What clauses can I put in a lease?

[jennyn]

A few days ago I posted about my tenants going on holiday and their friend moving in. I've since found out the tenants have gone back to NZ for good, abandoning the unit. The friend was supposed to go to the agency today to fill in an application form and put on it that the tenants have gone for good.

If the friend checks out okay I might let him rent it. The lady across the hall who called the police on him said he's nice and has manners (although he's had 2 parties in 4 weeks).

So far I've come up with:

1. No smoking

2. Any damage from smoking eg stained walls, will be paid for by tenant.

3. No parties/disturbances

4. No overnight guests.

5. Tenant pay for carpet steamcleaning at end of lease.

6. NO SUBLETTING!

If he has parties I'll know because the lady upstairs and the lady across from my unit will ring me and let me know (like they did on Tuesday about his party and the fact that's he moved in there). The rest of the neighbours are seniors, and I'd like my tenant to fit in with them because they're nice people.

Any other suggestions?

 

[willair]

Jenny,
proposed use of premises,
references,
any insurance hazards,
security bond,
commencement date,
type of lease,
chattels,
repairs,
heavy articles,
not to deface,
Rent,amount per month or per annum,when and how the rent is reviewed.
have the clauses that suit your individual circumstances.
good luck
willair..

 

[Lplate]

Jenny

What's the point, by moving in without approval he has already shown that he is not wlling to abide by the conditions of a lease. Whole thing sounds suspect to me. I've had crook ones that checked out perfectly and acted very polite - at first.

Trying to control a smartie (if he is one) with subclauses is hopeless. This fellow sounds as though he knows his way around. Do you?

He's not doing you any favours.

All the best with it,
Lplate

 

[geoffw]

Most important!

Make sure that the bond is in the name of the new tenant (the old bond may have to be refunded and a new one set up)

If the new tenant does not have a bond in his name there colud be problems later.

The tenant has to have "hurt money" otherwise has a disincentive to stay.

 

[Jamie]

Hi Jenny,

Just a couple of points...

First of all, Im in complete agreement with Lplate... the fact that the the new tenant is handy doesnt necessarily make them ideal for the property. The fact that the previous tenant (who bailed on you) chose him/her to take it over doesnt inspire confidence in the near future.

It seems you have a Property Manager - what input have they had?

My other point is with your list of possible rental clause inclusions...

I dont see much of an issue with any of them, except for:

3. No parties/disturbances

4. No overnight guests.

Yes, you can specify, (and indeed, other tenants rights are already protected) that no unruly behaviour transpire at the property.. but how do you define a "party"? A certain number of patrons? A certain decibel level of music?

My other issue is with telling tenants they can "not have overnight guests".
You can specify on the lease the number of persons who "normally live at the premises". But, IMHO, you can NOT tell these people who they can and can not have spend an overnight period in the house. You are indeed welcome to put this clause in your proprosed lease, but be prepared for prospective tenants to turn your property down in favour of those properties with less restrictive terms.

As a landlord, you can indeed ensure the upkeep and wellbeing of your property... you cannot, however, encroach on the "peaceful enjoyment" of the property your tenants have paid for. If you legislate who can and cant set foot in your property, Im envisage a prolonged period of vacancy in your house - something no landlord wants.

Best wishes,

Jamie

 

[Alan H]

Jenny,

You can put whatever extra conditions you like in a lease, but don't expect that all of them are enforceable.

For the first few years I always had an extra condition stating the tenants must steamclean carpets on exit. As you would be aware, in NSW when a lease is signed the tenant must also receive a copy of the "Renting Guide" Booklet. In fact, in the standard lease, there is a section at the back that needs signing to confirm they have received this booklet. I don't have a copy of the booklet handy, but I suggest you have a read of it. Certainly in the last few years it discussed things such as extra conditions and uses the specific example of steamcleaning saying that the tenant CANNOT be required to do this.

It makes you look a bit silly if you put in a condition in one place and then give them a booklet saying that it's not enforceable anyway on a separate piece of paper.

