VCAT Possession Hearing

[jusm]

Hi Guys,
Long time reader first time poster. I realise there is a wealth of knowledge here and this question is particular to Victoria and VCAT.

After 3 months of being stuffed around by our tenants we were still unable to extract a bond out of them. So I issued the 14 day notice to vacate for non payment of bond and followed all of the correct procedures. I backed it up with a VCAT application for possession and the hearing date is 25th Feb.

The tenants finally paid the bond this week and I expect they think this might save them. I want them out regardless as the rent has been late the last 2 months (but not in technical arrears), they wont communicate and basically kept this story going for 3 months that they had paid the bond direct to the bond authority and it had been lost/applied against the wrong property etc etc.

Based on my own investigations via Consumer Affairs and the Bond Authority it was a bunch of lies and just a stalling tactic. They also did not transfer water into there name and I have a bill for that to add to the VCAT applciation as well.

So, given they were in breach when I lodged and have now paid the bond, do you think its black and white that I will win and be able to evict or will some touchy feely VCAT pretend judge take it easy on them?

Cheers
Justin

 

[thatbum]

So, given they were in breach when I lodged and have now paid the bond, do you think its black and white that I will win and be able to evict or will some touchy feely VCAT pretend judge take it easy on them?

Its not as simple as making out that they have breached the agreement (if indeed they have).

You will most likely need to show that the breach is serious enough to justify termination in all the circumstances.

 

[jusm]

Hi, yes it is that clear cut in Victoria. Non payment of bond is one of several valid reasons to issue a 14 day notice to vacate. Its written into the Act. Just like being 14 days in rent arrears is also a valid reason.

The question though, is what happens if they rectify that reason between notice to vacate and hearing date. I guess I'll find out on the day.

It would be crazy if you could go through all of the process correctly and finally get to VCAT and if they've paid their rent up the day before or paid their bond the day before the hearing, it gets thrown out.

 

[thatbum]

Hi, yes it is that clear cut in Victoria. Non payment of bond is one of several valid reasons to issue a 14 day notice to vacate. Its written into the Act. Just like being 14 days in rent arrears is also a valid reason.

The question though, is what happens if they rectify that reason between notice to vacate and hearing date. I guess I'll find out on the day.

It would be crazy if you could go through all of the process correctly and finally get to VCAT and if they've paid their rent up the day before or paid their bond the day before the hearing, it gets thrown out.

I admit I'm not full bottle on residential tenancy law in Victoria, but I would be extremely surprised if it is that clear cut. You have at least 2 potential issues with your application from what I can see.

Firstly just because you can issue a notice doesn't mean the tribunal will order termination and possession. Like I said, it is a general principle of tenancy law around the country that the breach has to justify termination, even if it is substantiated. I note that s332 of the Vic RTA does have a provision along that line (and theres probably more than I didn't find in a quick search)

http://www.austlii.edu.au/au/legis/vic/consol_act/rta1997207/s332.html

Secondly, you have a factual dispute afoot as to whether or not your tenants actually did try and pay the bond previously. You say that they didn't, but you will need to be prepared to show all your evidence to the tribunal if the tenant's position is that they did.

And that's just 2 potential issues I can see so far. For court/tribunal proceedings, you should really be wary because anything can happen.

 

[bbmick]

I have no answer to your question......but I find this question interesting as I've never let a tenant take possession unless I already had the bond first - at least as far as I know anyways.

How often does this happen type of thing happen to others?
Maybe I need to keep a closer eye on my property managers just to make sure.

 

[Ed Barton]

I have no answer to your question......but I find this question interesting as I've never let a tenant take possession unless I already had the bond first - at least as far as I know anyways.

How often does this happen type of thing happen to others?
Maybe I need to keep a closer eye on my property managers just to make sure.

I believe you can accept the bond in instalments. Why any half cut PM would allow that is beyond me. If that was the best you could do (low so area) then I would expect the PM to seek my permission in advance.

Tenants are given at least a couple of months notice to vacate. If they prioritise the x box over saving hard to get a bond then I don't want them as tenants; they will only continue to worship the x box rather than pay the rent.

 

[kathryn d]

The times we have allowed bond to be paid in installments, all payments of any money always goes towards the bond first, then to the rent.
This way they are always in rental arrears, and we can start eviction if necessary.
Tenants are informed how the payments are allocated first, and it is also in their lease.

Generally these tenants are always in arrears in some degree for their whole lease period. (this has been our experience)..so expect it.
Other tenants who pay up their bond first, may also fall into arrears ..so paying up a bond is no guarantee.

 

[jusm]

Yes well I will never let a tenant in again before the bond is paid.
They lied and said they had lodged the bond with the form we both signed, on the day it was due. By the time I proved that not to be the case, they were in.

I'm not an investor, just renting the PPOR until we renovate in a couple of years and move the family in. The house is just around the corner and I trusted them. my mistake

Anyways I have firm evidence of three months of lies about the bond in email and text messages and a transcript from the Dept of Justice that no bond had been lodged on the property at the time I issued the notice to vacate. No contact had been made with the bond authority and they had not returned the phone calls of the case manager from the bond authority assigned to try and track down the alleged bond. So the breach will be clearly proven.

I am just wondering if rectifying the breach prior to the hearing will get them off. I cant believe these two. They have a young son, two really good jobs and just dont seem to prioritise having a roof over their head. I know the rent will be late again for the third month in a row because they seem to have some kind of cashflow issues that I really don't understand with two good jobs, no car and rent of only $500pw which is not much in Melbourne inner city. When their cashflow issues mean I pay my mortgage late, or childcare fees late (both happened), then I have no patience for them.

