URGENT Licensee terminating mgmt agreement without serving 2 months notice required

[chloe1980]

Hi All

What happens if the licensee of the real estate managing your property gives you notice they don't want to manage the property anymore and it says 2 months notice to terminate per the management agreement and they try to pull the pin with 2 days notice?

The licensee was advised a month after the lease with the current tenant was signed of issues surrounding the signing of the lease and amendments made by the tenant without out our authorisation e.g. a dog being hand written onto the lease contract and no pet bond being held to the contract not excluding air con which was agreed to be excluded pre-contract signing (pre Jan 2011 law changes)

The licensee in response to my concerns emailed an undertaking to keep an eye on the property. Repeated emails later complaining about issues with each subsequent PM not doing their job i.e. drafting invalid leases which I had to pick up the errors and make them correct he emails me to say he is terminating the mgmt agreement and

"We have waived all exiting charges and notice periods and will not be claiming repair paid for by ourselves to help rectify your situation"

The repair was a service call to get the air looked at since he stuffed up with the original contact not specifically specifying its exclusion

Can I hold them to the 2 months notice (it means they have to front up to tribunal and answer to their numerous breaches of duty as a r/e agent) if they are made to serve their 2 month notice period.

One big one breach which means I have hardly any written evidence to rely on is their server crashed and they have lost years worth of emails (this is a major breach as they are meant to have a back up per the legislation)

They have told me today a week out from the tribunal hearing date they are not attending tribunal and are sending my whole file to me but are happy to collect the rent till I find another agent!!!!!!!!

Dept of Fair Trading said I should lodge a counter claim against this r/e agent but really I have been through enough and happy to get a new lease in place by the tribunal (as the tenant refuses to sign another one even though 2 have been drafted for them to sign since) and move on to a new PM who will actually not breach the legislation

Their breaches are why I am at tribunal in the first place and I have realised even more breaches in preparing my submission that they have not followed instructions I email them

They did not even include the last lease in the submission which is expired but what the month to month lease is based on (it predates the January 2011 new lease laws)

They have also lost a copy of the last lease that was signed by the tenant (I never got a signed copy despite follow up requests for it) I only have the unsigned copy I approved prior to the tenant signing it

Inspection reports they provided for the submission were not the final ones that were signed off either

A nice PM located where I live took a look at their prepared submission and said the tenant did a better job of their submission (yet the PM is meant to have the qualifications!!)

I need advice urgently on this as they are express posting my file today unless I object

Some nice strong legal wording to email back to them saying they will have to serve their 2 month waiting period would be great!

Also is it ok they just email me their notice (or is there a required format by post they have to use). Tribunal is not by email nor notices to the tenant so is it any different for the PM?

Thanks in advance

 

[Propertunity]

What happens if the licensee of the real estate managing your property gives you notice they don't want to manage the property anymore and it says 2 months notice to terminate per the management agreement and they try to pull the pin with 2 days notice?

Let them pull the pin. Why on earth would you want anybody, as you describe them, managing your property? Just so they can (mis)represent you at the Tribunal? If you think they are incompetent, cut them loose.

Can I hold them to the 2 months notice (it means they have to front up to tribunal and answer to their numerous breaches of duty as a r/e agent) if they are made to serve their 2 month notice period.

You can launch a separate action against the agent, taking them to the Tribunal yourself. It woulkd be better not to mix the 2 cases IMO.

One big one breach which means I have hardly any written evidence to rely on is their server crashed and they have lost years worth of emails

But you have copies of the emails you sent to them & received from them, correct?

Dept of Fair Trading said I should lodge a counter claim against this r/e agent

The DFT is correct - follow their advice.

happy to get a new lease in place by the tribunal (as the tenant refuses to sign another one even though 2 have been drafted for them to sign since)

You cannot force a tenant to sign a lease - not even the Tribunal can do that! They can go month to month or you can issue a no grounds 90day termination.

(yet the PM is meant to have the qualifications!!)

There are plenty of people with qualifications that don't know squat about how to do their job.

Also is it ok they just email me their notice (or is there a required format by post they have to use).

It needs to be in writing and posted, faxed or handed to you. Either way, I'd still let them go.

 

[jody smart]

i saw your other thread on this...have you ever gone and got legal advise on all of this? it might be worth the money to do so.

good luck and hope your stress is soon gone. honestly managing a property should not be this stressful, but finding the right support is important. and sometimes being right just isn't worth the stress it comes with. which i know sucks, but life is too short.

i agree, cut them lose, and file a counter suit. these people will just bury you at the tribunal anyway if you let them represent you. and to be honest, all PMs sound awesome until they are managing your IP, then you get to see how little they know.

good luck, and go and try and take some timeout for yourself. even if its just for 1 day.

