How to terminate a tenancy for rent arrears in WA

Here's a quick DIY guide for those self-managers out there in WA. Also useful for those with PMs to make sure that your PM actually knows what they are doing.

Firstly there are actually two separate procedures that can be followed. One is substantially quicker than the other, and so probably is the most useful from a landlord's point of view. I've outlined it below:

1. As soon as there is a single day of arrears, you can issue a Form 1B Notice of Termination. A copy of which is on the Consumer Protection website:

http://www.commerce.wa.gov.au/ConsumerProtection/Content/Property_renting/Renting/Notices.html

2. Make sure you allow 7 clear days before the vacate day, as well as a day or two for service depending on your service method.

3. If the tenants are still at the property on the day AFTER the vacate date, you can immediately apply to the nearest Magistrates Court for a termination order. It will be on a residential tenancies Form 12. Lodgement fee is $26.70.

http://www.magistratescourt.wa.gov.au/R/residential_tenancy_amended_regulations_2005_forms.aspx

4. Make sure you put the orders required as something like "termination of tenancy agreement and order for vacant possession".

5. Wait until the first court date. It will be at least 14 days from lodgement, but almost always within 21 days from lodgement. Hopefully (and most of the time) you will get your termination order there and then.

6. Just note that the tenant has until the day before court to pay up the arrears along with the $26.70 lodgement fee. If they do that you can't actually proceed to seek termination (but at least you have your money).

There you have it. Not really that hard. I'm happy to answer any questions.
 
There you have it. Not really that hard. I'm happy to answer any questions.

Now back to reality...

1. Tenant is late with rent. You send a piece of paper. They ignore it.

2. Tenant calls you to say they are having some personal issues and will work it out. Tenant is still late with rent. You send another piece of paper. They ignore that as well.

3. Tenant is still late with rent. You call...no answer. Message bank is full.

4. Tenant is now many weeks late with rent. You send another piece of paper. They ignore that, just like every other piece of paper.

5. Do your step 1. They ignore it.

6. Try to go thru step 2, but you receive a letter from someone like thatbum, a Tenancy Advocate, arguing that service of the letter was not appropriate and did not give the correct notice period taking into account postage. Advocate demands a maintenance list of problems with your property and slaps a demand on you as the Landlord to fix immediately, filing procedures in the court against the Landlord, alleging all sorts.

7. Tenant laughs in your face as they still pay no rent and you struggle to prove all of the allegations are false. You're on the back foot.

8. Advocate like thatbum writes a further letter on the Tenant's behalf claiming that the Tenant will vacate if the Landlord contributes $ 2,000 to the moving costs and agrees to release his client from any damages to the Premises.

9. Landlord still has no rent. Bank couldn't give a flying fig and the poor sucker is caught in the middle paying a mortgage regardless.

10. Landlord tries to get on the front foot by issuing a Form 12, but the court date is delayed because the Tenant's had to go to their grandmother's funeral.

11. Another month passes, and the letters are still being ignored.

12. Tenancy Advocate like thatbum issues another threatening letter to the Landlord demanding all claims against his client be dropped, or they will use the Residential Tenancies Act, especially clause 42.2.(c) as a huge hammer against the Landlord.

13. Months and months of no rent have gone by at this stage, and the Tenant has vindictively and sneakily gone around damaging the property (that you cannot prove was them) causing thousands of dollars worth of damages.

14. You finally get a court date, and the Tenants don't turn up because both of their kids have taken ill. The Tribunal Member gives them another month before requiring to appear.

15. The Bank gives the Landlord notice that without further injections of money, they will be forced to sell the property from underneath them.

16. Yet another month of no rent and more damage ticks by, with multiple letters continually ignored.

17. Finally you get your court date, and the Member grants you the order of termination.

18. The Tenants go back to the house and in a fit of rage smash everything.

19. Another week goes by and they refuse to comply with the court termination order. They tell you they do not recognise anything on paper and you can shove those letters up where the sun don't shine.

20. You then apply to the court for enforce of the order, and need to wait another 2 weeks for the bailiff to physically remove them.

21. The Tenants know that (the Tenancy Advocate like thatbum applied to know the actual date and helpfully advised them) and a day before the Bailiff arrives, the skip away taking only the barest of essentially and leave the property with 7 skip bins full of rubbish and dirty nappies smeared all over the wall.

