Legality of lease
- Thread starter Burramys
- Start date
I would of guessed Lily's was right before I even looked into it, current agent using an old form. Speak to Universalforms.com.au who have shut up shop as there was an error in their sale contract and they got sued. Cost for me to use an up to date correct legal form from a good company costs me less than a dollar.
You only need to worry if the tenant knows that the lease is in correct and if you ever end up at VCAT, NCAT etc. Let the agent know he has used an old form, dont you sign and hold him responsible!
You only need to worry if the tenant knows that the lease is in correct and if you ever end up at VCAT, NCAT etc. Let the agent know he has used an old form, dont you sign and hold him responsible!
All above, thanks. It seems a bit much that a document headed REIV has been chopped about, and badly at that. The REIV website advises that ?All forms are compliant with existing legislation and regulations and are updated when required.? This is not the case with the form that I have been asked to sign. Paying $3 to use the REIV form is peanuts compared to the costs of litigation. The REA has spent perhaps an hour on this matter, and I?ve spent a lot longer. My rate is more than $3/hour.
The agreement is very dated. A Victorian penalty unit was $100.00 in 2004, and at present it is $147.61. See
http://www.dtf.vic.gov.au/Victorias...d-guidelines/Indexation-of-fees-and-penalties
I will not be signing, and I will hold the agent responsible. There's a legal maxim along that lines that a poorly drafted form shall not excuse. I'll look this up later.
I?ll pursue the matter next week. Should I advise REIV that it appears that a REA is using one of their forms that is poorly arranged, has a number of typos, refers to the wrong parts of legislation, and is ten years out of date? Or should I give the REA a copy of my proposed letter to REIV for comment and then perhaps contact REIV or Consumer Affairs?
The agreement is very dated. A Victorian penalty unit was $100.00 in 2004, and at present it is $147.61. See
http://www.dtf.vic.gov.au/Victorias...d-guidelines/Indexation-of-fees-and-penalties
I will not be signing, and I will hold the agent responsible. There's a legal maxim along that lines that a poorly drafted form shall not excuse. I'll look this up later.
I?ll pursue the matter next week. Should I advise REIV that it appears that a REA is using one of their forms that is poorly arranged, has a number of typos, refers to the wrong parts of legislation, and is ten years out of date? Or should I give the REA a copy of my proposed letter to REIV for comment and then perhaps contact REIV or Consumer Affairs?
I would be advising the agent that you've discovered that the contract is a poorly edited version of an old REIV contract, and that as it contains erroneous references, you won't be signing.
I'd also write to the REIV and include a copy of the contract. I imagine they're very interested in the theft of their intellectual property.
I'd also write to the REIV and include a copy of the contract. I imagine they're very interested in the theft of their intellectual property.
Perp, I'll give the REA the opportunity of commenting, then contact REIV. Theft is a very strong word that had occurred to me but I was reluctant to use. If theft is proven then there will be unhappiness at the REA.
The maxim that I could not recall is that ignorance of the fact excuses. Essentially this means that if there is no awareness than that that is an excuse. That is, if the tenant was unaware that, say, nine point renders the legality illegal or at best questionable, then that can be relied on to make the agreement void. Something like that. There's even a nice Latin phrase: ignoratia facti excusat.
It could be held that having a REA submit what appears to be an agreement drafted by REIV gives credibility, and that a reasonable tenant would have faith that such an agreement is drafted correctly.
The maxim that I could not recall is that ignorance of the fact excuses. Essentially this means that if there is no awareness than that that is an excuse. That is, if the tenant was unaware that, say, nine point renders the legality illegal or at best questionable, then that can be relied on to make the agreement void. Something like that. There's even a nice Latin phrase: ignoratia facti excusat.
It could be held that having a REA submit what appears to be an agreement drafted by REIV gives credibility, and that a reasonable tenant would have faith that such an agreement is drafted correctly.
Personally, I'm very happy to spend the $3 on a lease agreement where I know the clauses are correct. The costs add up quickly when you have a number of properties - but this is the cost of running a business - and they're being paid by YOU to do it correctly!
I would notify reiv, I assure you they won't be impressed. Are the agents reiv members?
I would notify reiv, I assure you they won't be impressed. Are the agents reiv members?
It's $3/form not per annum. So the costs can become significant if the agency does hundreds of leases each year.
If the agent is photocopying the lease and issuing instead of paying for a new copy each time, they may be infringing the REIV copyright on the document. Be sure of the facts prior to accusing the agent of reusing the form - in NSW we can purchase preprinted forms or subscribe to the REINSW and download a fillable form which gets locked at completion but is printed on the office copier.
If the agent is photocopying the lease and issuing instead of paying for a new copy each time, they may be infringing the REIV copyright on the document. Be sure of the facts prior to accusing the agent of reusing the form - in NSW we can purchase preprinted forms or subscribe to the REINSW and download a fillable form which gets locked at completion but is printed on the office copier.
Scott, thanks. I was wrong. I have mainly had leases of 12 months, so this is why I thought annual. Surely $3/lease could be built into the landlord-REA agreement. Many other things are.
I'm not accusing the REA of anything. My comments to REIV detail my posts above and incorporate other's comments, not attributed. Essentially i'm saying the agreement is dated, is poorly drafted, has errors and appears to be contrary to law. I then offer suggestions to improve the agreement. The REA is not named in the letter to the REIV.
