Vacant possession requested - tenant digging heels in for a fight

[vaughan]

... The tribunal will make an order and all will have to abide by it. If she digs in for a fight the sherrif will be called in to sort it out I guess. ...

Certainly all will have to abide by it. Eventually.

A couple of weeks for the tribunal hearing. A week or so to give the tenant notice and time to vacate. Another couple of weeks to organise the sheriff to evict them if they haven't gone. Another week or so to fix up the mess and get the property ready for settlement...

 

[Rockstar]

Rockstar if tribunal rules in her favour you will certainly be up for any costs incurred by buyer due to you not
settling on time

Best wishes, sounds like a messy situation. Did you receive any legal advice prior to entering into this arrangement?

From discussions with the tribunal and DFT it is quite a black and white case. We have issued notice correctly and according to Section 86 of the Act. Going on holidays is no excuse at all.

No, I didn't get any legal advice prior to entering into the lease though I realise this was a mistake. It still may have ended in the same way as it is playing out.

Certainly all will have to abide by it. Eventually.

A couple of weeks for the tribunal hearing. A week or so to give the tenant notice and time to vacate. Another couple of weeks to organise the sheriff to evict them if they haven't gone. Another week or so to fix up the mess and get the property ready for settlement...

Yes I am aware of this and will do all I can to settle.
Apparantly we can preempt her failure to comply with the notice and book the hearing for the day after she is supposed to move out. If she complies with the original notice we merely cancel the hearing.

 

[Scott No Mates]

If your solicitor prepared the sales contract, there generally are no penalties against the vendor however the purchaser can sue for specific performance ie settlement (your solicitor should be able to advise on this matter).

If you are expecting the tenant to remain insitu, lodge your claim with OFT online you can always cancel or relodge if you don't like the date provided for the hearing. There may be a backlog of hearings in January so allow a few weeks minimum for a hearing date.

 

[D.T.]

Is the purchaser planning to be an owner occupier or IP? Maybe make the tenant their problem

 

[Snoopy]

Live and learn. Don't worry about what has happened so far although there is a lesson in it for the future...

Just follow the process; the property has been sold and she is on a month to month lease - you just need to provide the correct notice; a lawyer or property manager can help you here.

Be very careful of what the OFT or the CTTT tell you on the phone, a lot of times the people answering the phones there dont know answers to complex problems themselves. It sounds like you are relying on what they are saying.

Give correct notice, and work on getting her out so you can give the new buyer vacant possession... Please check this but my reading is you have to give 30 days notice

http://www.fairtrading.nsw.gov.au/f...g_a_tenancy/Giving_a_termination_notice.page?

 

[Rockstar]

Is the purchaser planning to be an owner occupier or IP? Maybe make the tenant their problem

Owner Occupier. It's a guy around 40yrs old caring for his elderly parents. Apparantly they had a previous contract to ours where the Vendor pulled out at the last minute. Hope this one doesn't drag on for their sake.

 

[Rockstar]

Give correct notice, and work on getting her out so you can give the new buyer vacant possession... Please check this but my reading is you have to give 30 days notice

http://www.fairtrading.nsw.gov.au/f...g_a_tenancy/Giving_a_termination_notice.page?

We have followed this all correctly Snoopy. Live and learn is a good philosophy.

 

[Tano]

I am curious. What is the definition of entering a property? I did assume if you enter the house through any doors or windows.

If someone has a front gate that you have to open to get to their front door then is this 'entering a property'? What about once you step off the footpath into the boundaries of the lot then is this ' entering the property'?

 

[Rockstar]

It did make me wonder Tano when she wrote this.

I received the notice this morning which woke me. Also 48 hours notice is required for anyone to enter the property.

Do I need to give my tenant 48hrs notice to knock on their front door? There is no gate in this instance but it is the rear unit of a battleaxed duplex.
My lawyer told me the best way to serve notice is by directly handing the letter to them. It seems to me that the "residential premises" means the residence itself and not the front yard. I don't know if it also constitutes the back yard?

 

[Scott No Mates]

if you have served notice to the address then, unless you have gone inside, you haven't entered the premises. it's a bit hard to serve notice to the person unless you go to the address on the lease (registered address).

notice is required if you are to enter the property not for service of notice.

