Taking over existing lease

From: J Parker

For those of you who have covered this scenario before.......

I am shortly about to settle on a house with an attached lease. I have sorted out some previous problems involving a large dog (for those of you who have read my previous posts on this you would know I'm not a fan of indoor pit bull puppies!!) with the tenants. They ended up signing a clause to agree that the dog would be kept outdoors and any damage repaired prior to them vacating.

On settlement, when the property becomes ours, we will be giving them notice. Their lease only has 4 wks to run anyway. However, I am concerned that, because the lease was drawn up between the previous vendors and these tenants, that we have no rights here. How does it all work? Will I need to have a new lease drawn up with our names substituting the previous owners?
Cheers, Confused Jacque :)
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Reply: 1
From: Glenn Mott


I can't see any problems with giving the tenants notice that you require posession of your property once their lease has expired. Just check the amount of notice required in your state under the Residential Tenancies Act applicable.

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Reply: 2
From: Glenn Mott

Another thought,

If the current owners have signed an authority to conduct repairs on the property required due to damage by the dog, I would try as much as possible to delay settlement until the tenants have moved out, thus allowing you to receive the property in a fit state of repair. This should not be too hard as their should be evidence that the dog has been inside each time you inspect the premesis..dog hair, food scraps, walls & curtains chewed.

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Reply: 3
From: Nigel W

On 7/15/02 2:31:00 PM, J Parker wrote:
>>anyway. However, I am
>concerned that, because the
>lease was drawn up between the
>previous vendors and these
>tenants, that we have no
>rights here. How does it all
>work? Will I need to have a
>new lease drawn up with our
>names substituting the
>previous owners?
>Cheers, Confused Jacque :)

Hi Jaque

Talk to your lawyer about his one.

Not sure what state you're property is in, but I observe that in Qld the way it works is that there's a statutory "attornment" under the Residential Tenancies Act, which is just lawyer guff for saying that you take the property subject to the terms of the existing residential lease. One consequence of this is that you have a right to recover as a debt amounts owing under the lease. I suspect it works the same elsewhere...the rationale is that residential tenancies are a "protected species" and whilst you get clear title to the property when you buy, due to the notice provisions under the relevant legislation, you slot into the existing lease as though you were the landlord - it's a bit akin to a deemed novation...but then that's just another laywerism for saying cross out old landlord and write "J & M Parker Family Trust" instead...

Hope this hasn't confused...

I should add, this is distinct from where there's a statutory exception to indefeasability for short leases under the relevant land titles legislation...which is another way leases (altho typically not residential ones) "stick to the land" despite sale and there being nothing on the title.

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Reply: 3.1
From: See Change

ummm, ah

Nigel , what does that mean ?

see change

it's better to be guided by your dreams than your fears
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Reply: 3.1.1
From: Joanna K

Hi All,

Jacque, Nigel was correct that a Notice of Attornment needs to be sent to the tenants. This basically informs the tenant that the property owner has changed and advising them of new instructions on how to pay the rent. Alot of solicitors need to be reminded to attend to this.

The lease that the tenants signed with the old owner is still enforceable, so any conditions in the lease will carry through to your ownership.

Hope this helps.

Kind regards

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From: J Parker

Thanks all for your helpful tips. Joanna, I will be getting onto my solicitor about that. It all makes sense now!
Cheers, Jacque :)
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From: Danny Dwyer

Don't forget that you'll need a fresh 'condition report' done as you are taking over the rental. If it's in Qld, you can get a copy of the condition report from RTA website. (Form 1a)

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From: Joanna K

Hi Danny,

I assumed the property Jacque was referring to was in Sydney. If that is the case a fresh condition report does not need to be done as the original condition report forms part 2 of the Residential Tenancy Agreement, which Jacque will take over when she settles on the property.

A new condition report can be done if a new lease gets signed...alternatively, if a new lease gets signed there is a section in the lease that makes reference to the old condition report being used instead of a new one being done.

Kind regards

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