Also, by asking the REA for comments first I can be quite sure of my ground. In a recent article I very carefully tore a product apart. There were quite a few issues of fact with this product and i sought advice from the manufacturer. None of my assertions was denied, and I said as much. Fact and public interest are defences. My editor agreed to publish.
I'm not accusing the REA of anything. My comments to REIV detail my posts above and incorporate other's comments, not attributed. Essentially i'm saying the agreement is dated, is poorly drafted, has errors and appears to be contrary to law. I then offer suggestions to improve the agreement. The REA is not named in the letter to the REIV.
Also, by asking the REA for comments first I can be quite sure of my ground. In a recent article I very carefully tore a product apart. There were quite a few issues of fact with this product and i sought advice from the manufacturer. None of my assertions was denied, and I said as much. Fact and public interest are defences. My editor agreed to publish.
I wonder how many tenants on SS are looking at their leases now?
If the REA thinks you are too much 'trouble' after all this, are you able to get another REA or can you self manage?
Kathryn, the thought that they may get rid of me is fine. The lease was renewed a month or so ago, the property is close enough, and I' hope to sell it after 30 June 2015. The REA has been advised of the sale and indicated that they can manage this. If they don't want to manage then I'll get someone else to sell the property.
I got rid of the last manager after they attempted to break the law, good timing there as well - they had just found a tenant.
Note that I am not going to name the REA when I write to REIV. But if the REA declines to manage for me then I will review this. I have many VCAT appearances and at other courts, taking on and winning against large entities, the latest being an ASX top 50 company, and a lawyer.
I got rid of the last manager after they attempted to break the law, good timing there as well - they had just found a tenant.
Note that I am not going to name the REA when I write to REIV. But if the REA declines to manage for me then I will review this. I have many VCAT appearances and at other courts, taking on and winning against large entities, the latest being an ASX top 50 company, and a lawyer.
My PM sent me another lease. It's better but not much - about 60 forms of words, grammar, spelling and punctuation need addressing. For example,
Point 4 refers to "cleaniness". Spelling?
Point 7.1 says ?The tenant shall not assign or sub ? let the whole or any part of the premises without the written consent of the landlord.? Point 38 says ?Sub-letting is not permitted.? One is wrong. Totally dismal sub-editing! Dismal arrangement of like matters! Dismal!
This is apart from the quite dreadful layout, which should be in chronological order: introduction, starting the lease, during the lease, ending the lease, and maybe a miscellaneous section. It's not rocket surgery.
The PM took a week to reply, and a few hours before his email with the new lease was received I wrote to REIV. I'm quite sure that they appreciate my Christmas present: REIV leases may be illegal.
Point 4 refers to "cleaniness". Spelling?
Point 7.1 says ?The tenant shall not assign or sub ? let the whole or any part of the premises without the written consent of the landlord.? Point 38 says ?Sub-letting is not permitted.? One is wrong. Totally dismal sub-editing! Dismal arrangement of like matters! Dismal!
This is apart from the quite dreadful layout, which should be in chronological order: introduction, starting the lease, during the lease, ending the lease, and maybe a miscellaneous section. It's not rocket surgery.
The PM took a week to reply, and a few hours before his email with the new lease was received I wrote to REIV. I'm quite sure that they appreciate my Christmas present: REIV leases may be illegal.
Illegal or invalid? And what kind of error do you propose you've found that rises to that level?
An interesting thread.
I also find the REIV version of lease poorly drafted and laid out. I have found the VIC practice of putting the schedule on the rear page of the document annoying. I prefer the NSW layout, where the schedule (which contains the most important information) is placed on the front.
We have drafted our own version of a residential lease, and have subsequently updated this document various times.
I also find the REIV version of lease poorly drafted and laid out. I have found the VIC practice of putting the schedule on the rear page of the document annoying. I prefer the NSW layout, where the schedule (which contains the most important information) is placed on the front.
We have drafted our own version of a residential lease, and have subsequently updated this document various times.
Contracts usually have a clause where ambiguities, errors, omissions, discrepancies or inconsistencies can be resolved by either the Principle or the Supplier (either party) notifies the other in writing and issue to correct as such.
It appears you're making a mountain out of a molehill. If there is something you want changed, then take responsibility for it instead of having a whinge.
pinkboy
I do not have a copy of the lease with me, but my recollection is that there is no such clause as you describe. I have endeavoured to resolve the matter, so far without success. I have advised the PM and REIV in writing. I was not prepared to sub-edit the first version as it appeared to be ten years old. The second version is better, improvement still needed. Advice has been sought from the PM and REIV; not much more can be done at present.
It's hard to see how I can be responsible for poor drafting of the lease. It's quite simple - the lease is badly arranged, contradictory and is hard to understand. The PM and/or REIV need to fix this, and the first step to do so has been taken. Are there any other actions that can be undertaken?
I've read through hundreds of REIV leases, the only time I have noted errors like the ones above is when an agency is poorly editing them or reusing old forms that are out of date.
I have drawn up a few leases this week, and not a single one have the above errors with the question marks/poor wording.
The schedule is also now on the front, it's been a LONG time since they were attached/printed to the back.
I have drawn up a few leases this week, and not a single one have the above errors with the question marks/poor wording.
The schedule is also now on the front, it's been a LONG time since they were attached/printed to the back.
