What a joke !

[kathryn d]

Now if the property is not in a reasonably clean condition at that point, the landlord may then request the appropriate funds to be withheld from the bond to cover the cost of doing so themselves. There is no part of the Act (for either state), I believe, which provides a right for the tenants to return to the property and clean it themselves afterwards.

However, legislation is translated in terms of case law, and precedent by many tribunal hearings has taught property managers to allow the tenants to come back and clean the property after the lease has ended. It's usually faster and more effective than fighting through both the tribunal and the bond authority, even if there is no right for the landlord to collect rent for that period.

Tenant has no right to return to the premises.
But they did, and that means they have not given up possession!

PM's have learned it is easy to spend the LL's money, and not follow the ACT.
LL's have decided it is easier to pay then fight it.

Not much different than Insurance companies wanting to settle a "slip and fall" than waste time going to court. The fraudsters get free money.

 

[Savanna100]

As a self-manager, I expect the IP to be clean and ready for someone to move in the morning after midnight on the day the tenants have paid up until.

If they have to come back to clean, I would be looking for them to be paying until it is ready to rent again - but we generally don't have any problems in this regards as we make it quite clear.

This is exactly how I envisaged the law working !!! if, for whatever reason, the property is not ready to rent to someone new, the previous tenants keep paying until it is.
This looks like another "special condition" to be included on my next lease.

 

[kathryn d]

This is exactly how I envisaged the law working !!! if, for whatever reason, the property is not ready to rent to someone new, the previous tenants keep paying until it is.
This looks like another "special condition" to be included on my next lease.

There you go!!
Maybe something useful will come out of all this back and forth bantering.

It is good to someone is pro-active.

 

[Savanna100]

Chris01,
I will take the opposing view to most of the others here, as usual

The tenant gave up possession..then asked for it back to continue cleaning.
We would consider that possession continued until they handed back the keys the second time.
If more cleaning was required to bring it to the standard in which they initially rented it, take lots of photos, and charge them for the additional cleaning.
If the rent they paid did not cover these additional days, claim it against their bond.

If they don't agree, let them file against you.

yay !!! at last, some old school landlords with b@lls !!!!
After reading some of the stories about the treatement of landlords by bad tenants, I think that it is ok to "try on" some old fashioned strictness with tenants. If they are knowledgable with tenancy law and you have to back down but a lot of the time, they wont call your bluff and so you'll have a win. My last lot of tenants punched holes in wall, stole light fittings and an expensive TV antenna....I'll certainly never trust any tenant ever again. The last two lots of tenants in this particular house have been the worst I've had in 16 years of being a landlord.

 

[kathryn d]

yay !!! at last, some old school landlords with b@lls !!!!
After reading some of the stories about the treatement of landlords by bad tenants, I think that it is ok to "try on" some old fashioned strictness with tenants. If they are knowledgable with tenancy law and you have to back down but a lot of the time, they wont call your bluff and so you'll have a win. My last lot of tenants punched holes in wall, stole light fittings and an expensive TV antenna....I'll certainly never trust any tenant ever again. The last two lots of tenants in this particular house have been the worst I've had in 16 years of being a landlord.

Yes, and we have a court hearing due a week after return next May for a tenant who did $15K damage.They are countersuing..so it will be interesting.
This time we are paying a lawyer, but we have a great case.

 

[kathryn d]

At one appeal, Rob (AlmostBob) was on the stand.The judge made a statement that wasn't true. Rob was polite, and said excuse me sir, and showed him in the Act, which the judge had there on desk, the actual wording.
The judge smiled, and said he learned something new.

Another time, we took issue with arrears and how they were considered when applying late charges.
The judge really couldn't understand the point. We informed him, it allows us to move quickly when evicted tenants for non-payment.
We should have recieved the decision in July 2010.
When we return to Canada in may 2011, we will follow up with the courts.

It's not easy to do this.It takes a lot of our time, and sometimes money.
There will always be other tenants we will be able to apply these ruling to, down the road.

 

[Lil Skater]

The only problem is, tribunal. I agree that the tenant should pay until the property is habitable for another tenant to move straight in, this includes the property being clean.

