be a good learning experience for you to attend. Also, it can be satisfying because lets just say if the PM has done something wrong and the member finds out, they will get a good 'talking' too. I've seen it happen and while uncomfortable for the PM it is good for everyone else!!

With regards to having some bad luck in your first 18 months of investment, don't let it scare you off! make sure your PM does REALLY good checks on any applicants for the property to save a lot of the heartache.

Also, double check that the PM is advertising the property at the same (or less) rent the current tenants are paying, if it is more then you could be in for a world of hurt at VCAT and you wouldn't be the first member of this forum to have that occur.

It wouldn't be a bad idea to approach someone regarding mediation, even if it is you, your PM, your PM's department manager and the tenants at the agency. If you can document your efforts and response (have everything written down as it occurs and then have everyone sign it at the end of the meeting) then it is an excellent thing for your PM to have on hand when they go to VCAT as they can demonstrate the fact that you have gone to huge lengths to try and resolve the issue before it got to VCAT however, the tenants were not willing to compromise or discuss.

again, best of luck, get a copy of the VCAT order, research other local agents and I can't wait to hear the outcome!

 

[Lil Skater]

Cheers, Sez.

Only thing I may have added would be that the tenants should've given a date they would be leaving. If not, the same day the PM would need to chat to them, outline lease break charges and advertised the property the same day.

And yes, you will easily find out if the PM did something wrong - I have once seen a PM be screamed at by a member. Very unprofessional on the members part, but it was one of my first hearings so very insightful for me.

 

[Ed Barton]

Cheers, Sez.

Only thing I may have added would be that the tenants should've given a date they would be leaving. If not, the same day the PM would need to chat to them, outline lease break charges and advertised the property the same day.

And yes, you will easily find out if the PM did something wrong - I have once seen a PM be screamed at by a member. Very unprofessional on the members part, but it was one of my first hearings so very insightful for me.

was it justified? some PMs need a good screaming at.

 

[Lil Skater]

was it justified? some PMs need a good screaming at.

Well, not sure.

It was about a bond and what they had used it on. I'm not a 100% sure whether the PM just didn't know any better and it was a genuine mistake, or if they had used it incorrectly intentionally.

Obviously the member thought the PM did it on purpose to screw over the tenant.

 

[kathryn d]

Cails,
Are you actually going to replace a perfectly good rangehood..just because it doesn't match?

 

[cails]

Kathyrn,

Absolutely not!! haha and told the tenant so. However today it has *shock, horror* broken down now...what a surprise! sigh lol

Jess

 

[kathryn d]

Kathyrn,

Absolutely not!! haha and told the tenant so. However today it has *shock, horror* broken down now...what a surprise! sigh lol

Jess

Either repair it..or replace it with a similar one..as long as it is nonmatching

 

[Sez]

Either repair it..or replace it with a similar one..as long as it is nonmatching

Exactly what I would have suggested !!!! tee, hee, hee

 

[cails]

Well, the update.

This is my understanding of what happened based on a quick conversation with the PM.

The case was never heard. It was dismissed. I think this was because they were applying to break the lease....but they already had by the fact they never moved in...does that make sense? haha

Anyway, they were told that they can refile for compensation if they so wish, however they were advised by the member to negotiate with us instead. She supposedly said that "cleanliness" was not a reason to break a lease as it was easily rectifiable.

Sooooo. Now we wait to see if they wish to negotiate or if we are going back to VCAT again!

Jess

 

[Sez]

Good outcome Jess, lets hope they are so upset by their case being dismissed that they don't bother . Are you going to file for compensation for them breaking their lease? That would get them!!!

 

[cails]

Hiya Sez

Well yes that was round 1, we shall wait and see about Round 2.

They are supposedly discussing it but I would not be surprised if they take it back to VCAT, they are so convinced they are "right".

We have offered they can walk away with their bond. We keep the months rent and waive the lease break fees (the PM will cover these). Fingers crossed! And thankfully we have released the property!

Will let you know what they decide

Kind Regards,
Jess

 

[cails]

And back I go to VCAT! lol

They have informed the PM of their intention to apply for compensation. When the date is received we shall be filling for $1000+ plus in lease break fees.

All fun and games