 

[S.T]

What I do for new tenants is get them to provide a post office money order made out to RTBA, then I send that in with the bond forms. Unless they provide me with this, no keys are handed over.

i think you're going to be stuck with these guys until the lease is up. Sounds like they know how to play the system and un-suspecting landlords.

 

[Lil Skater]

Usually if a breach is rectified before the hearing it will be thrown out.

You should never allow a tenant to lodge the bond themselves, always get them to give you a bank cheque/money order, sign the form and then you lodge it yourself. Within 10 days it must be lodged and both you and the tenant will receive a bond lodgement form shortly after.

Have you written to the tenants about the water?

Also, you can try to evict the tenants for successive breaches. Sometimes this doesn't work, but it's worth a shot if the rent is always late, but not quite 14 days.

 

[fisherman]

Justin,

The odds are that simtr is spot on and you have 'professional' tenants. With the tenant advocacy available to them free they could easily set you up and walk you into a cesspool of problems. It wouldn't be the first time they have played games. Such pests are a bane to owners and other tenants alike.

Your best risk management would be to get a PM to manage and give the tribunal a swerve for the present.

 

[jusm]

yeah I might just get a PM involved if I dont get them out. This place is literally round the corner and with decent tenants should have been fine without a PM, but apparently not.

Will see how I go at VCAT. At the very least it will be interesting to hear their stories exposed by facts.

If I lose though, what I really cant wrap my head around is the fact that tenants can be in breach as much as they like, so long as they rectify before the hearing date. That makes no sense and I hope I'm wrong!

 

[Lil Skater]

If I lose though, what I really cant wrap my head around is the fact that tenants can be in breach as much as they like, so long as they rectify before the hearing date. That makes no sense and I hope I'm wrong!

Not true, it depends on the type of breach and the member on the day. I've only had the one that was a breach for no bond, like your situation the LL was privately managing and passed it over to me once things got messy. They rectified the bond before the hearing date and left the tenants.

As I said, you can try to get them out on successive breaches if you don't get them out this time.

 

[Curlytops]

We never hand over the keys to a property until 1 months rent and bond is paid. In regards to water you should be able to send a copy of the lease to the water people so they know. I was advised to do this so then they know when to start charging them and they have all there details as well. I do inform the tenant to call and advise them that i am sending a copy of the lease to them.

With VCAT make sure you have everything. Cross your "t's" and dot your "i's". I have found that with them. If I send anything via post to a tenant it is always registered post. I put any conversation into writing or text message or email. I know it can sound like alot of work but you may well need it.

 

[jusm]

We never hand over the keys to a property until 1 months rent and bond is paid. In regards to water you should be able to send a copy of the lease to the water people so they know. I was advised to do this so then they know when to start charging them and they have all there details as well. I do inform the tenant to call and advise them that i am sending a copy of the lease to them.

With VCAT make sure you have everything. Cross your "t's" and dot your "i's". I have found that with them. If I send anything via post to a tenant it is always registered post. I put any conversation into writing or text message or email. I know it can sound like alot of work but you may well need it.

Hi, crazy situation with SE water in that they wont open a new account in the tenants name unless I (or they) supply DOB and drivers licence number. So tenants promised they would do it and it never happened. Of course I cant force them to give me those personal details, so it is a stupid situation. I have finally managed to get the account over in their name but only because SE water found their last account at previous address and used those details (after I escalated it). I will present the current bill as part of the VCAT hearing.

Get this... the tenants wrote to me last night saying they had now paid the bond and the rent would be a week late this month (3rd month in a row) due to a vet bill and could I now withdraw the VCAT application! So the rent will be outstanding (although not in technical arrears) on the hearing date. It all adds to the story.

I dont expect to win, but for $38 I'll give it a go. I will have a very clear timeline of events backed by evidence and should be able to shoot down their stories. Plus they have a cat and two dogs on the property and I only approved 2 dogs.

 

[Lil Skater]

You don't have their DOB or drivers license number?!

We always connect the water for the tenants (because they always forget) and have these details on file with their application.

Regardless if you're a private LL or not, you need to know who is in your property!

 

[jusm]

You don't have their DOB or drivers license number?!

We always connect the water for the tenants (because they always forget) and have these details on file with their application.

Regardless if you're a private LL or not, you need to know who is in your property!

yes I've learnt a lot from this process!

 

[kathryn d]

We won't rent to anyone without providing a DOB and either their driver's lisence or SIN (TFN)

Don't cancel any hearings.

 

[Peter 14.7]

Always use a PM.

 

[Godzilla]

Once you have been to VCAT, you can no longer issue certain types of Notices to Vacate. This includes the "No Reason" type of notices. You are considered by the court to be prejudiced against the tenant. If the tenant has rectified the problem by paying the bond, I would save your fight for another day.

VCAT considers the dwelling to be the tenant's home first and your investment a distant second. I doubt they would evict if the problem has been rectified.

I would issue breaches if the tenant continues to be late with the rent. If the rent is not paid after the breach, then apply for a possession order.

When the end of the lease approaches, issue a notice to vacate that coincides with the end of the lease. Ensure you give sufficient notice. Giving extra notice is viewed favourable by VCAT should you have to apply for a posession order when the lease expires.

Good luck!