Now, it's not to say that if you put some of these conditions in, that the tenant won't try and comply with them, hopefully many will comply with a written agreement between two parties. However, you may wish to do a little more research as to what you can 'leagally' ask them to comply with if only for the sake of you knowing which ones you realistically can't enforce later on.

Good luck.

 

[Kristine..]

Just a comment on the 'Steam Cleaning' issue:

This is generally taken as being a social nicety, not a legally enforceable condition even if the tenant has signed that they will steam clean when they vacate.

My last vacating tenants in property (A) paid $180 for a local steam cleaner and the job was so awful that I paid $280 to have the job done again, properly.

Property (B) did have a good job done, but when I inspected the house, I decided that the carpet was too worn to be safe, and had it replaced. I felt guilty for weeks knowing that they could have saved their $250 dollars if I had known the state of the carpet beforehand.

Jenny, it is better to have the property empty than to feel you are being held to ransom by a shifty tenant.

Why not just issue Notice to Vacate and advertise for a new tenant? If you feel your property manager is a bit weak shop around for a tougher one. Property investment is not meant to be a worrying investment, ideally you shouldn't have to think about it at all. By the time you try and reinvent the wheel putting in all sorts of non-enforceable clauses and conditions you could have got rid of this tenant and got a nice new one!

And regarding smoking, I wouldn't like your chances at enforcing this. Smoking is legal even if you don't like it and the tenant is entitled to 'quiet enjoyment' of the property. You could possible try to get a 'smoking penalty' of, say, $5 per week added to the rent - I allow pets and add a 'pet rent' to cover the extra wear and tear and additional cleaning expense.

cheers

Kristine

... and regarding politeness - Hannibal Lecter was very courteous and polite but he ate people! My apprentice was nice and polite - do you take my point? This person is illegally occupying the premises, never mind nice and polite! Don't wait until he eats you.

 

[jennyn]

Thanks for your replies.

My PM is supposed to be a tougher one than others in the area but doesn't seem to be in this situation. I don't think he's had to deal with many of these situations before.

PM asked me if I wanted him for a tenant if he checked out okay. On Friday morning I said no.

On Friday evening PM rang me to tell me he spoke to the squatter and he seemed genuine and wanted to do the right thing and told my PM that the real tenants had left for good.

I wondered why if the squatter wanted to do the right thing he didn't contact the agency as soon as he moved in but waited until the PM stuck a letter under the door.

He was supposed to come into the agency (3 mins walk from the unit)Saturday and fill out an application form so I would have proof of abandonment and we could fully id him and my PM was going to ring me Saturday after he met with him.

So far PM hasn't rung (it's Sunday afternoon) and he's been pretty good about ringing me to keep me up to date.

PM said all their leases have a no smoking inside clause in them.

I had to suggest to PM to ring tenant's employer to find out if he'd gone for good. I also told him Crest133's suggestion to make squatter fill in application form and put the reason why he wanted to move in was that the tenant had gone for good so I would have proof of abandonment. PM "hadn't thought of that".

I found out about this squatter on Tuesday morning and now it's Sunday and all PM has done is talk to him so I'm getting a bit cheesed off now.

The rent is paid to 17 May.

I hope squatter has moved out since I haven't heard from PM. If he hasn't and didn't turn up at the agency yesterday that's it. He's out.

I understand what you're saying about him being bad news. I'll have to wait until tomorrow and see what PM has got to say.

 

[jennyn]

P.s.

I'm going to try to get as much of tenant's bond as I can and of course I would make squatter if he becomes new tenant pay the normal bond amount.

 

[crest133]

Your occupant has clearly demonstrated that he has no respect for your ownership of the property, or for leases, let alone sub clauses. His behaviour defines the type of tenant he would be.
There seem to be a number of opinions about how the Tribunal works, and that's confusing so I suggest you ring the Dept of Fair Trading and ask for clarification.
As I understand it, you are within your rights to ask for an urgent hearing and orders for immediate termination of the tenancy and immediate possession of the property
" because your tenant has abandoned the property, and some unknown rowdy person or persons has moved in (squatter), perhaps more to come, and you are concerned for the safety of the property, and the occupant(s) is not acceptable as a tenant. "
The PM sounds weak, he should have immediately completed a very thorough inspection with photos etc. and removed the occupant, while finding you a good tenant.
good luck
cheers

 

[Lplate]

Jenny
I know nothing about NSW tenancy regulations. However in Qld you call the cops and usher a squatter out forthwith. There are no niceties and the 'process' is covered in the RTA Qld site. There is also a process for reclaiming abandoned premises, which must be followed.

