Special Conditions in Tenancy Agreement

[brrmm]

Just settled on our IP and have applicant in place ready to sign but have a question for Qld tenancies.

The house has a dishwasher (old but barely used I'd say) and we don't want to be called out or pay $$ to fix the thing every time something happens to it.

Don't want to take d/w out and happy for tenants to use it till it breaks down, but don't want it to really be part of the tenancy agreement.

I've talked to PM about it and she started on about Solicitors blah blah blah, and basically said no, can't be done.

Is she being lazy, or is there provision for special clauses in the agreement to cover such things ?

 

[wylie]

I know that when we rented a place to some young chaps we left the fridge that came with the house. We inserted a clause saying that the fridge was included, but that if it broke, we would not be replacing it.

I don't see a problem, don't really know the legality of it, but cannot see a problem if it is in the lease and they have signed it.

PM Lura as she will know the answer to this, or call the RTA who are always very helpful.

 

[Elizabeth]

It all depends - if you showed the premises with the dishwasher, then it would be assumed that this would be in working order and would be part of the tenancy agreement. In saying that, the agent can go to the prospective tenant BEFORE signing the lease and advise that it is not included. They may not take the property as a result and, as you are changing the original and assumed terms, they would be able to have their deposit refunded in full. Or they may run with it - you never know!

Liz

 

[ACTInvestor]

Why wouldn't you replace the dishwasher if it broke down. A dishwasher may not add rental value, but it adds rentability to a property. People expect dishwashers in houses these days and if there are two comparable properties, why wouldn't they choose the one with a dishwasher?

 

[marg4000]

If you don't want to be responsible for the dishwasher then remove it from the property before renting it out.
Marg

 

[kathryn d]

We have done this before, with a clothes washing machine.
Stated in the lease, it is not included in the rent. If it broke down and we are personally able to fix it, we would. If it required a repairman, we wouldn't. Eventually it did break, and was disgarded.

Dishwashes can be really cheap. You don't need to purchase the top of the line. We bought basic ones here for $229 + tax.
I'm sure you have similar stores.
Lots of our other stores charge $500+.
No one ever fixes anything. They are too cheap and are to be regarded as disposable.

 

[handyandy]

Just settled on our IP and have applicant in place ready to sign but have a question for Qld tenancies.

The house has a dishwasher (old but barely used I'd say) and we don't want to be called out or pay $$ to fix the thing every time something happens to it.

Don't want to take d/w out and happy for tenants to use it till it breaks down, but don't want it to really be part of the tenancy agreement.

I've talked to PM about it and she started on about Solicitors blah blah blah, and basically said no, can't be done.

Is she being lazy, or is there provision for special clauses in the agreement to cover such things ?

Find a PM who can as obviously this one can't or won't think outside the square.

Cheers

 

[twobobsworth]

Looking at the QLD tenancy act:

Sec 185

(2) At the start of the tenancy, the lessor must ensure —

(c) the premises and inclusions are in good repair;

(4) However, the lessor is not required to comply with subsection (2)(c) if;

(b) the non-standard items are specified in the agreement
and the agreement states the lessor is not responsible for
their maintenance; and

(c) the non-standard items are not necessary and reasonable
to make the premises a fit place in which to live; and

(d) the non-standard items are not a risk to health or safety;
and

(e) for fixtures—the fixtures were not attached to the
premises by the lessor.

 

[travelbug]

Place I bought had an old AC. Agent said he rented it as a unit with fans only. He told the tenants it is rented with fans. The AC was there but we don't know if it works (it did). So if it works bonus to them, if not the unit has fans (as advertised).

 

[lura]

If you had the property advertised to include dishwasher - even if you inserted it into the lease - you are still responsible for it.

If you, or your agent, made it very clear at the point of doing the viewing that the dishwasher is not part of the lease - and that they may use it until it breaks - then it will not be repaired or replaced - preferably have this in writing...then you are covered. When signing up with the lease, you may insert this into it also. And ensure that the dishwasher is not included in the entry condition report.

Like when a property is listed for sale and the dishwasher is not to be part of the sale contract - you really should have this huge sign stating that it is not part of the sale of the property.

What your property manager said about solicitors and clauses - no clause can be inserted by an agent unless it has been drafted by a solicitor. It can be done, but I guess, it came down to how the marketing of the property was done prior to that point.

I hope this helps, I have done this with air conditioning units that no longer work and still suck in the wall. It's obvious it doesn't work and the property was never marketed as having air conditioning.

 

[Pablo]

I remember reading of someone on this forum who had the same concerns that you have so they leased a new one so that when it did break down they only had to call the service department and didn't have to fork over any money. Apparently they saved themselves allot of money this way as the tenants were always stuffing it up.