22. With no forwarding address and with lawyers protecting their right to privacy, it becomes impossible trying to locate them to sue for damages.

23. You as the Landlord cannot access the Bond monies (a tiny little 4 weeks of rent) without the Tenants signature which they will not agree to.

24. You then need to apply to DoCEP and go through all of their rigmorale to recover the tiny amount of Bond.

25. Finally you roll up your sleeves (well maybe keep them down), bring in the wheelbarrow and facemask and shovel and start getting your property back in order.

26. The Bank gives you final notice that they are about to sell it by public auction unless they are paid.

27. Many many many weeks pass as you pay to have the damage repaired, the walls painted and the carpets replaced.

28. New Tenants walk in and say "what's that awful smell, before asking how much you are prepared to drop the rent by" ??

29. There is absolutely no guarantee and no protection for you as a Landlord whatsoever that these new Tenants are any better than the old ones.

There you have it. Not very close to the lawyer fantasy land portrayed above in the original post. I'm not prepared to answer any questions.
 
Sorry, I did forget to mention the third procedural option that Dazz has kindly outlined for me - floundering around with no idea what you're doing, and then wallowing in self-pity about how hard it is to be a residential landlord.

Not really the quickest or most practical method (29 steps!), but it does seem popular too.
 
Thanks thatbum for sharing the DIY guide, it is a good outline of the formal rent termination procedures.

Dazz I concur with you, actual eviction proceedings often involve one or more of your 29 steps.

thatbum, Dazz's 29 steps for some people can occasionally be about floundering around, or more likely attempting to learn the rules of the game where the other side is operating from a completely different set of ethics and behaviours than previously encountered.

It is certainly not wallowing in self-pity. The odds are stacked against residential landlords and in the tenant's favour. I do NOT recommend residential property investment for people looking for a hands-off, easy-care investment. Also sometimes people make a comparison between investing in property and shares. All I will say on that is, in shares people do not spit on you, hit you, damage your personal property and threaten to kill you.

Here are some notes on the various steps involved in terminating a tenancy for rent arrears in WA.

1. Form 1B versus Form 21 - Form 1B is the fastest way to evict for non-payment, however its fatal flaw is that tenants can pay the day before the court hearing (as mentioned by thatbum). Even if the tenants pay the rent owing, they will often fall into arrears again a few days later; and you will have to wait another 30-40 days to get another court hearing. Most times the tenant will not pay the $26.70. You can attempt to attend court and be awarded the $26.70, but is it really worth perhaps half a day of your time? Preparing your legal case each time takes considerable time and documentation. For persistent late payers, if you want them out, use the Form 21 followed by a Form 1A.

2. Applying to Court - needs to occur on or after Day 13 of arrears (can be one day earlier if personally served correctly). If you mess up this date your case will be thrown out and you will have to start again while your tenant enjoys the rent holiday. Note you can apply online via the Magistrates Court website.

3. There is an average 22-day wait for a court hearing - I have years worth of statistics on this timeframe. The normal range is 17 to 28 days, occasionally longer. So on average you will hit court on Day 35 of arrears. But wait - you are prohibited by law from holding any more than 28 days of rent as bond - so you are already behind by 7 days of rent, and that does not cover any of the other eviction or cleanup costs.

4. Your termination order - not automatically issued by the Court. A tenant may seek an adjournment. A tenant may raise various issues with the help of their free legal adviser. Or the Magistrate may simply take pity on the tenant's situation and give them another 2-4 weeks to pay, forcing you to re-attend later when the tenant's tears prove to be deception. My record on this one is 5 hearings required to evict a crying tenant from Armadale Magistrates Court three years ago. Alternatively you may get your termination order, but it is common for the Magistrate to give the tenant perhaps another week or so out of compassionate reasons. Or even better, you get your eviction order but the tenant lodges an appeal, which gives them a stay of execution of at least a week.

5. This is the bit really missed in the DIY guide - you get the termination order but THE TENANT DOESNT ACTUALLY MOVE OUT. You will need to personally attend the property and check if the tenant has gone. If there is a car in the driveway, it may be abandoned but don't park behind it, there is no benefit in being rammed. You think I am joking about this stuff? Maybe no one answers the door, but it looks like there is still a lot of stuff in the house. It is common for an evicted person to leave possessions behind, so you will have to go inside and check if they are gone. I suggest you take a second person with you. Call out hello loudly. There is a risk that the tenant will be sleeping inside, or may turn up outside while you are inside. Remember to lock your car. If you are sure the tenant has moved out and the house is empty, and you are going to do a final condition report, make sure to lock all doors so the tenant cannot come back into the house while you are there.

