Now this is a tough one! Legal help??

I

Icarus

Quick run down of a situation that I've recently found myself in.

One of my properties has been vacant for approximately 3.5 months.

The tenants broke the lease in early February and no recourse to missing rent was taken by the mangement - even thought they had approx 2 months remaining on their lease.

The unit is located in a sizeable complex and is managed by the on site building managers.

I informed the on site managers that I would be changing management at the end of this month - this email was sent on the 9th May 2014.

The managers replied, saying that they would uphold their 90 day mangement period as part of a form 20A.

Now, here is the tricky bit and probably most important fact..

Due to whatever reason it may be, the managers did not present a form 20A for me to sign when we purched the property (in 2010) - it was managed by them prior to the purchase and they continued managing it.

I informed the managers of this fact and asked them to produce a copy of this contract, which is obviously not possible.

I have another unit in the complex currently being rented by the on-site managers, which I am worried will suffer some blow-back from this.

I fear that if I continue to use these managers, my unit will remain vacant. (These managers do not use online marketing to list the vacancies - which is one of the other reasons I am changing management.)


What are my options? Should I seek legal help? The managers are currently involved in a legal matter with another owner in the complex and have advised me that they have contacted their legal team with regards to the form 20A. I have not heard anything back from them about this as yet...

Obviously, I'm not going to be pushed around - but is it worth fighting, or just write another 3 months off as a bad debt?

I appreciate your replies and thanks in advance.
 
I'm quite confused about your story. I think its probably simpler than you make it out to be though.

What exactly are you being "pushed around" with? Why aren't you getting on with renting the place out as soon as possible?
 
A Brisbane PM informed me she couldn't manage my property without filling in a form 20a first so it sounds like they aren't legally managing it anyway. I would just sign up with a new PM.
 
I would be cautious here.

Even though you did not sign the paperwork, you have obviously agreed that they manage the unit for you, which may be taken as implied consent unless this is a very recent purchase.

Talk to the new PM to see if they will reduce their charges while you see out the notice with the current management (which I hope you have already given "just in case").
Marg
 
Wrote this while eating lunch...

Can't rent out the unit as managers won't release it to another property manager until the 90 day notification limit is up.

Current managers are unable to find a tenant - they used to rely on walk-ins, the market has changed, but they haven't changed their marketing technique.

Simple version...

Property is empty - I want it full.

Managers unable to fill it - I want to change managers.

Managers won't agree to change until I give them 90 days notification (according to their usual contract). At their discression, hey have the option to change to 30 days notification - but refused.

Contract does not exist (was never signed) mangers have threatened legal action if I change to another agency before 90 day limit is up.

By pushed around - I mean, stoppping me from having my unit rented and threatening legal action.
 
They dont need to release it since they arent legally managing it.
Just go to another property manager and have them take it over.
Accept the legal action, they'll have to produce documentation to support their case.
 
I would suggest that you have no agreement with the PM and he doesn't have a leg to stand on.

If the same applies to the other unit then you could move that one immediately.

If you do have a 20A for the other unit then simply give the PM 90 days notice for the second unit.

Go and see another PM and they will organise everything for you.

Cheers
 
Change managers

If they do go down the legal path I would assume they can only claim for missed commission for the time within that 90 day period that it is actually tenanted.

The only sticking point them is the new PM acting legally and not wanting to take you on without the form.
 
If they persist with the 90 days tell them where to get Off. Have a read of the Qld property management and car sales act to confirm whether they have been entitled to their commissions (in NSW no management agreement, no entitlement to fees).

You want immediate access to the property in return for not requiring the return of commission/going to office of fair trading.
 
Thank you all for the feedback and advice.
Scott No Mates, I'll have a read of that site after work tonight and see what I can find. It looks like a decent sized document!!
INVSTOR - just got that link opened up now, will have a quick flick now.

Quick update -

I've contacted another local agent (who came highly recommended by another investor friend) and they are in the process of taking over the management - paperwork was signed and sent yesterday. Will see how things pan out.

While I'm asking - what are the legalities around breaking a lease?

When my tenants moved out in February, they still had a month or two left on their lease. What should've the managers done to recover this lost rent?
Apparently their name(s) were added to a RTA blacklist, but as far as I can gather, that's about the extent of it.

Last question - worst case scenario... if push comes to shove and I get a nice letter from their legal team, are there any QLD legal firms that you'd recommend? I know that there are a few legal eagles on this site, any based in the Sunshine State?

Thanks once again everyone!
 
Icarus said:
Contract does not exist (was never signed) mangers have threatened legal action if I change to another agency before 90 day limit is up.

.
Click to expand...

Of course a contract exists. You have accepted their terms by using them over the months that you have owned the property. A contract does not need to be in writing, it can be oral.

But whether it is enforceable is another question. Contracts relating to land need to be in writing to be enforceable. I am not sure if this goes as far as the real estate agennt agreement but a lease would need to be in writing to be enforceable.

If you want out what would have been their commission for the 90 days? Maybe you could just offer to pay them that to let you go. The incoming agent may agree to reduce their commission during this time so you may not be out of pocket too much. To speak to a lawyer you are going to start paying a few hundred per hour for starters.
 
Refer to Section 133 & 135 of the Property Agents & Motor Dealers Act 2000.

1) Agent must be appointed by the client in writing (agent can assign to another agent but a new agency agreement is required for a new client) 200 points
2) must nominate the end date, & revocation upon 90 days written notice (or less if agreed).
3) The appointment must be signed and dated by the client & the REA or someone authorised or apparently authorised to sign for the agent.

It makes for enthralling reading, not. There are distinct differences between the NSW & Qld Acts.
 
As mentioned what is the commission for 90 days?

Just talking to a lawyer will most probably exceed that amount. So if push comes to shove pay the PM out and move on.

I still believe that you are not liable as you don't actually have a contract with the PM. Just point out to them that they are in contravention of the act (as per Scots's post) and are actually up for a 200 point penalty. That will certainly put the wind up them.

It appears to me that you are very inexperienced and you are best to find an alternate PM (who you can trust) and let them guide you though the process.

Cheers
 
Not under the standard REIQ. I say let them claim commission and then dispute it at QCAT.

Get a locksmith- change the locks and take photos of the current state of the premises.

They have problems in the absence of a written agreement signed by yourself.
A few lawyers on the board but it is probably not worth engaging them as their cost will exceed the agency commission claimed no doubt.
 
Thanks again all, appreciate the info.

A bit of good news, new agent has picked up the keys this arvo without too much fuss and will look at getting the unit rented out again ASAP.

It was a furnished unit and from the agent's description it seems as if some of the furniture may have gone on walkabout. Will have to get to the bottom of this. That can be next week's problem.

Yes, been a steep learning curve this one. Appreciate all of the help over the past couple of days. Enjoy the weekend everyone.
 
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