ALTHOUGH - If this case was brought to tribunal, they will probably say that the tenant didn't take up occupancy of the property and therefore are entitled to a refund of rent money. But, the LL can apply for reimbursement of cleaning expenses if the tenant didn't leave the property clean from the bond.

Rent money and bond money are completely separate and the way I interpret the Victorian Act, is that the landlord/agents cannot withhold rent money if the tenant is not occupying the property, unless they paid extra to take them to the vacate date or it is a break lease situation.

I would be interested to see if this was brought to tribunal and the outcome of the situation though.

I know we are taught to allow the tenants to clean the property, if not then we will apply for bond monies, but as some have said, this can be a long and expensive process if the tenants disagree.

Property managers are not taught to spend the landlord's money, we're taught to work for the landlord, however, in this case it'd be more expensive and time consuming for the landlord to go to tribunal - even if the tenant decides to take them as the landlord still has to pay for the property manager to attend the hearing.

Unless they had a tenant due to move in the day after the other tenant vacated, meaning that they weren't able to take occupancy of the property on that day it hasn't cost the landlord anything, really.



If we go back to the original post though, it was purely talking about the refund of rent, which the tenant is entitled to. The rest is a separate situation altogether and needs to be treated that way, if the OP said this in the original post then it would've been a little clearer.

Next time, the OP knows to go straight for the bond money and tell the PM that they will not allow the tenants to visit the property again, however I think tribunal will say that the rent money has to be refunded as it is for occupancy of the property only.


EDIT - If you are self managing your property it perhaps wouldn't be such an issue to spend a day or two at tribunal, but for those with a property manager it is very expensive.

 

[kathryn d]

ALTHOUGH - Rent money and bond money are completely separate and the way I interpret the Victorian Act, is that the landlord/agents cannot withhold rent money if the tenant is not occupying the property, unless they paid extra to take them to the vacate date or it is a break lease situation.

Unless they had a tenant due to move in the day after the other tenant vacated, meaning that they weren't able to take occupancy of the property on that day it hasn't cost the landlord anything, really.


EDIT - If you are self managing your property it perhaps wouldn't be such an issue to spend a day or two at tribunal, but for those with a property manager it is very expensive.

If a property is rented Nov 1, but the tenant doesn't pick up the keys to move in until Nov 4 (because they were flying in from vacation), does that mean the tenant only starts paying Nov 4? The property was not available to anyone else, and reserve specifically for these tenants.

Yes , the LL has really lost money by the place being dirty. They couldn't have rented it to anyone in that condition.It was not ready for a new tenant.

Whether you use a PM or not, it does not change the rules.
Maybe you should add these clauses to all leases, as Savanna suggested, to cover future problems?

Edit:
There is no rent money owing, as possession was not given up until the property was clean.
In exchange for the additional 4 days rent, they saved themselves a large cleaning bill.

 

[Lil Skater]

If a property is rented Nov 1, but the tenant doesn't pick up the keys to move in until Nov 4 (because they were flying in from vacation), does that mean the tenant only starts paying Nov 4? The property was not available to anyone else, and reserve specifically for these tenants.

It was not ready for a new tenant.

Whether you use a PM or not, it does not change the rules.
Maybe you should add these clauses to all leases, as Savanna suggested, to cover future problems?

Edit:
There is no rent money owing, as possession was not given up until the property was clean.

If the property was rented it means the tenant has already paid their bond money and their rent. It is not officially rented until this has happened and the lease agreement signed. That's how it works in my office anyway.

Did they have other tenants lined up? No, therefore lost nothing.

No, it doesn't change the rules, but it changes the price of a tribunal hearing.

As for the clause in the lease, we call the landlord BEFORE giving the keys back to the tenant. Many don't mind as we are saving them money by giving the tenant a chance and making the change over process quicker.

The point I'm trying to make is rent is different to bond. Bond is there for expenses after the property has been vacated by the tenant, rent is for the occupancy of the property. They shouldn't have left the property dirty, but this is why we hold a bond, once they've handed the keys back they are not responsible for rent unless they handed them in earlier than they said they would or broke the lease.