6. If the tenant hasn't moved out you will need to arrange the Bailiff to attend. Cue another $400 or so, another lodgement delay, and also the Bailiff will negotiate with the tenant so they will likely get another week in the property rent-free.

7. Make sure you have a locksmith on hand for the Bailiff. And stand well back, sometimes tenants get aggressive like the WA Bailiff run over by a tenant in Midland a few years back.

8. If the tenant has left stuff at the property (this will happen most times) then you will need to follow the removal and storage guidelines for both documents and possessions. Normally I apply for an indemnity certificate from the Department of Commerce to protect myself from any attempt to sue by the tenant.

9. Your landlord insurance will not cover much of the cleanup expense as it will be categorised as poor housekeeping not malicious damage.

10. Try and minimise your cleanup expenses as the tenant in most cases is never going to pay for it. The tenant has minimal assets, no fixed address, doesn't care less about you (probably hates you), and often has access to free legal advice.

11. Remember that time is of the essence - your focus needs to be to get that property into rent ready condition as fast as possible. Here is a rough sequence of events:

a. Bailiff.
b. Locksmith
c. Final Inspection Report.
d. Indemnity Certificate for stuff left behind.
e. Order Skip Bin(s).
f. Get Abandoned Car removed.
g. You do minor maintenance to get house working again - replace all the missing light globes, get HWS working etc.
h. Labour to dispose of bulk waste.
i. Front yard cleanup (to discourage squatters)
j. Glazier attends.
k. General handyman patches holes in doors etc.
l. General internal clean.
m. Carpet clean.
n. Rear yard & shed clean up.
o. Fix retic.
p. Put bins out, clear mailbox.
q. Commence rental home opens.

12. You will need to attend court AGAIN for a hearing to determine damages and dispose of the bond. You may be surprised to note that the Magistrate will throw out or reduce many of the invoices that you provide.

13. The typical cost of an eviction like this is $2000 - $6000 plus rent arrears and legal costs.

14. You will probably get the bond (say $1800) but unlikely to get much else. After many years of pursuing these cases I have got myself up to the illustrious level of getting around 15% of ex-tenants to pay up.

15. Did you know that thanks to the recent tenancy law changes, your evicted tenant will NOT be registered on the database until after the court order has been issued and then the tenants have been advised in writing that they are going to be listed (and yes they can object to the listing)? So in most cases they will be into a new rental property before they are listed on any database. And their database listing for wrecking your property will expire in 3 years time, at which point they will have a clean slate (while you still have those burn marks in the carpet).

Some people with rental properties will have never had these experiences, and that is good! Its simply a numbers game. Contested evictions with a bailiff represent around 1.5% of residential tenancies. But if you hold a residential rental property for long enough, or if you have a lot of properties, you will come across elements of what is described here.

For self-managers, if you start to enter into this scenario, take great care for your personal safety. And if you are using a property manager, make sure you use someone who is familiar with these situations, rather than someone for whom offensive tenant behaviour comes as a great surprise.

Cheers,

Burbs
 
excellent thread.

Yes, for anecdotal scaremongering.

I'm still baffled why there is this culture among landlords instead of a solution based discussion.

You don't see the same "end of the world" type discussion about things like tax or investment structures for example.
 
My post is fact not anecdote.

Why relate these experiences?

To assist other landlords.

I think the case that tipped me over the edge was an eviction about seven years ago.

I had just purchased the property. It was a nice 4x1 in the south-eastern corridor. The previous owner sold it because he had bad tenants and couldn't get them out. I ran a textbook eviction up until we were in Perth Magistrates Court and the female tenant started crying and acting very vulnerable. The Magistrate refused to evict on the day and gave them an extra week. Then we left the court room. In the lobby area outside the court, the male tenant said "I am going to smash your house". Many people heard it, I looked around and there were some administrative court staff but they didn't appear to care.

So I drove straight to Cannington Police Station. I related the whole story to the police staff. They listened to me, but said there was nothing they could do.

The tenant proceeded to destroy the house.

I cleaned it up afterwards.

The police had no subsequent interest in the case.

I have a judgement, but the tenants are of no fixed address and the male is a known criminal.

