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James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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Here is my situation: •I have a rental property, self

Customer Question

Here is my situation:
•I have a rental property, self managed;
•In September- October my tenant informed me that he was building a home and planned to move out;
•At the same time, my tenant was approx. 6 weeks behind in rent;
•We met and agreed on a repayment plan;
•My tenant and myself came to an agreement that he would vacate on or about December 24th 2015;
•I was unable to conduct a final inspection prior to my tenant moving out as I had just started a new job, and we couldn’t organise a mutually agreed time and then I was away for Christmas;
•We agreed to do the final inspection on New Years Day at 1.00pm;
•I received a txt at approx. 5am on New Years Day from my tenant saying that he was not long home and wouldn’t be available at 1.00pm but I should text him with another time;
•I was busy in the afternoon of New Years Day and the day after;
•I said that I would be coming to do the final inspection on or around 11am on Sunday 3rd Jan;
•I arrived at approx. 11.10 and conducted the inspection of my unit, Taking photos as I went. He didn't show up… ;
I have called, texted and emailed him, (I have logs) but I have not received any response. He still has keys to my unit, and he didn’t give me a forwarding address.
As of Christmas day he owed me 3 weeks rent, and there is approx. $500 of damage/clean up that I consider to be his responsibility.
Consumer affairs said that I should seek an abandonment order, a possession order, and a compensation order. They also said that I am unable to make any changes to the property in its current state until it has been inspected.
Can you please advise me about my next steps.
I would appreciate it if you could treat my matter as urgent, I know that everybody says that, but my tenant is from Sri Lanka, and I fear that he has debunked.
Many thanks. *****
Submitted: 1 year ago.
Category: Australia Law
Expert:  James D. Ford replied 1 year ago.

Hi Karyn

Had a bond been paid? and is it currently still held with the Rental Bond Authority?

Was there a standard lease in place? what was the end date of the lease? I assume it is a residential property.

Did the tenant provide you with a formal Notice to Vacate the Property?

I await your responses before proceeding further, kind regards, James

Customer: replied 1 year ago.
A bond of four weeks was paid when my tenant moved in 8 years ago, and yes it is with the Bond Authority.
I went though a real estate agent for the first year. (original lease) then have self managed since then with no lease.
No the tenant did not provide me with a formal notice to vacate.
Expert:  James D. Ford replied 1 year ago.

Was a Condition Report prepared 8 years ago when the tenant took possession of the property? Do you have a copy?

RESIDENTIAL TENANCIES ACT 1997 - SECT 241

Order of Tribunal that premises are abandoned

(1) If a landlord believes that a tenant has abandoned rented premises, the landlord may apply to the Tribunal for an order declaring that the tenant has abandoned them.

S. 241(2) amended by No. 45/2002 s. 80.

(2) An application under subsection (1) must be heard by the Tribunal within 5 business days after the application is made.

(3) On an application under subsection (1), the Tribunal may by order declare that the rented premises were abandoned by the tenant on a day specified by the Tribunal.

(4) The tenant is deemed to have abandoned the rented premises on that specified day.

Customer: replied 1 year ago.
there was a condition report, and yes I have a copy. what do you suggest my next steps should be?
Expert:  James D. Ford replied 1 year ago.

Karyn, to start, you will need to obtain an order from VCAT that the premises have been abandoned pursuant to s241 above.

As the tenant has abandoned the Property, once you obtain an order confirming this.. there is no need for a separate possession order.

You can seek payment of unpaid rent now... to the periodic date of the lease.. rent was most likely payable on a monthly basis (you need to work out what day of the month this was)... you can obtain this from the date of expiry of the last written lease that was signed...

RESIDENTIAL TENANCIES ACT 1997 - SECT 39

Accrual of rent

For the purposes of this Act, rent under a tenancy agreement accrues from day to day and, subject to section 242, is recoverable or refundable accordingly.

Then if unable to obtain the rent directly, you can ask for it from the bond, as well as $$ to bring property to the proper state of condition (hopefully there is enough to cover the amounts owed..).. if not you will need to decide if you want to chase the tenant for any additional sums.

The current condition of the property, may need to be inspected... to verify (so all is above board).

Kind regards,

James

Expert:  James D. Ford replied 1 year ago.

I understand the tenant has left no forwarding address.... so it will be hard to chase them for the unpaid rent...

If you can find the tenant, and request they pay the rent...

Please note the following:

RESIDENTIAL TENANCIES ACT 1997 - SECT 428

Tenant must not use bond as rent

A tenant must not refuse to pay rent on the ground that the tenant intends to regard as rent paid by the tenant the bond or any part of the bond paid in respect of the rented premises.

Penalty: 20 penalty units.

Expert:  James D. Ford replied 1 year ago.

Here is the relevant section regarding - making an application for payment of the Bond to you...

RESIDENTIAL TENANCIES ACT 1997 - SECT 414

Application to Tribunal by landlord

S. 414(1) amended by No. 52/1998
s. 236(s)(i).

(1) A landlord may apply to the Tribunal under this section if—

(a) the tenant has delivered up vacant possession of, or abandoned the rented premises; and

(b) an amount of rent has accrued due and is unpaid; and

(c) after making all reasonable inquiries, the current address of the tenant is unknown to the landlord.

S. 414(2) repealed by No. 52/1998
s. 236(s)(ii), new s. 414(2) inserted by No. 45/2002 s. 74(1).

(2) An application under this section must be made within 10 business days after—

(a) the tenant delivers up vacant possession of the rented premises; or

(b) the landlord becomes aware that the tenant has abandoned the rented premises.

Expert:  James D. Ford replied 1 year ago.

You need to make the above application quickly.. please note the 10 business day time limit!!!

Kind regards,

James

Customer: replied 1 year ago.
thank you
Expert:  James D. Ford replied 1 year ago.

I will send you an offer of additional service to assist you further, as I note the urgency and I have provided quite a lot of info above,..and I just want to make sure I have not confused you... kind regards, James