Tenant won't accept 120 day leave notice.

[The_Bludger]

My tenant has sent my PM a letter stating that she will exercise her rights as a tenant under the Residential Tenancy act to stay on, regardless of the 120 day leave notice I have given her which is the minimum under Victorian laws.

I want her out and I'm doing this legally, but what can I do? Does she have a leg to stand on if it goes to the tribunal?

The house is way under rental market and in her letter, it states that the new contract if it was to go ahead, rent should only be increased based on CPI which I would not be happy with.

Please advise.

 

[s_t]

What did your pm say? They should advise you on what they are going to do!

I don't know what right she thinks she has to reject the notice to vacate. She has none (unless this is midterm of a fixed lease?). Also, why would you be offering her a new contract if you have given her notice to vacate?

 

[Perp]

A tenant has a choice whether to "accept" a notice to leave?

What's the legal situation? I'd be finding out, very quickly. Does she have the right to stay on, as she states? If not, then you simply write back indicating that no such right exists and that you'll be taking possession on the nominated date.

There's also no state that I'm aware of where rental increases are limited to CPI.

 

[The_Bludger]

PM has said to discuss with wife which I just did. She wants her out too, as she's been a troublemaker since day 1. The PM told me of a case where there was a personality clash between tenant and landlord and landlord wanted tenant out. It went to the tribunal and the tenant won, even after the 120 day eviction notice had been served up! Not good!

There is no other mid term or fixed lease.

Depending on what legal leg I have to stand on(If she took me to the tribunal and I lost), I may be forced to offer her a new lease?

 

[oldjonesy]

Thats like getting fired at work and you reject it stating that you will be asserting your rights as an employee and staying on.

 

[Bombtrack]

I would ask the pm to make an application to the tribunal for a possesion order just in case she does not vacate on the date stipulated.

She can't refuse the 120 day notice.

 

[The_Bludger]

Thats like getting fired at work and you reject it stating that you will be staying on.

Well this is the thing, she is obviously arguing "unfair dismissal" and there are laws put in place to support this which I am worried about.

 

[oldjonesy]

I would ask the pm to make an application to the tribunal for a possesion order just in case she does not vacate on the date stipulated.

She can't refuse the 120 day notice.

Just set the date for the hearing a few days after the vacate order. If she vacates on time cancel the hearing, if she doesnt - turn up for the hearing and get your possession order. Isnt that what all property managers do?

 

[Perp]

Thats like getting fired at work and you reject it stating that you will be asserting your rights as an employee and staying on.

I'm remembering the Seinfeld episode where George is unable to break up with his girlfriend. He tells her they're breaking up, and she says "no, we're not".

 

[jaycee]

Or the episode where he quit... had a big dummy spit at the office.....and then turned up the next day as if nothing happened.. lol

 

[The_Bludger]

I would ask the pm to make an application to the tribunal for a possesion order just in case she does not vacate on the date stipulated.

She can't refuse the 120 day notice.

Actually, PM has just come back with this:

On the Notice to Vacate under the Residential Tenancies Act 1997 S319 Regulation 8, it clearly stipulates “If you have been given notice to vacate you may be entitled to apply to the Victorian Civil and Administrative Tribunal to challenge the notice. The following time limits apply to challenges: 60 days from when the notice was given for a notice under S263”. It then goes on to advise the tenant to contact Consumer Affairs Helpline.

So it seems she can refuse the 120 day notice...

 

[Perp]

Oh, yes, forgot that one jaycee - yes, that is a similar concept....

Now, The_Bludger, have you applied for Tribunal yet?

 

[s_t]

Well this is the thing, she is obviously arguing "unfair dismissal" and there are laws put in place to support this which I am worried about.

Unfair dismissal isn't really a fair comparison. The only argument she would have at a tribunal (as far as I know anyway) would be hardship. Does she have kids?

She may just be bluffing, hoping that she'll change your mind and keep her on at low rent. Either that or she has some warped ideas about her 'rights'......

 

[Bill.L]

Hi all,

Did you give a reason why you want her out?? If the reason was that you were moving into the house, it would be hard for the tribunal to argue otherwise (I hope).

Of course you could be there for only one day and then change your mind and re-let it.

It is never pleasant getting rid of tenants who don't wont to go.

bye

 

[Perp]

Actually, PM has just come back with this:

On the Notice to Vacate under the Residential Tenancies Act 1997 S319 Regulation 8, it clearly stipulates “If you have been given notice to vacate you may be entitled to apply to the Victorian Civil and Administrative Tribunal to challenge the notice. The following time limits apply to challenges: 60 days from when the notice was given for a notice under S263”. It then goes on to advise the tenant to contact Consumer Affairs Helpline.

So it seems she can refuse the 120 day notice...

Nah, that means she can challenge it at VCAT. That's not the same as being able to "refuse" it. As you've given the notice 120 days out, she's got 60 days to lodge her challenge, then you've still got 60 days to (hopefully) have VCAT rule in your favour. Find out what kinds of issues VCAT takes into account when making their decisions. Surely just the fact that she wants to stay isn't good enough for her to obtain a favourable ruling!

 

[buzzlightyear]

My tenant has sent my PM a letter stating that she will exercise her rights as a tenant under the Residential Tenancy act to stay on, regardless of the 120 day leave notice I have given her which is the minimum under Victorian laws.

I want her out and I'm doing this legally, but what can I do? Does she have a leg to stand on if it goes to the tribunal?

The house is way under rental market and in her letter, it states that the new contract if it was to go ahead, rent should only be increased based on CPI which I would not be happy with.

Please advise.

Few questions.....

The_Bludger, I am still confused why you are asking her to leave? Are you going to renovate or move in yourself?

If your PM is managing the property, what personality clash would you have with her? You wouldn't have any dealings with her.

If the market is well under rent and it goes to market value with her as a tenant, what is the issue?

 

[oldjonesy]

I would be asking your property manager why they havent got an application into VCAT. In the dealings I have had with PM's they issue the Notice to Vacate alongside a notice of hearing to VCAT set a few days after the tenant was set to leave.

Otherwise you get to the end of the 120 days and the tenant refuses to go then you have to put the application to VCAT and wait for a hearing date.

 

[The_Bludger]

Unfair dismissal isn't really a fair comparison. The only argument she would have at a tribunal (as far as I know anyway) would be hardship. Does she have kids?

She may just be bluffing, hoping that she'll change your mind and keep her on at low rent. Either that or she has some warped ideas about her 'rights'......

She is a single mum. Has 2 kids around 16-17 years old. This will be her 2nd move in 2 years and claims that having to move all the time is not an ideal upbringing for her kids in the community. She obviously knows what to say.

 

[The_Bludger]

Hi all,

Did you give a reason why you want her out??bye

When you give 120 days notice under Vic law, you don't need to give a reason and I haven't.

 

[The_Bludger]

Few questions.....

The_Bludger, I am still confused why you are asking her to leave? Are you going to renovate or move in yourself?

If your PM is managing the property, what personality clash would you have with her? You wouldn't have any dealings with her.

If the market is well under rent and it goes to market value with her as a tenant, what is the issue?

I want her out, because she has given me nothing but grief since she moved in. Also, house is well under rental market and she'd kick up a stink and take me to the tribunal anyway if I raised it $50 a week.