 

[Macca]

I found this

<<A person invited on to your property, for example for a garage sale or an open house inspection, is only entitled to be there for that purpose and their right to remain evaporates as soon as you ask them to leave. A person who enters with a particular purpose (for example, a door-to-door salesman or a neighbour visiting) has an implied right to come onto your property and up to your door. But as soon as you withdraw your consent by asking them to leave, they must do so, as they are now trespassing.>>

http://www.legalanswers.sl.nsw.gov.au/guides/neighbours/entry.html

I would read that as confirmation of my understanding of the law ie: Anyone can legally access your front door to contact you, else how can one make contact when needed.

HTH

 

[Tano]

Thanks for that.

Can anyone comment on what affect a 'no trespassing' sign would have? I would assume it makes no difference but then again they are telling you in advance that your not welcome.

 

[thatbum]

Thanks for that.

Can anyone comment on what affect a 'no trespassing' sign would have? I would assume it makes no difference but then again they are telling you in advance that your not welcome.

Little to no difference in WA - and I imagine its the same in other states.

 

[HD_ACE]

Thanks for that.

Can anyone comment on what affect a 'no trespassing' sign would have? I would assume it makes no difference but then again they are telling you in advance that your not welcome.

Interesting point. I certainly wont go knocking on any doors with a no knocking sign on it....

http://news.smh.com.au/breaking-new...gnoring-do-not-knock-sign-20131213-2zbv5.html

I do wonder if no tresspassing could have a similar effect

Cheers

 

[thatbum]

Interesting point. I certainly wont go knocking on any doors with a no knocking sign on it....

http://news.smh.com.au/breaking-new...gnoring-do-not-knock-sign-20131213-2zbv5.html

I do wonder if no tresspassing could have a similar effect

Cheers

The doorknocker in that case was found to be in breach of the Australian Consumer Law. Its quite a different story if we're talking the criminal charge of trespass, or whether a landlord is in breach of a tenancy agreement/law when serving notices. I wouldn't be too worried as a landlord.

 

[NedKelly]

You might want to find an opportune time to warn the tenant that you will hold them liable for all expenses, costs, interest, etc. that you incur as a result of her failure to comply with the terms of her agreement.

 

[sanj]

if all else fails i guess you could cut her water which i assume is in your name. i can only assume that this would be in breach of the tenancies act and you may be fined for it but i think most people would move out pretty quickly if they dont have running water. the potential fine may be worth it.

 

[citystar]

if all else fails i guess you could cut her water which i assume is in your name. i can only assume that this would be in breach of the tenancies act and you may be fined for it but i think most people would move out pretty quickly if they dont have running water. the potential fine may be worth it.

I've considered this from time to time, however it would be in breach of a dozen tenancy acts and give them ammunition for when they take you to the Tribunal to make you walk over hot coals.

 

[tess85]

Rockstar I don't have any suggestions but I just wanted to say, I hope it all goes well! It sounds like a stressful situation and some people are a piece of work...

 

[Rockstar]

Thanks for the comments guys,

Ned, yes when is the opportune time? My lawyer thinks it may be better to wait for the tribunal hearing first - if it comes to that. Of course, she is liable for damages but anyone would prefer not to go there.

Cutting water off, getting my sparkie to fiddle with the meter box, turning the gas off - don't worry they all go through my head but I shall restrain myself and act like a rational being. We shall leave emotion aside and go to the tribunal with no ammunition for her.

The update is that she has returned early from holidays and asked for an extention to allow more time. We refused indicating that there are storage sheds and temporary accommodation options freely available to her and we have a mortgage to repay and a contract of sale to settle. She then plays the emotional card. Oh, I've been in Melbourne helping my elderly mum into a home and I have an autistic child. My refunded $34k deposit was all returned to my ex husband in USA. Well we heard she also spent some time in Fiji!
She hasn't indicated at all whether she will be moving out or not so we shall see on Tuesday morning. I am well prepared for an immediate lodgement for an urgent tribunal hearing with all documentation in chronological order which includes:

Contract of sale to purchaser
All email correspondence
Residential lease
Notice to vacate
Proof of mortgage + request for our loan on the property to be repaid by 31 Dec + default notice with threat to us of legal action to recover loan if not repaid upon due date of settlement - 24th Jan.

Prepare for the worst but hope for the best.

The amount of inconvenience that one person can create for everyone involved because of their contempt for legally binding agreements.