 

[chloe1980]

The tenant has used the tenancy advocacy service to prepare and write all her letters to tribunal etc so clearly I am at a disadvantage

I cannot afford legal advice and I do not want to burden a new PM that will take over the IP with the tribunal case as they would not care as they were not the PM at the time anyway and it would jeopardise my new PM relationship with them (the only benefit they could get is first hand knowledge about a major competitor they can use to their advantage when new landlords approach them to manage an IP)

Also given the distance I live from the IP and the fact there is hardly any time left before tribunal date they prob would not be across it and it would really require a senior PM to handle the matter not an inexperienced young PM like who I have now.

Plus the new PM would prob charge me a bomb to represent me (when the current PM said there would be no charge via email even the the mgmt agreement signed 4 yrs agos states at cost

So I am relying on the forum to assist me with what I need to know as this has been a steep learning curve at a point in time when a member of my family has just been diagnosed with terminal illness

 

[BAJ]

Shine the light and watch them scatter!!!

The tenant has used the tenancy advocacy service to prepare and write all her letters to tribunal etc so clearly I am at a disadvantage

I cannot afford legal advice and I do not want to burden a new PM that will take over the IP with the tribunal case as they would not care as they were not the PM at the time anyway and it would jeopardise my new PM relationship with them (the only benefit they could get is first hand knowledge about a major competitor they can use to their advantage when new landlords approach them to manage an IP)

Also given the distance I live from the IP and the fact there is hardly any time left before tribunal date they prob would not be across it and it would really require a senior PM to handle the matter not an inexperienced young PM like who I have now.

Plus the new PM would prob charge me a bomb to represent me (when the current PM said there would be no charge via email even the the mgmt agreement signed 4 yrs agos states at cost

So I am relying on the forum to assist me with what I need to know as this has been a steep learning curve at a point in time when a member of my family has just been diagnosed with terminal illness

Chloe Im no solicitor but it seems to me that we have a lot of parallel issues happening here.

I suggest at least doing the following would be wise:

1) Telephone the PM Office and leave a MESSAGE to comply to the 2 months clause.

2) Leaving a simple message means you will firstly not stress and secondly fall into an possible argument and say something you may regret.

3) Immediately, send an Email confirming the phone call and inviting the PM to comply to the 2 month clause of the agreement. If possible set Outlook to send a read receipt back.

4) Keep it simple, dont be tempted to bring in accusations and dont wander off on a tangent.

5) Also send the exactly the same Email as a letter by Aust Post registered over night delivery direct to the PM office address.

6) Prepare a simple staturory declaration confirming that you have done all these things with the little yellow Australia Post sticky reciept included in the statutory declaration as well as copies of the Email and letter.

All this will be available to the Tribunal who may take a very dim view if the PM doesnt front up.

 

[chilliblue]

If the agency is a franchisee, speak to the head franchise office for assistance as well as the local Real Estate chapter in your state.

 

[INVSTOR]

I can relate to your nightmare!! It's a difficult situation!

 

[kathryn d]

Chloe Im no solicitor but it seems to me that we have a lot of parallel issues happening here.

I suggest at least doing the following would be wise:

1) Telephone the PM Office and leave a MESSAGE to comply to the 2 months clause.

2) Leaving a simple message means you will firstly not stress and secondly fall into an possible argument and say something you may regret.

3) Immediately, send an Email confirming the phone call and inviting the PM to comply to the 2 month clause of the agreement. If possible set Outlook to send a read receipt back.

4) Keep it simple, dont be tempted to bring in accusations and dont wander off on a tangent.

5) Also send the exactly the same Email as a letter by Aust Post registered over night delivery direct to the PM office address.

6) Prepare a simple staturory declaration confirming that you have done all these things with the little yellow Australia Post sticky reciept included in the statutory declaration as well as copies of the Email and letter.

All this will be available to the Tribunal who may take a very dim view if the PM doesnt front up.

This seems like good advice.

Are you suggesting the OP does not attend the tribunal, and allow the decision to be made in absence? Then make a seperate claim against the PM to recoup any losses?

 

[pennyk]

I cannot afford legal advice

So I am relying on the forum to assist me with what I need to know as this has been a steep learning curve at a point in time when a member of my family has just been diagnosed with terminal illness

I hope you are not offended by my post to follow... its definitely not my intention. I really feel concerned for you..... To be honest, its fairly obvious from your post that you are overwhelmed by the situation.