 

[kathryn d]

If the property was rented it means the tenant has already paid their bond money and their rent. It is not officially rented until this has happened and the lease agreement signed. That's how it works in my office anyway.

Did they have other tenants lined up? No, therefore lost nothing.

No, it doesn't change the rules, but it changes the price of a tribunal hearing.

As for the clause in the lease, we call the landlord BEFORE giving the keys back to the tenant. Many don't mind as we are saving them money by giving the tenant a chance and making the change over process quicker.

The point I'm trying to make is rent is different to bond. Bond is there for expenses after the property has been vacated by the tenant, rent is for the occupancy of the property. They shouldn't have left the property dirty, but this is why we hold a bond, once they've handed the keys back they are not responsible for rent unless they handed them in earlier than they said they would or broke the lease.

Ok...the rent and bond were paid before Nov 1, but they didn't reside in the property until Nov 4. Does that mean you give them a 4 day rebate? NO.
Same as the these tenants came back 4 days later and cleaned.What a PM's office does, makes no difference.

LL lost the ability to rent it.It was still under possession of the tenant, for which they are entitiled to be compensated.

You lost me on how you are saving a LL money by allowing a tenant a chance to clean. If a cleaning company is required, it would be taken from the bond.Doesn't a PM have cleaning companies to call,on short notice?

How does your company handle this situation, if there was a tenant ready to move in the very next day.The OP had stated they had already cleaned this property for 2 days?

 

[JamesGG]

There are two very separate issues being argued here and I think the muddling of the two is what may be causing some confusion.

On rent to be paid; rent is payable and apportioned on a daily basis between the commencement date of the lease and the termination date of same. This one is quite clearly stated in the Act, as I posted earlier.

Possession by the tenant is extinguished even if they do not leave the property in reasonably clean condition. A tenant who is invited by the property manager to clean the property after termination does not have possession of the property and cannot be charged rent for returning to the premises outside of a lease - especially under invitation by the landlord or property manager.

The condition of the property and any amounts recoverable is an entirely separate matter to any rent which may be owing or refundable on the date of termination. If the property is not in a suitable condition upon the tenant vacating the premises, then the landlord can choose from two options; either request the tenant to come back and clean the place, or, apply for funds to be withheld from the bond to cover the costs of having someone else do it.

History and experience have shown the latter option to be an effective threat (in most cases) for enacting the first, which is why the method is popular with many property managers.

I don't like the rules, either, but the legislation and current case law work against the residential property investor when in dispute with a tenant. Knowing just what the rules are, though, does go a long way when assessing which battles are worth fighting.

 

[kathryn d]

I give up
If LLs want to blindly follow their all knowing PM's around, and waste more money, who am I to complain.

Self-managers like us, know the importance of looking after our own interests a bit better.We also learn from our mistakes, and try to minimize them in the future.

 

[Perp]

Perp,
Bad tenants are mostly full of hot air.

We "try it on" all the time.

If you're suggesting that landlords should "try it on", as Peterw has said can be successful, then fair enough. But the fact that some tenants will accept it doesn't change the rules. The fact that many landlords and PMs don't bother trying to get more money from the tenant than they're legally entitled to, doesn't make those landlords "not pro-active", lazy, or whatever insult you're throwing today. It means that they know the rules of the domain and play by them.

How do you know there is not a precedent?

Um, from going to QCAT on this very issue more than once... do you think I'd just be making it up? Last time the adjudicator raised an eyebrow at the PM like "you're kidding, right?". The PM got a dressing down for even trying it on, because "any competent PM should know that's not how it works". Having seen the adjudicator's reaction, I wouldn't even "try it on", because it risks jeopardising your legitimate claims; you run the risk of appearing to be a bullying, "cowboy" landlord, and the Tribunal wipes the floor with those kinds of landlords. (It's not pretty.)

Do you think a tenant is going to come back from interstate (as the OP said) to attend a hearing for possibly 3 days?

They don't have to. They'd ring the RTA or Tenants' Union, and be told to write a statement outlining the relevant dates, and that'd be enough for the landlord to lose. It's not even a close call at Tribunal, trust me! The state in which the property was left is completely irrelevant as to when the tenancy terminated; it's only relevant to assessment of how much bond can be withheld.