I suspect you may have created a very awkward problem if you accepted rent from this fellow. If so, I would hand it back and get him out. What he does is a completely separate issue from the lease - which is still current. But give him time and he could get a letter from the NZ bunch claiming he sub-let from them or whatever. What if he gets a letter saying he is their guest?

You must follow due process or you walk into a quagmire.

Lplate

 

[Lplate]

By the way, I think he is not a squatter because the lease is current. However he is trespassing.

If I found someone living in my tenants' house when they were away and the circumstances seemed suspicious in any way I would call the cops. I'd be trying to protect their interests and mine.

 

[jennyn]

As far as I know he hasn't paid the rent. I'm assuming the tenant paid extra rent before he went to NZ but I don't know why he did that now. there was an extra payment of 2 weeks rent about a month ago and I thought the tenant was going on holiday or trying to get ahead while he had the money on him.

I asked PM about doing an inspection last week and he said it would be illegal to do one without notice and illegal to do one by just sticking a letter under the door saying one would be done in so many days. He said all he could do would be to stick a letter under the door saying please contact me about arranging an inspection.

PM said he could get in big trouble if he just walked into the unit, even while squatter was out.

 

[Aceyducey]

By the way, I think he is not a squatter because the lease is current. However he is trespassing.

He's not on the lease!!!

He's illegally trespassing & I'd have the police assisting him out of the premises pronto.

Cheers,

Aceyducey

 

[Jamie]

I asked PM about doing an inspection last week and he said it would be illegal to do one without notice and illegal to do one by just sticking a letter under the door saying one would be done in so many days. He said all he could do would be to stick a letter under the door saying please contact me about arranging an inspection.

PM said he could get in big trouble if he just walked into the unit, even while squatter was out.

Hi Jenny,

I seriously consider a new PM - the one you have doesnt seem to know what they are doing. The tenants have voluntarily left the premises and are not coming back - therefore the property is vacant.

It doesnt matter whether the squatter is home or not, or whether they agree to an inspection or not... they are in the premises illegally and have no right to be there. Neither you nor the PM agreed to their tenancy, so they are in fact trespassing.

Im surprised your PM has this attitude to the property... Id certainly be asking them why they believe this course of action is in your best interests.

Jamie.

 

[Lplate]

Jenny
From all accounts the residence is abandoned and it is your responsibility to inspect and secure it. In these situations gas, power, water could be left on and the house may not be secured.

If it burns, floods etc your insurance is unlikely to pay if you were aware and did nothing.

Who knows, the trespasser could have flogged off your tenants' gear too. You are responsible for property 'abandoned' by your tenants and you can't just let a stranger have access to it.

Get the PM to act if you think you are at risk (and you could be) or better still, have a constable accompany you along with a locksmith.

Lplate

Note: ring the Dept of Fair Trading in the am and ask for some information

 

[Mitzi]

Hi Jenny

Looks like you have all the advice you need - one point about what clauses you should include. You can put whatever clause you like on a lease provided it does not override the Res Ten Act. You can certainly discriminate against smoking (and pets). What you cannot discriminate against are attributes eg. age, sex, handicap, sole parent, race, religion etc. Smoking is not an attribute and therefore can have a clause excluding it. It's a hard one to police but worth a try if you've ever seen what it does to paintwork and furnishings.

Cheers

Mitzi

 

[Gill Bates]

Re
6. NO SUBLETTING! A lessor can not reasonably prevent this in QLD, do not know about other states.

QLD POA - Property owners association has a very good list - few pages long.

See http://www.poaa.asn.au/qld/index.htm
ie
"Publications / Forms / Signs
The POAQ sells a number of publications; forms such as Application for Residential Tenancy and Recommended Special Terms for General Tenancy Agreements; along .... "