Given your emotional situation, I dont think you can afford NOT to have legal advice, or at least to pay someone competent to take over both these actions for you.

This sort of tribual action is far more likely to be successful if presented unemotionally, logically and rationally........ and from your posts, I dont think you are in a position to do that. It sounds like you are in a panic, and its going to work against you if you present that way.

I think it would be money well spent to either getting legal advice, or paying someone to be your advocate and to get all of this together for you, even if you have to pay for it by credit card and pay it off over a few months.

In the end, I think you will have a far better outcome if you did.

Good luck with it all.

 

[NedKelly]

Whenever situations like this arise i ask myself, "How much money is involved?"

So let's backtrack one step.

Can you explain why you are gong to the Tribunal in the first place. Are you taking them to the tribunal or are they taking you and on what grounds.

 

[chloe1980]

* The tenant is taking me to the tribunal because the air conditioning broke down
* Licensee before lease was signed told me to exclude it from the advert and reduce the market rent by $30 per week so property was not rented with air
* I met tenants pre-lease signing and showed them how the drip irrigation for the gardens etc all worked and told them the air they were free to use, this is how to use it but you are not being charged for a property with air included
* I told them if the air breaks down we will not be repairing or replacing it (it is a ducted air conditioning system throughout the house and about 15 yrs old)
* I asked the tenant in front of the PM did they understand this and they stated they did (should have had them sign a declaration to this effect - but I submitted my signed declaration of the items discussed at this meeting and tenant provided proof the meeting did happen in their own submission
* PM stuffed up by not excluding the air in the contract
* Air broke down 2 years ago
* Tenant reported air broken down to the PM and PM replied not rented with air to which tenant accepted
* 1 yr down the track with a new PM tenant thought theyd try their luck and got the same response
* Tenant refused to sign a 3rd lease (2nd lease done but PM not rectified the rented without air error and I had no clue that it should expressly be excluded)
* On month to month lease (the lease pre-dates the new laws and the tenant was asked to sign a new lease Dec 2010 but refused to)
* Tenant got wind obviously that they now have more rights and went to tenancy advocacy with a shopping list of repair demands and I was told they must be complied with within a week
* Inspection / repair date already booked so could have done what we wanted to fix (only a few items of what they wanted fixed)
*Got another shopping list of repairs 2 days before inspection
* Tenant at last minute decided to restrict our access to 15 mins
* We said we are installing water efficiency devices and if you wont let us then you sign an agreement that you pay water usage until a more suitable mutually convenient date for installation can be agreed on
* Tenant told me not to bother her over xmas (I adhered to this request so not breaching the reg about peace and undisturbed enjoyment of property)
* Late Jan got a tribunal conciliation order with a major shopping list of items incl whole house repaint, that will cost me approx $30,000 plus they claiming $10,000 compensation $100 per week for not having air from date reported (they also disputed the last 2 rental increases)
* PM told me I was not required to attend conciliation
* PM will not tell me what happened at concilation - all I was told was my responses (yes she made me prepare the whole case for her to present) were inappropriate (unsure if as I said in most responses as per licencee fine to rent like this prior to property being listed on the market)
* PM has sent air technician out at their exp and air now works

 

[NedKelly]

This is quite a complex saga although the main issue seems to be the dispute with the air conditioning.

I think this case will hinge on what you have said here:- "* Tenant reported air broken down to the PM and PM replied not rented with air to which tenant accepted". How did they accept this? Also did the PM document the report and was it entered in their log that they had said this. Can you get hold of it?

Also do you have the original ad which included air con and the new ad at a lower rent but without air con. That would certainly help your case although if there is no paperwork to show this then you will have a difficult time proving it. The killer is that the PM went and fixed the air conditioning, this begs the question why, if it was not included anyway.

Because of the amount you could lose over this you need to get a decent lawyer to stand a chance of winning. If you don't turn up I can see the tribunal ruling in their favor. Whatever the outcome, you then need to sue your PM so you will need the lawyer for that as well.

Out of interest, what happened with the first PM?