Thats one aspect of residential property investment, and it is worth being aware of.

If someone went into that situation with no preparation, they could suffer deep financial loss and even injury or death.

Cheers,

Burbs
 
Outstanding post Burbs. That's the reality....

The difference between lawyers advising what is "maybe possible" and what really happens out in the real world cannot be more stark.

I'm not surprised thatbum is baffled. His experience levels are just a tick above zero when it comes to owning property.

If only young (and not so young) property investors would read and take heed of what it is really like being a residential Landlord.....

The residential Landlords that reckon this stuff never happens, as you mention directly above, simply haven't owned enough properties for long enough to find out what the Tenant's massive legal rights are. If everything goes swimmingly, and the Tenants behave themselves, they'll never get to find out what a real nasty vindictive Tenant can actually get away with and put the Landlord through financial and emotional hell.

Cashflows and capital gains....the reason you own the investment property won't even get a look in. It's the Landlord's # 1 goal, but they come so far down the priority list when this happens....it won't even get mentioned in court.

Based on events exactly as you describe Burbs, I eventually reached your position and conclusion way back in 2004 and decided never again to purchase a property that exposes me to those outrageous laws. That was under the old rules. Seriously, why would ya ??

Of course, since then, most states in Australia (including WA) have recently upgraded their tenancy laws to give further rights to Tenants, if that was possible.....but yes the Tenancy Unions and Advocates (like thatbum) found a way to further strip rights off Landlords, and at the same time massively increased penalties against Landlords against more onerous responsibilities lumped onto their shoulders.

Tenancy Unions put in enormous submissions...and plenty of them. Landlords put in practically nothing to be reviewed. You can imagine the outcome.

It sailed through both houses of the WA Parliament unopposed and came into effect from the 1st of July 2013 without a whimper from residential Landlords.

One crazy example is the new law demands the Landlord produce Property Condition Reports at both the start and end of the tenancy. It's a great idea of course to protect both parties, but is it necessary to fine the Landlord $ 10,000 if they don't do it ?? Who knew that ?? That's what the new law demands....

If the ratbag Tenant simply walks out without paying rent and abandons a whole bunch of their paperwork, if you don't make a serious demonstrable attempt to find the Tenant and hand or post them back nicely, the Landlord is liable for a $ 5,000.00 fine. What ?? If you don't store and keep the documents nicely for 60 days, as the Landlord you're also up for another $ 5,000.00 fine. What ??

Most residential Landlords have absolutely no clue about any of this stuff....and blissfully trudge along completely unaware of what they are liable for.

Thatbum and other Tenancy Advocates of his ilk knows this stuff like the back of their hand and are just waiting there like coiled vipers ready to unleash these laws on some normal, well meaning but ignorant residential Landlord.....but he ain't saying nothing until he has to.
 
Great thread guys.

Over Easter we had a fantastic time on a family camping holiday away from the caravan parks. The last evening before we were due to leave we had some new neighbours move in to the site next door. We then proceeded to have a verrrry nervous night as the site turned into a gathering of an infamous bikie chapter, along with all their own kids. Outrageous noise, language and behaviour, all sorts of illicit drugs being consumed and some very nasty, unhinged people wandering around boasting about whose head they had put through what windscreen. Fortunately our kids got to sleep before the party started and somehow stayed asleep. We didn't sleep a wink on the other hand and couldn't get out of there soon enough the next morning, packing up very quietly.

We asked the property owner about them and he didn't have a clue despite giving all his customers (including us!) the Spanish inquisition when they arrive to try to weed out these sorts. Apparently they presented to him as charming families just out for a well deserved break. Covered up all the tatts etc at the right time. Not a swear word was heard.

I shudder to think how these people would respond to thatbum's step by step guide to property evictions when the penny dropped on the part of their LL. It may be a small number of tenants who do this but LLs shouldn't have to run this gauntlet every time. But we do... pretending it doesn't exist doesn't help anyone.
 
Great post guys...

Dazz you hit the nail on the head...The hoops you gotta jump through as LL but get screwed by the system.

I'm weighing my options atm.

Cheers Spades.
 
6. Just note that the tenant has until the day before court to pay up the arrears along with the $26.70 lodgement fee. If they do that you can't actually proceed to seek termination (but at least you have your money).

If only you could charge the tenants for your time to prepare court documents, applying for a court hearing, travels costs, time off work.
 
Back
Top