This is exactly how I envisaged the law working !!! if, for whatever reason, the property is not ready to rent to someone new, the previous tenants keep paying until it is.
This looks like another "special condition" to be included on my next lease.

I don't believe there's provision in any Australian residential lease for tenants to pay damages for consequential losses as a result of the property being unable to be tenanted by another party. I'm pretty confident that any special condition trying to impose this would be void, but as per above, if you want to "try it on" and hope somebody doesn't know their rights, good luck.

I would be interested to see if this was brought to tribunal and the outcome of the situation though.

Certainly in QLD, as per my comments above, the landlord wouldn't have a hope.

If a property is rented Nov 1, but the tenant doesn't pick up the keys to move in until Nov 4 (because they were flying in from vacation), does that mean the tenant only starts paying Nov 4?

If they've signed a lease starting Nov 1, then they pay rent from Nov 1. But in Australia, as I'd assumed you would know, we don't rent by calendar months. The 1st has no particular significance. If such a situation arose, the tenant would simply ask for the lease to begin on Nov 4, and the landlord's option would be either to accept a Nov 4 start date for the tenancy, or try and find another tenant who's willing to pay from Nov 1. (Or tell this tenant they have to pay from Nov 1 or their application is rejected.)

JamesGG absolutely hit the nail on the head with all his comments.

 

[kathryn d]

Perp,
As you can tell from most of my posts I have very little use or respect for MOST PMs.I was never insulting, and if it was construed as such, I apologise.

If PMs were right all the time, there would never be any LLs complaining about them.

I have no idea what you may be "making up", as I don't know you, and you don't know me.

I just try to tell people they should start thinking for themselves, question when something doesn't seem just etc.

There are so many "old wives tales" when it comes to rules, many people think it is true. Years ago, they may have been.

You're also right. I wouldn't want a PM representing me at tribunal either.The passionate LL would be a better choice.

 

[Perp]

There are so many "old wives tales" when it comes to rules, many people think it is true.

I hear you, and I can't stand old wives' tales myself; it's a personal pet peeve, actually, and you'll often see me addressing some of them on Somersoft. All I can say on this particular issue is that I'm not a PM, I'm a passionate landlord, but I have made some significant effort to educate myself about my rights and responsibilities.

I got the sense that you were saying "I don't care how many Tribunals have ruled on this matter, you should try and change it!", but perhaps you just didn't realise that I've actually seen several different Tribunal adjudicators address this very matter, and thought I was just repeating what I'd heard somewhere.

I really do try not to make definitive statements unless I'm very sure; if I'm less sure, I try to take care to say "I believe" or "I think" or "I understand", rather than state something as fact.

 

[kathryn d]

I hear you, and I can't stand old wives' tales myself; it's a personal pet peeve, actually, and you'll often see me addressing some of them on Somersoft. All I can say on this particular issue is that I'm not a PM, I'm a passionate landlord, but I have made some significant effort to educate myself about my rights and responsibilities.

QUOTE]

I was always under the impression you used PM's, sorry I didn't know you self managed.

You and I have different views, and that will just need to be a given.
What we do, works for us very well.
We don't fight every battle, but pick a few here and there.

Part of my personality will be to offer suggestions, or encouragement to other posters here.Yours will be to show it may be a difficult road, if they decide to take it.Hopefully through discussions forums, such as SS, people will learn something.

 

[chris01]

Just quick up-dating:

The tenants initially said they couldn't find the kitchen sink plug. We told them through the property manager that if they failed to return or replace the plug then we had to deduct $20 from the bond. They eventually returned it.

I knew from the begining that the tenants stole the plug.

 

[zepth]

Wow that's an expensive plug!

 

[chris01]

Wow that's an expensive plug!

When you drive around and around to look for the plug that matches the sink, of course it becomes expensive. I don't get petrol for free.

The main issue here is not about the cost of the plug BUT stealing. They are theft.

 

[kathryn d]

When you drive around and around to look for the plug that matches the sink, of course it becomes expensive. I don't get petrol for free.

The main issue here is not about the cost of the plug BUT stealing. They are theft.

Congratulations !!!
You are getting the right attitude. You will be a very successful investor.