 

[chloe1980]

* The tenant accepted the original PM's email response via email almost 2 yrs ago (the original PM responsible for all these errors still works for this r/e at another location (a ritzy location and her cv is on the internet and it shows when she was employed as PM at the r/e managing my property she did not have the appropriate experience according to a friend who once worked at a r/e agency and owns a few rental properties)

* I submitted the following as part of my respondant's submission to the tribunal:

1) Printed web ad with the original r/e PM (who I never went with as they merged with another r/e and became unreliable at the point in time I was looking for a tenant) for the $30 more rent

2) Printed web ad with the r/e PM I used showing rented for $30 less pursuant to advice given by licensee when he signed us up for PM for this IP

3) Copy of email from tenant refusing to pay $30 extra even though the PM (I didnt use) had a tenant willing to pay $30 more to have air and wanted the lease and was prepared to pay 2 months in advance to get it to which the tenant in her email stated the IP suburb is not ... (suburb she moved from)

4) Signed declaration stating I met with tenants & original PM at property to show how everything worked - e.g. drip irrigation etc stating I told the tenants air not included and not being charged for house with air and that they verbally confirmed they understood this and that I said you can use the air but if it ever breaks down it will never be fixed or replaced

5) I tracked down the original PM whose CV is actually on the net with another branch of this r/e - it shows she should have had proper supervision by the licencee which he guaranteed after the original saga over 1 dog being agreed to and then tenant changing lease to include 2 dogs without our authorisation and the PM had no authorisation to make this change per my instruction

When I emailed the original PM at her new r/e location she conveniently forgets the meeting even though I forwarded her the email that she was copied on from the tenant stating she guaranteed tenants our property and then had to email a few hours later there is no guarantee as the landlords are still considering the application of the other r/e pm. I even forwarded her the ingoing photo of the house that she took to jog her memory but she said she managed over 250 properties at that point in time and does not recall

She told me to talk to the licencee (who of course will not assist at all)

6) Tenant in their submission included diary page showing the meeting at the property took place and their email they included supports the meeting took place

I cannot get anything our of the PM showing their file notes which per their email did exist when they replied to tenant (they are ...... useless)

* The PM wanted to cover their butt and see what was wrong with the air and then use this as an excuse to dump the property without giving 2 months termination notice so they get out of attending tribunal. Apparently they sought legal advice and then next minute they were offering to send at their cost their air technician to look at the air con????

I dont have money for a laywer but I am going to as someone else suggested send a letter to the licence and copy to franchise with a compensation claim amount based on $30 per week lost rent for their stuff up for entire period of tenancy, all PM fees to be refunded as they have totally mismanaged property and any money I have to cough up at tribunal and state if money not in my a/c I will submit application to CTTT.

The clincher is a series of emails from the current PM which are totally inappropriate and state the r/e agent does not have enough employees to properly manage the 550 properties they now manage due to an massive increase in IPs over last 5 months. Yes the young PM actually was dumb enough to email me this.... the licensee is unaware of this email and just knows I have received a few inappropriate emails.

If this email got out man...... the licensee would stand to lose a lot of IPs from their PM side of the bs - it could cripple them!!!

 

[Scott No Mates]

If they are that good then we all deserve to know.

 

[russellpeter]

i was always under the impression that if an item is in the property it is included in the rent and must be maintained by the owner.

if the aircon was in the property when the tenants signed the lease and was working doesn't matter what was said or is in the lease you must keep in good working order.

the RTA will not care if you said if it breaks it will not be fixed. or its not included in the rent.

 

[kathryn d]

i was always under the impression that if an item is in the property it is included in the rent and must be maintained by the owner.

if the aircon was in the property when the tenants signed the lease and was working doesn't matter what was said or is in the lease you must keep in good working order.

the RTA will not care if you said if it breaks it will not be fixed. or its not included in the rent.

I would be surprised if that is a black and white rule.
We do the same with old washers and dryers in our leases. If it breaks, and we can fix it, we will. The lease will state it is not included.

In this case the OP has made it very clear from the start, it was not included, and the rent reflected that.
Someone has suggested to the tenant to 'try it on' and see if they can get compensated. What do they have to lose?

 

[mattysavager]

i was always under the impression that if an item is in the property it is included in the rent and must be maintained by the owner.

if the aircon was in the property when the tenants signed the lease and was working doesn't matter what was said or is in the lease you must keep in good working order.

the RTA will not care if you said if it breaks it will not be fixed. or its not included in the rent.

I agree with russellpeter on this one. In the 5 or so cases I have dealt with similar to this, the owner has always been forced to fix/replace the appliance. Even if the tenants have signed a document that agrees otherwise.

It is actually legislated (in QLD, presumably similar in other states) that any appliance/service in the property that were there at the commencement of the first lease be continued by the landlord for the same tenant. The OP said the AC is working now. If it breaks again, she'll have to fix it again. Depends which QCAT adjudicator you get on the day, but in my experience they have always erred on the side of the law, over a tenant-owner agreement.