 

[brrmm]

OK, I rang the RTA who advised:
I cannot insert a special condition that overrides anything in the tenancy agreement.
If the d/w is in place then it's part of the rental agreement.
Even if I insert a special condition re the d/w it won't be "legal" and could be contested by the tenant.

So, have offered to sell the tenant the d/w for $50 (bargain!!) or we'll be removing it this weekend before they move in.

Who said "The Law is an ***" ???

 

[Dazz]

OK, I rang the RTA who advised:
I cannot insert a special condition that overrides anything in the tenancy agreement.

That is obviously not correct. You're literally saying you can't put anything into the agreement that overrides the agreement ??

Either the person you spoke to doesn't know what they are talking about, or they do know what they are talking about and you have mis-interpretated what they told you.

One can "contract out" anything regarding a fixture in the Premises to be leased out, as long as the Owner details and highlights the issue during the process of initially engaging the Tenant.

An Owner can put whatever special condition they so wish into their Tenancy Agreement.....it just cannot specifically contradict anything that is in the RTA - that's the Residential Tenancy Act, not the residential tenancy agreement. Don't confuse the two.

Even then, an Owner can put something into the Lease that contradicts the Act, and if both Tenant and Owner sign it and carry on - no problem. It's only a problem when the Tenant wants to challenge the clause....usually when they need to put their hand in their pocket. At that point, if they take it to the tribunal, they will win as the Act will over-ride the Agreement and the onus will fall upon the Owner to expense whatever it is.

As twobobsworth and lura have detailed, contracting out a dishwasher is not difficult and can be done lawfully that doesn't contradict the Act, and therefore will not be over-ridden if challenged....if you do it correctly.

As usual, all of the intelligence work is contained within the minutae of the exact wording prior to execution.

If you are going to play this game seriously brrmm, you are going to have to brush up alot on your legal knowledge. Putting something in the 'legal' box or 'illegal' box doesn't cut it. Being a successful Landlord demands far more attention to detail than that.

 

[Peterw]

Dazz, I follow the thrust of your comments, however in Queensland, the Tenancy Agreements are in fact prescribed forms.

 

[Dazz]

prescribed forms.

Oh dear - are they ??

I wonder who did the scribing, and for whose benefit ??

Are you saying everyone over there has been bitten by the "standard" bug...

 

[lura]

If you are a private landlord and wish to take the risk of "contracting out of the Act" - do so at your own peril.

As a professional, I would advise strongly against doing such things.

You must fulfill ALL your obligations under the Act - if you haven't and an adverse future event occurs - you may find yourself in trouble with the law and your insurers...nice way to lose all or some of your hard earnt assets.

 

[kathryn d]

Lura,
Professional what?

I always wonder when I read this.
So many tenants advertise this when they are seeking rentals.
It is always "professional mother" "professional couple" "professional woman" and ""professional man".

I never advertise or call myself that.
I'm not trying to be rude, just trying to understand a bit.

Cocncerning your comments on "contracting out of the Act", there are always legal ways of doing things.
Sometimes it just takes imagination, persistance, and being tired of paying for everything to find it.
In Qld, it is easy for an appliance. Just unhook it, so it is not connected when the tenant moves in. Have it listed as not included in the lease.
Satisfies all conditions of the Act.

 

[Dazz]

If you are a private landlord and wish to take the risk of "contracting out of the Act" - do so at your own peril.

No-one said anything about "contracting out of the Act"....I certainly didn't, as there is no such thing. Go back lura and have a detailed read of what I wrote.

False interpretations are amazingly easy via this medium. Staggerrrring. I'll leave brrmm with the Qld professionals. They seem happy enough.

------


Professional PM ?? There is no such thing. There's only four professions - Medicine / Law / Engineering / The Arms. Nope - didn't see property looker-afterer amongst that lot.

 

[Bargain Hunter]

The Act does not exclude special conditions providing they do not attempt to contract out the obligations of the signing parties:

(2) At the start of the tenancy, the lessor must ensure—
(a) the premises and inclusions are clean; and
(b) the premises are fit for the tenant to live in; and
(c) the premises and inclusions are in good repair; and
(d) the lessor is not in breach of a law dealing with issues
about the health or safety of persons using or entering
the premises.

So, providing the exclusion are listed up front and do not circumvent the Act then there is no reason they cannot be included in the agreement.

When it comes to an old Air Conditioner and there is no other equivalent cooling system available I would suggest that the implication would be that excluding this item would contravene the Act. In this case remove it before the tenancy starts or be prepared to put your hand in your pocket when it breaks down.

Regards

Andrew

 

[Lil Skater]

As a professional, I would advise strongly against doing such things.

It is always "professional mother" "professional couple" "professional woman" and ""professional man".

Kathryn, i believe she's talking professional as being a property manager (although as Dazz kindly pointed out, this is not a profession, per se), not advertising for a "professional couple" etc.