Matt

 

[NedKelly]

but in my experience they have always erred on the side of the law, over a tenant-owner agreement.

Matt

I think in this case it wasn't in the agreement anyway.

 

[chloe1980]

So from the sounds of this my only recourse is because the principal / licensee of the r/e (it is a group of 4 he now owns) gave the erroreous advise in the first place which the PM followed as her CV proves she had no prior real experience I should be going after the licensee for:

1) Lost rent $30 x 52wks x 4.5 yrs = $7,020 for erroneous advise re: air and $30 per week rent I lost from day one when the r/e knows the other r/e had a tenant there ready to sign the lease at the $30 per week more (each time the pm was asked to put up rent & we have had 4 PMs over last 4.5 yrs I always say is this market rent without air - so 4 subsequent PMs have missed the error too - gross negligence in my eyes) (man I would lose my job if I was this incompetant in my field of work!)

2) Plus the $20 increase per the lease we did not effect at the time the air broke down = $20 x 52wks x 2 yrs = $2,080

3) Plus $5 per wk increase we allowed tenant to successfuly negotiate last yr = $5 *52 * 1.5 = $390 (as pm said to give in to tenants request as they are a good tenant)

4) Plus all my PM fees = $8,000 as honestly they did not manage IP I have spent too many hours (dont even want to try to tally it up since each lease renewal their draft lease was not valid and required about 6 revisions to get it right!!) (prob spent 200 hours on this since the whole thing arose 6 months ago)

5) Plus????? anything else I should hit them up for??? Pain & suffering - have had very high blood pressure for last 6 months - requiring gym treatment so gym membership cost?? $1,000

6)Plus any damages against me at the tribunal

7) An amount to not tell anyone the name of the r/e agent - what amount do you reckon is justified here?? Since at least one of you really wants to know the name of the r/e

So up to point 5 = $19,000 claim (what do people think??)

The r/e agent manage 550 properties which if a lawyer got wind of their breaches on one property could really go to town with a class action against this r/e if they were that way inclined

 

[Josh_G]

I would be surprised if that is a black and white rule.

It's very much that black and white..

So from the sounds of this my only recourse is because the principal / licensee of the r/e (it is a group of 4 he now owns) gave the erroreous advise in the first place which the PM followed as her CV proves she had no prior real experience I should be going after the licensee for:

Are you trying to sue a business/company or the licensee as an individual? You would have to seek actual advice from a solicitor, however it would have to be in the state/area in which the business and or licensee is based and is operating.

Although you do have some genuine recourse to seek/sue for damages – Some things you have listed are, to be honest a bit “American” and something that sounds like you would hear on Judge Judy..

No magistrate in this country would award you travel costs to attend a hearing in the area/state first and foremost.

7) An amount to not tell anyone the name of the r/e agent - what amount do you reckon is justified here?? Since at least one of you really wants to know the name of the r/e

The r/e agent manage 550 properties which if a lawyer got wind of their breaches on one property could really go to town with a class action against this r/e if they were that way inclined

You would never ever be awarded a sum of money to “be quiet” – In fact a magistrate would most likely find this as a threat and would end up awarding you fewer costs, if any were found to be owed.

Be very careful because until anything is found/proved to be at fault in which has incurred you damages the agency in question will turn around and end up suing you for defamation as what your stating is yet to be proved.

So up to point 5 = $19,000 claim (what do people think??)

It's not what we think it's what the magistrate at the time thinks is a fair amount of damage and awards you, if any.

5) Plus????? anything else I should hit them up for??? Pain & suffering - have had very high blood pressure for last 6 months - requiring gym treatment so gym membership cost?? $1,000

6)Plus any damages against me at the tribunal

You can’t “hit them up” for those costs – End of. Tribunal costs yes you could make a claim for

....................................

I understand there appears to be damages and you are less than impressed but in all honestly you are going about this the wrong way. Unless you are a super star and the media will actually take half an interest in this story stop being such a diva – You have some items in which you could genuinely sue for – Some of things you have mentioned would, to be honest make you look like an idiot in court.

You really need to go one of two options;

1) Speak to a solicitor and get real advice with what you can do and possibly claim in Australia..
2) Present all (EG: not over inflated damage costs) to the licensee and franchisor and seek costs via private negotiation

Remember you and your lawyer don’t actually get to set how much your awarded if you won – The magistrate has the final say.

It could take anything from 6 to 24 months. It wouldn’t ever go this far but just to get into the Supreme Court will be a minimum of $25k.